Weber v Thomas Foods International

1. The applicant is self-represented. Some of the background to this proceeding is set out in the interlocutory judgment in Weber v Thomas Foods International (Stawell) Pty Ltd (Interim Reinstatement) [2024] FCA 1506. On that occasion I held that the applicant had a reasonably good prima facie case that the summary termination of his employment by Thomas Foods was adverse action taken because the applicant had exercised or proposed to exercise a workplace right. The relevant workplace right was that the applicant had made claims that he was entitled to certain payments and benefits under an award, and that the terms of his contract of employment were ineffective to exclude those entitlements. The reasons for which I decided there was a good prima facie case included the inferences that arose from the order of events, and the fact that Thomas Foods did not adduce a skerrick of direct evidence on the application in relation to its reasons for terminating the applicant's employment. I made an order for interim reinstatement upon the applicant giving the usual undertaking as to damages.
2. Often, the best advocacy is selective and economical: Whisprun Pty Ltd v Dixon [2003] HCA; 200 ALR 447 at [18] (Gleeson CJ, McHugh and Gummow JJ). It should have been apparent that the applicant had two types of claim that were capable of being advanced relatively efficiently. The first was a claim that the applicant had not been paid in accordance with an award that he alleged was applicable to him, although there is some uncertainty in relation to which award the applicant alleges covered him. The applicant claimed entitlements under both the Road Transport and Distribution Award 2020 and the Road Transport (Long Distance Operations) Award 2020. The second claim was that by terminating the applicant's employment Thomas Foods had taken adverse action against him in contravention of s 340(1) of the Fair Work Act. In relation to this claim, the applicant has the benefit of the evidentiary onus established by s 361 of the Fair Work Act. Both types of claim, if established, would render Thomas Foods liable to penalties, payment of any amounts found to be due, orders for compensation, and other statutory remedies.
3. The Court usually accommodates the position of unrepresented litigants so that they are not placed at a disadvantage in terms of the Court's practice and procedure. However, as McHugh J observed in Gallo v Dawson [1990] HCA 30; 93 ALR 479 at 481, lack of legal knowledge is a misfortune, not a privilege. In this case that accommodation normally extended to unrepresented litigants is tempered by the fact that it appears that the applicant has made his claims complex and wide-ranging without sufficient regard to his obligation under s 37N(1) of the Federal Court of Australia Act to conduct this proceeding in a way that is consistent with the overarching purpose in s 37M. The applicant has sought by his originating application and statement of claim to cast a very wide net. He joined eleven respondents to the proceeding, although he subsequently discontinued the proceeding against the fourth respondent. The respondents include Mr Darren Thomas, a director of Thomas Foods, several employees of Thomas Foods involved in management, human resources, and payroll administration, and a consultant engaged by Thomas Foods who conducted a compliance audit of the applicant's activities. At one point, prior to the case management hearing on 31 January 2025, the applicant foreshadowed an application to add the respondents' solicitors as respondents to the proceeding. I declined to entertain that application on the ground that it had no proper basis.
4. The originating application, as originally filed, was 34 pages in length. The prayer for relief extended to 230 paragraphs, which included sub-paragraphs. Many of the claims for relief were repetitive. It was apparent that the relief sought against the individual respondents was on the ground that they were accessories to contraventions by Thomas Foods. The terms of the declarations sought by the applicant were a sufficient indication that the applicant was taking a very high-level approach to accessorial liability. The applicant also purported to seek relief on behalf of other drivers employed by Thomas Foods who are not parties to the proceeding, thereby raising questions relating to his standing to bring those claims.

1. At the case management hearing on 31 January 2025, I determined that natural justice and efficient case management required that the applicant's claims, which were very extensive, and which sought the imposition of penalties, should be pleaded. I made an order that the applicant file a statement of claim. I stated to the applicant that he would be required to articulate the elements of his causes of action clearly and precisely. I drew the applicant's attention to s 540 of the Fair Work Act and to the question whether he had standing to seek relief in relation to claimed contraventions affecting other drivers who were not parties to the proceeding. The applicant appears to have ignored this guidance. I explained to the applicant that formulating claims of accessorial liability was "a bit tricky", stating -

It's not as simple as what the statute appears to say on its face. Involvement in a contravention requires knowledge or reckless indifference in relation to the elements of the contravention. And because you seek penalties, the allegations you make will have to be the subject of precise exposition so that the court - at least the court knows the basis upon which you're advancing the case. (T5/2-8 )

1. I informed the applicant that he needed to put some work into his case to reduce it to manageable proportions. I read to the applicant the terms of ss 37M and 37N(1) of the Federal Court of Australia Act. I stated to the applicant that the Court invited him to consider the most efficient way in which to prosecute his claims. As part of my role to assist the applicant as an unrepresented litigant by directing his attention to considerations that might be relevant to the management of the case, I read to the applicant s 570(2) of the Fair Work Act, which provides for the circumstances in which a court may make an order for costs in a proceeding in relation to a matter arising under the Act.
2. In addition to ordering a statement of claim, I also gave leave to the applicant to file an amended originating application. I informed the applicant that while I was not going to strike out his originating application, in light of the observations that I had made the document was not a satisfactory basis on which the case could proceed. I stated to the applicant that the repetition that occurred in his originating application was not satisfactory. I invited him to give serious and careful consideration to whether he in fact had any tenable causes of action against the individual respondents on the ground of accessorial liability. I stated to the applicant that it was not satisfactory that he had over 200 paragraphs in his prayer for relief, and that to run such a case was not consistent with s 37M of the Federal Court of Australia Act.

1. The applicant's amended originating application is 17 pages in length, comprising 59 paragraphs in the prayer for relief, which include subparagraphs. As filed, the amended originating application refers to a schedule of all contraventions which was not attached. In summary, the applicant seeks the following relief -

(a) injunctions, declarations, an order for compensation, and civil penalties against Thomas Foods in relation to his summary dismissal (paras 1 to 14);

(b) declarations, an order for compensation, and civil penalties against Thomas Foods in relation to claimed award contraventions affecting the applicant, including underpayments (paras 15 to 19);

(c) declarations, an order for compensation, and the payment of civil penalties to the applicant against Thomas Foods in relation to claimed award contraventions affecting other drivers who are not parties to the proceeding (paras 20 to 29);

(d) declarations, an order for compensation, and civil penalties against Thomas Foods in relation to claimed contraventions of the Fair Work Act and the regulations involving claims of inadequate information on payslips (paras 30 to 35);

(e) declarations, an order for compensation, and civil penalties against Thomas Foods in relation to claimed contraventions of the National Employment Standards provided for by the Fair Work Act (paras 36 to 42);

(f) a declaration that Thomas Foods contravened s 385 of the Fair Work Act by dismissing the applicant from employment (para 43); and

(g) declarations, orders for compensation, and civil penalties against the second to third and fifth to eleventh respondents on the ground that they were involved in contraventions by Thomas Foods of the Fair Work Act and the awards that are alleged (paras 44 to 55).

1. The terms of the declarations sought by the applicant against the individual respondents are imprecise and indiscriminate. It appears that all individuals are alleged to be liable as accessories for all contraventions.
2. The statement of claim is 84 pages in length, comprising 640 paragraphs. I will deal with the applications for summary judgment first, before addressing the application to strike out the balance of the statement of claim.

Claims on behalf of other drivers - paragraphs 311 to 330, 333 to 335, 339, 341, 354 to 360, 638

1. In paragraphs 311 to 330 of the statement of claim the applicant alleges that the contracts of employment of other truck drivers (that is, drivers other than the applicant) employed at the Stawell site of Thomas Foods provided for rates of pay and allowances that did not comply with relevant award conditions under the Road Transport and Distribution Award 2020 and the Road Transport (Long Distance Operations) Award 2020. At paragraphs 333 to 335 of the statement of claim the applicant alleges by reference to the other drivers that Thomas Foods contravened the Awards. One allegation that the applicant makes at subparagraphs 333(a) and 335(a) is that Thomas Foods failed to display or provide a copy of the Award. Having regard to the headings in the statement of claim above paragraphs 333 and 335 these allegations are clearly referrable to the other drivers. A corresponding allegation is made by the applicant in relation to his own claims at subparagraphs 331(a).
2. At paragraphs 338 and 339 of the statement of claim the applicant alleges that Thomas Foods failed to comply with s 323 of the Fair Work Act, which includes an obligation to pay amounts payable to an employee in relation to the performance of work in full. Paragraph 338 alleges contravention of s 323 in relation to the applicant, and paragraph 339 alleges the contravention in relation to the drivers, which again in context must be a reference to drivers other than the applicant.
3. At paragraph 341 of the statement of claim the applicant alleges a contravention of s 293 of the Fair Work Act, which provides that an employer must not contravene a term of a national minimum wage order. This allegation also is directed to claimed contraventions affecting the other drivers.
4. In paragraphs 354 to 360 of the statement of claim the applicant alleges that the claimed contraventions of s 45 of the Fair Work Act in relation to the other drivers were serious contraventions for the purposes of s 557A of the Act.
5. At paragraph 638 of the statement of claim, the applicant seeks an order that various claimed underpayments and entitlements be paid to the drivers.
6. The applicant does not have standing under s 540 of the Fair Work Act to bring claims for civil remedies that are referrable to the other drivers. I foreshadowed this to the applicant and drew his attention to s 540 at the case management hearing on 31 January 2025. In Elliott-Carde v McDonald's Australia Ltd [2023] FCAFC 162; 301 FCR 1 at [342]-[345] Lee J explained that persons have standing to apply for an order in relation to a contravention "only if" certain conditions are met. In relation to an employee, standing is given only if the person is affected by the contravention or will be affected by the contravention. There is no tenable allegation in this proceeding that the applicant is relevantly affected by contraventions relating to the other drivers.
7. The applicant sought to overcome his absence of standing under s 540 of the Fair Work Act by claiming that he was entitled to bring a representative proceeding under Part IVA of the Federal Court of Australia Act. There are two problems with this argument. The first and more significant is that the present proceeding has not been brought under Part IVA of the Federal Court of Australia Act. There is no statement in the amended originating application that the applicant sues in a representative capacity: see Federal Court Rules 2011 (Cth), r 8.01(2)(c). Nor has the proceeding been commenced as a representative proceeding under Part IVA of the Act by filing an originating application in accordance with Form 19, and there is no information in the amended originating application of the type prescribed by s 33H of the Act. The second problem is that even if the applicant had commenced a representative proceeding it would be liable to an application for an order that it no longer continue as a representative proceeding on the ground that the applicant is not represented by a legal practitioner: see Wilkinson v Wilson Security Pty Ltd [2022] FCA 756 (Colvin J).
8. I will order that there be summary judgment on the claims relating to the other drivers on the ground that I am satisfied that the applicant has no reasonable prospect of successfully prosecuting that part of the proceeding.

Unlawful termination of employment - paragraphs 345 and 401 to 406

1. At paragraph 345 of the statement of claim the applicant alleges that Thomas Foods contravened s 772 of the Fair Work Act by terminating his employment because he was involved in the filing of a complaint, or the participation in proceedings against Thomas Foods involving alleged violation of laws or regulations or recourse to competent administrative authorities. At paragraphs 401 to 406 of the statement of claim the applicant makes further allegations concerning the claimed contravention of s 772 of the Act. Although those allegations appear to be incomplete, it is clear enough that they are directed to a claim that the alleged contravention of s 772 was a serious contravention for the purposes of s 557A of the Act.
2. Section 772 of the Act is within Division 2 of Part 6-4 of the Act which contains additional provisions relating to termination of employment. Section 769 contains a guide which states in part -

This Part contains provisions to give effect, or further effect, to certain international agreements relating to discrimination and termination of employment.

1. Under s 13 of the Acts Interpretation Act 1901 (Cth), as in force on 25 June 2009, headings of Parts, Divisions, and Subdivisions into which an Act is divided are deemed to be part of the Act. Section 723 of the Act is within Division 2 of Part 6-1 which is titled, "Certain Actions not permitted if alternative action can be taken". Section 723 provides -

A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.

1. The term "general protections court application" is defined by s 368(4) -

(4) A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.

1. In Weber v Thomas Foods International (Stawell) Pty Ltd (Interim Reinstatement) [2024] FCA 1506 I held over the respondents' objections that the applicant was entitled to bring this proceeding, which is to be characterised as an application to the Court under Division 2 of Part 4‑1 of the Act for orders in relation to a contravention of the general protections provisions in Part 3‑1.
2. The Explanatory Memorandum to the Fair Work Bill 2008 provided in relation to clause 723 of the Bill -
   1. This clause prevents a person from making an unlawful termination application under Division 2 of Part 6-4 if they are able to make an application under the general protection provisions in Part 3-1 in relation to the same termination of employment. This is because the general protections and unlawful termination provisions cover the same grounds of when a termination is for a prohibited reason. The unlawful termination provisions are only intended to be an extension of these protections to persons who are not covered by the general protections in relation to the termination. The additional coverage in unlawful termination arises because these provisions rely on the external affairs power, as they give effect, or further effect, to the ILO Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer (Geneva, 22 June 1982) [1994] ATS 4.
3. The term "unlawful termination application" in s 723 is not defined. However, it takes its meaning from its context, including its location within the Act. It is to be understood as referring to an application to the Commission under s 773 of the Act alleging a contravention of s 772(1), or an application to a court alleging a contravention of s 772(1) in the circumstances authorised by s 778.
4. Section 773 of the Act provides for applications to the Commission to deal with a dispute where it is alleged that the termination of an employee's employment was in contravention of s 772(1) of the Act. Under s 778, a person who is entitled to apply under s 773 for the Commission to deal with a dispute must not make an unlawful termination court application unless the Commission issues a certificate and the application is made within 14 days thereafter, or the application includes an application for an interim injunction. The term "unlawful termination court application" is defined by s 776(4) -

(4) An unlawful termination court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of subsection 772(1).

1. Section 778 of the Act corresponds to s 370 which concerns a "general protections court application" which I addressed in Weber v Thomas Foods International (Stawell) Pty Ltd (Interim Reinstatement) [2024] FCA 1506 at [34]-[50].
2. Although these provisions are somewhat elaborate, it is reasonably clear that their purpose is to preclude applications alleging a contravention of s 772(1) where the person is entitled to make a general protections court application in relation to the same conduct. That is the situation here. The claim that the applicant has made in this proceeding seeking relief for a claimed contravention of s 772(1) may be characterised as an unlawful termination court application as defined by s 776(4), and therefore an unlawful termination application for the purposes of s 723. The application alleging a contravention of s 772(1) is precluded because the applicant is self-evidently entitled to bring a general protections court application, which he has done in relation to the same conduct.
3. The appropriate order is the claims in paragraphs 345 and 401 to 406 of the statement of claim and the corresponding claim for relief in the amended originating application be summarily dismissed on the ground that the applicant has no reasonable prospect of successfully prosecuting that part of the proceeding and that the reference to s 772(1)(e) of the Fair Work Act in paragraph 6 of the amended originating application be struck out.

1. At paragraphs 407 to 410 of the statement of claim under the heading "Unfair Dismissal" the applicant pleads reliance on s 385 of the Fair Work Act, which is a definitional provision. The applicant alleges a failure to comply with and a contravention of s 385 of the Act and reg 1.07 of the Fair Work Regulations 2009 (Cth), which provides for the definition of "serious misconduct" for the purposes of s 12 of the Act.
2. The pleadings at paragraphs 407 to 410 of the statement of claim are incoherent. Further, any claim for a remedy in relation to unfair dismissal, as that term is defined by s 385 of the Fair Work Act, is not maintainable in the Court but is a claim that may be made in the Fair Work Commission under Part 3-2 of the Act by making an application to the Commission under s 394(1). Under s 725 of the Act a person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies. The applicant has made a general protections court application that has not been withdrawn or failed for want of jurisdiction: see s 728. He is therefore precluded by s 725 from making an unfair dismissal application under s 394(1): see s 729.
3. The appropriate order is that paragraphs 407 to 410 of the statement of claim be struck out under r 16.21 of the Federal Court Rules on the grounds that they fail to disclose a reasonable cause of action, and are frivolous, vexatious, and an abuse of the process of the Court.

Application to strike out other paragraphs of the statement of claim

1. I will now address the other claimed deficiencies in the statement of claim relied on by the respondents in support of their application that the statement of claim be struck out.

Termination of employment - paragraphs 106 to 179

1. At paragraphs 106 to 179 of the statement of claim the applicant alleges in a narrative way a series of events leading up to and surrounding the summary termination of his employment on 6 August 2024. The applicant alleges facts which might be capable of supporting a claim that Thomas Foods did so because the applicant had sought to exercise workplace rights and to claim award entitlements.
2. The respondents submitted that paragraphs 106 to 179 plead evidence going to the events leading to the termination of the applicant's employment and do not make clear to what cause of action the paragraphs relate. I accept that some of the matters alleged in paragraphs 106 to 179 plead evidence rather than material facts. However, this is an instance where the applicant, as a self-represented litigant, is entitled to some leeway. Pleadings should allege the material facts necessary to give the other party fair notice of the case to be made at trial but not the evidence by which the facts are to be proved: Federal Court Rules, r 16.02(1)(d). However, the distinction between material facts and evidence is not always stark. I do not consider that the respondents are disadvantaged as a result of the detail contained in paragraphs 106 to 179 and I would not strike those paragraphs out on that basis. However, I accept the respondents' submission that it is not sufficiently clear to what cause of action the facts alleged in paragraphs 106 to 179 relate. This should be clarified by the applicant when he files an amended statement of claim for which he will be given leave.

Access to online payroll details - paragraphs 180 to 204

1. At paragraphs 180 to 204 of the statement of claim the applicant alleges that he was denied access to the online payroll system of Thomas Foods for the period 13 August 2024 to 27 February 2025. For context, the applicant's employment was terminated on 6 August 2024, but on 20 December 2024 Thomas Foods was ordered on an interlocutory basis to reinstate the applicant, effective from the same date. The applicant's allegations include that his access to the payroll system was not restored upon his employment being reinstated on 20 December 2024. The third respondent, Mr Ramage, is alleged to be "the primary decision-maker" in relation to the denial of access to the applicant to the payroll system.
2. The respondents submit that the allegations in paragraphs 180 to 204 of the statement of claim are made without reference to any cause of action. I accept this submission. These paragraphs will be struck out with leave to replead should the applicant wish to frame a viable cause of action around the allegations, including the identification of any statutory provision on which it is based: Federal Court Rules, r 16.02(1)(e).

1. Paragraphs 205 to 232 of the statement of claim allege several deficiencies and failures in relation to the provision of payslips. The allegations are fragmented and do extend into matters of evidence, but appear to include -

(a) that payslips for the period 7 February 2024 to 30 July 2024 failed to record various matters including what are possibly award entitlements that are the subject of the applicant's claim;

(b) that Thomas Foods did not provide a payslip for a claimed underpayment for the week ending 9 June 2024;

(c) that Thomas Foods did not provide a payslip for the week ending 6 August 2024;

(d) a repetition of the allegation that between 13 August 2024 and 27 February 2025 Thomas Foods had refused the applicant access to its online payroll system;

(e) that Thomas Foods did not provide payslips to the applicant in the period 20 December 2024 to 27 February 2025 within one business day of being paid for each week that the applicant was paid;

(f) a payslip for WorkCover payments for the period 17 February 2025 to 23 February 2025 was defective because it provided only for a lump sum and failed to provide all the details as to weekly payments and how those weekly payments were calculated;

(g) that the third respondent, Mr Ramage, had deliberately manipulated a spreadsheet of calculations for the WorkCover payment so as to underpay the applicant; and

(h) that the applicant had made various complaints to Thomas Foods about the calculation of his entitlements which are not altogether clear, but which includes an allegation that the conduct of Thomas Foods was "tantamount to financial fraud and deception".

1. The respondents submitted that these paragraphs allege that the applicant's payslips were deficient in various ways without reference to the relevant section of the Award or the Fair Work Act which the applicant presumably wishes to allege was contravened. The respondents also complain that matters of evidence are pleaded.
2. I accept the respondents' submissions in relation to paragraphs 205 to 232 of the statement of claim. There appears to be an assumption in at least paragraph 211 of the statement of claim that the applicant was not paid his entitlements in accordance with an award, but this is not specifically alleged. This can be remedied by the applicant by making clear in this section of the statement of claim the source of the entitlements he claims the payslips failed to record.
3. Further, the obligation on an employer to provide a payslip within one business day of a payment is in s 536 of the Fair Work Act. The information that must be included in a payslip is prescribed by the Fair Work Regulations 2009 (Cth), and in particular reg 3.46. If the applicant is relying on the obligation in the Act, as supplemented by the regulations, then he should state the provisions relied on: Federal Court Rules, r 16.02(1)(e). The applicant can remedy this omission by way of amendment.

1. In paragraphs 233 to 238 of the statement of claim the applicant makes claims relating to a failure to pay him annual leave loading with his termination payment on 13 August 2024 and for a day taken on 7 June 2024. The applicant then claims that he engaged in correspondence about annual leave to which Thomas Foods failed to respond.
2. The respondents submit that that paragraphs 233 to 238 of the statement of claim do not plead a cause of action. I accept this submission. It is not at all clear what claim, if any, is made by paragraphs 233 to 238 as the paragraphs are incoherent. Paragraphs 233 to 239 will therefore be struck out with leave to replead.

Superannuation contributions - paragraphs 239 to 249

1. In paragraphs 239 to 249 of the statement of claim the applicant pleads various allegations, including some in correspondence, that Thomas Foods underpaid his superannuation contributions by an amount of $2,709.49.
2. The respondents submit that paragraphs 239 to 249 should be struck out because they refer to matters of evidence before the bald assertion is made in paragraph 249 that the "compulsory superannuation contribution has not been paid".
3. I do not accept the respondents' submission that paragraphs 239 to 249 should be struck out. While the allegations are detailed, no prejudice is caused to the respondents, because I consider that the applicant's claim that Thomas Foods did not make a required superannuation contribution on his behalf is sufficiently clear.

1. Paragraphs 250 to 263 of the statement of claim appear to be an endeavour to make a claim in relation to rostered days off by reference to cl 13.7(a) of the Road Transport and Distribution Award 2020. The pleading is confusing, argumentative, and contains summaries of claims made in correspondence, and makes allegations of "lies" and "deliberate lies". These allegations do not assist in identifying the underlying claim.
2. The respondents submitted that the applicant had not pleaded the legal source of the alleged entitlement or the material facts in support. It was submitted that instead the applicant had pleaded matters of evidence which go to correspondence between the parties on the subject of rostered days off and that the pleadings were vague and ambiguous. The respondents pointed to claims by the applicant that Thomas Foods had attempted to deprive the applicant of his entitlement to rostered days off by "manipulating the wording of clause 13.7 to their advantage" and "to seek unjust enrichment", without any further explanation of those allegations or how those allegations support any cause of action.
3. I accept the respondents' submissions that the claims made in paragraphs 250 to 263 are vague and ambiguous. As I stated at [51] above, the claims are confusing and argumentative. They focus on claims made in correspondence rather than stating the material facts on which the applicant relies that are necessary to give the respondents fair notice of the case made against them at trial, but not the evidence by which the material facts are to be proved: r 16.02(d). Paragraphs 250 to 263 of the statement of claim will be struck out, but the applicant will be given leave to replead any viable claim in relation to the topic of rostered days off.

1. At paragraphs 264 to 299 the applicant makes a number of allegations in relation to a claimed workplace injury. The allegations include that -

(a) the applicant suffered a workplace injury on 3 June 2024 that was caused by the seat settings on the truck that he was driving which had been changed when used by other drivers;

(b) the relevant employees of Thomas Foods, namely Mr Hateley (the sixth respondent) and Mr Wittman (the fifth respondent) did not act on the applicant's request for reasonable workplace adjustments;

(c) the applicant made a WorkCover claim on 6 July 2024;

(d) Thomas Foods failed to respond to the claim;

(e) the claim was then handled by a claims agent which engaged an investigator;

(f) the investigator's report stated that Mr Hateley did not provide a statement, and Mr Ramage (the third respondent) did not provide a report, and several allegations impugning Mr Hateley's reasons for not providing a statement to the investigator;

(g) on 6 February 2025 the claims agent accepted the applicant's WorkCover claim;

(h) in three nominated periods, being 3 June 2024 to 6 August 2024, 20 December 2024 to 6 February 2025, and 6 February 2025 to 7 March 2025 Thomas Foods failed to engage the applicant in any return-to-work plans and failed to communicate with the applicant in any form whatsoever in respect of the injury; and

(i) in the above circumstances Thomas Foods was negligent in its responsibilities as an employer under the relevant WorkCover legislation and had failed in its duty of care to provide a safe workplace which had caused the applicant to suffer harm and injury in the workplace.

1. There is no claim for common law damages in the applicant's amended originating application.
2. In relation to paragraphs 264 to 299, the respondents submitted that no cause of action was pleaded and that these paragraphs should be struck out. I agree that the paragraphs should be struck out. The paragraphs are confusing, embarrassing, and are liable to delay the fair trial of the proceeding. They combine complaints about the handling of the applicant's WorkCover claim with allegations of negligence by Thomas Foods in relation to a common law duty of care to provide a safe workplace that appear to relate to the compensable injury itself. I will not give the applicant leave to replead these claims. Rather, if the applicant wishes to introduce a common law claim relating to a workplace injury which is the subject of an accepted WorkCover claim, then he will have to apply for leave to introduce such a claim, supported by an affidavit and a draft pleading. In relation to whether any such claim would be tenable, attention would need to be given to the contingent extinguishment of common law claims for damages that is brought about by s 326 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

Notification of legal processes - paragraph 300

1. At paragraph 300 of the statement of claim, the applicant alleges that at all material times between 5 July 2024 to 31 July 2024, Messrs Ramage, Hateley, and Wittmann were made fully aware that the applicant was in the process of, or had foreshadowed, the commencement of legal processes against them and Thomas Foods.
2. The respondents submitted that paragraph 300 pleads evidence rather than material facts in support of a cause of action and that it was unclear how it related to any cause of action pleaded.
3. I accept that paragraph 300 does not relate to any cause of action that is pleaded. Accordingly, it will be struck out.

Reinstatement of the applicant's employment - paragraphs 301 to 310

1. At paragraphs 301 to 310 of the statement of claim the applicant makes several claims in relation to events occurring upon the reinstatement of his employment in consequence of the Court's interlocutory order of 20 December 2024. Those claims include that -

(a) the applicant was directed that he was not to attend the workplace;

(b) a claim that Thomas Foods failed to vary the applicant's contract of employment to remove "the unlawful terms of employment";

(c) a claim that upon reinstatement Thomas Foods failed to amend the contract of employment "to include coverage" of the Road Transport and Distribution Award 2020;

(d) a claim that Thomas Foods "continued to enforce" the contract of employment;

(e) a claim that upon reinstatement of the applicant Thomas Foods failed to vary the contract of employment "on terms that reflected the operational aspects whereby the applicant not attend the workplace"; and

(f) that upon reinstatement Thomas Foods failed to pay underpayments arising under the Award, failed to pay certain entitlements including superannuation, and failed to provide pay slips within one business day.

1. The respondent submitted that paragraphs 301 to 310 should be struck out because the application of the Award was assumed, and because it was unclear how these allegations relate to the previous allegations made in the "background" section of the statement of claim.
2. I do not accept the respondents' submissions that paragraphs 301 to 310 of the statement of claim should be struck out on the basis that they assume coverage by the Award. The respondents have fair notice of the applicant's claim that he was covered by the Award. If there is any need for further particulars of material facts necessary to support the applicant's claim that he was covered by the Award, then these can be sought at an appropriate time.
3. Further, it appears that the applicant is raising a claim that Thomas Foods did not reinstate him to his former employment as the Court's interlocutory order of 20 December 2024 required: see Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; 221 CLR 539 (Blackadder). If that is the case, then this should be made clear. Further, it is unclear whether the applicant is alleging that the direction that he not attend the workplace was not a lawful direction because it was contrary to some express or implied term of his contract of employment: see Blackadder at [80]; Actrol Parts Pty Ltd v Coppi (No 2) [2015] VSC 694 at [22] (Bell J); Downe v Sydney West Area Health Service (No 2) [2008] NSWSC 159; 71 NSWLR 633 at [411]-[429] (Rothman J). In raising these issues, I am not expressing any view about the merits of a claim of this type but identifying that if such a claim is to be made then it should be raised clearly so that its merits can then be addressed.
4. The claims that upon reinstatement Thomas Foods failed to amend the contract of employment are confusing. If the applicant was covered by the Award, then by force of s 45 of the Fair Work Act the Award obligations prevailed over any contractual obligations: see Byrne v Australian Airlines Ltd [1995] HCA 24; 185 CLR 410 at 421 (Brennan CJ, Dawson and Toohey JJ), Visscher v Giudice [2009] HCA 34; 239 CLR 361 at [13] (Gummow J). The applicant does not plead any basis, whether in statute or otherwise, in support of his claim that there is some cause of action because upon reinstatement Thomas Foods failed to amend the contract of employment.
5. Otherwise, it seems clear enough that the applicant claims that upon reinstatement he was not remunerated in accordance with the Award and statutory obligations to make superannuation contributions, and that he was not given pay slips within one business day. These allegations require more precision because the entitlements that are claimed are not identified. Further, there is confusion that arises because of the apparent overlap with claims of Award non-compliance in the period 20 December 2024 to 7 March 2025 which the applicant makes in paragraph 332 of the statement of claim which is addressed below. These deficiencies can be remedied by amendment.
6. That leaves the allegation in subparagraph 310(i) that Thomas Foods refused to give the applicant access to online payroll information. The source of any such obligation should be identified and the material facts supporting the refusal should be pleaded. If there is a viable claim in this regard, then it can be pleaded in the amended statement of claim.
7. Therefore, I will strike out paragraphs 301 to 310 of the statement of claim but give leave to the applicant to replead in accordance with these reasons.

Contraventions of the Road Transport Distribution Award 2020 - paragraphs 331 and 332

1. By paragraphs 331 and 332 of the statement of claim the applicant alleges multiple breaches of the Award and the National Employment Standards in relation to his remuneration and other entitlements over the periods 7 February 2024 to 6 August 2024, and 20 December 2024 to 7 March 2025.
2. The only submission made by the respondents is that these paragraphs allege contraventions of the Award, without pleading the foundation for the application of the Award. I do not accept that paragraphs 331 to 332 should be struck out on this basis. As I stated above, if the respondents require particulars of any necessary material facts supporting the applicant's claim that he was covered by the Award, then they can be sought. Before ordering any such particulars, I would have to be satisfied that Award coverage is a real question in dispute. I say this because on the interlocutory application for reinstatement there was in evidence a letter from Mr Ramage, the Group HR Manager of Thomas Foods, to the applicant dated 5 July 2024 by which Thomas Foods appeared to admit that the Award applied to the applicant's employment.

Contraventions of s 323 of the Fair Work Act - paragraph 338

1. By paragraph 338 of the statement of claim the applicant alleges that at all material times between 7 February 2024 and 6 August 2024 Thomas Foods failed to comply with s 323 of the Fair Work Act by failing to pay the applicant in full for the performance of work. Section 323 is a civil remedy provision.
2. The respondents submit that paragraph 338 alleges that the first respondent has breached s 323 of the FWA but does not plead any material facts to sustain the allegation. I accept that paragraph 338 does not plead any supporting material facts. However, I consider that there is a likelihood that the applicant intends that the material facts supporting the failure to comply with s 323 of the Act are constituted by the more detailed allegations in paragraphs 331 and 332. If this is the case, then this should be clarified by amendment. I will give leave to the applicant to amend paragraph 338 of the statement of claim to incorporate by reference the material facts said to constitute the contravention of s 323 of the Act.

Contraventions of s 293 of the Fair Work Act - paragraph 340

1. By paragraph 340 of the statement of claim the applicant alleges that at all material times between 7 February 2024 to 6 August 2024, Thomas Foods failed to comply with s 293 of the Fair Work Act. Section 293 provides that an employer must not contravene the terms of a national minimum wage order.
2. The respondents submit that paragraph 340 of the statement of claim alleges a breach of s 293 without any material facts as to why a national wage order was said to have applied in the first place, or the facts supporting an alleged contravention. I accept this submission. And unlike the claimed contravention of s 323 of the Act it is not apparent that there is a foundation for the allegation pleaded elsewhere in the statement of claim. Accordingly, paragraph 340 of the statement of claim will be struck out.

Contraventions of s 340 of the Fair Work Act - paragraphs 342 to 344

1. The applicant's claims of contravention of s 340 of the Fair Work Act at paragraphs 342 to 344 of the statement of claim are embarrassing and will cause delay and prejudice a fair trial of the proceeding. I will set out the paragraphs below, where Thomas Foods is referred to as "TFI", the Road Transport and Distribution Award 2020 is referred to as "RTDA" and the contract of employment is referred to as "COE" -
   1. At all material times between 7 February 2024 to 6 August 2024, TFI failed to comply with section 340 of the FW Act and their obligations to not take adverse action against the applicant because he exercised a workplace right.
   2. At all material times between 20 December 2024 to the latest date of 7 March 2025, TFI failed to comply with section 340 of the FW Act and their obligations to not take adverse action against the applicant because he exercised a workplace right.
   3. At all material times the adverse action taken pursuant to section 342(1) of the FW Act includes but not limited to
      1. Dismissing the applicant from his employment for having exercised a workplace right
      2. Injuring the applicant in his employment:
         1. By deliberately and knowingly failing to pay underpayments entitled to under the RTDA
         2. By deliberately and knowingly failing to comply with the NES Standards
         3. By deliberately and knowingly causing the applicant to work rosters that were not agreed to under the COE
         4. By deliberately and knowingly failing to pass on the 3.75% national wage increase
         5. By deliberately and knowingly failing to provide information on payslips as mandated and provide payslips within one business day
         6. By deliberately and knowingly failing to provide access to the applicants payroll information (on multiple occasions)
         7. By deliberately and knowingly failing to comply with Workcover obligations:
            1. Not providing reasonable workplace adjustments
            2. Not providing modified duties
            3. Not providing access to TFI's Return to work coordinator
            4. Not providing access to the applicant to information regarding being injured in the workplace
            5. Failing to respond to the mandated period to respond to a lodged Workcover claim.
            6. Failing to assist the Insurance agent in investigating the applicants claim
            7. Causing a significant delay in the assessment of the Workcover Claim
            8. Causing the exacerbation of the workplace injury because of failing to comply with their legal Workcover obligations
            9. By manipulating the Workcover payment to reduce the payment entitled to the applicant
            10. Failing to pay the full (of which only 9% was made) compulsory superannuation contribution on the Workcover payment.
2. There are the following problems with the above paragraphs -

(1) The adverse action is not alleged with any precision. Paragraphs 342 and 343 commence with the words, "at all material times" and then refer to two different periods during which it is alleged that Thomas Foods took adverse action against the applicant, without specifying what the adverse action was.

(2) The imprecision of paragraphs 342 and 343 is not saved by paragraph 344. That paragraph alleges that "at all material times the adverse action ... includes but [was] not limited to". The respondents and the Court are not in a position to know the metes and bounds of the applicant's case, and Thomas Foods would not be in a position to address what it must plead in order to discharge any onus arising as a result of s 361 of the Fair Work Act.

(3) The applicant has not alleged, in relation to any aspect of the adverse action that is alleged in paragraphs 342 to 344, the workplace right said to engage s 340(1), noting that the adverse action claimed lacks precision. There are references to the applicant's workplace rights throughout the statement of claim which compound the problem. There is no link made between any clearly articulated exercise of a workplace right by the applicant and any clearly articulated instance of adverse action. It is impossible to know what the applicant's case is other than at an impressionistic level.

(4) A subsidiary problem, but no less serious, are the allegations in paragraph 344 of the statement of claim that Thomas Foods "deliberately and knowingly" engaged in the various contraventions that are alleged. Rule 16.43 of the Federal Court Rules requires that a party who pleads a condition of mind must state in the pleading particulars of the facts on which the party relies, and these particulars are absent from the high-level and sweeping allegations that the applicant has made.

1. Paragraphs 342 to 344 of the statement of claim will be struck out. The applicant will have the opportunity to replead his claim of adverse action in respect of which I held, for the purposes of the application for the interlocutory reinstatement order, that the applicant had a prima facie case in relation to the termination of his employment.

Serious contraventions - paragraphs 395 to 400

1. The imprecise and embarrassing nature of the allegations of contravention of s 340 of the Fair Work Act in paragraphs 342 to 344 infect the allegations in paragraphs 395 to 400. Those paragraphs are not altogether clear, but they include an allegation in paragraph 398 that Thomas Foods expressly authorised the contraventions of s 340 of the Fair Work Act.
2. Paragraphs 395 to 400 of the statement of claim will be struck out on the ground that they are ambiguous and likely to cause prejudice, embarrassment and delay in the proceeding.

Accessorial liability - paragraphs 411 to 629

1. The applicant's claims of accessorial liability must be struck out. Amongst other things, the allegations are not sufficiently linked to the various contraventions by Thomas Foods that the applicant alleges. And to the extent that accessorial liability is alleged in relation to a contravention of s 340 by taking adverse action, it is infected by the defects in the pleading of those claims against Thomas Foods. It is simply not possible for the Court to determine what issues are to be tried, and I accept that the respondents are not able to plead to the allegations.
2. Section 550 of the Fair Work Act provides -

550 Involvement in contravention treated in same way as actual contravention

(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

Note: If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person's contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).

(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:

(a) has aided, abetted, counselled or procured the contravention; or

(b) has induced the contravention, whether by threats or promises or otherwise; or

(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

(d) has conspired with others to effect the contravention.

1. The terms of s 550 of the Fair Work Act have their genesis in s 75B of the Trade Practices Act 1974 (Cth) that was considered in Yorke v Lucas [1985] HCA 65; 158 CLR 661. There is a considered discussion by White J of the elements of s 550 in Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 (Devine Marine) at [176]-[188]. The following features of s 550 should be noted -

(1) The reverse onus provisions in s 361 of the Fair Work Act do not apply to an allegation of accessorial liability under s 550, and therefore any element of s 550 which is relied upon must be pleaded and proven: see Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 at [59] (Greenwood, Flick and Rangiah JJ).

(2) The phrase "a person involved in a contravention" in s 550(1) does not bear its ordinary meaning, but has the special meaning given to it by s 550(2) under which a person is involved in a contravention "if, and only if" one of the bases of liability set out therein is engaged.

(3) The words "aided, abetted, counselled or procured", are taken from the criminal law where they are used to designate participation in a crime as a principal in the second degree or as an accessory before the fact. A person is liable on this basis only if the person intentionally participates in the contravention, and to form the requisite intent the person must have knowledge of the essential matters which go to make up the contravention whether or not the person knows that those matters amount to a contravention. Knowledge may extend to wilful blindness, but recklessness or negligence is not enough: Keller v LED Technologies Pty Ltd [2010] FCAFC 55; 185 FCR 449 at [335] (Besanko J).

(4) To be knowingly concerned in or a party to a contravention, the respondents must have intentionally participated in the contravening conduct, with actual knowledge of the essential facts which constituted the contravention: see Yorke v Lucas at 670. The essential facts may include the applicability of an award which is in issue: Devine Marine at [182]-[188].

(5) Similarly, to be liable for inducing a contravention or conspiring with others to effect a contravention there must be intent based upon knowledge of the essential facts giving rise to the contravention: Yorke v Lucas at 670.

1. Above paragraph 411 of the statement of claim is the heading "Accessorial Liability". What follows are ten sections of the pleading making allegations of liability against each of the remaining respondents to the proceeding. I will consider each of the sections in turn.

1. Paragraphs 422 and 423 appear to allege that Thomas Foods was involved in the contraventions, and that it therefore has a liability pursuant to s 550 of the Fair Work Act. These allegations are misconceived. The balance of the statement of claim proceeds on the apparent premise that Thomas Foods is liable as principal for adverse action within the circumstances set out in the table in s 342 of the Act. Relevant to the present case is Item 1 in the table, which refers to adverse action taken by an employer against an employee. The action of Thomas Foods may include action for which it is directly liable, such as action taken by its directing mind and will: see Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188; 100 FCR 530 at [61]-[62] (Ryan, Moore and Goldberg JJ). The action of Thomas Foods may also comprise the acts of any officer or employee or agent that are to be attributed to it pursuant to s 793 of the Fair Work Act. However, it is a nonsense to allege that Thomas Foods was involved as an accessory in its own contravention. As Dixon J stated in Mallan v Lee [1949] HCA 48; 80 CLR 198 at 216, "[i]t would be an inversion of the conceptions on which the degrees of offending are founded to make the person actually committing the forbidden acts an accessory to the offence...".
2. Paragraphs 411 to 423 will be struck out on the ground that they fail to disclose or support a cause of action and are likely to cause prejudice, embarrassment and delay in the proceeding.

The second to third and fifth to eleventh respondents - paragraphs 424 to 629

1. The allegations in paragraphs 424 to 450 are a series of sweeping high-level allegations directed to claiming that Mr Thomas is liable under s 550 of the Fair Work Act for all contraventions of Thomas Foods on the grounds, following the language of s 550, that he aided, abetted, counselled or procured the contraventions, was knowingly concerned in the contraventions, and that he conspired with others to effect the contraventions.
2. Paragraph 426 of the statement of claim, which is directed to Mr Thomas, is illustrative of the imprecise level of all allegations against the individual respondents, where Thomas Foods is referred to as "TFI" -

426. In all the circumstances Thomas through either acts or omissions:

1. failed or neglected to exercise due diligence to prevent the non-compliance with TFI's legal obligation
2. authorised and permitted such conduct to take place
3. Allowed a corporate culture to exist within TFI, and directed, encouraged, tolerated which led to non-compliance with the legal obligation to comply with the FW Act Provisions
4. And or neglected to create and maintain a corporate culture that required compliance with the FW Act Provisions
5. failed or neglected to exercise due diligence to prevent noncompliance with the FW Act Provisions, or authorised or permitted the non-compliance
6. expressly, tacitly or impliedly authorised the said contraventions within the FW Act provisions, and so knowingly or recklessly contravened each provision within the relevant FW Act.

(a) at paragraph 456 in relation to the third respondent Mr Ramage;

(b) at paragraph 481 in relation to the fifth respondent Mr Wittmann;

(c) at paragraph 517 in relation to the sixth respondent Mr Hateley;

(d) at paragraph 543 in relation to the seventh respondent Mr Gaylard;

(e) at paragraph 557 in relation to the eighth respondent Ms Nichols;

(f) at paragraph 602 in relation to the tenth respondent Ms Curran; and

(g) at paragraph 618 in relation to the eleventh respondent Mr Dawson.

1. In relation to the ninth respondent, Mr Mason who is alleged to have been engaged by Thomas Foods to conduct an audit in relation to the applicant's compliance with national heavy vehicle laws and to prepare a report, the following allegations are made at paragraphs 587 and 588 -
   1. At all material times Mason knew or ought to have known the report was to be used for purposes of contravening the FW Act
   2. In all the circumstances Mason through either acts or omissions:
      1. failed or neglected to exercise due diligence to prevent the non-compliance with TFI's legal obligations
      2. authorised and permitted such conduct to take place
      3. failed or neglected to exercise due diligence to prevent noncompliance with the FW Act Provisions, or authorised or permitted the non-compliance
      4. expressly, tacitly or impliedly authorised the said contraventions within the FW Act provisions, and so knowingly or recklessly contravened each provision within the relevant FW Act.
2. There are allegations in paragraphs 590 to 593 that, "in all the circumstances", Mr Mason "knew or ought to have known" of various matters, without giving particulars of knowledge that are required by r 16.43.
3. Moreover, all the individual respondents are alleged to be liable under s 550 of the Fair Work Act for all the claimed contraventions by Thomas Foods. This is apparent from the formulaic allegations in -

(a) paragraph 450 in relation to Mr Thomas;

(b) paragraph 471 in relation to Mr Ramage;

(c) paragraph 494 in relation to Mr Wittmann;

(d) paragraph 533 in relation to Mr Hateley;

(e) paragraph 547 in relation to Mr Gaylard;

(f) paragraph 561 in relation to Ms Nichols;

(g) paragraph 595 in relation to Mr Mason;

(h) paragraph 612 in relation to Ms Curran; and

(i) paragraph 628 in relation to Mr Dawson.

1. I need not go further and consider other defects in the pleading. The allegations of accessorial liability against the individual respondents are overwhelmingly vexatious and are likely to cause prejudice, embarrassment, and delay in the proceeding, and they will be struck out.
2. If the applicant has any tenable claim of accessory liability against any of the respondents, then he may replead it pursuant to the leave that will be given to him to file an amended statement of claim.

1. I will order that the claims in paragraphs 345 and 401 to 406, as well as 311 to 330, 333 to 335, 339, 341, 354 to 360 and 638 of the statement of claim and the corresponding claim for relief in the amended originating application be summarily dismissed on the ground that they have no reasonable prospect of success.
2. I will order that the reference to s 772(1)(e) of the Fair Work Act in paragraph 6, and paragraphs 20, 21, 25, 26, and 43 to 59 of the amended originating application be struck out subject to leave being given to file a further amended originating application. This will give the applicant a full opportunity to review the relief that he seeks in this proceeding so that the relief corresponds to the claims made in the amended statement of claim which the applicant will be given leave to file. The applicant should review the relief that he seeks so that it is not repetitive, and so that any viable case that he has is presented in a way that conforms with the overarching purpose to which I will refer again below.
3. I will otherwise make an order striking out the whole of the statement of claim. While there are some aspects of the statement of claim that have survived criticism, it would be unsatisfactory to leave the scattered remnants of the applicant's pleading as a basis upon which a case might be rebuilt. It will be better if the applicant starts again with a clean sheet of paper and pleads a case that is clear and conforms with Division 16.1 of the Rules.
4. I will give leave to the applicant to file an amended statement of claim in conformity with the rulings that I have made. In preparing an amended statement of claim the applicant should be mindful of the observations that I made at the commencement of these reasons about his obligation under s 37N(1) of the Federal Court of Australia Act to conduct the proceeding in a way that is consistent with the overarching purpose in s 37M of the Act. So that there is no doubt about what the overarching purpose is, I set out below ss 37M(1) and (2) -

37M The overarching purpose of civil practice and procedure provisions

(1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a) according to law; and

(b) as quickly, inexpensively and efficiently as possible.

(2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:

(a) the just determination of all proceedings before the Court;

(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c) the efficient disposal of the Court's overall caseload;

(d) the disposal of all proceedings in a timely manner;

(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

I certify that the preceding 96 (ninety-six) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.