Young v Accenture Australia Pty Limited

(This is pleaded as the exercise of the "eighth workplace right".)

1. The next event concerns an email sent by the applicant to Ms McCaffery on 11 January 2024 (11 January Complaints). The applicant pleads that:
   1. By an email dated 11 January 2024 from the Applicant to the Respondent's Ms McCaffery (the 11 January Complaints), the Applicant made complaints to the Respondent regarding the conduct of the Investigation, under the following 5 headings:

42.1. "Concern 1 - lack of regard for One Accenture Approach";

42.2. "Concern 2 - overreach and unreasonableness: I was effectively accused of potentially committing a criminal offence, which accusation was made without merit or proper evidentiary foundation";

42.3. "Concern 3 - why the investigation focused on the potential liability from myTimeOff with no regard as to the potential liability from myTimeandExpenses (myTE)";

42.4. "Concern 4 - we are working hard in HR and ANZ to care for our people - this ethos appears to have been largely disregarded by the investigators in this matter"; and

42.5. "Concern 5 - hostile and unreasonable behaviour and communications by Corporate Investigations".

...

1. By an email dated 11 January 2024 from the Applicant to Ms McCaffery, the Applicant made detailed complaints regarding the conduct of the Investigation, including about the inappropriate conduct by Corporate Investigations of the Investigation and its impact on the Applicant's health and safety, including under the headings in the said email referred to at paragraph 42 above...

(This is pleaded as the exercise of the "ninth workplace right".)

1. The applicant has not received any response from the respondent, from Accenture plc or from Norton Rose to her 11 January 2024 email, other than Ms McCaffery stating in an email on or around 22 January 2024 words to the effect that the applicant's concerns would be addressed after receipt of the applicant's response to the Findings Letter (defined below at [51]), or any substantive response which addressed the matters raised by the applicant in the 11 January Complaints document (ASOC [43]).
2. On 15 January 2024, the applicant and her solicitor met by Microsoft Teams with Ms Chen and Ms McCaffery (15 January Meeting) (ASOC [44]). During the 15 January Meeting, Ms Chen informed the applicant that:

(1) the Investigation had been completed;

(2) the purpose of the 15 January Meeting was to inform the applicant of the findings;

(3) the purpose of the 15 January Meeting was not to debate the findings or the conduct of the Investigation or what it means for the applicant moving forward;

(4) a letter would be sent to the applicant following the meeting and the applicant should refer to the letter;

(5) one aspect of the Investigation was disclosures to Ms Hoey regarding potential underpaid overtime;

(6) after becoming aware of the disclosures, the applicant prevented the analysis from occurring;

(7) on 15 August the applicant instructed Ms Burmeister and Ms Khoury not to engage in further communications regarding the matter;

(8) on 15 August in a Teams call the applicant said she would draft an email to Ms Hoey and would reach out to individuals;

(9) the applicant closed the matter down;

(10) on 17 August:

(a) the applicant instructed that a meeting with Ms Claire Aldous be cancelled;

(b) on a Teams call with Ms Khoury the applicant told her to "drop it", that Ms Khoury should refer people who reached out to her about the matter to the applicant, that no further work was to be done on it and that this was not our decision to make;

(11) the applicant emailed Ms Dorothy Aldous and told her communications for overtime were not to be released in their current form;

(12) on 21 August the applicant told Ms Hoey she was confident Accenture was compliant;

(13) on balance a finding had been made that the substance of the words that Ms Chen had just read out were said;

(14) with respect to the applicant's conduct with Ms Burmeister and Ms Khoury, that on a 15 August Teams call the applicant told Ms Burmeister that she was annoyed with her and that she had caused her a problem;

(15) on 17 August the applicant told:

(a) Ms Burmeister that she should think about whether the ER team was her role and told Ms Khoury to think about promotions and what her next steps would be;

(b) Ms Burmeister that she had opened up the respondent to risk and that for her career, she needed to know she could not send emails like this;

(c) Ms Khoury in the future to speak to the applicant about such matters and not talk to anyone outside;

(16) the applicant did not develop an ongoing procedure to monitor the risk of underpayment of overtime;

(17) the applicant did not report the non-compliance risk;

(18) in light of everything, it was the respondent's view the applicant had not met the standard of performance expected by the respondent and had engaged in inappropriate conduct in breach of Policies 1000 and 1001;

(19) the respondent's view was that this warranted disciplinary action which may include termination of employment;

(20) there should be no retaliation against any person; and

(21) the applicant had three days to respond (ASOC [45]).

1. During and towards the end of the 15 January Meeting:

(1) the applicant expressed her shock and disbelief at the "findings" made by Ms Chen, including asking Ms Chen "retaliation against who?" to which Ms Chen responded to the effect "Lauren and Emelia" (being Ms Burmeister and Ms Khoury); and

(2) Ms McCaffery said that she had nothing to add to what had been said (ASOC [46]).

1. Following the 15 January Meeting, and on the same day, Ms McCaffery sent a letter by email to the applicant with the subject heading "Outcome of Investigation" and signed by Ms McCaffery (Findings Letter). By that email, Ms McCaffery stated that although the Findings Letter asked that the applicant respond by 18 January 2024, the applicant could provide her response by 5 February 2024 (ASOC [47]).
2. By the Findings Letter, the respondent informed the applicant that (as pleaded):

(1) it was Accenture plc's view (in the alternative the respondent's view) that taking into account the applicant's response in respect of the substantiated findings and the Additional Findings, that the applicant had not met the standard of conduct and performance expected of an Employee Relations Lead;

(2) Accenture plc (in the alternative the respondent) had formed the view that the alleged conduct of the applicant described in the Findings Letter, which the Findings Letter referred to as "the substantiated findings" and "the Additional Findings" constituted misconduct;

(3) Accenture plc (in the alternative the respondent) had formed the view that the said alleged conduct of the applicant therefore constituted inappropriate workplace behaviour in breach of Policies 1000 and 1001;

(4) Accenture plc (in the alternative the respondent) had formed the view that the substantiated findings and the Additional Findings warranted disciplinary action which may include termination of the applicant's employment;

(5) the applicant was invited to respond by 18 January 2024; and

(6) the response of the applicant was not an opportunity for the applicant to dispute the findings or re-agitate any issues / matters the applicant raised during the Investigation (ASOC [48]).

1. After receiving the Findings Letter on 15 January 2024 and from that date up to the applicant's dismissal without notice on 9 February 2024, work which the applicant undertook in her capacity as Employee Relations Lead for the respondent included the following:

(1) hosting and leading at least four Employee Relations team meetings attended by one or both of Ms Burmeister and Ms Khoury;

(2) being the continued point of contact and subject matter expert for investigations questions from Ms Burmeister and Ms Khoury;

(3) providing continued guidance to and working with Ms Burmeister on applicable overtime penalty rates project management and a separate detailed Corporate Functions compliance table;

(4) being requested by Ms Nader to review the response to a "show cause" letter concerning an employee of the respondent;

(5) working with Ms Nader on possible approaches to manage Corporate Functions compliance issues;

(6) continued involvement in the Senate Inquiry Working Group, which included Ms McCaffery, Mr Warner, Ms Nader and others and one of whose meetings Mr Burns, was scheduled to attend on 23 January 2024, but became a late apology;

(7) planning and directing a Corporate Functions Health and Safety risk assessment;

(8) being invited to attend a Corporate Functions Leads meeting with Mr Warner, Ms Crennan, Ms McCaffery and others;

(9) meeting with the CEO of the Australian Human Resources Institute;

(10) remaining part of the Human Resources Leadership Team (HRLT), including being an active participant in a Sex Discrimination Act presentation by Ms Nader at a meeting of the HRLT;

(11) at that meeting of the HRLT, advising the group, which included Ms McCaffery, that with respect to Ms Nader's presented topic of "trauma-informed" approaches with respect to how employers manage complaints, that investigations team members outside of Australia need to be trained on the importance of being "people centric" and "trauma informed" for all participants in an investigation;

(12) being requested for advice on Accenture's "Great Place to Work" employee engagement survey results; and in particular the Human Resource division's significantly low engagement result;

(13) providing support to distressed Human Resources partners from the broader Human Resources division;

(14) providing policy advice to team members in the broader Human Resources division;

(15) on or about 25 January 2024, via a video call on Microsoft Teams, being requested by Ms McCaffery to develop a presentation for the upcoming board of directors meeting scheduled for 29 February 2024, which the applicant had been invited to attend;

(16) on 6 February 2024, being requested by Ms McCaffery via an email, copied to Ms Burmeister, to work with the team, meaning Ms Burmeister and Ms Khoury, to gather data for Ms McCaffery for an upcoming "ExCo" meeting. This request was notwithstanding Ms Chen, in the meeting of 15 January 2024, pressing for the applicant's response to the Findings Letter within three days because of, in Ms Chen's view, the alleged adverse effect on Ms Burmeister and Ms Khoury of any delay in finalising the Investigation;

(17) on 6 February 2024, attending at the respondent's Barangaroo office and at a lunch with the respondent's insurance broker Aon, at a nearby restaurant in Barangaroo in her capacity as the relationship contact with Aon on behalf of the respondent. During that lunch the Aon representatives discussed the upcoming panel Aon had invited the applicant to speak on at an event which was scheduled to take place on 29 February 2024;

(18) on 7 February 2024, meeting with Ms Nader via a Microsoft Teams video call. During this call, Ms Nader expressed concern regarding the possibility of Ms Burmeister being the "compliance person" in Employee Relations, because she was of the view that Ms Burmeister was too junior, required a lot of supervision and that that she did not have the right skills; and

(19) during the said meeting on 7 February 2024, discussing with Ms Nader a "show cause" letter which had been sent to an employee of the respondent and the employee's response. The applicant said words to the effect to Ms Nader that she would review these documents and the matter as she had requested, given Ms Nader's view that Ms Khoury was similarly too junior for such tasks. Ms Nader and the applicant also discussed in this meeting that Accenture plc's model and external hiring freezes and rules had created this situation and that under-resourcing (and under-skilled, inexperienced team members) was an ongoing challenge (ASOC [51]).

1. On 17 January 2024, the applicant forwarded her 11 January 2024 email, setting out the 11 January Complaints, to Mr Warner (ASOC [50]).
2. The next event is a letter from the applicant's solicitors to the respondent dated 5 February 2024. The applicant has pleaded that:
   1. By letter dated 5 February 2024 from the Applicant's solicitors DPR Legal to the Respondent by its Chief Executive officer Mr Peter Burns, its General Counsel Mr Iain Warner and Ms McCaffery, the Applicant by her solicitors:

52.1. made complaints to the Respondent regarding the Respondent's and Accenture plc's conduct and oversight of the Investigation;

52.2. called on the Respondent to withdraw the accusation made in the 17 October Allegations that the Applicant's conduct may have constituted a contravention of s1317AC of the Corporations Act 2001 (Cth);

52.3. set out reasons why the so-called 'findings' made by Accenture plc or in the alternative by the Respondent in the Findings Letter were not established in fact, were unreasonable and why the Respondent could not have a reasonable as well as an honest state of satisfaction that the so-called 'findings' had been made out;

52.4. called on the Respondent to withdraw or cause to be withdrawn the so-called 'findings' made by Accenture plc or in the alternative by the Respondent in the Findings Letter;

52.5 informed the Respondent that its conduct in respect of the Applicant, such conduct being set out in the letter dated 5 February 2024, had caused injury, damage, distress and humiliation to the Applicant and that the Applicant's solicitors were accordingly preparing a claim for damages, compensation and penalties on behalf of the Applicant against the Respondent;

52.6 called on the Respondent to provide the Applicant's solicitors with an undertaking in writing that it would not, without providing the Applicant's solicitors 14 days' notice in writing, issue any formal written warning to the Applicant or move to terminate the Applicant's employment in relation to the matters set out in the Findings Letter; and

52.7 put the Respondent on notice that if such an undertaking, or an undertaking in terms proposed by the Respondent that was acceptable to the Applicant, was not provided by the Respondent by 5pm on 8 February 2024, that the Applicant would apply to this honourable Court for an interim injunction to restrain the Respondent from issuing any formal written warning to the Applicant or moving to terminate the Applicant's employment.

...

1. By the said letter dated 5 February 2024 from her solicitors DPR Legal to the Respondent, the Applicant set out detailed complaints regarding the so-called 'findings' made orally by the Respondent's Ms Xinping Chen to the Applicant during the said 15 January Meeting and by the Respondent's Ms McCaffery in the Findings Letter dated 15 January 2024. Further, by that letter, the Applicant requested that the Respondent provide an undertaking by 5pm on Thursday 8 February 2023 (sic - 2024) that it would not move to terminate the Applicant's employment or issue any formal warning to the Applicant, without first providing the Applicant with 14 days' notice of such an intention, failing which the Applicant would seek an interim injunction from the Federal Court of Australia to restrain the Respondent from such actions, pending trial...

(This is pleaded as the exercise of the "tenth workplace right".)

1. The applicant has not received a response to the 5 February 2024 letter from the respondent, Accenture plc or Norton Rose (ASOC [53]).
2. On 9 February 2024, Ms McCaffery sent an email to the applicant's personal non-work email address enclosing a letter dated 9 February 2024, signed by Ms McCaffery, containing the subject heading "Termination of Employment" (Dismissal Letter), by which the respondent notified the applicant that her employment would terminate with effect on that day (ASOC [54]).
3. By the Dismissal Letter, the respondent notified the applicant that Ms McCaffery had made the decision to terminate the applicant's employment because the respondent, by Ms McCaffery, had formed the opinion and had made a finding that the applicant had engaged in conduct as alleged in the Dismissal Letter (ASOC [55]).

1. I turn now to the respondent's application for an order pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and/or r 26.01 of the Federal Court Rules 2011 (Cth), that the originating application and the ASOC be summarily dismissed.

1. Section 31A of the FCA Act provides in so far as is presently relevant:

(1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a) the first party is prosecuting the proceeding or that part of the proceeding; and

(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

...

(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a) hopeless; or

(b) bound to fail;

for it to have no reasonable prospect of success.

(4) This section does not limit any powers that the Court has apart from this section.

...

1. Rule 26.01 provides in so far as is presently relevant:

(1) A party may apply to the Court for an order that judgment be given against another party because:

(a) the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b) the proceeding is frivolous or vexatious; or

(c) no reasonable cause of action is disclosed; or

(d) the proceeding is an abuse of the process of the Court; or

...

(4) If an order is made under subrule (1) dismissing part of the proceeding, the proceeding may be continued for that part of the proceeding not disposed of by the order.

...

1. The principles relevant to summary judgment under s 31A are well-established: see e.g., Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Reeves J) at 266 to 271 ([25] to [45]); Quach v Commissioner of Taxation [2019] FCA 1729; (2019) 168 ALD 130 at 133 to 134 [12] (Jackson J); Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 at [26] to [29] (McKerracher J); Mpinda v Fair Work Commission [2022] FCA 1111 at [22] (Feutrill J); ThoughtWare Australia Pty Limited v IonMy Pty Ltd [2023] FCA 906 at [46] to [52] (Derrington J); Lal v Royal Australasian College of Physicians [2025] FCA 348 at [32] to [38] (Collier J); and DRA Global Limited v Naude [2026] FCA 94 at [54] to [56] (Jackson J).
2. In Quach, Justice Jackson provided the following summary of relevant principles at 133 to 134 [12]:

The applicable principles are well established and may be summarised as follows:

(1) It is the applicant for summary judgment who bears the onus of persuading the court that the proceedings should be determined summarily: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256; 302 ALR 671; 94 ACR 623; [2013] FCA 641 (Cassimatis) at [45].

(2) It may be doubted that it is useful to adopt any gloss, paraphrase or lexicon as to the criterion of no reasonable prospect of success: Spencer (2010) 241 CLR 118; 269 ALR 233; [2010] HCA 28 (Spencer) at [58]; see also at [22].

(3) As the combined effect of s 31A(2) and (3) makes clear, the inquiry is whether the prosecution of the relevant part of the proceeding has no reasonable prospect of success, not whether that defence is hopeless or bound to fail: Spencer at [52].

(4) The test is a departure from earlier provisions authorising summary judgment to be ordered: Spencer at [53]. Section 31A has lowered the bar and softened the test: Cassimatis at [46].

(5) Nevertheless, the power to dismiss an action summarily must be exercised with caution and is not to be exercised lightly: Spencer at [24] and [60].

(6) Section 31A(1) provides that when the court is satisfied that the respondent to an application for summary judgment has no reasonable prospect of successfully prosecuting or defending the proceeding or that part of the proceeding, then the court 'may' give judgment. The assessment required by s 31A of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401; 259 ALR 319; [2009] FCAFC 117 at [28].

(7) A practical judgment as to the case at hand is required, by reference to the stage it has reached: Spencer at [25]; Cassimatis at [46].

1. In Prior, Justice McKerracher explained at [29]:

Other principles that have been identified in relation to s 31A include that:

(a) a reasonable prospect of success is one which is real, not fanciful or merely arguable: Rogers v Assets Loan Co Pty Ltd [2008] FCA 1305; (2008) 250 ALR 82 per Logan J (at [41]), cited in Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978 per McKerracher J (at [3]), though this must now be read with Spencer (at [58]-[60]);

(b) there will be no prospect of success in circumstances where there is a defect in the pleadings which cannot be cured: "Sam Hawk" v Reiter Petroleum Inc [2016] FCAFC 26; (2016) 246 FCR 337 per Kenny and Besanko JJ (at [269]), cited in Buurabalayji (at [3]);

(c) an application for summary dismissal is likely to succeed where the applicant's success in the principal proceedings relies upon a question of fact that can truly be described as fanciful, trifling, implausible, improbable, tenuous or one that is contradicted by all the available documents or other materials. Conversely, as a general principle, an application for summary dismissal is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined between the parties: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 per Reeves J (at [47]);

(d) similarly, as a general principle, the moving party on an application for summary dismissal is likely to succeed if it is able to demonstrate to the Court that the applicant's success in the principal proceedings relies upon a question of law that is straightforward and confined, or is trite in the sense that it is well settled on authority, such that the question can be resolved summarily without the necessity for a full trial. On the other hand, the moving party would be unlikely to succeed if the Court is satisfied that the applicant's success in the proceedings relies upon a question of law that is serious or important, or is difficult and therefore likely to require lengthy argument for its resolution, or involves conflicting authority: Cassimatis (at [ 48]); see also: Luck v University of Southern Queensland [2008] FCA 1582 per Logan J (at [14]-[15]): s 31A is amenable to resolving straightforward questions of law; SK Foods LP v SK Foods Australia (in liq) (No 3) [2013] FCA 526; (2013) 214 FCR 543 per Flick J (at [115]): summary judgment may still be appropriate if a question raised is of some complexity; McAleer v University of Western Australia (No 3) [2008] FCA 1490; (2008) 171 FCR 499 per Siopis J (at [39] and the cases therein cited): s 31A permits dismissal of a proceeding where an inquiry into the merits of the issues of law demonstrates the arguments are insufficiently strong to warrant the matter going to trial;

(e) a Court should be particularly cautious about ordering summary determination where proceedings involve questions of fact and law, or mixed questions of fact and law, as these combinations usually give rise to some complexity that would require a full hearing. In such circumstances the moving party, as a general principle, would need to show a substantial absence of merit on either of the question of fact or law concerned, or on the mixed question: Cassimatis (at [49]); and

(f) if a prima facie case in support of summary judgment is established, the onus shifts to the opposing party to point to some factual or evidentiary issues making a trial necessary: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; (2008) 167 FCR 372 per Gordon J (at [127]), cited in Buurabalayji (at [3]). See also Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 per Gilmour J (at [6]).

(bold and italic emphasis in original; underline emphasis added)

1. As is plain, the standard of "no reasonable prospect of successfully prosecuting the proceeding" is common to both s 31A of the FCA Act and r 26.01(1)(a) of the Rules. The standard in r 26.01(1)(a) is in effect identical to the standard in s 31A of the FCA Act and accordingly, the principles outlined above also apply to r 26.01(1)(a): Quach at 133 [11]; Prior at [27]; Mpinda at [21]; DRA Global at [54].
2. In considering the exercise of the discretion to summarily dismiss a proceeding in whole or in part, it is important to bear in mind that:

(1) the power to do so is to be exercised with caution and should not be exercised unless it is clear that there is a high degree of certainty as to the outcome of the proceeding were it is allowed to proceed to trial: Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at 131 to 132 [24] (French CJ and Gummow J); and

(2) the existence of authority which appears to preclude reliance upon particular propositions of law on which the case brought depends does not necessarily provide a basis for summary dismissal. As French CJ and Gummow J explained in Spencer at 132 [25], existing authority may be overruled, qualified or further explained and summary processes must not be used to stultify the development of the law. The position may be different where the existing authority is a binding decision of the High Court of Australia.

1. The focus of the respondent's case for summary dismissal was the applicant's case in contract.
2. That case is based upon five alleged implied terms which the applicant contends were breached by the respondent.
3. Those terms are pleaded at ASOC [8] to [14] as follows:
   1. It was an implied term of the Employment Agreement that the Respondent owed the Applicant an obligation of good faith, including that the Respondent would act in good faith in its dealings with the Applicant in the context of their employer and employee relationship and that in initiating and / or conducting an internal investigation involving an assessment of the conduct and performance of the Applicant and in making findings regarding the Applicant's conduct and performance, that the Respondent would do so reasonably and in good faith (the Implied Term of Good Faith).

Particulars

The term is implied by law

9. The scope of the Implied Term of Good Faith included an obligation that:

9.1 in forming an opinion that the Applicant had engaged in misconduct or non-compliance with the Respondent's policies, the Respondent was required to have a reasonable as well as an honest state of satisfaction that the Applicant had engaged in such misconduct or engaged in such non-compliance; and / or

9.2 in forming an opinion that the Applicant had engaged in misconduct warranting dismissal, the Respondent was required to have a reasonable as well as an honest state of satisfaction that the Applicant had engaged in such misconduct.

1. It was an implied term of the Employment Agreement, that in initiating and conducting an investigation as to whether the Applicant had engaged in misconduct, or non-compliance with the Respondent's policies, or in conduct inconsistent with the standard of conduct and performance expected of an Accenture Employee Relations Lead, that the Respondent was obliged to act reasonably (Implied Term 2).

The term arises by operation of law or fact, having regard to the express terms of the Employment Agreement, including clauses 10.2, 17.1, and 19.4.

1. It was an implied term as a matter of fact, in light of the formal imposition of its policies pursuant to clause 10.2 of the Employment Agreement, that the Respondent would honour so much of those policies, as at any particular time, operated for the real and practical benefit of the Applicant and would not arbitrarily or capriciously withdraw them (Implied Term 3).

The term arises by operation of law or fact, having regard to the express terms of the Employment Agreement, including clauses 10.2, 17.1, and 19.4.

1. The effect of Implied Term 3 was that in circumstances where the Respondent conducted an investigation, it was required to provide the Applicant with procedural fairness in the manner in which it reached findings and ensure that any disciplinary outcome was appropriate and applied fairly and consistently on a global basis regardless of seniority, position or contribution to the Respondent.

Respondent's Policy 1000 - Speaking Up and Zero Tolerance for Retaliation

1. Further and / or in the alternative, it was an implied term of the Employment Agreement, or on its proper construction an express term, that when investigating any matter, including potential misconduct based on the alleged failure to comply with any policies (clause 10.2 of the Contract), for the Respondent to reach a conclusion or make a finding during or arising from such an investigation, that the Applicant had engaged in particular misconduct, or had not complied with any of the Respondent's policies, it must establish in fact that the Applicant had engaged in such misconduct or non-compliance, having regard to all of the evidence (Implied Term 4).

The term arises by operation of law or fact, having regard to the express terms of the Employment Agreement, including clauses 10.2, 17.1, and 19.4 and / or Implied Term 3 and the Respondent's Policy 1000 - Speaking Up and Zero Tolerance for Retaliation.

1. Further and / or in the alternative, it was an implied term of the Employment Agreement, or on its proper construction an express term, that in order for the conduct of the Applicant to warrant or result in disciplinary action up to and including termination, arising from engaging in misconduct or non-compliance with any of the Respondent's policies, that the Respondent had to establish in fact that the Applicant had engaged in such misconduct or non-compliance with the Respondent's policies (Implied Term 5).

The term arises by operation of law or fact, having regard to the express terms of the Employment Agreement, including clauses 10.2, 19.1 and 19.4 and / or Implied Term 3 and the Respondent's Policy 1000 - Speaking Up and Zero Tolerance for Retaliation.

1. The respondent submits that the implied terms are untenable.
2. As noted above, the power to summarily dismiss a proceeding is to be exercised with caution and only where there is a high degree of certainty as to the outcome of the proceeding. The need to avoid stultification of the development of the law in areas that have not been definitively decided by the High Court of Australia is also to be kept in mind.
3. I am not satisfied that the applicant's case based upon the alleged implied terms is so devoid of reasonable prospects of success that it ought not be allowed to proceed to trial, for the following reasons.
4. First, the first implied term is expressed as an implied term requiring the respondent to act in good faith. The law with respect to the implication of such terms is, as the respondent fairly acknowledged, far from settled: see e.g., Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2002) 240 CLR 45 at 63 [40] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), 75 to 76 ([86] to [89]) (Kirby J) and 94 [156] (Callinan J); Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169 at 195 to 196 [42] (French CJ, Bell and Keane JJ) and 214 [107] (Kiefel J).
5. In Barker, the High Court of Australia held that a term of mutual trust and confidence should not be implied by law into employment contracts. In the course of doing so, the plurality (French CJ, Bell and Keane J) stated at 185 [20]:

A judicial announcement of an obligation of mutual trust and confidence, to be applied as an incident of employment contracts and applicable to employers and employees alike, involves the assumption by courts of a regulatory function defined by reference to a broadly framed normative standard. Broadly framed normative standards are familiar to courts required to apply, in common law or statutory settings, criteria such as "reasonableness", "good faith" and "unconscionability". However, the creation of a new standard of that kind is not a step to be taken lightly. Where the standard is embodied in a new contractual term implied in law, the bases for the implication in law of contractual terms must be considered as the first point of reference.

(bold emphasis added)

1. At 195 to 196 ([40] to [42]), their Honours explained:
   1. The complex policy considerations encompassed by those views of the implication mark it, in the Australian context, as a matter more appropriate for the legislature than for the courts to determine. It may, of course, be open to legislatures to enshrine the implied term in statutory form and leave it to the courts, according to the processes of the common law, to construe and apply it. It is a different thing for the courts to assume that responsibility for themselves. The mutual aspect of the obligation cannot be put to one side by characterising its operation with respect to employees as merely a restatement of the existing duty of fidelity. It is more broadly worded than that obligation. As Jessup J observed in his dissenting judgment in the Full Court, the proposed implied duty of mutual trust and confidence might apply to conduct by employees which was neither intentional nor negligent and did not breach their implied duty of fidelity, but objectively caused serious disruption to the conduct of their employer's business.
   2. Importantly, the implied duty of trust and confidence as propounded in Malik is directed, in broad terms, to the relationship between employer and employee rather than to performance of the contract. It depends upon a view of social conditions and desirable social policy that informs a transformative approach to the contract of employment in law. It should not be accepted as applicable, by the judicial branch of government, to employment contracts in Australia.
   3. The above conclusion should not be taken as reflecting upon the question whether there is a general obligation to act in good faith in the performance of contracts. Nor does it reflect upon the related question whether contractual powers and discretions may be limited by good faith and rationality requirements analogous to those applicable in the sphere of public law. Those questions were not before the Court in this appeal.

1. The above passages illustrate that the question whether a general obligation to act in good faith in the performance of contracts should be implied into contracts including employment contracts, remains open: see Marmax Investments Pty Ltd v RPR Maintenance Pty Ltd [2015] FCAFC 127; (2015) 237 FCR 534 at 557 [122] (Middleton, Foster and Gleeson JJ) and Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2021] FCAFC 121; (2021) 287 FCR 388 at 442 [254] (McKerracher and Colvin JJ). Similarly, the narrower question of whether there is an implied obligation of good faith in the exercise of contractually conferred discretions remains open.
2. More recently, Stewart J explained in Australian Agrivision Pty Ltd v Wolstenholme (Trial) [2026] FCA 130 at [33] :

At the level of the High Court, it remains an open question as to whether there is a general obligation to act in good faith in the performance of contracts and whether contractual powers and discretions are limited by requirements of good faith and fair dealing: Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; 240 CLR 45 at [40] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, [86]‑[89] per Kirby J and [156] per Callinan J; and Commonwealth Bank of Australia v Barker [2014] HCA 32; 253 CLR 169 at [42] per French CJ, Bell and Keane JJ and [107] per Kiefel J. There are nevertheless cases where, as a process of contractual construction, courts have implied a duty to act in good faith, including in the exercise of contractual powers: see, eg, Macquarie International Health Clinic Pty Ltd v Sydney Local Health District [2020] NSWCA 161; 383 ALR 688 at [268]- [269] per Bathurst CJ, Bell P and McCallum JA agreeing, where a clause giving "absolute and unfettered discretion" was held to be subject to another clause that provided for a good faith obligation.

(italic emphasis in original)

1. See also Lewison K and Hughes D, The Interpretation of Contracts in Australia, (2nd ed Lawbook Co, 2025) at [6.15]; Herzfeld P and Prince T, Interpretation, (3rd ed Lawbook Co, 2024) at [27.100] to [27.120].
2. Secondly, the remaining alleged implied terms do not use the expression "good faith", but are expressed in terms which are capable of falling under that umbrella. Further, as the plurality in Barker noted at 195 to 196 [42], the exercise of contractual discretions may be limited by analogous public law considerations. In the present case, the pleaded express terms provide contractual discretions, the exercise of which the applicant seeks to put in issue.
3. Thirdly, the respondent has identified no authority suggesting that any of the implied terms is of a kind that is untenable.
4. Fourthly, to the extent that the alleged implied terms may be regarded as terms that have not previously been implied into employment contracts then, as noted above, care must be taken not to stultify the development of the law.
5. Finally, the respondent has advanced a series of arguments as to why, on the proper construction of the express terms of the employment contract, the Court should not construe the employment contract as one containing the alleged implied terms, including submissions that the alleged implied terms are inconsistent with the express terms of the employment contract and unnecessary. On one view, the arguments made, and the authorities cited, by the respondent may ultimately provide a sound basis for resisting a finding that the employment contract included such terms. However, for the reasons set out above I am unpersuaded that those arguments and authorities are sufficient to provide a basis for summary dismissal of the contractual claim.

1. The respondent also attacked the applicant's FW Act case. However, that attack focussed upon the manner in which that case was pleaded, rather than upon a contention that such a case (however pleaded) had no reasonable prospects of success.

1. It follows that the proceeding should not be summarily dismissed.

1. In the alternative to an order for summary dismissal, the respondent seeks an order that the whole of the ASOC be struck out pursuant to r 16.21(1) of the Rules. In the further alternative, the respondent seeks an order pursuant to r 16.21(1) that particular paragraphs of the ASOC be struck out.
2. The salient rules are rr 16.02 and 16.21.
3. Rule 16.02 provides, in so far as is presently relevant:

(a) be divided into consecutively numbered paragraphs, each, as far as practicable, dealing with a separate matter; and

(b) be as brief as the nature of the case permits; and

(c) identify the issues that the party wants the Court to resolve; and

(d) state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved; and

(e) state the provisions of any statute relied on; and

(f) state the specific relief sought or claimed.

...

(c) be evasive or ambiguous; or

(d) be likely to cause prejudice, embarrassment or delay in the proceeding; or

(e) fail to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(f) otherwise be an abuse of the process of the Court.

1. Rule 16.21 provides in so far as is presently relevant:

(1) A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

(a) contains scandalous material; or

(b) contains frivolous or vexatious material; or

(c) is evasive or ambiguous; or

(d) is likely to cause prejudice, embarrassment or delay in the proceeding; or

(e) fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(f) is otherwise an abuse of the process of the Court.

1. The principles of pleading are well-established and do not require detailed analysis. It is sufficient to set out the following convenient conspectus provided by Justice Snaden in Weddall v Rasier Pacific Pty Ltd [2023] FCA 59 at [66] to [71]:

66 Rule 16.21 of the Rules provides as follows:

...

1. ... it is prudent to identify some basic points of principle, none of which is presently controversial. The purpose that pleadings serve is well-understood: amongst others, they serve to identify the material facts upon which the parties intend to rely at trial and, thereby, to define the issues to be tried with clarity sufficient to enable the parties to understand - and, thereby, to have an opportunity to meet - the case or cases that are advanced against them: Dare v Pulham (1982) 148 CLR 658, 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ).

68 That fundamental objective is reflected in the terms of rr 16.02(1) of the Rules:

...

1. A "material fact" is one the proof of which is essential to the existence of a cause of action or defence that a party seeks to advance: Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234, 246-247 (Wilson J).
2. A pleading is "embarrassing" to the extent that it is "unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against it": Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803; (2011) 209 IR 263, 269 [18] (Collier J). In Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905, [22]-[23], Edmonds J observed (in the context of earlier rules of the court):

Embarrassment in the context of O 11 r 16 "carries the connotation of a pleading which is susceptible to various meanings, or contains inconsistent allegations or in which alternatives are confusingly intermixed or in which irrelevant allegations are made tending to increase expense. The list is not intended to be exhaustive": Bartlett v Swan Television and Radio Broadcasters Pty Ltd [1995] FCA 1429; (1995) ATPR 41-434.

A pleading which is internally inconsistent is embarrassing: Vasyli v AOL International Pty Ltd (NG 219/96) Lehane J, 19 August 1996, unreported. A pleading should assert the basic and constituent facts, not the evidence upon which those facts will or may be proved at trial. A pleading is defective if it simply asserts a conclusion to be drawn from the facts not stated: Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228; (1985) 7 FCR 109 at 114-115; and is not saved by using the words "[i]n the premises" to introduce the conclusion: Davids Holdings Pty Ltd v Coles Myer Ltd [1993] FCA 204; (1993) ATPR 41-227.

71 To those broad observations may be added the following, namely that:

(1) a pleading that baldly alleges a statutory contravention by simply repeating the language employed by a relevant provision is liable to be struck out: McKellar v Container Terminal Management Services Ltd [1999] FCA 1101; (1999) 165 ALR 409, 418 [23] (Weinberg J);

(2) in a civil suit for the recovery of a pecuniary penalty, it is especially important that those accused of a contravention know precisely the case that is to be made against them: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298, 311 [63] (Logan, Bromberg and Katzmann JJ); and

(3) where extensive passages within a pleading are liable to be struck out, it is within the court's discretion to strike out the whole of the pleading and to require that the party who authored it begin afresh: Sabapathy v Jetstar Airways [2021] FCAFC 25; (2021) 283 FCR 348, 359 [33] (Logan and Katzmann JJ, with whom Flick J agreed).

(italic emphasis in original; underline emphasis added)

1. In Sabapathy v Jetstar Airways [2021] FCAFC 25; (2021) 283 FCR 348 at 355 and 356 ([21] to [22]) (Logan and Katzmann JJ); Flick J agreeing at 367 [90]) explained:
   1. ... The expression "material fact(s)" refers to the facts essential to the existence of the cause of action, that is, the fact or combination of facts giving rise to the right to sue the respondents (Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234 at 245). It does not mean all the relevant facts or circumstances. A fact is material if it is an essential element of the cause of action: Australian Automotive Repairers' Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568 at [13] (Lindgren J).
   2. The inclusion of a substantial number of purely evidentiary or contextual matters was a distraction. Including some of those matters made the pleading unnecessarily complicated, difficult to understand, and hard to plead to. ...

(italic emphasis in original; underline emphasis added)

1. In the present case most of the amended statement of claim is cast in a form which transgresses those fundamental principles. So much is plain from ASOC [19] to [55] and [66] to [70], [72] to [79], [80], [81] to [82], [83], [85], [86], [88] and [89] which are set out, with some cosmetic changes, at [11] to [58] above.
2. To these may be added ASOC [56] to [64] in which the allegations of breach of contract are set out. These nine paragraphs occupy approximately 21 pages of the ASOC, and have not been set out above. Most of those paragraphs have a series of substantial subparagraphs. For example, ASOC [57] has 17 subparagraphs (and one of those has four sub-subparagraphs); and ASOC [63] has 28 subparagraphs (several of which have sub-subparagraphs).
3. A substantial part of the ASOC identified in the previous two paragraphs - ASOC [19] to [55], [56] to [64], [66] to [70], [72] to [79], [80], [81] to [82], [83], [85], [86], [88] and [89] - fail to comply with the fundamental rules of pleading in several respects, in that:

(1) many paragraphs deal with multiple subject matters (cf. r 16.02(1)(a));

(2) the pleading is discursive and in a narrative form (cf. r 16.02(1)(b)); and

(3) most paragraphs travel (well) beyond stating the necessary material facts (cf. r 16.01(1)(d)) and contain numerous matters which appear to be evidence or submissions.

1. As a result the ASOC is likely to cause prejudice, embarrassment and delay in the proceeding if the respondent is required to respond to it (r 16.02(2)(d)).
2. In circumstances where:

(1) the remainder of the ASOC comprises some introductory paragraphs, the implied terms (ASOC [8] to [14]) and the pleading of the alleged contraventions of s 340 of the FW Act; and

(2) in so far as the remaining paragraphs concern the alleged contraventions of s 340 of the FW Act, they are derivative upon the pleading of the purported exercise of workplace rights (i.e. ASOC [42], [52], [70], [71], [79], [80], [82], [83], [85], [86], [88] and [89]), which paragraphs are to be struck out,

the appropriate course is that the whole of the ASOC be struck out and the drafting exercise begin afresh: see, e.g. Sabapathy at 359 [33]; Weddall at [71(3)].

1. I am not satisfied that the proceeding should be summarily dismissed. However, I am satisfied that that the ASOC should be struck out in its entirety. The applicant should have leave to replead.
2. I will make orders accordingly.
3. Senior counsel for the respondent indicated that the respondent wished to be heard on the question of costs. I will reserve that question. If this is to be pursued, a timetable for brief submissions as to costs can be set.

I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman.