Francis v Victory College [2025] FedCFamC2G 884

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. On 20 December 2023, the Applicant, Dayne Lindsay Francis, filed an application in this Court seeking, in effect, declarations that the respondent, Victory College, had contravened s 340 of the Fair Work Act 2009 (Cth) ("the FW Act") and, in doing so, had caused him economic and non-economic loss. The matter came before me as a first court date on 4 March 2024.
2. At that mention, the Respondent sought a summary dismissal of the application due to the fact that Mr Francis was an undischarged bankrupt. I gave full reasons for my decision that day even though they were still ex tempore reasons, but I ruled that the Bankruptcy Act 1966 (Cth) did not preclude a person seeking damages for a personal injury. As I was of the belief that the Applicant had begun this action before he became a bankrupt, the provisions of s. 60(4) of the Act entitled the Applicant to still pursue the aspect of the application which sought compensation for non-economic matters, notwithstanding that he was a bankrupt.
3. For those reasons, I limited the remedy that could be sought to the one that was in paragraph 31(a) of the application. I ordered that the applicant pay the sum of $10,000 by way of security for costs to be held pending further order of the Court, and that the amount had to be paid by 14 May 2024. If it had been paid, the matter would be mentioned on 20 May 2024.
4. The sum was paid into court, and, on 20 May, the parties appeared before me and a timetable was put in place.
5. They were that the Applicant would file a statement of claim by a certain date, the Respondent would file a defence, the Applicant would file a reply by a certain date, and then the parties would file and serve their affidavit material which they intended to rely upon at the final hearing. After the evidence had been served and filed, the parties would go before a Registrar to mediate the matter. If the matter was not successfully mediated, then the parties would come back to me on 21 October.
6. The mediation was not successful and so on 21 October, the matter was ready for trial, and I made trial directions. The matter came on before me, as I had ordered, for trial today, 10 April 2025.
7. The gist of the claim by the Applicant was that he had been employed by the college from 21 October 2021 to manage their workshop. What he said occurred after that date was that in the performance of those duties, there were many occasions that vocational students came to him, and he imparted his knowledge on automotive matters to them to help them in their other studies.
8. The Applicant said that even though he had no teaching qualifications with regard to school students, nevertheless, he was left unsupervised and without lesson plans or other forms of structure imposed upon him by the school. He said that the Respondent had no issues with his ability to be unsupervised in the teaching of students.
9. The Applicant said that the school had no persons who could conduct the training needed by an educational organisation to allow students to undertake the course and to "graduate" with Certificates I or Certificate II in Automotive. The Applicant said that the college realised this and, because of other circumstances where the Applicant was confined to lighter duties, decided to fund the Applicant attaining qualifications that would allow him to be able to impart the necessary knowledge and training to children, so that they could graduate with the appropriate Certificate I or Certificate II.
10. The Applicant said that he did have issues with the Respondent in that the college had asked for him to complete such training by November 2022. He did not complete that training by that time and was issued with a show cause letter. In reply, he addressed many of the concerns and said that he would complete his qualification training by December of 2022. He had suggested that there was a way around his needing to be qualified, whereby the college would still be able to properly impart the required training and to give out the certificates, but such an idea was not taken up by the College.
11. The Applicant did not complete his training until February 2023. When he completed his training, he was immediately offered a contract as a trainer to impart the necessary knowledge and training to students who would wish to complete Certificate I or Certificate II in Automotive. The contract, with the position description and duties, is reproduced at CB 298 to 309, which is Exhibit 1 in these proceedings.
12. The college needed to ensure that it had complied with all the necessary requirements put upon them by the Queensland Curriculum Assessment Authority ("QCAA") to be able to conduct the course and to issue Certificate I and Certificate II in Automotive.
13. The college employed a person as the registered training organisation manager. It was that person's job to ensure that there was compliance with the requirements that was set out by the QCAA. That person, who was the RTO manager, was a person by the name of Malcolm van Rennen. In the contract of employment signed by the Applicant, which was for the period 6 February 2023 to 5 February 2024, his duties included working with the RTO manager, as well as under the guidance of the Head of Senior College to create a syllabus which included key learning objectives, create assessment and reporting of individual students, developing and delivering automotive maintenance and repair curriculum, develop authentic, engaging hands-on learning projects, and to implement and maintain a curriculum so that each student met the QCAA goals.
14. The contract had other provisions. The Applicant was to participate in staff meetings, parent-teacher interviews, and other professional development requested of him by the RTO manager, as well as many other duties.
15. What is clear, though, is that the Applicant had no managerial role, as far as the registered training organisation was concerned, and he had no direct role or responsibility to the QCAA. The responsibility for the relationship between the college and the QCAA, lay with the college's nominee, in this case Mr van Rennen, and not with the Applicant individually.
16. When Mr van Rennen resigned in March 2023, the Applicant began to raise concerns as to the compliance of the college with the QCAA standards and requirements. He raised many concerns with the college which caused the college to undertake its own audit of what it was that it was doing.
17. The college engaged such an auditor without reference to the Applicant, though, and while there is no direct evidence at this point, it would seem that this engagement was because of the issues raised by the Applicant.
18. Nevertheless, on 20 April 2023, the Applicant wrote directly to the QCAA pointing out what he saw as deficiencies in what it was that the college was doing.
19. The evidence presented in this matter showed that the audit, conducted by the college, revealed that there were "minor infractions" of what the college needed to do.
20. It was suggested to the Applicant that he was told, by the principal of the college, that those "minor matters" related to him not doing his job, in that he was not updating and maintaining the curriculum. The Applicant conceded that this was said to him, but he rejected that such was true, and maintained that he had, in fact, done what his employment contract had asked him to do.
21. What would seem to be the biggest issue, in the complaint that the Applicant had made, was the fact that Mr van Rennen was to be replaced by the personal assistant to the CEO who was to be trained up to do the job of RTO manager. The Applicant described this as "the last straw".
22. The QCAA did look at what the Applicant had said and conducted an investigation. Again, they found that there were minor infractions, but that there was nothing that was of such a moment that would impact upon the ability, accuracy, and authority of the college to conduct the training in Automotive and, upon successful completion, to issue the Certificate I or the Certificate II.
23. Nevertheless, the Applicant did not accept the findings of the QCAA and insisted, in his communication with the college, that, according to the National Vocational Education and Training Regulator Act 2011, the automotive students could not be legally deemed competent until the RTO non-compliances are rectified. The only RTO non-compliances that were identified by the audit done by the college, and upon the affidavit evidence of the principal, were that the non-compliance was due to the Applicant not updating the curriculum properly. It would seem that the only hurdle to jump for the college, to be compliant, was the Applicant actually doing his job.
24. In October 2023, the Applicant was given another show cause letter and, eventually, the Applicant was dismissed.
25. The Applicant claims that in making the complaints that he did, which started on 20 April 2023 to the QCAA, he was exercising a workplace right. He made that submission on the basis of s 341(1)(c)(i) and, alternatively, (ii).
26. He gave evidence before me today and, at the close of the case for the Applicant, the Respondent made what is known colloquially as a "no-case submission".
27. The Applicant submitted that he was able to make a complaint or inquiry to a personal body, having the capacity under a workplace law to seek compliance with that law or a workplace instrument. The Applicant contended that the QCAA was a body that had the capacity under a workplace law to seek compliance with that law. The Applicant said that the workplace law was the National Vocational Education and Training Regulator Act 2011. However, the term "workplace law" in s 341of the FW Act means one of four things.

(a) this Act; or

(b) the Registered Organisations Act; or

(c) the Independent Contractors Act 2006; or

(d) any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).

1. That definition is found at s 12 of the FW Act, as part of the dictionary.
2. The National Vocational Education and Training Regulator Act 2011 cannot fit within this category. It is not a law that regulates the relationships between employers and employees. It regulates the relationship between bodies such as the QCAA and the education providers themselves, not the individual persons who would provide the training.
3. As such, it cannot be said to be a "workplace law". This means that the QSAA is not a body that has the capacity under a workplace law to seek compliance with that law.
4. Therefore, reliance upon a workplace right based on s 341(1)(c)(i) does not apply to this case.
5. Section 341(1)(c)(ii) states

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

(c) can make a complaint or inquiry:

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

1. In this case, the Applicant's employment is defined by the employment contract. There must be a complaint or inquiry that goes to the execution of matters within that employment contract.
2. To give two examples, if it were that the Applicant were being set impossible work tasks that were either within, or even outside, the terms of the contract and he made a complaint about that, then he would be complaining about matters that affected his ability to comply fully with the employment contract. This is because those matters would be affecting his ability to give his labour in the way that his labour was asked to be given in return for remuneration.
3. That would be "a complaint" and, for that reason, would constitute the "exercising of a workplace right".
4. Another example would be if the Applicant felt that he was being underpaid, in that the remuneration given was not in accordance with the Award, or an Enterprise Agreement and did not take into account other things such as penalty rates, or Saturday work, or something of that nature. That would be a complaint regarding his employment and, therefore, would be the exercising of a workplace right.
5. In the Applicant's case, there was no relationship within the terms of the employment agreement that affected the compliance, or not, with the standards set by the QCAA. The role of the RTO manager entailed some form of relationship with the regulator, but the Applicant's employment did not have such a role.
6. It was argued that this was a complaint still within the bounds of employment because if it were that the college was not complying with its obligations, then the children being taught would not have actually been able to have earned the Certificate I or Certificate II for which they had been studying. This would, the Applicant claims, affect his status as an employee.
7. However, that is not correct because the Applicant only needed to comply with his end of the bargain; that is, to do the duties that were set out in that employment agreement, and the college would be obligated to remunerate him for those tasks being done as part of the employment.
8. Whether that ended up in the college having some difficulties with the QCAA was nothing that affected the Applicant's employment. It was not a matter that went to anything that affected his performance of the duties in the employment contract or affected his receiving of remuneration for his completion of those duties. It was something that was totally outside of his employment.
9. That means that s 341(1)(c)(ii) does not have application to this matter.
10. The upshot of these conclusions is that the Applicant did not have, and did not exercise, a workplace right when it is that he made the complaints from 20 April 2023 onwards to the QCAA. If he were not exercising a workplace right in doing that, then there can be no contravention of s 340 of the FW Act.
11. This means that s 545 does not become engaged.
12. This means that the application that was filed on 20 December 2023 must be dismissed.
13. The Respondents have asked that I make an order for costs. Section 570 says that:

(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party only in accordance with subsection (2)...

(2) The party may be ordered to pay the costs only if:

(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b) is satisfied the party's unreasonable act or omission caused the other party to incur the costs...

1. It is now known that the Applicant instituted these proceedings knowing that he was an undischarged bankrupt and yet he made no admissions, or even acknowledgment, of that fact. It is trite to say that any action cannot be commenced by a person who is an undischarged bankrupt unless that person has the authority of the trustee in bankruptcy to commence such proceedings.
2. There is a protective element to such a rule. Number one, it ensures that if the matter is unsuccessful, that the Applicant does not fall even further into debt, but, secondly and more importantly, it protects persons who may be the subject of such litigation from having to defend litigation and then not being able to, in any way, recover the costs of the matter, even if the action was vexatious or without reasonable cause.
3. As I have earlier indicated, the Bankruptcy Act 1966 (Cth) still allows for the continuation of proceedings for personal injury-like claims and that is why the action was so limited in this case, but as can be seen from the application, the non-economic aspect of the application was not the main reason why it was that the application was issued.
4. The Applicant had also asked for a pecuniary penalty to be made against the college. So when one has the economic aspect and the pecuniary penalty aspect that was the significant part of the claim against the college instituted by a person who knew he was bankrupt, and did not have any material from the trustee in bankruptcy that permitted such an action to be taken, there was very much an element of instituting the proceedings without reasonable cause.
5. It was through the diligence of the lawyers for the college that it was discovered that the Applicant was bankrupt, and it was the college who had to bring that knowledge to the Court rather than the Applicant himself. This is disappointing behaviour by someone who is saying to the Court that they are acting honestly and making full and frank disclosure.
6. But there was also the aspect here that the workplace right was not properly pleaded. It was simply asserted in the application that there was a workplace right. It was never identified and, despite the protestations of the Respondent, the Applicant did not particularise what he said was the workplace right until he was in the witness box.
7. He did not plead what the workplace right was in his statement of claim, and he did not identify it in his affidavit. Even when I asked him to identify where it was, he was vague and attempted to obfuscate the question merely saying that "it is in there somewhere and I believe that I did have a workplace right". That is not a basis to bring a matter to this Court.
8. While it is true, as Mr Morehead for the Applicant has said, that there are plenty of cases where persons bring matters before the Court and they are found to be wanting and cost orders are not made, and that is because the legislation says that there has to be something more than simply a failure to prove the case. There has to be evidence that these proceedings were instituted vexatiously or without reasonable cause before s 570(2) becomes engaged.
9. In this case it, seems clear to me, though, that there was no reasonable cause to institute these proceedings. There was a deception in not acknowledging that the Applicant was bankrupt and not getting the permission of the trustee to commence these proceedings. Whilst it may be inferred that such action was dishonest, I do not need to go that far. I really only have to look at whether there was reasonable cause in instituting the proceedings in the first place.
10. The matter, as I have noted in my reasons, did go to a mediation which was not successful, but the Respondent still offered the Applicant the sum of $1,500 to settle the matter and, if that were done, the Applicant would have submitted to the Court that the security for costs be released back to the Applicant.
11. The Applicant did not take that offer in the circumstances where he has failed to identify a workplace right, and he should have been able to see that he had not identified a workplace right. To continue to press this claim after the unsuccessful mediation and rejecting the offer made by the Respondents is, in my view, an unreasonable act. That unreasonable act has caused the Respondent to expend moneys to keep defending this matter, to prepare for trial, and to litigate this matter to the point where I ruled that the Respondent's no case submission was a successful submission.
12. When I add all of those matters together, I am of the view that an order for costs is justified in this case.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of Judge Vasta.