AXR54 v S.M Adams trading as Piper Alderman [2025] FCA 1509

Federal Court of Australia|2025-12-01|Before: Perram J

The applicant alleges that the first respondent took adverse action against her because she exercised workplace rights. One strand of that case is concerned with various complaints she made during the course of her employment. The respondents summarise these complaints as being complaints about:

(a) the tasks she was being assigned by her supervisors in various litigation;

(b) her career progression within Piper Alderman;

(c) her email communications with colleagues about litigation;

(d) her leave entitlements and her study leave;

(e) her personal leave and medical certificates;

(f) conditions as to how she was to inform her colleagues about her "Flexible Work Request";

(g) bullying behaviour by Mr del Gallego.

45. ... At that meeting:

(c) The Applicant raised issues with Ms Sambrook's statements, that they were inconsistent with facts, that the 15 April Direction was not reasonable, and said that she had informed Ms Sambrook that she had to prioritise the JMS Affidavits Workstream, stating words to the effect of, "even Marty had told you that that workstream had to be prioritised before your task; your task needed a lot more time, there were too many documents to review", reminded them of the circumstances in which she was working in April (noted at paragraphs 27, 28, 38 and 42) and that Ms Sambrook had herself removed the Applicant from the KS Task, and that Ms Sambrook frequently imposed unreasonable deadlines and "really needs to" give the Applicant clear instructions and unreasonable deadlines (Second KS Complaint).

The respondents rely on what Snaden J said in Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677 at [150]:

... in order that a complaint or inquiry made in relation to employment might qualify as the exercise of a workplace right, an employee must first demonstrate that it was made in the exercise of, or otherwise to protect or vindicate, some right or entitlement conferred upon them, whether instrumentally or otherwise. It is not sufficient that a complaint or inquiry is made simply because the employee feels (with good justification or otherwise) that he or she has something about which to complain or inquire.

This may or may not well turn out to be a good point for the respondents at trial but it is difficult to assess on an application such as the present where the full industrial circumstances are not known.
The third point relates to the applicant's use of the pleading device of 'and/or' which the respondents submit means that in many cases they do not know the case they have to meet. Again, this is a matter which can be resolved by a request for particulars.
The fourth point relates to the statement of claim at [249]-[250]. They were as follows:
1. At all material times, by reason of paragraphs 13 to 16, the First Respondent knew that the Applicant was entitled to the workplace rights set out at paragraph 12.
2. By reason of paragraph 249, the First Respondent's contravention(s) of ss 340 (1), 343 and / or 344 of the FW Act is a serious contravention under ss 539 and 577 A of the FW Act.
However, this pleading has been changed somewhat in the amended statement of claim and is now found at [255]-[257]:
1. At all material times, by reason of paragraphs 13 to 16, the First Respondent knew that the Applicant was entitled to the workplace rights set out at paragraph 12.
2. By reason of paragraphs 6 to 255, in so far as Conduct 2, Conduct 4, Conduct 8, Conduct 9, Conduct 10, Conduct 11 and / or Conduct 12 is concerned, the First Respondent knowingly or recklessly contravened ss 340 (1), 343 and / or 344 of the FW Act.
3. By reason of paragraph 255 256, the First Respondent's contravention(s) of ss 340 (1), 343 and / or 344 of the FW Act is a serious contravention under ss 539 and 577 A of the FW Act.
The respondents' point is that the applicant has not made any attempt to explain how the knowledge of her workplace rights results in a serious contravention for the purposes of s 557A of the FW Act. I take the reference to s 577A in the amended statement of claim to be a typographical error since there is no such provision and read it instead as a reference to s 557A. It provides:

557A Serious contravention of civil remedy provisions

(1) A contravention of a civil remedy provision by a person is a serious contravention if:

(a) the person knowingly contravened the provision; or

(b) the person was reckless as to whether the contravention would occur.

Note: For the liability of bodies corporate for serious contraventions, see section 557B.

Example: Generally, subsection 323(1) requires an employer to pay an employee the full amount payable to the employee in relation to the performance of work.

A contravention of subsection 323(1) is a serious contravention if the employer knowingly does not pay the employee in full or is reckless as to whether the failure would occur. It does not matter if the employer does not know the exact amount of the underpayment.

(2) For the purposes of subsection (1), a person is reckless as to whether a contravention would occur if:

(a) the person is aware of a substantial risk that the contravention would occur; and

(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk.

Involvement in a serious contravention

(5A) A person (the involved person) who is involved in a contravention of a civil remedy provision by another person (the principal) commits a serious contravention of the provision only if:

(a) the principal's contravention was a serious contravention; and

(b) the involved person knew that the principal's contravention was a serious contravention.

Application for a serious contravention order and alternative orders

(6) If a person is applying for an order in relation to a serious contravention of a civil remedy provision, the person's application under subsection 539(2) must specify the relevant serious contravention.

(7) If, in proceedings for an order in relation to a serious contravention of a civil remedy provision, the court:

(a) is not satisfied that the person has committed a serious contravention against that provision; and

(b) is satisfied that the person has contravened that provision;

the court may make a pecuniary penalty order against the person not for the serious contravention but for the contravention of that provision.

There is no substance in this submission. If, as is alleged, the first respondent knew of the applicant's workplace rights and then knowingly or recklessly contravened ss 340(1), 343 or 344 then s 557A will be engaged.
The fifth point is that it was inherently more likely that the applicant had been dismissed from the first respondent's employment because she had been made redundant. This submission was based on a letter sent by Ms Guest to the applicant on 7 January 2025 informing her that she had been made redundant because the firm had received instructions that the applicant was no longer to work on the partner's two primary litigation files. No doubt, that will be the respondents' case at trial but I do not remotely see how I can say on an extension of time application that the applicant's case is so 'inherently unrealistic' (as the respondents submitted) as to deprive her of the right to a trial.
There will be no order as to costs although I would in future encourage the respondents to be more discerning in the submissions they advance.

(1) The time for the applicant to bring her general protections claim in this Court be extended to 26 March 2025.

(2) There be a case management hearing on 27 January 2026 at which time the matter will be fixed for hearing and timetabling orders made.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.

The respondents submit that the whole of the applicant's originating application is a 'general protections court application' as defined in s 368(4) even though it claims relief which, if it was in a separate originating application, would not be a general protections court application. The respondents' submission is supported by the decision of Logan J in Kelly v Corporation of the Synod of the Diocese of Brisbane [2023] FCA 829 ('Kelly') at [26]-[33] and contradicted by the decision of Katzmann J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Absolute Commissioning Group Pty Ltd (No 2) [2024] FCA 1324 ('Absolute') at [51]. In Absolute, Katzmann J concluded that Kelly was plainly wrong and declined to follow it. Without adverting to the conflict in the authorities, Burley J came to the conclusion that the time bar in s 370 only applies to those parts of the claim that relate to dismissal: Murdock v Virgin Australia Airlines Pty Ltd (No 2) [2023] FCA 569 at [108]- [117].
On the state of the authorities, I am not bound to any particular outcome. I prefer the approach taken by Burley J and Katzmann J. Section 368(4) is a definitional provision which only applies to the extent that the context does not otherwise require: Knightsbridge Estates Trust, Limited v Byrne [1940] AC 613 at 621 per Viscount Maugham (with whom Lord Atkin, Lord Wright and Lord Porter agreed); Betella v O'Leary [2001] WASCA 266 at [13] per Burchett AUJ (with whom Wallwork and Wheeler JJ agreed).
In this case the context indicates that the definition in s 368(4) does not apply to s 370(a)(ii) to the extent that an originating application claims relief which does not relate to dismissal. No rational purpose is served by requiring the time bar to apply to non-dismissal claims.

The relevant principles which should govern the Court's discretion to extend the time within which an application under s 170EA of the Act may be lodged are set out in the decisions of Keely J in Transport Workers Union of Australia v National Dairies Ltd (No 2) (1994) 57 IR 186 and Beazley J in Turner v K & J Trucks Coffs Harbour Pty Ltd (1995) 61 IR 412. In each case the Court applied the tests referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 349.

I agree, with respect, that those principles are appropriate to be applied in the circumstances of this matter.

Briefly stated the principles are:

Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.

Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.

Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.

The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.

The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion.

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