Gunawardena v Boeing Aerostructures Australia Pty Ltd

Federal Court of Australia|2024-10-18|Before: Wheelahan J

THE COURT ORDERS THAT:

The statement of claim be struck out.
By 4.00 pm on 19 December 2024, the applicant file and serve any amended statement of claim.
A case management hearing be fixed for 9.30 am on 31 January 2025.
The costs of the interlocutory application and of today be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT WHEELAHAN J:
The applicant was employed by the respondent as a Level 3 Procurement Agent commencing 1 December 2022. On 30 October 2023, the respondent terminated the applicant's employment on the ground of the redundancy of her position.
By this proceeding, the applicant seeks orders for compensation against the respondent based upon a wide range of claims. The claims include allegations of contravention of the general protection provisions in Part 3‑1 of the Fair Work Act 2009 (Cth) (FW Act). The applicant was represented by a solicitor when her originating application was filed. The originating application was not accompanied by an affidavit or a statement of claim, as the rules require. The solicitor subsequently filed a notice of ceasing to act, and the applicant is now self-represented.
The claims made by the applicant are set out in a statement of claim which she has prepared herself, no doubt to the best of her ability. The respondent seeks an order pursuant to r 16.21 of the Federal Court Rules 2011 (Cth) that the statement of claim be struck out in its entirety. The sole basis on which the respondent seeks to have the statement of claim struck out is that it does not comply with the requirements of r 16.02, which are concerned with the content of a pleading. In substance, the respondent's application is that the statement of claim is unduly lengthy, ambiguous, and likely to cause prejudice, embarrassment or delay in the proceeding. The respondent contends that the statement of claim fails to disclose causes of action, or at least does not adequately plead causes of action. It is important to emphasise that the respondent's application is directed to the form of the pleading. The respondent does not contend that there is no tenable cause of action that is capable of being pleaded by the applicant.

The purposes of pleadings

The purposes of pleadings are well known. A pleading is a document that defines the issues to be decided in a proceeding. Part 16 of the Rules provides for the content of pleadings generally including, in r 16.02, the requirement to state the material facts necessary to give an opposing party fair notice of the case to be made at trial. Part 16 also specifies how certain matters or things should be dealt with in pleadings (for example facts, references to documents or spoken words, conditions precedent, admissions and denials), and matters that in certain pleadings must be expressly pleaded. It is the function of pleadings to set out material facts, not the evidence that proves those facts: see r 16.02(1)(d).
The rules of pleading are calculated to avoid trial by ambush, and to promote the precise identification of the issues that are before the court: see Dare v Pulham (1982) 148 CLR 658 at 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ). Therefore, in any proceeding the purposes of pleadings include enabling the opposing party to have fair notice of the case that must be met at trial, and enabling the Court to know what issues are to be determined.
The identification of issues is necessary not only for a fair trial and ultimate determination of the claims, but also for the purposes of ruling on any applications for discovery, and the admissibility of evidence: see Banque Commerciale SA, en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 (Banque Commerciale) at 286 (Mason CJ and Gaudron J).
To the extent that the rules of pleading are concerned with fairness, they are an emanation of the requirements of procedural fairness. As with the rules of procedural fairness generally, pleadings are about affording practical justice, and are not an end in themselves: cf the observations of Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137.
Overlying the requirements of r 16.02 is the overarching purpose of the civil practice and procedure provisions of the Court that is referred to in s 37M of the Federal Court of Australia Act. The overarching purpose is to facilitate the just resolution of disputes according to law, and as quickly, inexpensively, and efficiently as possible. Parties and their lawyers are required to act consistently with the overarching purpose, and the Court must exercise any procedural powers in a way that best promotes the overarching purpose. The Court's powers under s 37P of the Act to give effect to the overarching purpose are extensive, and include the power to strike out, amend, or limit any part of a party's claim or defence.
Pleadings have a particular significance in proceedings in this Court which raise claims involving the taking of adverse action, or action with intent to coerce in contravention of the provisions of Part 3‑1 of the FW Act. That is because of the effect of s 361 of the FW Act, which provides for a rebuttable presumption that a person took an action for a particular reason or with a particular intent that is alleged in an application under Part 3‑1. Where the case is conducted on pleadings, an allegation that seeks to engage s 361 should usually be made in the pleadings: Australian Federation of Air Pilots v Regional Express Holdings Ltd [2021] FCAFC 226; 290 FCR 239 (Regional Express) at [139] (Bromberg, Kerr and Wheelahan JJ).
The limitations of the presumption in s 361 of the FW Act should be noted. The presumption does not relieve an applicant from proving on the balance of probabilities the contravention, but stands as proof of the fact unless the respondent proves otherwise: Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; 91 FCR 463 at [109] (Wilcox and Cooper JJ). It is also important to note what was said in Tattsbet Ltd v Morrow [2015] FCAFC 62; 233 FCR 46 (Tattsbet). Jessup J, with whom Allsop CJ and White J agreed, held at [119] that a party making an allegation that adverse action was taken "because" of a particular circumstance, such as the exercise of a workplace right, needs to establish the existence of the circumstance as an objective fact. Therefore, in the case of a "workplace right", which is the subject of a definition in s 341 of the FW Act, the existence of the right must be established by an applicant in order to maintain a claim of adverse action under s 340.
This leads into the observations made by the Full Court in Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 261 FCR 347 (Hall) where Tracey, Reeves and Bromwich JJ stated at [19] - [W]e consider that an applicant wishing to take advantage of the presumption in s 361, in addition to making the allegation in a form that meets the requirements of s 361(1)(a), must provide sufficient information about the action, and the related reason or intent (or both) for which that action was taken, to show that, in combination, they would constitute a contravention of a provision of Pt 3-1 of the FWA. This means that, in a proceeding such as the present one, which was conducted on pleadings, an applicant is required to plead in his or her statement of claim all the material facts concerning the contraventions alleged against the respondent. As French J said in Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171 at 173, "[a] material fact is one which is necessary to formulate a complete cause of action. … Material facts must be pleaded with the degree of specificity necessary to define the issues and inform the parties in advance of the case they have to meet."
One issue that arises on the respondent's submissions in this application is whether the applicant is required to plead the identities of individuals who are said by the applicant to represent the state of mind of the respondent when engaging in claimed adverse action for impugned reasons. The respondent relied on some broadly expressed obiter dicta of the Full Court in Monash Health v Singh [2023] FCAFC 166; 327 IR 196 at [116] (Katzmann, Snaden and Raper JJ). To the extent that those obiter dicta suggest that an applicant's pleading that seeks to invoke s 361 of the FW Act against a corporation must necessarily include the identification of the employee or agent whose impugned state of mind is to be attributed to the corporation, I respectfully disagree. The better view is that taken by the Full Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 (BHP Coal), which was referred to by Snaden J in Forshaw v Qantas Airways Ltd [2023] FCA 957 at [39] in the context of the adequate pleading of adverse action relied on. One of the issues raised on the appeal in BHP Coal was whether the primary judge had been in error in striking out a paragraph of the appellant's amended statement of claim that alleged that a non-party to the proceeding, BMA, had taken action with intent to coerce the respondent to engage in adverse action. One of six grounds on which the paragraph was struck out was that the pleading failed to identify the person or persons whose intent was to be attributed to BMA. The respondent to the appeal did not seek to defend the primary judge's reasoning on this ground. At [69]-[70], the Full Court stated - 69 Where an applicant alleges that a respondent has contravened s 340(1)(a)(i) through the operation of s 362(1) of the FWA by reason that the respondent took action with intent to coerce another person to engage in adverse action, s 361(1) imposes an onus on the respondent to prove that it did not have that intent. In this case, BMA has the onus of proving that it did not intend to coerce BHP Coal into engaging in adverse action against its employees. Rule 16.03(2) of the Rules provides that a party need not plead a fact if the burden of proving the fact does not lie on that party. Thus, while the applicant's pleading must raise an allegation that BMA took the action with intent to coerce, it is not required to plead the identities of the persons whose intent is to be attributed to BMA. Assuming that r 16.43(1) applies, it requires that a party who pleads a condition of mind must state in the pleading particulars of the facts on which the party relies. However, there can be no requirement to provide particulars of facts which r 16.03(2) does not require to be pleaded. 70 It follows that the primary judge erred in striking out paragraph 40 of the ASOC on the basis that it did not identify the person or persons whose intent was to be attributed to BMA. Despite that error, any appeal would necessarily fail because her Honour was correct to strike out paragraph 40 for the reason that it depended on and went with paragraph 29 of the ASOC. (Emphasis added.)
As appears from [70] of the Full Court's reasons, the error that the Full Court upheld was not material to the outcome of the appeal, because the Court held that the primary judge had been correct to strike out the impugned paragraph on other grounds. Nonetheless, the error was an issue that was squarely raised by the appellant and considered by the Full Court, and thus its consideration qualifies as at least seriously considered dicta.
The purpose of s 361 of the FW Act and its legislative predecessors is to throw onto a respondent that which lies peculiarly within its knowledge: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] [2012] HCA 32; 248 CLR 500 at [50] (French CJ and Crennan J), citing General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 617 (Mason J). There is no reason to think that the identities of individuals whose states of mind are to be attributed to a corporation for the purposes of the issues within s 361 would not be within this policy. Because of the factual presumption in s 361, and having regard to r 16.03(2), the identities of the persons whose states of mind are to be attributed to a corporation are not matters which must necessarily be pleaded by an applicant. But as the decisions in Hall, Tattsbet, and BHP Coal show, precise pleading by an applicant is usually required in identifying the adverse action relied on, and in pleading the existence of the circumstances that are relied on as the reason the action is alleged to have been taken. For example, one of the issues in BHP Coal was the existence of the claimed adverse action itself. As [62] of BHP Coal shows, an applicant may be required to plead the identities of the persons whose conduct is to be attributed to a corporation for the purpose of establishing the existence of the adverse action. That does not appear to be the case here, at least in relation to the applicant's claim that she was dismissed from her employment, because that is an alteration in the parties' legal relations effected by the respondent itself which does not appear to be in issue: see s 342(1) item 1(a). However, the position may be otherwise in relation to other adverse action alleged by the applicant. In summary, the precise identification in an applicant's statement of claim of the claimed adverse action (where it is in dispute) and other objective circumstances will generally be required so as to give fair notice to a respondent of the case that has to be met in order to discharge the onus under s 361.
The above observations are subject to the consideration that, as I mentioned earlier, pleadings are a tool of practical justice. Furtherance of the overarching purpose invites a flexible approach. Much will depend upon the circumstances of the case, such that there can be no hard and fast rules. There may, for instance, be cases where upon a respondent pleading its case in support of discharging the onus in s 361, an applicant might be required to plead facts by way of reply so as not to take the respondent by surprise: see r 16.03(1)(b). Further, considerations of fair notice and practical justice are often informed and shaped by the way the parties conduct their cases at trial, including openings, evidence that is admitted, and the course of cross-examination: see Dare v Pulham at 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ); Banque Commerciale at 287 (Mason CJ and Gaudron J) and 296-7 (Dawson J); and see as an example TechnologyOne Ltd v Roohizadegan [2021] FCAFC 137; 309 IR 262 at [216]-[222] (Rangiah, White and O'Callaghan JJ).
In the present application, in relation to the applicant's claim that she was dismissed because she exercised a workplace right, for the above reasons I am not persuaded that the overarching purpose is served by requiring the applicant at this point to provide particulars of the individuals whose states of mind are to be attributed to the respondent in relation to the decision to terminate her employment. The reasons for dismissal are a matter for the respondent to plead if it seeks to discharge the onus under s 361. However, this is only one discrete part of the respondent's challenge to the contents of the applicant's statement of claim. I will now turn to the broader issues.

The statement of claim

Much of the statement of claim takes on a discursive form. The allegations made by the applicant are wide-ranging. Some of the allegations are clearly background narrative rather than brief allegations of material fact that are organised in such a way as would comprise the elements of a cause of action.
In oral submissions, the applicant confirmed that the main part of her case was that she was dismissed in contravention of the general protection provisions of Part 3-1 of the FW Act. Before I go into the statement of claim in more detail, I will identify in point form one pathway in which the applicant's claims are put. This identification is in part the product of distilling key components of the applicant's claim from her statement of claim, and oral submissions which clarified some of the ways in which her claims were put. I stress that, at this stage, I am passing no comment on the merits of the applicant's claims -
The applicant commenced employment with the respondent on 1 December 2022 as a Procurement Agent/Senior Contract specialist.
In the period January and February 2023, the applicant was the subject of talk and gossip within the office which humiliated her, and caused her distress. An Acting General Manager was a participant in the talk and gossip.
The applicant made complaints to her direct reporting manager about the talk and gossip.
The applicant sustained a foot injury in early 2023, which on medical advice required her to work from home for six months.
The applicant identified some shortcomings in the way that the respondent managed its contractors, which she also reported to her direct reporting manager.
The applicant's workload increased to a point that she found difficult, such that she had sleepless nights. In more than 20 one-on-one meetings, the applicant asked her direct reporting manager to relieve the situation with her workload, but she did not receive any help in reducing the pressure that was placed upon her.
The applicant raised with management of the respondent a number of issues of "non-conformance" in relation to contracts. The applicant claims that highlighting these issues was the exercise by her of a "workplace right".
In June 2023, the applicant learned that the Acting General Manager was pushing the respondent's human resources department to require the applicant to return to work at the office.
The applicant considered the behaviour of the Acting General Manager to be discriminatory and to constitute bullying.
On 22 September 2023, the applicant submitted a formal "ethics complaint" to the respondent's human resources department about the conduct of the Acting General Manager.
Following the making of her ethics complaint, the respondent considered the applicant for redundancy, as a result of which her employment was terminated effective 30 October 2023.
The respondent dismissed the applicant from its employment, or alternatively discriminated between the applicant and other employees in the redundancy process, because the applicant had exercised a workplace right by making the ethics complaint. The respondent thereby contravened s 340(1) of the FW Act as a result of which the applicant suffered loss and damage which should be the subject of an order for compensation.
I do not suggest that the applicant's claims are limited to the points set out above. Far from it. However, it is useful to spell out what appears to be a core element of the applicant's claims.
The main complaint made by the respondent is that the statement of claim is so vague and ambiguous that the respondent cannot plead to it. Having considered the statement of claim carefully for myself, and having taken account of the applicant's oral and written submissions, I am compelled to the conclusion that the statement of claim cannot be permitted in its current form. This is not to suggest that the applicant may not have some viable claims that can be alleged in a statement of claim. The criticisms of the statement of claim go the form it takes. I will address the main points that lead me to this conclusion.
The applicant's statement of claim spans 216 paragraphs in single-spaced type. It is organised into parts, which are headed as follows, with the corresponding paragraphs identified - I Introduction - [1] II Factual background - [2]-[47] III Guna's protected activities - [48]-[78] IV Boeing's adverse actions against Guna's protected activities - [79]-[144] V Breaches - [145]-[186] VI Loss and damage - [187]-[192] VII Common questions - [193]-[216]
The factual background in Part II is in the form of an overview of the applicant's claims. The applicant submitted that she prepared it in this way to assist the Court in better understanding the context of her claims. However, one byproduct is that in many respects Part II is drafted in a high-level, conclusory way, and its contents give rise to uncertainty and repetition. That uncertainty arises because it is not sufficiently clear how the allegations in Part II are to be read with what, if any, of the causes of action that are later alleged.
Part II uses vague labels, such as an allegation in [27] that "Middle Management-SM" launched a "Gaslighting campaign" against the applicant. A footnote to [27] refers to middle management as being the Acting General Manager "and other managers under her", who are not identified. There is a cross-reference in [27] to [111]-[117] "for more details". Those paragraphs appear in Part IV of the statement of claim. Paragraphs [111]-[117] give rise to further problems. The allegation of a "Gaslighting campaign" is repeated at [111] as a vague, headline allegation to which is added that the applicant was "continually denigrated, humiliated, and treated with scorn and contempt by middle management".
The applicant introduces an allegation at [112] that she was "framed", which is repeated at [119]. This allegation is not clear. The statement of claim does not explain what the framing was, who framed the applicant, what she was framed for, or what the true position was.
There are other allegations made about "Boeing management" starting rumours about the applicant. There is an allegation at [114] that the applicant's direct reporting manager raised his voice at the applicant in some one-on-one meetings with her via Webex "and blamed Guna without fact-checking". None of these types of allegations has sufficient content, clarity, or focus. It is not clear how they support any cause of action, unless they were no more than the subject of the "ethics complaint" which is capable of constituting the exercise of a workplace right. However, when I asked the applicant to clarify this, she indicated that these other allegations were not so limited.
During the course of the hearing of the application I formed the impression that the applicant has not given attention to what is a "workplace right" for the purposes of s 341 of the FW Act. The applicant made submissions suggesting that the High Court's decision in Qantas Airways Ltd v Transport Workers Union of Australia [2023] HCA 27; 412 ALR 134 (Qantas) stood for the proposition that a claim for contravention of s 340 did not have to be linked to a workplace right, which is limited by the definition in s 341, or to adverse action, which is subject to the table in s 342(1). The decision in Qantas stands for the proposition that in the circumstances of that case the workplace right did not need to be held by the applicant at the time the adverse action was taken, but could be a workplace right that was in prospect. In addition, I formed the impression that the applicant regarded everyday activities in the workplace, such as sending emails to management reporting on external issues with contractors, as the exercise of a workplace right. On its face, and without more, such a communication would not appear to be a workplace right as defined by s 341(1), which is explained in the authorities such as Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; 314 ALR 346, PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15; 274 FCR 225, and Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163; 300 FCR 170.
The next section of the statement of claim is Part III, which is headed "Guna's protected activities", and comprises [48]-[78]. The overarching vice with this section of the statement of claim is indicated by the chapeau, which states - Guna alleges that adverse actions were taken against her for exercising her statutory right in making an Ethics complaint, as well as for highlighting non-conformance practices and contractual errors as listed below.
It appears that everything set out at [48]-[78] is alleged in some way to be a protected right forming the foundation for the applicant's allegations of adverse action in Part IV. However, it is far from clear how much of Part III constitutes the identification of protected rights, and in particular workplace rights. The pleading is therefore confusing, and difficult to understand. At one point in the hearing, the applicant clarified that everything alleged in Part III is a workplace right. The expanse of the applicant's case is illustrated by [51] of the statement of claim to which I took the applicant in argument -
Negotiated against a higher price increment and managed to reduce the requested amount. When Guna shared the news with Acting General Manager … in January 2023 (during the 'January Gossip saga'), she said 'Do you know who gets the credit for this? It's Facilities. Not us. So it's no point'.
The applicant submitted that negotiating a price with a contractor was a workplace right under her role. This example illustrates the extent to which many of the applicant's claims are detached from the concept of a workplace right as understood in the authorities.
The magnitude of the unfocussed allegations of the applicant's "protected activities" in Part III is compounded by Part IV of the statement of claim, which commences with the following allegation in [79] -
Because of Guna's ethics complaint and her refusal to compromise ethical and quality practices (as discussed previously and herein); Guna was retaliated against in a number of ways including but not limited to the following …
What follows is 65 paragraphs of allegations about a host of issues relating to intra-office activities that are alleged to have occurred from December 2022 onwards. Some of those allegations might be seen to amount to perceptions of intimidation or bullying, and include spoken remarks about the applicant's performance that the applicant claims she overheard. The allegations include generalised allegations at [91] that middle management "were not welcoming" and that floormates did not converse with her unless they wanted something done, and that they excluded her from their conversations at the lunch table. Another allegation is that the applicant's direct reporting manager - sent Guna in circles when she requested his help to get the Price analysis part done by the analytics team (who had access to Boeing payment data). Ultimately, he instructed Guna to do the price analysis herself.
Apart from the obvious matter of the applicant's dismissal from her employment, it is just not clear how the applicant claims that the series of matters alleged in Part IV of the statement of claim constituted adverse action that is to be attributed to the respondent of a type set out in the table to s 342(1) of the FW Act and, if so, of what type.
That is enough to conclude that Part IV of the statement of claim cannot remain in its current form. However, a further vice is that the applicant confirmed during oral argument that the allegation in [79] was intended to pick up everything in Part III. In other words, everything alleged in Part IV is said to be adverse action taken "because" of everything in Part III. The reader is left to guess what the true connections are.
The applicant submitted that Parts I to IV of the statement of claim set out the material facts that are said to support the causes of action alleged in Part V, which is headed "Breaches". Taking up this submission, it is convenient to identify what causes of action are alleged in [145]-[186] of the statement of claim.
There are a number of causes of action alleged in [145]-[186], based upon different statutory provisions and claimed breaches of the applicant's employment agreement, and an enterprise agreement. I will commence by identifying the nature of the causes of action relied on by the applicant, of which there appear to be nine. These causes of action are evidently intended by the applicant to be informed by the pleading of all the matters that precede them. However, there is a high degree of imprecision.

(1) Breach by the respondent of a code of conduct

In [145]-[148] of the statement of claim, the applicant alleges breaches of a code of conduct -
Code of Conduct Agreement was breached by Boeing throughout Guna's tenure. The Code of Conduct is an agreement that every Employee at Boeing signs annually. The terms breached by the Middle Management of SM are as below: a) I will prioritise safety, quality, and integrity above profit, schedule, or competitive edge. If I see something that raises a safety concern, I will speak up immediately. b) I will treat my colleagues with respect and understand that harassment will not be tolerated. c) I will work to support Boeing's mission to build an inclusive culture in which diverse experiences and voices are heard, respected, and incorporated into the most important issues that we face as a company. d) I will promptly report any illegal, improper, or unethical conduct to my management or through other appropriate channels. e) I will never retaliate against or punish anyone who speaks up to report a concern. f) I certify that I have read, understand and commit to comply with the Boeing Code of Conduct.
Note the terms above that were breached by Boeing's Middle management-SM through the acts of:
Creating workload pressure
Allowing a Bullying saga to be carried out against Guna without putting a halt to it, and not conducting an investigation on it
Discriminating against Guna and not investigating it
Allowing fraudulent activities to occur despite it being brought to their attention by Guna
Instructing Guna to remove records from reports or mark it as completed (pencil-whipping).
At all relevant times, the Middle Management of SM, knew or ought to have known of each of the terms listed in the Code of Conduct above.
The Defendant bears onus to prove that they did not breach the Code of Conduct.
There is a likelihood of a threshold issue as to whether the code of conduct alleged by the applicant comprises the terms of any contract enforceable by the applicant against the respondent, or whether it is enforceable by the applicant against the respondent in some other way. That issue does not directly arise for determination on this application, which is concerned with the form of the pleadings. However, it is relevant to the form that the pleadings take. For present purposes, I conclude that [145]-[148] are unclear in that they do not allege a cause of action against the respondent. And insofar as they allege breaches of the code of conduct, they allege breaches of the code of conduct by members of the respondent's middle management who, it is alleged, signed the code on an annual basis. Even on the assumption that those breaches were relevant to some cause of action against the respondent, the pleading does not state with sufficient clarity what breaches were committed by what persons. And as for [148], it alleges a reversal of the onus of proof on a basis that is not apparent.

(2) Adverse action in contravention of s 340 of the FW Act

At [149]-[154] of the statement of claim, under the heading "Whistleblowing", the applicant alleges -
According to s 340 of the FWA: (1) A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or c. to prevent the exercise of a workplace right by the other person.
As per Workplace Rights, Guna highlighted issues that could lead to legal, financial and ethical risks to the Boeing Management. These included: a) Conceptual Errors b) Nonconformance practices c) Contractual Errors d) Quantity over Quality with workload
Consequently whenever Guna raised an issue: a) Her workload increased b) She was bullied and discriminated against
As per her workplace rights, Guna filed an Ethics complaint to Boeing HR
As a result Guna was retaliated against, through the redundancy process.
The Defendant bears onus to prove that the applicant didn't raise such concerns to her Direct reporting Manager.
The reference to an ethics complaint in [152] is to the complaint that the applicant at [37] of her statement of claim alleges that she made to the respondent's human resources department on 22 September 2023, concerning the conduct towards her of an Acting General Manager of the respondent.
The respondent makes a number of complaints about [149]-[154] of the statement of claim, being that they do not include concise or clear pleadings as to -
the individuals that are said by the applicant to represent the state of mind of the respondent when engaging in the alleged adverse actions for the alleged prohibited reasons;
how it is said that each alleged "workplace right" falls within the meaning of s 341 of the FW Act, nor the purported source of such workplace rights; and
which aspect of s 342(1) item 1 of the FW Act the applicant asserts is relevant to the alleged adverse actions, on the assumption that the adverse actions were the matters set out in [151] and [153].
I have already dealt with the respondent's complaint that the applicant has not pleaded the identities of the individuals who are said by the applicant to represent the state of mind of the respondent when engaging in the alleged adverse action. I do not accept that the applicant is necessarily required to plead the identities of the individuals whose states of mind are to be attributed to the respondent. For instance, in the case of termination of her employment, the termination is the act of the corporate respondent, which may be sufficient to give the respondent fair notice of the case it has to meet. On the other hand, there appears to be an array of conduct by various individuals on which the applicant relies as constituting adverse action. That other conduct, if it is to be relied on, should be pleaded with precision by identifying the action relied on, and the individuals involved so that the respondent can address the allegations and consider its position in relation to the factual presumption effected by s 361.
I accept the respondent's submission that the pleading does not allege with sufficient clarity what workplace rights are relied on by the applicant, save that it is sufficiently clear that the making of the ethics complaint is relied on as a workplace right, and that the redundancy process and the termination of employment are relied upon as adverse action.

(3) The sharing of private information about the applicant in contravention of s 345 of the FWA, the Australian Privacy Principles under the Privacy Act 1988 (Cth), and clause 18.1 of the applicant's employment agreement

At [155]-[160] of the statement of claim, under the heading "Bullying", the applicant alleges -
According to s 345 of FWA 2009 - Misrepresentations: A person must not knowingly or recklessly make a false or misleading representation about:
the workplace rights of another person; or
the exercise, or the effect of the exercise, of a workplace right by another person.
According to Part 3, Div 1, s13, 1(a) of the Privacy Act 1988: a) the act or practice breaches an Australian Privacy Principle in relation to personal information about the individual; or b) the act or practice breaches a registered APP code that binds the entity in relation to personal information about the individual.
According to the 18.1 of the Employment Agreement: The Company respects the privacy of individuals. As an employee, you need to treat people's personal information with respect. You must read and be familiar with the Company's Privacy policy describing the way that you must treat personal information in the course of your employment, as well as the way that the Company will treat personal information about you.
This is in relevance to the statements Acting General Manager-SM, Marie Yarak, discussed with other managers and floor-mates, regarding Guna's private information. a) Wages b) Age c) Work Performance-related comments
The Defendant bears onus to prove that Acting General Manager-SM … didn't share Guna's private information, without her consent.
The Defendant bears onus to prove that Acting General Manager-SM … didn't misrepresent Guna in the workplace.
The respondent submitted that the material facts relevant to these allegations are not pleaded. I agree. These paragraphs lack coherence. There is no properly pleaded claim of a false or misleading representation about any identified workplace right. The relevance of the reference to the privacy principles under the Privacy Act 1988 (Cth) has not been pleaded in circumstances where there is no direct cause of action for breach of those principles: see Madzikanda v Australian Information Commissioner [2023] FCA 1445; 330 IR 387 at [2]. The reference in the statement of claim at [157] to the employment agreement as an element of some cause of action is undeveloped, and is therefore ambiguous. The allegations in [159] and [160] that the respondent bears some onus of proof are not supported, and otherwise not coherent.

(4) The taking of action with intent to coerce the applicant, contrary to s 343 of the FW Act

At [161]-[165] of the statement of claim, and under the heading "Workload concerns", the applicant alleges -
According to s 343 of FWA 2009: A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to: (b) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or (c) exercise, or propose to exercise, a workplace right in a particular way.
According to National Tertiary Education Industry Union v Commonwealth of Australia (2002), the approach to the expression "intent to coerce" taken in each of the authorities set out above makes it clear that what is required is an intent to negate choice, and not merely an intent to influence or to persuade or induce.
Guna claims that; a) She had to undertake tasks; which were out of her scope of practice as Procurement Agent. This fulfils the intent to coerce from National Tertiary Education Industry Union v Commonwealth of Australia (2002) b) As of October 2023, the applicant was undertaking 26 contracts and projects and working with 5 stakeholder teams. This excludes any of the excess additional work she undertook. c) The applicant claims that this workload issue was first brought to the management's attention March 2023. Since then, it was raised to [the direct reporting manager] in more than 20 1ON1-meetings. d) Guna was coerced into carrying her excessive workload till the end of her tenure due to the false hope of alleviating her workload
The coercion is relevant, because [the direct reporting manager] gave Guna false hope of offloading her workload.
The Defendant bears onus to; a) Provide a statement of works undertaken by other employees in the Commercial team-SM b) Explain how and why other PAs in the commercial team did not have the capacity to undertake the excessive workload Guna was handling since March 2023.
The respondent submitted that the applicant had not pleaded a "workplace right" to found the claims in these paragraphs. This is a fundamental problem with these paragraphs. Coercion is alleged by the applicant, but without paying attention to the elements of the statutory proscription of taking action with intent to coerce in s 343 of the FW Act: see the elements described by the Full Court in Regional Express at [170]. The reference in [165] to the onus of proof is not supported. Paragraphs [161]-[165] of the statement of claim are therefore, like other sections of the pleading, incoherent.

(5) Exerting undue influence or pressure on the applicant contrary to s 344 of the FW Act

At [166]-[167] of the statement of claim, and under the heading "Undue Influence/Pressure", the applicant alleges -
According s344 of the FWA 2009: An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to: (a) make, or not make, an agreement or arrangement under the National Employment Standards;
Guna claims that the Middle Management-SM influenced/pressured: a) The Applicant was overloaded with tasks and was pressured by the Respondent to meet deadlines despite raising complaints regarding it. Instead of acting on her complaints, [the direct reporting manager] continued to approved more work for Guna to do. b) The Applicant was pressured to deal with conflicting directions given by different managers and senior managers regarding the prioritisation of the Applicant's delegated duties and tasks. c) The Applicant was pressured to deal with duties and responsibilities outside of the scope of her employment. d) Giving her to do work that is supposed to be done by other teams (who have relevant data access); and not giving her the relevant data access to do them herself. e) Applicant already informed the team that she doesn't share private information. However, she was asked to share private information as part of improving her relationship with stakeholders as a PA f) Putting unwarranted blame on her based on biased opinions - Which were proven wrong. g) Blamed Guna's foot injury as a reason for his inability to alleviate Guna's excessive workload. h) Gaslighting Guna into believing her one-off task delay was the reason for tension within the SM team. Which wasn't true. The Defendant bears the onus to prove that the Direct reporting Manager-SM … checked whether the applicant had the capacity to handle extra work.
The respondent submitted that these paragraphs were unclear, and that the best that could be made of them was that the applicant was attempting to plead that the respondent had exerted undue influence upon her to make, or not to make, an agreement or arrangement under the National Employment Standards. The respondent submitted that if this was the case, the applicant had not pleaded necessary material facts, such as the decision under the National Employment Standards that is the subject of the allegation, or that the conduct of the respondent that is alleged was directed to such a decision. I agree. There is a further problem in that there is a plea relating to an onus of proof without any apparent foundation.

(6) Taking adverse action against the applicant in the nature of discrimination, contrary to s 351 of the FW Act

At [168]-[173] of the statement of claim, and under the heading "Discrimination", the applicant alleges (omitting a footnote) -
Section 351 of the Fair Work Act provides that: 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 preference, age, physical or mental disability, marital status, family, or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
As extracted from HR complaint, Acting General Manager … discriminated Guna during a 1ON1 meeting "I know your English isn't perfect, but that's okay because we hire diversity".
In February, Acting General Manager SM-Marie Yarak discriminated against Guna's age (see point ) when a manager asked 'how old is Rashika? Acting General Manager SM … said 'Old. I think she is on botox'.
Part 2 (point 6) in the Equal Opportunity Act 2010 is applied because the Equal Opportunity Act is addressed in Boeing's Enterprise Agreement. It outlines the areas in which discrimination is prohibited in:
Age; Breastfeeding; Employment activity; Gender identity; Disability; Industrial activity; Lawful sexual activity; Marital status; Parental status or status as a carer; Physical features; Political belief or activity; Pregnancy; Race; Religious belief or activity; Sex; Sex characteristics; Sexual orientation; and expunged homosexual conviction; a spent conviction; b) Personal associate (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes.
Guna was discriminated by Senior Manger SM … on Race, Age and Employment activity during: a) Loud Gossip saga in January-February 2023 b) 1ON1 meeting 23 June 2023
Defendant bears onus to prove the reasoning behind the discriminatory comments towards Guna.
The respondent submitted that the applicant appeared to allege a contravention of the Equal Opportunity Act 2010 (Vic), in addition to a contravention of s 351 of the FW Act. The respondent submitted that there was a complete absence of detail in the pleadings as to how that claim was made. In my view, this section of the statement of claim fails to allege necessary material facts that are alleged to give rise to discrimination, and is generally not coherent.

(7) Creating a hostile working environment for the applicant contrary to the terms of her employment agreement

At [174]-[175] of the statement of claim, and under the heading "Hostile Work environment", the applicant alleges -
Part 17.1 of the Employment Agreement was breached: The Company is an equal opportunity employer, and is committed to a working environment that is free from discrimination, bullying and harassment. As an employee, you have the responsibility to treat all workplace participants with courtesy and respect and to behave in accordance with the Equal Employment Opportunity Policy. A copy of the policy is enclosed. Please read it and familiarise yourself with its terms.
The applicant alleges that the factors of workload issues, bullying and discrimination created a hostile environment against Guna which caused the applicant distress throughout her tenure.
The respondent submitted that the above allegations were put without any supporting pleadings that adequately grounded the basis on which the cause of action was alleged. I agree. The allegation in [175] is high-level, and lacks precision.

(8) A claim that the termination of the applicant's employment was not by reason of a genuine redundancy for the purposes of s 389(1) of the FW Act

At [176]-[180] of the statement of claim, and under the heading "The Redundancy", the applicant alleges -
Sham Redundancy a) According to s 389(1)(a) FWA, a person's dismissal was a case of genuine redundancy if: the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; b) In addition, part 29.1 and 30.4 of the applicant's Employment Agreement which both the applicant and the employer signed, states: If your position becomes redundant because the Company no longer requires the job you are performing to be performed by anyone, the Company's redundancy policy in force at the time the position is made redundant applies.
Guna was given the Redundancy Notice on 16th October 2023. Guna claims that; a) Guna's role at Boeing was pivotal to the running operations of the manufacturing plant. b) She was never part of MQ28 project team. c) She only worked in the Commercial/Permanent team during her tenure. d) The cancellation of the MQ28 program had not reduced the applicant's workload. e) Upon the cancellation of the MQ28 project, 2 project staff were transferred to the Commercial Team i) One of the project staff … was transferred to the Commercial Team, to fill a vacant position (PA in Metallics & Standards). ii) The second staff member … was transferred to the Commercial team without a definite substantive position. It's important to note that [the second staff member] hadn't completed his 6-month Probationary Period. f) That the other departments of Boeing practiced redundancy by only making MQ28 project staff redundant. However, in SM they chose a different method.
WAG assessment according to the enterprise agreement. According to section 95.1(d) of the Enterprise Agreement: "Where the Company determines that it needs to reduce the overall numbers in a designated work area (a "Work Assessment Group") …. In this event the Company will apply a process to assess the group of employees against pre-determined criteria to identify those least suitable for the job."
Guna claims that; The low score she was given under the WAG doesn't correlate with: a) The statement of work that the applicant was undertaking during her employment at Boeing. b) The good feedback she received from her Direct reporting Manager-SM … throughout her tenure. c) The appreciation she received from the management (SM &FAM) throughout her tenure. d) She was the 'highest saver' in the SM team during her tenure. e) She shouldn't be assessed under some criteria as she was working from home due to a foot injury from Mid-February to end of August. f) She didn't receive the justification behind the low scores she was given even though [she] requested for it. g) She shouldn't have received a lower score than [the second staff member] who didn't even have a proper statement of work. h) She shouldn't have received a lower score than [another staff member] who didn't even have any Procurement experience.
The Defendant bears onus to prove that they conducted a valid redundancy and that the WAG assessment was conducted objectively.
The respondent submitted that the best that could be made of [176]-[177] was that the applicant was alleging a contravention of s 389 of the FW Act. However, the problem with this part of the applicant's claim is that s 389 of the FW Act is a definitional provision, providing for a definition of "genuine redundancy" for the purposes of the unfair dismissal provisions in Part 3-2 of the Act, which is not a claim that the applicant is able to make in this Court. It may be the case that the applicant has some tenable claim that her redundancy was not genuine, but not in the inapposite and incomplete form in which it is expressed above.

(9) Discouragement of the applicant from reviewing a Work Assessment Group (WAG) score that led to the termination of the applicant's employment on the ground of redundancy of her position

At [181]-[186] of the statement of claim the applicant alleges -
Section 321 of the Fair Work Act provides the meaning of a workplace right, as follows: (1) A person has a workplace right if the person: a. Is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or b. Is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or c. Is able to make a complaint or injury: i. To a person or 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.
According to Part 9 Attachment 3 Step 4 subsection a, of the Enterprise Agreement All employees have the right to review the grounds for their redundancy. Within 48 hours, the employee has the opportunity to:
Appeal and Additional Information An employee may seek to appeal the process of selection and provide any additional information they wish the Company to consider in relation to their initial identification. This additional information need not be limited to items relating to skills and competencies and may include other matters considered relevant by the employee.
During the redundancy outcome meeting on 26th Oct, the HR-Boeing … discouraged Guna from reassessing the WAG results.
Additionally, in instances in Phillips v Boeing Australia, Phillips got an opportunity to appeal the KSA scores, which in fact, did change the scores in two areas. It can be argued such opportunity should not have been shortened for Guna during the Redundancy Process.
Thus, it compromises the applicant's workplace right and also breaches the enterprise agreement.
The Defendant bears onus to prove that Boeing-HR didn't breach the Enterprise Agreement, by discouraging Guna from re-appealing.
The above paragraphs appear to allege a breach of an enterprise agreement. A threshold issue raised by the respondent is that the applicant has not identified an enterprise agreement in circumstances where the respondent disputes that an enterprise agreement applied to the applicant. During the course of the hearing, I identified in the materials reference to the Boeing Aerostructures Australia (Port Melbourne) Enterprise Agreement 2022. It appeared to me that the respondent, in its submissions and correspondence, had not made clear the basis on which it contended that the enterprise agreement did not apply to the applicant. I raised this with counsel for the respondent, stating that the applicant and the Court should not be left guessing about this issue. Counsel subsequently submitted that the applicant did not fall within any of the classifications of employees set out in the enterprise agreement. If this is the case, then the respondent will have to make its position much clearer. I did not consider the respondent's position on this issue to be satisfactory.
For present purposes, because the respondent puts in issue the question whether the applicant is covered by an enterprise agreement, the applicant should identify the enterprise agreement on which she relies, and should allege the facts necessary to support her claim that she was covered by the agreement, and that the agreement applied to her.
On the assumption that an enterprise agreement applied to the applicant, and that it gave her certain rights of review in relation to the decision to make her position redundant, perhaps embedded within [181]-[186] is an allegation that the respondent mispresented her workplace rights, as a result of which she did not exercise some right of review. But this is not sufficiently clear at present. Paragraphs [181]-[186] cannot stand in their current form.

The quantum of the applicant's claim

At [188] of the statement of claim, the applicant seeks damages in the sum of $3,000,000 for economic loss, and in the sum of $17,000,000 for non-economic loss. The applicant pleaded that these were estimates only, and that further particulars would be provided.
The respondent submitted that the applicant had not pleaded her claim for compensation in a way that enabled it to understand how the applicant had arrived at the claimed compensation, and that on any view the figures claimed were outside the range of compensation that could reasonably be available. I will say nothing about the merits of the claim for compensation, because that is outside the scope of the respondent's interlocutory application. As for the way in which the claim has been pleaded, it really falls away with the rest of the pleading. Upon the applicant articulating a tenable cause of action in an acceptable form, she will then be required prior to trial to give particulars of any economic and non-economic losses that she claims.

The common questions

At [193]-[216] of the statement of claim, the applicant sets out a series of "common questions of fact and law". These questions have no place in this proceeding, and in any event are imprecise and lack sufficient connection to a pleaded cause of action. It appears that the applicant was acting under some misconception that a statement of claim must include "common questions" for the respondent to answer, which is evident from her reference in written submissions to Somers v Box Hill Institute [2022] VSC 730 (John Dixon J). That decision involved the approval of a settlement of a group proceeding brought under Part 4A of the Supreme Court Act 1986 (Vic). By their nature, group proceedings often require the Court to determine common questions, being questions that are common to group members. But this is not a group proceeding, and no common questions are capable of arising. Paragraphs [193]-[216] of the statement of claim should be struck out.

Conclusion

As stated at the outset, the statement of claim will be struck out, and the applicant will be given an opportunity to replead. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.

Fair Work Act 2009(Cth)ss 340, 340(1), 341, 342(1), 343, 344, 345, 351, 361, 389, 389(1)

Federal Court Rules 2011(Cth)rr 16.02, 16.03(2), 16.21

At a glance

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