Evans v Electro Data & Generation [2025] FedCFamC2G 1682

1. These reasons for judgment arise from an evidentiary controversy relating to a general protection claim brought pursuant to the provisions of the Fair Work Act 2009 (Cth).[1] It arises at an interlocutory stage, as the final hearing of the parties' competing claims has been fixed for 4 December 2025. For axiomatic reasons, the issue needs to be resolved prior to that date.
2. In general terms, the current controversy before the court relates to the application of section 131 of the Evidence Act 1995 (Cth),[2] which prohibits the presentation of evidence, in court proceedings, relating to any attempt to negotiate a settlement of the relevant dispute between the parties concerned. As will be detailed in due course, this section is subject to a number of exceptions.
3. The section reflects long-standing public policy considerations that parties to litigation should be encouraged, wherever possible, to resolve disputes between them through negotiation thus saving both public and private expense and leading, wherever possible, to the expeditious resolution of litigation.
4. Underpinning this principle is the recognition that necessary settlement negotiations directed towards achieving this end should not be impeded by the fear, held by one party or the other, that matters disclosed, in any resulting robust and candid discussion between them, will be disclosed to the court in subsequent court proceedings and so conceivably prejudice the fairness of such proceedings or confine the party concerned to the position proffered in such discussions.
5. In the current matter, representatives of the parties engaged in a series of discussions, with one another, in proceedings relating to an Industrial Award which had been commenced on behalf of the applicant and two others, in the Fair Work Commission, by the industrial organisation of which she is a member.
6. It is acknowledged by the parties concerned that those discussions touched on matters which are the subject of the current litigation between the parties, in this court, pursuant to the general protection provisions of the FWA though not strictly congruent with them.
7. In this context, one party asserts that the relevant discussions are thus clearly subject to privilege and all references to them in affidavit material filed in the proceedings in anticipation of the final hearing should be struck out pursuant to the provisions of the court's rules.
8. On the other hand, the other party concerned asserts that no such privilege can attach to the discussions because, although they were directed towards settlement, it is clear from the circumstances surrounding them that, unless the discussions are admitted into evidence, the court itself may be misled about the nature of the case currently before it.
9. However, more importantly, it is submitted that the discussions themselves are indicative of the commission of an act, by those who made them, which is potentially subject to the imposition of a civil remedy penalty and as such, it is in the public interest that they be admitted_._ Underpinning this assertion is the contention that the impugned discussions, in a fundamental sense, pertain to a party's rights as delineated under the general protection provisions of the FWA.
10. These various assertions are said to fall within exceptions provided to the rule preventing the admission of settlement negotiations as contained in section 131(2)(g)(i) and (j) of the Evidence Act. This is the issue which the court must resolve at this stage of proceedings.

1. The applicant in the proceedings is Jessica Evans. By profession, she is an electrician and project administrator. She began employment with Electro Data & Generation ("EDG") on 2 February 2021, as an electrical technician on a permanent part-time basis, working 24 hours per week.
2. It is the effect of Ms Evan's evidence that she had extensive experience in the actual installation of large-scale electrical projects but also had expertise and experience in the administrative side of such projects, including applying for necessary permits and liaising with suppliers and contractors and general problem solving. She has deposed that her duties at EDG included both practical and administrative aspects.
3. On 2 December 2023, Ms Evans underwent surgery to remove a lump from her right breast. She had hoped that this surgery would be minor in nature, and so she would be able to return to her work, without restrictions, after a short period of recuperation. However, this did not prove to be the case.
4. Unfortunately, the surgery did not go as she had hoped, and it is her case that following it she experienced significant pain and sensitivity on her right side, which made her return to work impossible as well as impacting upon her capacity to tend to her own needs and those of her family. She has not returned to her workplace since. She was subsequently diagnosed as suffering from complex regional pain syndrome.
5. Ms Evans is a member of an industrial organisation - the Communications, Electric, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ("the CEPU"). The terms of her employment are covered by an enterprise agreement registered with the Fair Work Commission pursuant to provisions within the Act.[3]
6. A provision of the Award entitles all workers covered by its terms to income protection insurance of up to either the amount of their wage or a maximum of $1,500.00 per week, for a period of up to 104 weeks, in the event that any such worker becomes unable to return to work due to a medical reason.
7. It is Ms Evan's position that she was entitled to such income protection insurance because of her condition and had provided the prerequisite proof of her incapacity to EDG in the form of medical certificates from 15 January 2022 onwards from the various specialists, physiotherapists and general medical practitioners, who have been treating her since her operation.
8. In the initial period of her incapacity, Ms Evans did not receive any income protection payments from EDG and exhausted her leave entitlements. As a result, in early February 2024, she contacted an organiser employed by the CEPU, Alexander Capper, to take the matter up with the management of EDG, on her behalf, which he did.
9. As a result of this contact, Ms Evans began to receive her usual income payments. Her first payslip, issued in February, noting that she was subject to self-insurance income protection. Notwithstanding this payment, an issue remained about the reinstatement of leave taken in the immediate aftermath of her operation and the backpay of income protection payments to 15 January 2024.
10. It is common ground between the parties that EDG had not formally taken out insurance to indemnify itself in respect of its potential liability under the Award for any of its employees who became incapacitated for medical reasons but had decided, in effect, to bear any such liability from its own resources. Thus, in practical terms, meaning it was self-insured against this liability.
11. Ms Evans herself wrote to the occupational health and safety officers at EDG about backpay and reinstatement of her leave in conjunction with her the provision of her medical certificates in early April. Mr Capper wrote to Phil Worden, Ms Evan's manager, about the same issues, on 24 April 2024. The relevant portions of Mr Capper's letter indicating as follows:
    • Ms Evans be returned her leave entitlements used from 19 December onwards;
    • She be given back pay for the period between 15 January and 28 January 2024;
    • EDG agree to paying Ms Evan income protection payment of her weekly wage until she was medically cleared to return to work;

The letter concluded with the following statement:

We ask that the business make the rectifications by the 1st of May 2024, it the business fails to make these rectifications the CEPU may consider legal action on behalf of its member.[4]

1. On 8 May 2024, Kim Watts, who at relevant times was EDG's finance director, sent an email to both Ms Evans and Mr Capper noting that the former's last medical certificate had expired. Ms Watts further indicated that EDG accepted that Ms Evans could not return at that stage and undertake the technical field work, but it was proposed that she return to work in an alternative capacity, presumably in an administrative role. In this context, it was proposed that Ms Evans attend a work capacity assessment, which would be arranged by EDG.[5]
2. Ms Evans continued to provide medical certificates to EDG supporting her continuing incapacity and EDG continued to pay her fortnightly salary. It does not appear to be the case that either Ms Evans or Mr Capper formerly responded to Ms Watts' correspondence. Certainly, this is the effect of the evidence of Simon McMahon, who is the chief executive officer of EDG as well as the second respondent to the proceedings.
3. As will be detailed in greater detail, in due course, it is also his position that he was the effective decision maker in respect of various employment decisions pertaining to Ms Evans, which she has attempted to impugn in these proceedings, and which are central to the determination of her application overall.
4. In this context, he has provided an affidavit in anticipation of the hearing scheduled for later this year. Amongst other matters, it is the effect of Mr McMahon's evidence that Ms Watts sent a follow up email to Ms Evans on 13 May to which no response was received.
5. As a result of its perception that Ms Evans was not responding to its legitimate inquiries, EDG arranged a medical assessment of Ms Evans on 21 June 2024. In the letter advising her of this appointment, which was under Ms Watts' hand, EDG complained about the minimal information which it asserted Ms Evans had provide it in respect of her condition and its connection to her ongoing absence from work.
6. Ms Watts' letter contained the following paragraph:

Considering the above, we wish to seek an independent expert opinion about your capacity to undertake your regular duties or alternatively light administrative duties safely. As you are unwilling to provide us with an update as to your condition after numerous requests, we will be seeking the opinion of an independent medical practitioner.[6]

1. Mr McMahon has deposed that the relevant examination was conducted by a physiotherapist, Dierdre Leopardas, who provided a report to EDG on 21 June 2024, the salient portion of which read as follows:

Ms Evans reported that she does not feel physically, emotionally or mentally ready to undertake the physical components of the assessment nor does she have the concentration to return to light duties at work even office-based duties such as High Voltage reporting previously undertaken.

It is recommended that Ms Evans obtain medical clearance to undertake light duties at prior to undertaking the Functional Capacity Evaluation.[7]

Subsequently, Ms Leopardas confirmed that Ms Evans had indicated to her, during the consultation, that she (Ms Evans) was unable to undertake any of the physical tests, which Ms Leopardas wished to administer to her.

1. EDG provides industrial and commercial electrical and communication services, particularly those involving high voltage networks. It is the position of Mr McMahon that the Covid pandemic severely impacted on the level of work available to the firm.
2. In this context, he has deposed that from at least the beginning of 2023, EDG was experiencing a decline in high voltage/service work generally but was also losing maintenance tenders to lower cost competitors.[8] As a result of these factors, it is the effect of his evidence that steps were taken to make the organisation more efficient and, in early August 2024, he broached the prospect of redundancies with the staff of EDG in a general way.
3. On 12 August 2024, EDG wrote to Ms Evans, under the hand of Mr Worden, informing her of what was characterised as a business refocus which involved a reduction of its workforce due to a change in emphasis in its business. As with other employees of the firm, Ms Evans was advised that there would be redundancies.
4. It is common ground between the parties that, at this time, Ms Evans continued to be absent from the workplace due to her illness/incapacity but remained in receipt of her normal income. In these circumstances, on 12 August, she also received another letter, also under the hand of Mr Worden, which specifically informed her that she was to be made redundant from 16 August 2024.
5. The relevant letter was in the following terms:

As a result of the loss of a number of contracts we have carefully considered our staffing needs and business direction. This had led to a decision to reduce the overall staffing levels. Regrettably, you have been selected for redundancy.

We have reviewed whether there are any available positions for you but have not been able to locate anything suitable. Regrettably this means that we expect that your employment will be terminated on 16th August 2024.

We will be holding consultations with you about this at 1pm on Wednesday 14th August, at EDG's Office. At this meeting, you are welcome to put forward suggestions to mitigate or avert the adverse effects of this decision. In the meantime, we will release you from duty to enable you to consider the matters set out in this correspondence.[9]

1. Enclosed with the letter was an estimate of the amount of the redundancy package EDG proposed to make to Ms Evans, which included her accrued leave in an amount of $1,800.00; notice of three weeks in an amount of $3,182.00 and a redundancy of seven weeks in an amount of $7,426.00. The total offered was $12,987.00. Necessarily, it did not include any provision for her on-going income protection payments.
2. Ms Evans has deposed, as to what happened next, from her perspective, in the following terms:

On 14 August 2024 I sent an email to Mr Worden in which I advised that I would not be able to attend the meeting due to my medical condition. I asked why the letter on 12 August made no mention of income protection. I asserted that under the enterprise agreement I was entitled to ongoing income protection payments for 104 weeks.[10]

1. Ms Evans did not personally attend the meeting scheduled for 14 August due to the shortness of notice provided and her own incapacity. She nominated Mr Capper to appear in her place. The meeting also included two other employees of EDG, who had also been selected for redundancy and who were also members of the CEPU. Mr McMahon and Ms Watts also took part in the meeting.
2. Mr Capper has deposed as follows in respect of what occurred at this meeting, as it pertained to Ms Evans:

The other two employees left, and I then met separately with Ms Watts and Mr McMahon to discuss Ms Evans' situation. Mr McMahon told me that "the insurer" had conducted an investigation into Ms Evans and that they had evidence that she had falsified her claim. I understood that Mr McMahon was referring to EDG as "the insurer". I asked what evidence there was. He told me that she had been photographed at a football game with her arms above her head. He said that if Ms Evans did not accept the redundancy and forego further income protection insurance benefits then EDG would claim back from Ms Evans the income protection insurance benefits that it had paid to her.[11]

No objection has been made to this paragraph. Whether this is an oversight is not clear to me.

1. On 19 August 2024, Ms Evans received a further letter from Mr Worden, which confirmed EDG's decision to make her redundant and which had not been altered by anything discussed in the earlier meeting. The date of redundancy was indicated to be 10 September 2024. Following receipt of this letter, Ms Evans made an appointment with her treating doctor, Dr Green, who subsequently provided a medical certificate to EDG which indicated her on-going incapacity until 2 December 2024. Dr Green indicated his willingness to provide clarification of his prognosis.
2. On 15 August 2024, Daniel Austin, who is a national industrial officer for the CEPU lodged an application with the Fair Work Commission challenging the adequacy of the consultation process, which was stipulated by the Award, in the context of the redundancy of the three members of the union concerned, who included Ms Evans. The relevant application alluded to Ms Evans describing her as an employee who was subject to income protection insurance, which would not have lapsed as at the date of her proposed redundancy.
3. The Fair Work Commission referred the matter for conciliation on 21 August 2024. Those who attended the conference, beside the relevant Deputy President and Mr Austin were Mr Capper, Mr McMahon and Thomas Earls, EDG's solicitor. At the conclusion of the conference, the parties agreed to attend a further conference, outside of the Commission.
4. This was scheduled for 23 August 2024 and took place electronically. Mr McMahon and Mr Earls were at EDG's offices, whilst Mr Capper and Mr Austin took part via a computer video link. It was at this meeting, which Mr Earls has characterised as a continuation of the conciliation conference, that the various statements sought to be expunged by EDG were made by Mr Earls.
5. In his affidavit in support of the current application to strike out aspects of the evidence of Ms Evans, Mr Earls deposes as to his recollection of what occurred in the following terms:

Ms Evans' circumstances were the final one mentioned. I recall as part of that one of the union persons, who I believe was Daniel Austin, asking about Ms Evans' income maintenance payments.

I said Is this off the record?

Mr Austin nodded in agreement.[12]

1. In these circumstances, it is the position of EDG that the discussions which followed his question and the assent provided by Mr Austin, in the context of the continuation of the settlement discussions mandated by the order of the Fair Work Commission are axiomatically privileged.

1. It is necessary to detail the aspects of the affidavit evidence objected to by EDG. It is as follows:

Mr McMahon told Mr Austin and me on several occasions that EDG did not intend to keep paying Ms Evans income support payments after her employment was terminated and that she pursued a claim for ongoing income protection payments EDG would seek to recover the payments that it had already made to her.[13]

On 23 August 2024 I attended, via Microsoft Teams, the further consultation meeting with Mr Capper, Mr McMahon, and Mr Phil Worden from EDG.

During this meeting I asked for further information on the selection criteria that EDG had applied when choosing the three members for redundancy, and what redeployment opportunities had been explored.

Mr Worden responded that the selection criteria had been explained to the employees and that there were no roles available for redeployment.

I asked whether the payments that EDG was making to Ms Austin in lieu of income protection insurance benefits would continue if her employment was terminated. I said that Mr Capper and I were of the opinion that she would remain entitled to those payments whether or not she was employed by EDG.

Mr McMahon then asked to speak "off the record". He said that EDG had reason to believe that Ms Evans had failed to disclose the full extent of her capacity to both EDG and her treating medical practitioners.

He stated that the "insurer" (which I took to mean EDG) had launched an investigation into her incapacity and had photographed Ms Evans attending an APL game and lifting her arms above her shoulders. Mr McMahon said that Ms Evans' medical certificates stated that she was unable to lift her arm above her shoulder, and that she must be lying to her medical practitioners.

Mr McMahon did not produce the photographs at this meeting or subsequently.

Mr McMahon said that EDG had offered and was willing to pay Ms Evans a redundancy benefit, but it had no intention of continuing to pay her income protection benefits after her employment was terminated. He said that, if Ms Evans continued seeking income protection benefits, then EDG would dismiss her for serious misconduct and that this would defeat her entitlement to both redundancy pay and ongoing income protection payments.[14]

1. In a subsequent affidavit, Mr Austin has indicated that he was mistaken in attributing these statements to Mr McMahon and they originated with Mr Earls rather than Mr McMahon. The objection is extended to this aspect of his evidence.
2. As foreshadowed above, it is the position of those advising Ms Evans that the statements attributed to either Mr McMahon or Mr Earls off the record can only be construed as a threat to Ms Evans that if she did not accept the redundancy being offered to her, she would be dismissed for disciplinary reasons and would thus lose both her redundancy package and any prospect of income protection payments arising from the Award. The implication being there is a connection between Ms Evans' right to query her on-going income protection payments and the action subsequently taken to dismiss her.

1. Ms Evans deposes that, in early September, EDG wished to have Dr Green assess her to see if she was fit to undertake light duties. She claims to have been unaware, prior to this time, that there was a prospect of her returning to the workplace in this capacity. EDG is critical of Ms Evans in regard to this matter and asserts that she was unforthcoming about her capacity to work. This is an issue which cannot be resolved in the context of these proceedings.
2. On or about 9 September 2024, Ms Evans received a further letter under the hand of Mr Worden.[15] The terms of the letter can be summarised as follows:
   • EDG had become aware of matters that indicated Ms Evans had committed serious and wilful misconduct;
   • It was acknowledged that EDG held insurance analogous to income protection for injury and sickness in respect of its employees;
   • Following Ms Evans' surgery of December 2023 and the claim made in respect of it, monies had been paid to her in good faith;
   • Ms Evans was subject to an obligation to provide information about her condition and the related claim in a timely manner and in good faith, which included making herself available for alternative duties;
   • She had been incommunicative since leaving the workplace and had failed to respond to offers of alternative duties;
   • In the view of EDG, Ms Evans did have capacity to perform restricted duties as offered to her;
   • Alternatively, Ms Evans had withheld information from it; was malingering; or was obfuscating; with a view to obtaining financial benefits to which she was entitled.
3. Given these matters, which EDG indicated it was continuing to investigate, Ms Evans was directed to attend a disciplinary meeting with management scheduled for 10 September, at which meeting she would be given an opportunity to respond to the allegations made against her.
4. Ms Evans confirms that she attended the meeting as directed, which was conducted by Mr McMahon and Mr Worden. She was represented by Mr Austin. Mr McMahon has asserted that Ms Evans failed to answer the questions put to her candidly and in subsequent correspondence with Mr Austin characterised her as having either dissembled or deflected the questions put to her such that he formed the view that she was not cooperating with the disciplinary process, reverting, when pressed, to her written statement.
5. Ms Evans' view of the meeting was that Mr McMahon spoke over her. It is her position, supported by Mr Austin, that it was not put to her that EDG had offered her alternative duties. In her affidavit she deposed as follows:

Mr McMahon asked me a series of questions about my medical condition on specific dates starting from the 2 December 2023 and my capacity to work at that time. He was referring medical certificates. I found it difficult to follow. Mr McMahon said that EDG had difficulty finding relevant documents because of "filing issues". I attempted to answer the questions as best I could. I explained that my condition changed from day to day. I said that at times I was not even able to wash my hair or do household tasks. I said that I had only just started driving again and only the school and back. Mr McMahon's questions were very direct. He spoke over me when I tried to answer. I asked why I had been accused of misconduct, but Mr McMahon did not explain.

There was no discussion about offers of alternative employment or reference to EDG's previous offers of employment.

I was nervous and emotional during the meeting. It was over quite quickly. The allegations were not put to me to respond to. I honestly did not know what I had done wrong. At the end of the meeting, I wanted to express how I was feeling.[16]

1. In the pre-prepared written statement, which she read to the meeting, Ms Evans indicated her willingness to return to work as soon as she had been medically cleared to do so. It was her position that the management of EDG had acted on assumptions regarding her capacity rather than on the medical evidence provided by her to it.
2. Again, the nature of this meeting and the parties' differing perceptions of what occurred, cannot be resolved in the context of these proceedings, which do not allow for cross-examination or an exhaustive evaluation of the evidence.
3. On 10 September, following the meeting, Mr Worden forwarded a further email to Ms Evans in which she was terminated for serious and wilful misconduct. The salient portions of the email read as follows:

Our findings are that you have engaged in a course of conduct that was designed to, or reckless to the probable effect of, obtaining benefits in circumstances where if you had been full and frank with us, you would not have had an entitlement to some or all of those benefits.

For example, and without limiting our concerns, as recently as today in your written response, confirmed in our meeting and again through your union representative (and confirmed today as accurate), that you have "no recollection of refusing alternative duties".

We find that this is a deliberate attempt to mislead or dissemble us in circumstances where you went to the extent of engaging with Alex Capper of the CEPU to advocate on your behalf in relation alternative duties such as confirmation that you would receive the same rates when doing those duties as compared to when working in the field.

We also find that you have deliberately understated your capacity including, but not limited to, failing to advise us when you recommenced driving. We further find on the balance of probabilities that you have lied or dissembled to your employer and/or to medical practitioners in furtherance of your plan to receive benefits in circumstances where you had been full and frank with us, you would not have had an entitlement to some or all of those benefits.

We consider that you have engaged in serious and wilful misconduct and are accordingly terminating your employment on that basis, with any and all contractual benefits and entitlements to cease forthwith.[17]

1. The correspondence also indicated that all payments of income protection would cease forthwith and EDG reserved the right to recover monies to which she was not entitled. In effect, Ms Evans asserts that EDG did exactly what it had said it would do in the off the record discussions of 23 August.

1. Ms Evans commenced these proceedings on 8 November 2024. She asserts that she was subject to adverse action instigated by EDG, which was constituted firstly by her redundancy and subsequently when the firm took disciplinary action against her, which culminated in her dismissal for misconduct.
2. She asserts that this adverse action was taken because she exercised her workplace right to claim income protection payments available to her under the Award; she further asserts that EDG failed to comply with the precise terms of the Award because it elected to self-insure.
3. In this context, she alleges that she made a complaint about these matters to an industrial organisation that had the standing to seek compliance with the Award, namely the CEPU. In addition, she asserts that she made complaints and/or inquiries of EDG in respect of income protection. Alternatively, she asserts she was dismissed because she suffered from a disability. She further asserts that Mr McMahon bears accessorial liability in respect of actions of EDG.

1. In its response filed on 23 January 2025, the respondent admits taking adverse action against Ms Evans but denies that it was for a prohibited reason. In this context, it asserts as follows:

The Applicant's employment was terminated because the First Respondent formed the belief that the Applicant had been claiming an entitlement to insurance payments in circumstances where she either was not injured or, in the alternative, was otherwise not entitled to payment under the terms of the policy and that, in furtherance of that, had lied or dissembled to her employer and to medical practitioners. Insofar as the identified workplace rights are concerned.[18]

It is further denied that the Award applied to Ms Evans and that she had any rights to participate in proceedings relating to it and any contractual rights to insurance payments do not constitute a workplace right.

1. The salient portions of Mr McMahon's evidence can be summarised as follows:
   • In mid-April of 2024, an employee of the firm had seen Ms Evans at an AFL match behaving in a manner inconsistent with the injuries described by her and her medical advisors;
   • Ms Evans had not responded to inquiries from EDG's HR Department, made in May of 2024 regarding her capacity to return to work on an alternative basis;
   • He had engaged a private investigator to undertake surveillance of Ms Evans in late May and this had revealed her to have no apparent sign of injury or restriction;
   • The failure of Ms Evans to attempt any of the physical tests put to her by Ms Leopardas;
   • In conversation with him, Dr Green had indicated that Ms Evans did have the capacity to undertake administrative duties in the office at EDG;
   • The combination of these factors caused him to conclude that Ms Evans was not being honest with the firm;
   • In the period shortly after her termination, he re-engaged the private investigator to conduct further surveillance on Ms Evans and he reported observing her at a social occasion on 18 October 2024 moving without restriction in her upper body.
2. Mr McMahon denies that the reason adverse action was taken against Ms Evans was because of any of the workplace rights asserted by her. He maintains that the downturn in EDG's business, which led to him and Mr Worden assessing which of the firm's employees should be made redundant, remains an operative factor in what he characterises as his sole decision-making prerogative. In the relevant business environment, EDG did not have the capacity to employ a person, on a full-time basis, when administrative duties would occupy such a person for only 50% of the working week.
3. In these circumstances, Mr McMahon asserts that although the reason provided for Ms Evan's dismissal was serious and wilful misconduct, he would have also proceeded to make her redundant because of the downturn in business and she and two other employees best fitted the criteria for deselection from the firm.

LEGAL PRINCIPLES APPLICABLE TO GENERAL PROTECTION PROCEEDINGS

1. In order to understand the legal context in which the application relating to the Evidence Act arises, it is necessary to set out what is legally entailed in a general protection application.
2. Part 3-1 of the FWA is headed General Protections. Pursuant to section 340(1) a person must not take adverse action against another person because that other person has a workplace right.
3. Section 342(1) of the FWA contains a table setting out the circumstances in which a person is to be regarded as having taken adverse action against another person. The table provides as follows:

Column 1

Adverse action is taken by ...

the employer:

a) dismisses the employee; or

b) injures the employee in his or her employment; or

c) alters the position of the employee to the employee's prejudice; or

d) discriminates between the employee and other employees of the employer

1. There appears to be no controversy that Ms Evans was subject to adverse action in the form of the termination of her employment. However, as a result of the word because in section 340(1), it is clear that there must be a causal connection between the relevant adverse action and a workplace right pertaining to the person who is the subject of the relevant adverse action.
2. Section 341(1) provides the definition of workplace right. A person has such a right if, amongst other matters, he or she:

(1) A person has a workplace right if the person:

....

(c) is able to make a complaint or inquiry:

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee - in relation to his or her employment.

1. In this context, it is Ms Evans' position that she had a workplace right to inquire of both the management of EDG and of the industrial organisation of which she is a member as to her entitlements, under the applicable workplace agreement or award covering her employment, as to her entitlement to income protection payments due to physical incapacity for work, which was not necessarily occupationally based.
2. In addition, it is asserted by Ms Evans that her dismissal has, at least in part, been occasioned by a personal attribute protected by section 351 of the FWA, namely that she was suffering a level of disability following her surgery of December 2023. The section reads as follows:

(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

1. Both section 340 and 351 are designated as civil remedy provisions. This means that if any person is found to have contravened either of these provisions such an individual will be subject to the imposition of a pecuniary penalty, which in the case of a natural person could be up to a maximum of 60 penalty units, which is multiplied by a factor of five in the case of corporate entities. A penalty unit is currently $222.00.
2. Because of the serious financial ramifications of general protection proceedings, particularly in respect of their potential to result in such penalties, as was observed by Bromberg J in Celand v Skycity Adelaide Pty Ltd,[19]allegations of contravention of the general protection proceedings are inherently serious and, as such, as a matter of fairness, need to be pleaded with sufficient precision to enable each respondent to know the case against it.
3. In this context, it was submitted on behalf of the respondents that the applicant's claim does not allude specifically to the settlement discussions, on which she now relies, as elements of the adverse action said to have been taken against her. Accordingly, it is asserted that it is now unfair to them that she has sought to lead evidence in respect of them.
4. As noted above, as a consequence of the use of the word because in section 340 there must be a factual link between the taking of the adverse action against the applicant concerned and a protected attribute relating to that applicant as a consequence of a workplace right exercised by him or her.
5. Accordingly, most general protection proceedings centre on an inquiry as the reason why adverse action was taken. This is the case in the current matter. The parties fundamentally disagree as to why Ms Evans' employment was terminated.
6. Ms Evans asserts that it was because she agitated about her income protection entitlements - both personally and through her union - which stemmed from a genuine injury which had been occasioned to her outside of employment hours, but which nonetheless formed a part of her employment entitlements arising from the prerequisite modern award.
7. She further contends that an inference is open that because EDG was embarrassed at its failure to take out a specific policy of insurance to cover its liability in respect of her wages for a period of potentially 104 weeks it therefore determined to dismiss her, in the circumstances in which it did, to mitigate its financial obligations to her.
8. Essentially, having proposed a redundancy to her, which did not include provision for on-going income protection, which Ms Evans rejected, EDG moved to dismiss her for cause on grounds which were confected and disingenuous. The real reason being that it did not wish to have a continued exposure to her income protection payments.
9. In these circumstances, it is submitted that what is characterised as a threat conveyed to Ms Evans, at the extension of the conciliation conference, which was subsequently put into effect by the management of EDG, must be regarded as relevant to the issue of what was the actual reason for her dismissal.
10. On the other hand, EDG and Mr McMahon contend that the reason for the adverse action was Ms Evans' dishonest behaviour, which was being investigated at the same time as the firm was going through a distinct and collateral process involving the selection of employees for redundancy due to a downturn in its business.
11. It is EDG's position that Ms Evans fitted its necessary criteria for redundancy. However, in this context, Mr McMahon has acknowledged that one aspect of the deselection process was a weighting for `disciplinary action which reduced Ms Evans' score by 25% and put her in the bottom three of the candidates being considered.[20] In these circumstances, it would appear to be the respondent's case that nothing untoward can be drawn from the fact that it offered Ms Evans redundancy prior to her ultimate termination for misconduct.
12. In a general protection claim, section 361 of the FWA is of central importance. This section places the onus of disproving the necessary causal link on the respondent, which is often described as the reverse onus. It reads as follows:

361 Reason for action to be presumed unless proved otherwise

(1) If:

(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b) taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

1. For obvious reasons, it is a very difficult task for an applicant to prove what was occurring in the mind of any person alleged to have taken the adverse action in question, in a workplace context. Necessarily, a cynical employer is unlikely to telegraph the reasons for dismissal if it is for a proscribed reason to the employee in question.
2. The task is made more difficult in the case of decisions made in a corporate or managerial environment, or in this case where relevant decision makers have not provided evidence to discharge the onus. These difficulties, arising in the context of beneficial legislation directed toward remedying injustices, against employees, in an industrial setting.
3. Considerations of this kind inform the rationale for the implementation of one of the central features of the general protection provisions, namely the creation of the reverse onus. The effect of section 361 is to reverse the legal onus in relation to the establishment of the reason or reasons for which any alleged adverse action was taken.
4. Essentially, Ms Evans herself does not have to prove what was the specific reason why her employment was terminated. In this context, she points to the relevant settlement discussions as being relevant to the reasons currently advanced by EDG for her dismissal, namely she had been dishonest with them about her level of incapacity and her seeking clarification about her ongoing entitlement to income protection had nothing to do with it.
5. Rather, if it is established, by any applicant, that their employment is subject to a relevant workplace right, and they have also established that they have been subject to adverse action, the onus passes to the employer to provide the substantive and operative reasons for the adverse action, particularly that it was not for a reason protected by the FWA.
6. This is fundamentally a question of fact to be determined from all the circumstances arising in the case. Almost invariably for the reverse onus to be satisfied, it will be necessary for the relevant decision-maker to provide evidence as to why the decision to take the adverse action was made.[21] By necessary implication, it is the position of those advising Ms Evans that what was ostensibly said off the record has everything to do with what was the actual and real reason for EDG's actions against her.
7. In Barclay Heydon J expressed the nature of the inquiry required in the following terms:

The word "because" requires an investigation of Dr Harvey's reasons for her conduct. Section 360 provided that "a person takes action for a particular reason if the reasons for the action include that reason." The Explanatory Memorandum makes it clear that to satisfy s 360 the particular reason must be an "operative or immediate reason for the action". Under s 361 of the Act, it is presumed that action was taken for a prohibited reason, unless the employer proves otherwise. Examining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action.[22]

1. Many modern workplaces are complex in nature, involving various individuals at differing levels of seniority. Inevitably, particularly in the corporate sphere, any employment decision, must have financial implications for the employer concerned. Although, in the current case, Mr McMahon asserts that he was the sole-decision maker, in respect of Ms Evans, others were involved, to varying degrees, in the processes leading to her dismissal.
2. In Qantas Airways Ltd v Transport Workers Union of Australia[23] Steward J said as follows:

Corporate decision-making is often the product of many motivations, causes, influences and processes of reasoning. Depending on their level of seniority or function, officers of a company may well emphasise different aspects or factors as to why something is to be done. For example, those in the area of human resources may well have a focus on employment outcomes. But the task is the identification of the actual, immediate or operative reason or reasons for taking adverse action. That is a question of fact. In a given case, it may well require one to reject as a reason for taking adverse action the musings or thoughts of employees that ultimately play no part in the ultimate decision-making process. It may also require one to differentiate between the actual reasons for taking adverse action, and factors or issues which may have contributed in only some causal way in the lead up to the occurrence of such conduct.

1. In his evidence, Mr McMahon has offered many factors which led to him forming the view that Ms Evans had been dishonest in her dealing with the company. EDG does not dispute that Ms Evans suffered an injury as a consequence of her surgery nor did it dispute that it had an obligation to provide her with income insurance following the intervention of the CEPU on her behalf. Medical certificates were provided by Ms Evans to support her assertion of incapacity.
2. The parties fundamentally disagree about the extent of Ms Evans' incapacity for work and its duration. Presumably, it is Mr McMahon's opinion that she was fit for work when he received intelligence that she had been observed at the football. Ancillary to this dispute is the issue of whether Ms Evans was aware that the firm was open to her returning to work on a part-time administrative basis and whether she was able to do so.
3. Ms Evans deposes that she remained incapacitated for work until at least December of 2024 as evidenced by her pain, rehabilitation and musculoskeletal physician, Dr Green, albeit his report deemed her unsuitable to return to her pre-morbid/pre-injury vocational activity. Mr McMahon has deposed that he directly clarified this issue with Dr Green in a telephone conversation of 2 September 2024. In the context of this evidence, Mr McMahon asserts he formed the personal view that Ms Evans was malingering.
4. In my view, the resolution of this controversy is likely to turn as much on medical evidence, informed by Ms Evans' subjective view of her condition, as it will on Mr McMahon's personal assessment of the situation. At this juncture, the evidence would appear to be nuanced and neither side can be assessed to have an unassailable position.
5. In short, evidence is available to indicate Ms Evans suffered some degree of incapacity during relevant periods, whilst, on the other hand, it may be the case that she has some questions to answer regarding the clandestine observations made of her by the private investigator retained by EDG and her alleged non-response to the part-time work overtures made to her by the firm.
6. However, what is not open to doubt is that Mr McMahon's primary decision to terminate Ms Evans had financial ramifications for EDG. Mr McMahon acknowledges that the firm ceased to pay Ms Evans her income protection payments from the date of the termination of her employment on 10 September 2024.
7. Ostensibly, at least, there is a tension between Mr McMahon's assertion that the substantive and operative reason for Ms Evans' termination was misconduct and the ancillary reason that she would have been made redundant anyway. One has significant financial implications for EDG, the other does not.
8. In the case of the former, it would seem axiomatic that any obligation to pay to income protection would cease; in the case of the latter, given the content of the relevant Award, if the incapacity continued, the obligation to make the payments would not necessarily end. In these circumstances, it seems to me that significant issues remain in respect of what was the substantive and operative reason for Ms Evans' dismissal, which Mr McMahon and EDG must establish was not for a protected reason.
9. Ms Evans asserts that she and Mr Capper and Mr Austin on her behalf agitated and complained about her entitlement to income protection payments from early 2024 onwards. She asserts that there is a nexus between her inquiries about her eligibility to receive such payments and the subsequent decision which had the effect of stripping her of them.
10. It is clearly her position, supported by the CEPU, that these payments would and should have continued notwithstanding the fact of her redundancy, provided she satisfied the conditions stipulated in the Award regarding on-going incapacity.
11. It is her case that she inquired of EDG, through her industrial organisation, on 23 August 2024, as to whether she could be confident that this was the case.[24] It is her position that this amounted to an inquiry made on her behalf for the purposes of section 341(1)(c) of the FWA. She would characterise this as an obvious workplace right.
12. The effect of Mr Austin's evidence is that neither Mr McMahon nor Mr Earls answered his question specifically. It was at this stage that Mr McMahon requested to go off the record. An analysis of the discussion sought to be impugned is either Ms Evans accepted a redundancy without any provision for income protection payments to continue or she would be terminated for cause and she would receive limited entitlements on her dismissal.
13. As subsequent events demonstrated this was no empty threat. EDG and Mr McMahon did exactly what they had said they would do in the context of Ms Evans having been granted income protection pursuant to the provisions of the Award and having formally inquired as to their on-going application to her personal circumstances.
14. The applicable principles, relating to general protection matters, were summarised by the Full Court in State of Victoria (Office of Public Prosecutions) v Grant as follows:
    • The central question to be determined is one of fact. It is: Why was the adverse action taken?
    • That question is to be answered having regard to all the facts established in the proceeding.
    • The court is concerned to determine the actual reason or reasons which motivated the decision-maker. The court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
    • It will be extremely difficult to displace the statutory presumption in section 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.
    • Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
    • If, however, the decision-maker's testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by section 361.[25]
15. In summary, an application arising under Part 3-1 of the Act involves three elements:
    • Does the applicant have a workplace right or other protected attribute arising under either section 340 or 351 of the Act;
    • Did the respondent concerned take adverse action against the applicant;
    • If so, was the adverse action taken because of the applicant's possession, exercise or proposed exercise of that workplace right or because of one of the protected attributes of the applicant concerned.
16. It would seem to be the case that Ms Evans had a workplace right to ask the management of EDG whether they were going to continue to adhere to the condition of her award regarding income protection. In addition, there is no doubt that she was subject to a subsequent incident of adverse action.
17. Accordingly, when the case proceeds to trial, the substantive issue will be the degree of connection, if any, between those two events. The onus on providing the evidence in this respect being on EDG and its management. It is in this context that the court must determine the admissibility of the relevant evidence.

THE APPLICABLE PROVISIONS OF THE EVIDENCE ACT

1. Section 131(1) of the Evidence Act reads as follows:

(a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or

(b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.

...

(g) evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence; or

(i) making the communication, or preparing the document, affects a right of a person; or

(j) the communication was made, or the document was prepared, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or

1. The law that settlement negotiations are to be kept privileged rests on two bases, which can be summarised as follows:
   • It is in the public interest that parties to litigation settle their disputes without recourse to the courts;
   • There is either an express or implied agreement that if parties agree to take part in settlement discussions such discussions will be kept confidential.[26]

In the present matter, when Mr Earls requested to speak off the record, EDG asserts what followed was subject to, at the very least, an implied agreement, between the parties, that it could not be subsequently utilised in any resulting litigation.

1. As noted above, the privilege created by section 131(1) is founded on the public interest. The same rationale is attached to various exceptions created by subsection (2). In Silver Fox Co Pty Ltd v Lenards Pty Ltd (No 3)[27] Mansfield J said as follows:

Section 131(1), subject to its exceptions, gives effect to the policy of ensuring the course of negotiations - whether private or by mediation - are not adduced into evidence for the purpose of influencing the outcome on the primary matters in issue. Clearly, it is in the public interest that negotiations to explore resolution of proceedings should not be inhibited by the risk of such negotiations influencing the outcome on those primary issues. It is equally in the public interest that negotiations should be conducted genuinely and realistically.

1. In general terms, it is also not in the public interest if the suppression of settlement negotiations would be unfair or result in the court itself being misled; or in circumstances which would otherwise allow an employer to escape liability for a civil remedy provision under applicable legislation.
2. Mansfield J assessed the need to balance confidentiality with the maintenance of the overall probity of settlement negotiations as being of equal importance. Necessarily, it would seem to me that the court is required to balance competing public interest considerations and one is not automatically superior to the other.
3. In Pihiga[28] Lander J indicated that rule against the admission of settlement negotiations could not be regarded as absolute. In particular, His Honour referenced the following passage from Unilever plc v Proctor & Gamble Co[29]

Apart from any concluded contract or estoppel, one party may be allowed to give evidence of what the other said or wrote in without prejudice negotiations if the exclusion of the evidence would act as a cloak for perjury, blackmail or other "unambiguous impropriety"...

1. However, it is also to be noted that the exception is to be applied only in the clearest cases of abuse of the privilege. In this context, it is the submission of Mr Blewett, counsel for Ms Evans that what occurred on 23 August 2024 falls within the ambit of such unambiguous impropriety and so within the exceptions provided by section 131(2)(g), (i) and (j) of the Act.
2. I agree. The parties in question were attending a conference which related to issues concerning the redundancy of Ms Evans and two others and whether the consultations between management and employees leading to those redundancy were sufficient when the terms of the relevant Award were considered.
3. In this context, those representing Ms Evans sought clarification as to what would be her position regarding the continuation of her income protection payments stemming from what she asserted to be a continuing incapacity to return to work following her surgery of December of 2023.
4. It needs to be pointed out that the discussions did not occur in the context of EDG disputing her on-going incapacity or the firm having commenced proceedings to recover any sums from her regarding any alleged impropriety on her part.
5. Essentially, these allegations had not previously been made and therefore it seems to be difficult for the respondents to characterises these allegations as being part of any settlement negotiations between them. Rather, from Ms Evan's perspective, what was being discussed was her possible redundancy package and its interaction with her income protection payments.
6. She could not know - because it had not been previously raised with either her directly or with those advising her - that EDG viewed her as a malinger. Essentially, it seems to me to be axiomatic that the parties were not engaged in any settlement negotiation about this issue ipso facto. As indicated above, part of the rationale of the privilege is that the parties should be kept to their word that settlement negotiations agreed to take place between them are to be confidential.
7. It was in this context, as Mr Austin had been briefed to do, he raised with EDG the issue of Ms Evans' on-going eligibility for income protection. He clearly regarded Ms Evans' entitlement to such payments as being part and parcel of her entitlements under the Award and as such falling within the rubric of a workplace right.
8. It was at this stage that those advising EDG sought to invoke the protection of off the record discussions in respect of something about which Ms Evans had not been given any prewarning, namely EDG had photographs of her at the football with apparent full mobility in her shoulder. Essentially, EDG sought to unilaterally change what was being discussed at the settlement conference without prior notice to those advising Ms Evans.
9. In these circumstances, it seems to me to be difficult to conclude that Mr Austin was in any position to provide either an explicit or implied agreement that a topic, which had not been previously raised with either him or Ms Evans, was going to be subject to some form of settlement negotiation and so privileged in nature_._
10. As Hill J noted in Quad Consulting Pty Ltd v David R Blearley & Associates Pty Ltd:[30]

It is clear enough law that whether negotiations are within the concept of the privilege...depends not own whether the parties have so labelled them, but upon the intentions of the parties to be ascertained from the nature of discussions between them.

1. In the current matter, one party knowing what was to be discussed labelled them as off the record, whilst the other party had no knowledge of what was to be discussed. As such, it seems to me that the parties were not in a position to negotiate on equal terms.
2. Rather, in my assessment, the most logical connation of what was said to be off the record was that it was a threat to Ms Evans that either she abandoned her claims for income protection, or she would forfeit any redundancy package potentially to be offered to her.
3. At least, on a prima facie basis, there would appear to be at least the possibility of a connection between this threat and the indication made on behalf of Ms Evans that she wished to pursue what she perceived to be her entitlement to income protection.
4. Clearly, in my view, what was said had the potential to affect the exercise of Ms Evans' workplace right to pursue any income protection payments to which she was entitled pursuant to the provisions of the relevant award. Its effect was to coerce her to abandon her claim because of the possibility that she would forfeit her redundancy.
5. In addition, it seems to me that the nature of the discussion was directed towards ensuring that Ms Evans was not in a position to pursue any general protection application she might have under the provisions of the FWA. In any event, even if the discussion in question is ruled to be inadmissible, the fact remains EDG did exactly what it threatened to do, in the context of Ms Evans raising the question of her entitlement to income protection with it.
6. In effect, the threat did not achieve its objective. It is, however, in my view, a salient feature of the central issue in the current litigation, namely, what was the substantive and operative reasons for Ms Evan's dismissal. In these circumstances, I decline to rule the evidence in question inadmissible and the application filed on 12 August 2025 in respect of it will be dismissed.

1. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown.

[1] Hereinafter referred to as "the FWA" or "the Act".

[2] Hereinafter referred to as "the Evidence Act".

[3] The Electro Data & Generation Pty Ltd Data & Communication Enterprise Agreement 2020 - 2022. Hereinafter referred to as "the Award".

[4] See Annexure JLE -19 to Ms Evans' affidavit filed 29 April 2025.

[5] See Annexure AC-5 to Mr Capper's affidavit filed 29 April 2025.

[6] See Annexure JLE-23 to Ms Evans' affidavit filed 29 April 2025.

[7] See Annexure SM-14 to Mr McMahon's affidavit filed 28 August 2025.

[9] See Annexure JLE-26 to Ms Evans' affidavit filed 29 April 2025.

[11] See affidavit of Alexander Capper filed 29 April 2029 at [25].

[12] See affidavit of Thomas Earls filed 12 August 2025 at [10].

[13] See affidavit of Alexander Capper filed 29 April 2025 at [31].

[14] See affidavit of Daniel Austin filed 29 April 2025 at [8] - [15].

[15] See Annexure JLE -33 to Ms Evan's affidavit filed 29 April 2025. The letter in question is dated 29 April 2025 but I suspect that this is an error generated by the computer from which it was printed for the affidavit.

[19] Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306 at [102].

[20] See Annexure SM-18 to Mr McMahon's affidavit filed on 28 August 2025.

[21] See Board of Bendigo Regional Institute of Technology and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 at 517 per French CJ & Crennan J and 542 per Gummow & Hayne JJ.

[22] Supra at 544 [140] (footnotes omitted).

[23] Qantas Airways Limited v Australian Transport Workers Union of Australia [2023] HCA 27 at [104] per Steward J.

[24] See affidavit of Daniel Austin filed 29 April 2024 at [11].

[25] See State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32].

[26] See Pihiga Pty Ltd v Roche [2011] FCA 240 at [86] per Lander J.

[27] Silver Fox Co Pty Ltd v Lenards Pty Ltd (No 3) [2004] FCA 1570 at [36].

[29] Unilever plc v Proctor & Gamble Co [1999] EWCA Civ 3027; [2000] 1 WLR 2436.

[30] Quad Consulting Pty Ltd v David R Blearley & Associates Pty Ltd (1991) 27 FCR 86 at 89.