Brennan v ACT Health [2025] FedCFamC2G 1533

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. On 30 October 2024 the applicant, Mr Brennan, filed an application and accompanying Form 2 claim form alleging multiple contraventions of the Fair Work Act 2009 (Cth) (FW Act) by his employer, the first respondent, ACT Health, however it be properly named. On 1 May 2025, the Court ordered that the matter should proceed on pleadings.

1. Mr Brennan alleged that he had been employed by the first respondent as Assistant Director, Clinical Systems Governance. On 18 May 2023, he underwent major surgery and took sick leave until 14 June 2023. Historically, Mr Brennan had spent a lot of time working from home but was frequently hindered by poor internet connectivity, which he appears to blame on the IT support he was provided by the first respondent.
2. Mr Brennan had accrued a significant amount of unused annual leave and, on 3 July 2023, the second respondent sent him an email requiring him to provide by 10 July 2023 an annual leave usage plan. That is, as I understand it, he was asked to indicate how he might reduce his annual leave entitlement accrual. Mr Brennan advised the respondents that he did not wish to take annual leave at that point as he was still in considerable pain and had not yet recovered from surgery. He was placed on performance management from July 2023 onwards until his employment was terminated some time later.
3. The matter is presently before the Court to entertain argument concerning Mr Brennan's proposed statement of claim. Mr Brennan also seeks to join two additional alleged decision-makers to the proceeding as the third and fourth respondents, to which the present respondents have consented.

1. Though I gather that the situation will be different come the introduction of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) on 1 September 2025, there is no provision in the current rules of the Court for a party to make one amendment to their initiating documents without leave. As things presently stand, any amendment to a document needs to obtain leave. Admittedly, although the present situation is not formally an amendment, in substance it is and that is how the issue has been approached, in that replacing the Form 2 claim form with a pleading amounts, in a practical sense, to an amendment.
2. Given that leave is required, it is unsurprising that the respondents have objected to parts of Mr Brennan's proposed statement of claim which they consider objectionable. It would be inappropriate of the Court to allow a pleading, or parts of a pleading, which would be susceptible to being struck out or dismissed in whole or part. The matter is still in its earliest stages and no evidence has been exchanged except in connection with the present interlocutory argument. Consequently, it would be premature to seek to consider whether aspects of the proposed pleading do or do not have reasonable prospects of success such that they might be summarily dismissed. However, the Court can decide whether or not the pleading discloses on its face a reasonably arguable cause of action.
3. The proposed pleading is long because it seems that Mr Brennan made a large number of complaints in association with his employment, and the proposed pleading recounts that history. The best way to proceed through this document is to go to the paragraphs to which the respondents have made objection and indicate the Court's view of them.
4. Starting first with [24] to [26]. On the face of it, because of the allegation in [25] that Mr Brennan complained about "his ability to carry out his role given the first respondent's faulty IT equipment", the proposed statement of claim does, on the face of it, set out a reasonably arguable cause of action. However, I note the respondent's complaint that the communications particularised in [24] do not actually support the allegation, so I would invite the applicant to consider whether those particulars do indeed support it. In that connection, it struck me during the course of argument today that, to some extent, Mr Brennan's complaints about his ability to carry out his role were to be inferred from his communications, rather than something that was expressly pressed in them. If the evidence in support of any one of these allegations of complaint about the first respondent's IT services is based on very weak inferences, Mr Brennan might reconsider his position in relation to them.
5. Ordinarily, a complaint about IT services would not seem to be something which would engage workplace rights protected by the general protection provisions of the FW Act. However, the way Mr Brennan has pleaded the issue, assuming that it can be supported by evidence, might bring the matter under the FW Act. At this point, in the absence of the evidence, it is too early to tell whether or not the allegations will meet the criteria of the FW Act and, in that connection, I think that regard should be had to what the Full Court of the Federal Court said at [59] of Alam v National Australia Bank Limited [2021] FCAFC 178; see also Masti v Finohelp Support Pty Ltd [2025] FedCFamC2G 134 at [40] to [42].
6. Moving on, I would allow [27] to [30] because [27] (b), (c) and (d) allege conduct on the part of the first respondent which would, at least on the face of it, appear to involve an alteration of Mr Brennan's position to his detriment or some other injury to him in his employment.
7. Paragraph [63(c)] does not make sense to me as it misunderstands the operation of item 1(d) of s.342(1) of the FW Act. The allegation there is that the conduct fell within item 1(d) of s.342(1) of the FW Act, which is discrimination between the employee and other employees of the employer. That is not what is alleged in paragraph [63(c)]. The same can be said of [76(c)], [84(c)] and [180(c)].
8. Paragraph [68] is only a factual allegation and ought to be allowed.
9. The comments I have made concerning [24] to [26] also apply to:

(a) [48] to [51];

(b) [64] to [66];

(c) [72] to [74];

(d) [77] to [79];

(e) [85] to [87];

(f) [89] to [91];

(g) [96] to [98];

(h) [103] to [105];

(i) [107] to [109];

(j) [113] to [115];

(k) [121] to [123];

(l) [125] to [127];

(m) [134] to [136];

(n) [140] to [142];

(o) [147] to [149];

(p) [151] to [153];

(q) [155] to [157];

(r) [163] to [165];

(s) [169] to [171]; and

(t) [174] to [176].

1. In contrast is [187(c)], because that amounts to a proper pleading of discrimination between employees and is based on a characteristic protected by s. 351 of the FW Act.
2. Paragraphs [196], [197], [201], [205], [209], [213], [218] and [223] were objected to by the respondents, but I consider them to be adequate allegations of adverse action by reason of physical disability.
3. I will grant the applicant leave to file a statement of claim having regard to the comments that I have made. If, for any reason, the respondents consider that there remain deficiencies in the pleading, they can take such steps as they consider appropriate at that time.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.