Federal Court of Australia
Dorsch v HEAD Oceania Pty Ltd [2024] FCAFC 133
ORDERS
Appellant | ||
AND: | Respondent | |
DATE OF ORDER: | 18 October 2024 |
THE COURT ORDERS THAT:
1. Leave to appeal be granted.
2. The appeal be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THE COURT:
A. INTRODUCTION
1 The subject matter of the proceedings below related to the events leading up to, and including, the termination of the employment contract between the appellant (Mr Dorsch) and the respondent (Head Oceania). Following the termination of that employment, Mr Dorsch commenced proceedings against Head Oceania alleging that it had contravened various provisions of the Fair Work Act 2009 (Cth) (FW Act) including by engaging in adverse action. Other than in relation to one claim relating to annual leave (which Head Oceania conceded), the primary judge dismissed Mr Dorsch’s claims for the reasons set out in Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162 (Primary Judgment or PJ). It is from these orders and the Primary Judgment that Mr Dorsch seeks leave to appeal, and to appeal.
2 For the reasons that follow, leave to appeal should be granted, but the appeal should be dismissed. In so deciding, we have approached the determination of the appeal on the basis that we need only determine those issues which we consider to be dispositive of the application for leave to appeal and appeal: Boensch v Pascoe [2019] HCA 49; (2019) 268 CLR 593 at [7]-[8] (Kiefel CJ, Gageler and Keane JJ) and [101] (Bell, Nettle, Gordon and Edelman JJ). The Court’s function is to resolve the appeal by applying “the standard common law judicial technique of deciding no more than what needs to be decided”: Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 267 CLR 560 at [76] (Gageler J); Transport for NSW v Hunt Leather Pty Ltd [2024] NSWCA 227 at [83] (Bell CJ, Leeming and Mitchelmore JJA).
B. LEAVE TO APPEAL, EXTENSION OF TIME AND LEAVE TO AMEND NOTICE OF APPEAL
3 Mr Dorsch’s Notice of Appeal was filed on 27 March 2024, apparently on the assumption that leave to appeal from the Primary Judgment was not required. That assumption was mistaken. Counsel for Mr Dorsch conceded at the hearing of the appeal that leave to appeal was required on the basis that the Primary Judgment was interlocutory in nature. That is because the proceedings before her Honour had not determined all issues in dispute, including as to relief and penalty. As was recently observed by the Full Court in Monash Health v Singh [2023] FCAFC 166; (2023) 327 IR 196 at [44], a judgment as to liability that is made prior to, and separately from, any consideration of further questions (including as to relief) is an interlocutory judgment, and no appeal lies from such a judgment without leave of this Court.
4 Mr Dorsch did not seek leave to appeal until 13 August 2024 when he filed an interlocutory application seeking leave to file an Amended Notice of Appeal, in which he acknowledged that leave to appeal would be necessary. That application was filed outside the time prescribed in r 35.13 of the Federal Court Rules 2011 (Cth) (Rules) for an application for leave to appeal. It follows that Mr Dorsch requires an extension of time. We are satisfied that Mr Dorsch should be granted that extension of time.
5 As mentioned, Mr Dorsch filed an interlocutory application on 13 August 2024 seeking leave to file an Amended Notice of Appeal. By the Amended Notice of Appeal, Mr Dorsch sought to abandon some grounds of appeal, refine others and add an additional ground. In relation to the proposed amendment of the grounds of appeal, Mr Dorsch relied upon the general power of this Court in r 1.34 of the Rules to dispense with compliance with the Rules, as well as r 36.11(2)(b), which allows a party to apply to the Court for an order giving leave to amend the grounds of appeal. Counsel for Mr Dorsch submitted that the proposed amendments should be allowed in circumstances where this would allow for all issues sought to be put before the Court to be determined. It was also submitted that this would not impact on the caseload of the Court or cause prejudice to Head Oceania in circumstances where an adjournment would not be required and where Head Oceania was able to deal with the new and refined grounds in both their written and oral submissions.
6 As it happened, the hearing of the appeal proceeded on the basis of the grounds in the Amended Notice of Appeal, and no issue was expressly taken by Senior Counsel for Head Oceania with that approach. In those circumstances, we see no reason not to grant Mr Dorsch’s interlocutory application and to determine the appeal on the basis of the Amended Notice of Appeal.
7 As to the granting of leave to appeal, we are satisfied that leave should be granted for substantially the same reasons as in relation to the application to amend. It is, in our view, also relevant that, unlike in Singh, by the time this appeal came on for hearing, all of the matters post-dating the Primary Judgment as to penalty and costs had been finally determined: see Dorsch v HEAD Oceania Pty Ltd (Penalty) [2024] FCA 484 and Dorsch v HEAD Oceania Pty Ltd (Costs) [2024] FCA 832 (Costs Judgment); cf Singh at [45]. We note that leave has also been sought to appeal from the orders made pursuant to the Costs Judgment and, subject to the Orders we make, that matter will be allocated and determined in the ordinary course.
8 The result of the above is that an extension of time and leave to appeal is granted, as well as leave to rely on the amended grounds of appeal. Our reasons proceed on those bases.
C. UNCONTESTED FACTS
9 The following facts concerning Mr Dorsch’s employment history are uncontroversial and are drawn from the unchallenged findings made by the primary judge.
10 Mr Dorsch had worked the majority of his adult life, from apprenticeship in 1996 until 2021 (with a break between 2000 and 2008) for various entities within the “HEAD Group”: PJ [1]. After initially working in Germany until 2000, Mr Dorsch was approached eight years later by Mr Stefan Michl (Mr Michl) and Mr Gerald Skrobanek (Mr Skrobanek), about undertaking a role for Mares Asia Pacific (Mares AP)), the HEAD Group’s Hong Kong subsidiary. Mr Dorsch then relocated to Hong Kong in May 2008: PJ [1].
11 In 2010, Mr Dorsch relocated to Queensland to work in the Australian subsidiary (Head Oceania) and had, since that time, resided and worked primarily in Australia: PJ [1].
12 Importantly, Mr Dorsch did not become employed by, and commence employment with, Head Oceania until on or after 7 March 2018: PJ [1], [229]-[231]. Mr Dorsch’s employment with Head Oceania was governed by a contract of employment that was entered into on 15 October 2018 and which was referred to as the “2018 Employment Contract”: PJ [3], [22], [328].
13 Although Mr Dorsch commenced employment with Head Oceania, he remained employed (simultaneously) by Mares AP and undertook Hong Kong-related work: PJ [1].
14 Mr Dorsch remained employed by both Head Oceania and Mares AP until 10 December 2021: PJ [2]. At that time, his employment with both entities was terminated. The termination was given effect to by a letter dated 10 December 2021, signed by Mr Skrobanek in his position as Chief Operating Officer of the “HEAD Mares Group” and countersigned by Ms Gefion Hauer in her position as General Counsel of the “HEAD Mares Group”. As we will return to further below, Mr Dorsch did not dispute the fact that the termination of his employment had been validly effected.
15 Mr Dorsch’s employment was summarily terminated on account of the manner in which he treated subordinate employees which had led to a number of them making complaints about him and/or resigning from their positions: PJ [2]. Although Mr Dorsch claimed in the proceedings below that Head Oceania did not have grounds to summarily terminate his employment, the primary judge found otherwise and those findings are not challenged: see, e.g., PJ [5], [431], [443]-[444].
D. MR DORSCH’S CLAIMS AND THE PRIMARY JUDGMENT
16 It is next convenient to address briefly the claims made by Mr Dorsch in the proceedings below and the primary judge’s reasons for (largely, with one exception) rejecting those claims.
17 Many of the claims that Mr Dorsch advanced in the proceedings below centred upon the theme that he had been subjected to adverse action (including both in relation to his dismissal from Head Oceania as well as other actions which came to be described as the “non-dismissal adverse action”) because he had made complaints about his statutory leave entitlements and unreasonable work hours, and otherwise exercised various workplace rights. Mr Dorsch also advanced separate claims that Head Oceania had contravened other provisions of the FW Act including those relating to the payment of annual leave and working unreasonable hours, as well as claims that Head Oceania had breached the 2018 Employment Contract.
18 As became apparent to the primary judge, Mr Dorsch’s claims did not clearly delineate between those claims that related to his employment with Mares AP and those that separately related to his employment with Head Oceania. The primary judge found that many of Mr Dorsch’s claims related to entitlements pertaining to his employment with Mares AP and/or that the complaints he made about those entitlements pre-dated his employment with Head Oceania.
19 It is also both relevant and necessary to note at the outset that, in dismissing Mr Dorsch’s claims, the primary judge made a number of findings relating to Mr Dorsch’s credibility, and that of other witnesses. Specifically, the primary judge found that Mr Dorsch was an unreliable witness: PJ [28]-[34]. By contrast, the primary judge found that other witnesses including, most critically, Mr Skrobanek and Mr Michl were credible and reliable witnesses and/or that their evidence should be preferred to that given by Mr Dorsch: PJ [37]-[65].
20 Mr Dorsch does not challenge the primary judge’s findings as to the credit and credibility of the various witnesses.
D.1 The Annual Leave Claim - conceded in part and otherwise rejected
21 Mr Dorsch claimed that Head Oceania failed to pay his entitlement to accrued annual leave “in full” upon the termination of his employment, as was required by the terms of the 2018 Employment Contract and s 90(2) of the FW Act (the Annual Leave Claim). Mr Dorsch further claimed that Head Oceania had breached the 2018 Employment Contract and contravened s 90(2) of the FW Act by failing to correctly calculate the amount of pay he should have received in respect of his accrued annual leave entitlement at the time of the termination of his employment. In this regard, Mr Dorsch claimed that the amount payable should have been, and should be, calculated on the basis of his combined remuneration from Head Oceania and Mares AP: PJ [319].
22 Head Oceania conceded that it had breached the 2018 Employment Contract and contravened s 90(2) of the FW Act by failing to pay Mr Dorsch his accrued annual leave entitlement immediately upon the termination of his employment: PJ [320], [331]. However, it disputed that the accrued entitlement was payable upon the basis of Mr Dorsch’s combined remuneration with both Head Oceania and Mares AP.
23 The primary judge found that Head Oceania had engaged in the breach of the 2018 Employment Contract and contravened s 90(2) of the FW Act on the basis of its concessions, but otherwise rejected Mr Dorsch’s claims as to the quantification of the payment. In arriving at this conclusion, the primary judge reasoned that Mr Dorsch’s entitlement to payment was limited to the remuneration stipulated in the 2018 Employment Contract, under which he was contracted to perform work for Head Oceania for the remuneration stipulated therein. Her Honour further reasoned that, among other things, payments made in Euros by Mares AP to Mr Dorsch were not made on behalf of Head Oceania for work in Australia and that some of those payments were entitlements unique to Hong Kong: PJ [328]. Thus, except insofar as the breach was conceded by Head Oceania, the Annual Leave Claim was unsuccessful.
D.2 The Adverse Action Claims
Overview of the Adverse Action Claims
24 In the proceedings below, Mr Dorsch contended that adverse action was taken against him because he exercised or simply had certain alleged “workplace rights” within the meaning of s 341 of the FW Act.
25 Mr Dorsch alleged that Head Oceania engaged in adverse action by dismissing him from his employment, as well as the following forms of non-dismissal adverse action (at PJ [278]):
(a) Mr Michl’s notification, by email dated 30 April 2018 to Mr Dorsch, that his annual leave entitlements would expire (the first adverse action);
(b) Mr Michl informing Mr Dorsch in a telephone conversation that Mr Dorsch only had 40 days accrued annual leave when Mr Dorsch informed him that he had around 70 days accrued annual leave (the second adverse action);
(c) Mr Michl refusing, by email on 18 May 2018, to recognise Mr Dorsch’s accrued but untaken annual leave (the third adverse action);
(d) Mr Michl’s requirement, as part of an email communication, on 19 June 2018, that Mr Dorsch “end his discussion about untaken leave” and that the only leave that would be recognised was the remaining 12 days for 2018 and that Head Oceania was considering disciplinary action against Mr Dorsch (the fifth adverse action);
(e) Mr Michl’s purportedly unfair scrutinisation of and making false accusations about Mr Dorsch from around June 2018 (the sixth adverse action);
(f) Mr Michl’s offering of a low salary increase and indication that his employment would be terminated if he sought to engage in higher salary increases (the eighth adverse action);
(g) Head Oceania not paying Mr Dorsch his annual leave in full in accordance with the 2018 Employment Contract and the FW Act (the ninth adverse action); and
(h) alleged omissions in failing to provide support and training, to address concerns and complaints, to not overwork Mr Dorsch and to ensure his health and safety and comply with contractual obligations (the adverse action by omission claim).
26 Mr Dorsch pleaded that each of the above purported forms of adverse action (not involving dismissal) came within the meaning of s 342(1) (items 1(b) and (c)) of the FW Act, because they “injured [him] in his employment” or altered his position to his prejudice: PJ [279].
27 Mr Dorsch claimed that Head Oceania had engaged in these forms of adverse action because:
(a) he had certain workplace rights as pleaded by him;
(b) he had responsibilities under s 28 of the Work Health and Safety Act 2011 (Qld) (WHS Act);
(c) he was able to participate in, or initiate, a process under Pt 6, Div 1 of the WHS Act;
(d) he was able to make complaints or inquiries in relation to his employment with Head Oceania under:
(i) the terms of the 2018 Employment Contract;
(ii) Pt 2-2, Div 6 of the FW Act; or
(iii) s 62 of the FW Act;
(e) Head Oceania wanted to prevent the exercise by Mr Dorsch of the rights in (a), (b) and (d) above; and
(f) Head Ocean wanted to prevent Mr Dorsch participating in or initiating an application under Pt 6, Div 1 of the WHS Act.
28 The alleged “workplace rights” relied upon by Mr Dorsch included the making of complaints, asking for salary increases and asserting and querying his bonus and annual leave entitlements. Mr Dorsch pleaded the following complaints and enquiries (see PJ [268] and paragraphs referred to therein):
(a) on or about 30 April 2018, Mr Dorsch sent Mr Michl an email asserting an entitlement to 87 days accrued annual leave (the annual leave enquiry);
(b) on or around 5 May 2018, Mr Dorsch had a dinner and meeting with Mr Michl in Italy. During that meeting:
(i) Mr Dorsch complained about the need to take annual leave due to stress-related symptoms including burnout, fatigue and anxiety (the annual leave request); and
(ii) Mr Dorsch raised concerns regarding his “unreasonable hours of work” (the unreasonable hours complaint);
(c) on 1 May 2018, Mr Dorsch sent Mr Michl another email re-asserting the existence of his purported annual leave entitlement (the first complaint);
(d) on 5 June 2018, Mr Dorsch complained in an email to Mr Michl about Head Oceania’s failure to recognise his untaken leave and his need to take some time off (the second complaint);
(e) in mid-November 2020, Mr Dorsch had a telephone conversation with Mr Skrobanek, Mr Michl and a Mr La Rocca notifying them of the ongoing work demands of the accounting team and the lack of support in the accounting department leading to staff in that department and himself being overworked (the lack of support complaint);
(f) in or around October 2020, Mr Dorsch made a request for a salary increase in a conversation with Mr Skrobanek (the first request for a salary increase);
(g) on or around 15 October 2021, Mr Dorsch made a subsequent request for a salary increase in a conversation with Mr Michl and by email (the second request for a salary increase); and
(h) in early November 2021, Mr Dorsch made a further request for a salary increase to Mr Skrobanek by telephone (the third request for a salary increase).
The primary judge’s findings about the alleged exercises of workplace rights
29 Other than in relation to the first and second requests for a salary increase, the primary judge found that the remainder of Mr Dorsch’s alleged exercises of workplace rights related to his employment with Mares AP and/or pre-dated his employment with Head Oceania and/or did not amount to exercises of workplace rights: see PJ [272], [275].
30 Specifically, in respect of the annual leave enquiry, the annual leave request, the first complaint, the second complaint, the unreasonable work hours complaint and the lack of support complaint, the primary judge found at PJ [272] that each concerned his employment with Mares AP, and were therefore not complaints or inquiries “in relation to his… employment” with Head Oceania within the meaning of s 341(1)(c) of the FW Act.
31 In respect of the contention that Mr Dorsch was exercising a responsibility pursuant to s 28 of the WHS Act and making complaints pursuant to s 341(1)(b) and (c) of the FW Act, the primary judge found at PJ [275] that none of the communications (the annual leave enquiry, the annual leave request, the unreasonable work hours complaint or the lack of support complaint), constituted an “exercise or proposed exercise of the benefit of a safe workplace” but rather a complaint about its denial, and as a result, Mr Dorsch did not exercise or propose to exercise a workplace right as alleged.
32 In respect of the third request for a salary increase, the primary judge found Mr Dorsch had adduced no evidence in support of his allegation, and the primary judge therefore found that no such request was made: PJ [109], [272].
33 Despite having rejected the majority of Mr Dorsch’s claims relating to his alleged exercise of workplace rights, the primary judge nevertheless proceeded to consider whether his claims as to adverse action were made out in any event, including by assessing whether Head Oceania had rebutted the statutory presumption in s 361 of the FW Act as set out below.
The primary judge’s findings about the alleged dismissal adverse action
34 The primary judge found at PJ [367] that Head Oceania had rebutted the presumption arising under s 361 of the FW Act by establishing that: (a) the decision to terminate Mr Dorsch’s employment was made by Mr Skrobanek and him alone; (b) in making that decision, Mr Skrobanek acted as an agent of Head Oceania; and (c) the decision to terminate Mr Dorsch’s employment was not made for any of the proscribed reasons alleged by Mr Dorsch, being the purported existence, exercise or purported exercise of his “workplace rights”. In arriving at this conclusion, the primary judge accepted Mr Skrobanek’s evidence that he alone had made the decision to terminate and did so because he made an assessment that Mr Dorsch had engaged in misconduct: PJ [368], [369] and [373]. Importantly, the primary judge accepted Mr Skrobanek’s evidence denying that he made the decision to terminate Mr Dorsch’s employment for the reason, or reasons including the reason, that Mr Dorsch had exercised one or more of the workplace rights pleaded (irrespective of whether they were proper exercises of workplace rights): PJ [372].
35 The primary judge rejected Mr Dorsch’s contention that Head Oceania had failed to establish that Mr Skrobanek was acting with the authority or as the agent of Head Oceania in making the decision to dismiss Mr Dorsch: PJ [112], [365]. Although it was not in dispute that Mr Skrobanek was not an employee or officer of Head Oceania, the primary judge accepted Mr Skrobanek’s evidence that (at PJ [113]-[114]):
(a) he held roles as the Chief Operating Officer of HEAD International Holding GmbH (Head International), the director of approximately 20 HEAD Group entities, the Executive Vice President of HEAD’s Watersport Division and President of Mares S.p.A (Mares Italy);
(b) by virtue of his role as director of Head International, he oversaw the operations of Mares AP and Head Oceania. Notwithstanding that each of the entities under Head International had appointed directors, ultimately, they were all reportable to him, and he had a supervisory function in respect of them; and
(c) Mr Skrobanek had approved various contracts and bonuses relating to Mr Dorsch over the years within the Head Group, and he “was always the one approving salaries and salary increases to Mr Dorsch”.
36 Having regard to these matters, the primary judge found at PJ [122] that Mr Skrobanek acted as Head Oceania’s agent when he made the decision to terminate Mr Dorsch’s employment, and was authorised to do so.
The primary judge’s findings about the alleged non-dismissal adverse action
37 The primary judge considered each of Mr Dorsch’s claims as to alleged forms of non-dismissal adverse action taken against him.
38 As noted above, the primary judge found that most of the workplace rights alleged to have been exercised by Mr Dorsch related to his employment with Mares AP. In a similar vein, the primary judge found at PJ [245] that each instance of pleaded non-dismissal conduct, other than the eighth adverse action, was taken by Mares AP and not Head Oceania. The primary judge found that this conduct was engaged in by Mr Michl, who had never been an officer or employee of Head Oceania and that, to the extent that his conduct was engaged in as an agent for on behalf of a particular entity, it was for Mares AP and not Head Oceania: PJ [260]. The primary judge’s reasons for so finding included that:
(a) Mr Michl was the Vice President of Mares Italy, which had overlapping interests with Mares AP;
(b) the dispute regarding Mr Dorsch’s annual leave entitlements was in respect of entitlements accrued while he was employed by Mares AP;
(c) Head Oceania had no obligation to Mr Dorsch in respect of the entitlements allegedly owed to him by Mares AP; and
(d) Mr Michl conducted a review of Mares AP’s annual leave records (and not Head Oceania’s records) on the view that Mr Dorch’s complaint was regarding his annual leave with respect to Mares AP.
39 In respect of the eighth adverse action, the primary judge considered that it was Mr Skrobanek who determined Mr Dorsch’s salary increases, and that therefore no issue arose as to whether Mr Michl’s involvement in the salary increase discussions in 2021 was done on behalf of Head Oceania: PJ [263]-[264]. However, to the extent it was necessary to decide, the primary judge accepted Mr Dorsch’s argument that, with respect to Mr Michl’s later involvement in the salary increase discussions, those discussions were undertaken by him as agent for Head Oceania: PJ [264].
40 In any event, the primary judge was not satisfied that Mr Dorsch’s claims as to the non-dismissal adverse action amounted to an injury in employment or altered his position to his prejudice within the meaning of s 342(1) (items 1(b) and (c)) of the FW Act. The primary judge found at PJ [281]-[283] that Mr Dorsch had failed to establish that in respect of the first, second, third and fifth adverse action claims, he had accrued entitlements that were not recognised by Head Oceania and that as a result his position was not injured or altered to his prejudice. The primary judge made similar findings at PJ [284]-[286] in respect of the sixth adverse action in that her Honour reasoned that Mr Dorsch failed to establish that such conduct had any adverse impact (by way of injury or prejudicial alteration of position). In this regard, the primary judge held that while the term “injury” was one of broad import, it was not enlivened by Mares AP and Mr Michl questioning Mr Dorsch as to his alleged annual leave entitlements and incurring of expenses. This was especially so given that in relation to the incurring of expenses, Mr Michl did not press it further after accepting he had initially formed an incorrect view as to those expenses.
41 As to the eighth alleged adverse action, the primary judge held at PJ [287]-[290] that, if it were necessary to decide, Mr Dorsch had not established that this conduct constituted adverse action. Her Honour reasoned that the making of a “low salary offer” did not constitute some injury or prejudicial alteration of position, noting that Mr Dorsch provided no authority to support the submission that offering a pay increase where there is no entitlement to one is capable of constituting adverse action. Similarly, in relation to the ninth alleged adverse action, her Honour held at PJ [291]-[292] that Head Oceania’s failure to pay Mr Dorsch’s annual leave in full upon termination in accordance with the 2018 Employment Contract and the FW Act was not capable of constituting adverse action. Her Honour reasoned that this failure did not injure or prejudice Mr Dorsch in his employment, because at the time the right crystallised, he was no longer employed.
42 In relation to Mr Dorsch’s claims as to adverse action by omission, the primary judge found at PJ [293] that it was a claim that was “boldly asserted, absent consideration and reference to any authority”. The primary judge observed that the notion of adverse action by omission was a “conceptually difficult” one, particularly in circumstances where the allegation is as to a mere failure to take steps as opposed to a positive decision not to take such steps. However, the primary judge considered Mr Dorsch’s claim failed for several reasons including that her Honour did not accept that there was a relevant failure to provide a lack of support or training to staff in the accounting department or that this failure led to the purported injury or prejudicial alteration of Mr Dorsch’s position: PJ [294]-[306].
43 In any event, whilst noting that it was not strictly necessary to decide the issue given the other findings made, the primary judge nevertheless concluded at PJ [307] that Head Oceania had rebutted the statutory presumption under s 361 of the FW Act in respect of each of the non-dismissal adverse actions and had established that it did not take any of these alleged actions, or engage in the alleged omissions, for a reason or reasons including the existence, exercise or proposed exercise of any of the “workplace rights” alleged by Mr Dorsch.
D.3 The Unreasonable Work Hours Claims
44 The primary judge rejected Mr Dorsch’s claim that he was required to work unreasonable additional hours in contravention of s 62 of the FW Act.
45 The primary judge found that Mr Dorsch’s claim failed because he had not pleaded the claim with sufficient precision and had not established that he worked the excessive hours said to be the foundation of his claim, or that Head Oceania had requested or required him to do so: PJ [337]-[338], [364].
D.4 The Contract Claims
46 Mr Dorsch advanced several claims contending that Head Oceania had breached the 2018 Employment Contract including a wrongful termination case, alleging that Head Oceania had not established grounds for terminating his employment on the grounds of serious misconduct and claiming damages for a period of notice that should have been provided to him.
47 The primary judge rejected this aspect of Mr Dorsch’s claims and gave detailed reasons for doing so: PJ [396]-[444]. The primary judge made a number of findings as to Mr Dorsch’s conduct towards his subordinates, based on which her Honour was satisfied that Mr Dorsch’s conduct “warranted the summary termination of his employment”: PJ [443].
48 The primary judge also rejected Mr Dorsch’s other claims based on contract which were not relevant to the appeal: see PJ [397]-[400].
E. THE AMENDED NOTICE OF APPEAL AND ISSUES ON APPEAL
49 Initially, Mr Dorsch advanced 13 grounds of appeal in the Notice of Appeal, but later abandoned Grounds 4, 9 and 13. As noted above, Mr Dorsch sought leave to rely upon an Amended Notice of Appeal, including a new ground of appeal (Ground 14), which leave we have granted.
50 The submissions of both parties proceeded on the basis that the following grounds of appeal were in contest:
1. The primary judge erred by finding Mr Skrobanek was the agent of the Respondent in circumstances where there was no evidence that the Respondent had appointed Mr Skrobanek as its agent and the Respondent did not assert that Mr Skrobanek was its agent.
2. The primary judge erred by finding by virtue of the evidence of Mr Skrobanek that the Respondent had rebutted the statutory presumption under s 361 of the FW Act in terminating the Appellant’s employment.
3. In the alternative to 1, if the Court were to decide that Mr Skrobanek was the agent of the Respondent the primary judge erred in finding that Mr Michl was also not the agent of the Respondent and was acting as that agent at all times the Appellant was employed by the Respondent and that in respect to the sixth adverse action this was not taken as a result of the Appellant’s exercise of a workplace right.
…
5. The primary judge erred by finding that the Unreasonable Hours Complaint and the Lack of Support Complaint all concerned the Appellant’s employment with Mares AP and not the Respondent.
6. The primary judge erred by finding that the Appellant in making the Unreasonable Hours Complaint and the Lack of Support Complaint was not exercising or purporting to exercise a workplace right.
7. The primary judge erred by failing to consider that when the Appellant made the Unreasonable Hours Complaint and the Lack of Support Complaint, the Appellant was exercising a responsibility under s. 28 of the Work Health and Safety Act 2011 (Qld) (a complaint based on s 340(1)(a) and/or complaint based on s 341(1)(b) and (c) of the FW Act.
8. The primary judge erred by finding that the sixth adverse action was not taken by the Respondent.
…
10. The primary judge erred by finding that the sixth adverse action was not made out and that the Appellant had not suffered an injury within the meaning of Item 1, para (b) of s. 342 of the FW Act.
11. The primary judge erred by finding that the Appellant’s claim under s 62 of the FW Act failed since the Appellant had not established that he worked the excessive hours said to provide the foundation for the claim, nor has he established that there was any request or requirement that he do so.
12. The primary judge erred by finding that the Respondent had not taken adverse action against the Appellant by omission.
…
14. The primary judge erred in finding that the Appellant needed to establish either that the entirety of the monies he earned from both Mares AP and the Respondent were as consideration for work performed in Australia or, if not, what proportion was, such that his remuneration can be quantified with some precision and that his claim was for the former only.
51 The parties also helpfully addressed their written and oral submissions to the issues arising from these grounds of appeal, as follows:
(a) Issue 1 (Grounds 1 and 2 of the Amended Notice of Appeal): relating to the errors alleged in respect of whether Mr Skrobanek was an agent of Head Oceania and whether by virtue of that evidence the statutory presumption under s 361 of the FW Act had been rebutted in respect of the decision to terminate Mr Dorsch’s employment;
(b) Issue 2 (Grounds 3, 8 and 10 of the Amended Notice of Appeal): relating to the primary judge’s findings in relation to the sixth adverse action and whether it was engaged in by Head Oceania, whether Mr Michl was an agent of Head Oceania and whether it amounted to an injury in employment within the meaning of s 341 of the FW Act;
(c) Issue 3 (Grounds 5, 6 and 7 of the Amended Notice of Appeal): relating to the primary judge’s rejection of the unreasonable hours complaint;
(d) Issue 4 (Ground 12 of the Amended Notice of Appeal): relating to the primary judge’s rejection of the adverse action by omission claim;
(e) Issue 5 (Ground 11 of the Amended Notice of Appeal): relating to the primary judge’s rejection of Mr Dorsch’s claim alleging a contravention of s 62 of the FW Act;
(f) Issue 6 (Ground 14 of the Amended Notice of Appeal): relating to the primary judge’s rejection of Mr Dorsch’s claims as to the calculation of his annual leave entitlement on termination including the remuneration paid by Mares AP.
52 We deal with each issue in turn.
F. CONSIDERATION
F.1. Issue 1 – Grounds 1 and 2
53 The first issue that arises in the appeal is whether the primary judge erred by finding that Mr Skrobanek was the agent of Head Oceania and, by virtue of his evidence, that Head Oceania had rebutted the statutory presumption under s 361 of the FW Act in terminating Mr Dorsch’s employment.
54 Mr Dorsch submitted that Head Oceania’s Constitution vests the management of that company in its directors. He contended that, as Mr Skrobanek was not an employee or officer of Head Oceania, he did not have the actual or apparent authority to terminate Mr Dorsch’s employment, nor was there any evidence establishing that Head Oceania had conferred any such authority upon Mr Skrobanek. Further, Mr Dorsch submitted that the word “agent” contained in s 793 of the FW Act should be understood to have been used in its established sense as a legal term of art (citing Mie Force Pty Ltd v Allianz Australia Insurance Ltd [2024] NSWCA 23 at [122]) as describing persons with authority to create binding legal relations between a principal and third parties or to end those relationships. It was submitted that the relationship of agent and principal can only be established by the consent of both parties and that there was no evidence of any such consent to appoint Mr Skrobanek as an agent of Head Oceania. Mr Dorsch submitted that Mr Skrobanek’s leadership roles in other entities within the Head Group did not make him an agent of Head Oceania.
55 Mr Dorsch next contended that, as Mr Skrobanek did not have any authority (actual or apparent), Head Oceania did not rebut the presumption in s 361 of the FW Act. He contended that the question of whether a body corporate has contravened the FW Act must be answered by assessing the state of mind attributed to the body corporate, against the elements of the contravention said to have been committed by it. It was submitted that as Mr Skrobanek did not have any authority, his state of mind was irrelevant to Head Oceania rebutting the presumption. Mr Dorsch submitted that:
It is this question of who has legal power to dismiss the Appellant that Mr Dorsch contends should trouble the Court. At its highest, Mr Dorsch submits that Mr Skrobanek could determine that the Appellant be dismissed but could not effect that decision, which it says needed to be done by the Respondent.
56 During the course of oral submissions before us, Counsel for Mr Dorsch developed the argument on the basis that there was no challenge to whether the termination was validly effected or the fact that Mr Skrobanek had the authority to determine whether to terminate the employment, but that Mr Skrobanek had no authority to implement the decision. The following exchanges that occurred during the course of oral submissions identify the way in which the argument was ultimately put:
SNADEN J: You also don’t take issue, do you, with the fact of termination?
MR BRITT: No.
SNADEN J: As an act engaged in by the respondent.
MR BRITT: We don’t.
SNADEN J: As a valid act.
…
SHARIFF J: Because you don’t challenge the anterior finding of fact, isn’t it a factual basis from which to infer, that Mr Skrobanek had at least ostensible or apparent authority in respect of decisions to be made, in respect of the appellant’s employment?
MR BRITT: Well, your Honour, we say it goes the other way. We say what it does show is that Mr Skrobanek can make decisions, but other people are required to implement those decisions. That is, agree to the decision and implement it.
HATCHER J: That’s a theoretical rather than factual proposition, isn’t it?
MR BRITT: What was that, your Honour?
HATCHER J: That’s a theoretical rather than factual proposition. The simple fact is, there was a finding made by the primary judge that Mr Skrobanek was the decision-maker for the dismissal, and was the person who effected and communicated the dismissal.
MR BRITT: That – and yes, and that he was an agent of - - -
HATCHER J: Well, leaving aside agency that they’re the factual matters that are unchallenged in the appeal, aren’t they?
MR BRITT: Correct, but at the end of the day, it is the respondent that actually has to terminate the appellant. And that required a decision by the respondent, and we do not have any evidence from any persons within the respondent as to why they followed the instruction or decision of Mr Skrobanek to terminate the appellant.
…
MR BRITT: But what we have in this case is, even Mr Skrobanek says, he requires someone else to implement a bonus.
SHARIFF J: That’s an implementation issue. It sounds like you’re accepting that he had – the decision-making power resided with him.
MR BRITT: He has the power to decide, he doesn’t then have the power - - -
SHARIFF J: You accept then, he has the power to decide.
MR BRITT: Yes, and we’ve said that in our submissions. He can make a decision, but what then flows from that is other persons have to agree with that decision in order to terminate the appellant’s contract.
57 We reject Mr Dorsch’s contentions.
58 The question raised by s 361 of the FW Act required an examination of the reason or reasons of the person who took the adverse action. As was explained by French CJ and Crennan J in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500 at [44]-[45]:
[44] There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”.
[45] This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.
(Emphasis added).
59 As is apparent from the above passages, the central question is “why was the adverse action taken?” and that is a question of fact to be answered in light of all the facts established in the proceeding. In the present case, the primary judge found that Mr Skrobanek made the decision to terminate Mr Dorsch’s employment, and that this decision was made by him alone. This finding is not challenged.
60 Further, Mr Dorsch accepted that Mr Skrobanek could, and did, determine that Mr Dorsch’s employment should be terminated. The point raised by Mr Dorsch that Mr Skrobanek did not, however, have the authority to implement the decision is a distinction without any substance. As the Full Court indicated in Wong v National Australia Bank Ltd [2022] FCAFC 155; (2022) 318 IR 148, to focus on where legal authority resides when determining whether an adverse action was taken by a corporate entity is apt to mislead. There, in the context of decision-making based on information or advice given by another person, the Court stated at [26], “it matters not that the person providing the information and advice does not formally possess the authority or power to effect the decision based on the information or advice”. Here, the general point is the same. Once it was accepted that Mr Skrobanek was the person who was determining whether Mr Dorsch’s employment should be terminated, and had such authority and exercised it, it was beside the point whether he had the legal authority to give effect to that decision by implementing it. In any event, as we have pointed out, there was no challenge to the fact that the termination was validly effected.
61 Mr Dorsch’s submissions failed to address the central question as to why the adverse action was taken by reference to the accepted factual position. Once it is accepted (as it is here) that Mr Skrobanek was, in substance and reality, the decision-maker, it was his reasons that mattered to the outcome of that question. The primary judge not only accepted Mr Skrobanek’s evidence as to his reasons for why that decision was made, her Honour also accepted his denials that the decision was not make for proscribed reasons. These findings were dispositive. As these findings are not challenged, Mr Dorsch’s contentions in relation to Issue 1 must fail.
62 Mr Dorsch’s reliance upon s 793 of the FW Act and the principles relating to actual or apparent authority are misplaced on the facts of this case. Relevantly, s 793(1) and (2) of the FW Act provide as follows:
Liability of bodies corporate
Conduct of a body corporate
(1) Any conduct engaged in on behalf of a body corporate:
(a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
State of mind of a body corporate
(2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b) that the person had that state of mind.
63 It will be apparent that the text of s 793(2) of the FW Act is expressed to operate on the basis that, in establishing the state of mind of the body corporate, “it is enough to show” that a person referred to in s 793(1) held the relevant state of mind. Section 793(2) in this sense facilitates proof of state of mind, but it is neither a codification of the doctrines of attribution or vicarious liability nor is it exhaustive as to the legal means by which the state of mind held by, or the conduct engaged in by, a body corporate may be ascertained: Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525; 241 FCR 338 at [49]-[50]; Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2020] FCAFC 192; (2020) 282 FCR 1 at [257]; State of New South Wales – Sydney Trains v Annovazzi [2024] FCAFC 120 at [109].
64 In the present case, Mr Dorsch’s position as to the operation and application of s 793 of the FW Act was inconsistent. As noted above, on the one hand, Mr Dorsch accepted that Mr Skrobanek was, in fact, the person who determined whether to terminate his employment. However, on the other hand, Mr Dorsch contended that Mr Skrobanek could not implement the decision even if he had the authority to make the determination such that his state of mind could not be attributed to Head Oceania unless there was evidence that they agreed with his decision and implemented it. For the reasons we have stated above, these submissions created a distinction without any substance. Once it was accepted that Mr Skrobanek had the authority to determine whether employment should be terminated, it was his state of mind that was relevant.
65 In any event, the primary judge’s finding that Mr Skrobanek had the authority to make the decision to terminate Mr Dorsch’s employment as an agent of Head Oceania accorded with the overwhelming weight of evidence in the proceedings below (which we have reviewed). Although Mr Skrobanek was not an officer or employee of Head Oceania, he was the Chief Operating Officer of Head International which was the ultimate holding company of the Head Group including Head Oceania: PJ [116], [120]. Mr Skrobanek’s evidence was that the directors of Head Oceania were not required to delegate to him the role of giving an affidavit with that authority, as he was the one who appointed those directors. In addition, there was evidence given by Mr Prete (a director of Mares AP and Head Oceania) and Mr Davies (a director of Head Oceania), neither of whom said anything to cast doubt on Mr Skrobanek’s evidence. Mr Dorsch was the only other director of Head Oceania at the relevant time. Mr Davies gave unchallenged evidence as to the allegations in relation to Mr Dorsch’s conduct and that the decision to terminate the employment was one that was made by Mr Skrobanek. All of this evidence supported the finding that Mr Skrobanek was acting with the express or implied authority of Head Oceania to terminate Mr Dorsch’s employment.
66 For these reasons, we reject Grounds 1 and 2.
F.2. Issue 2 – Grounds 3, 8 and 10
67 Issue 2 raises for determination whether the primary judge erred in finding that the sixth adverse action was not taken by Head Oceania and that Mr Dorsch was not injured in his employment by reason of that conduct. The sixth adverse action was pleaded as Mr Michl’s alleged “unfair scrutinisation of and making false accusations about Mr Dorsch from around June 2018”.
68 Mr Dorsch’s submissions on appeal sought to challenge aspects of the primary judge’s findings in relation to whether the sixth adverse action was taken by Head Oceania (as opposed to Mares AP), whether in engaging in that action Mr Michl was acting as an agent of Head Oceania and whether the action amounted to an “injury” within the meaning of s 342 of the FW Act.
69 In our view, it is unnecessary to decide any of the contentions raised by Mr Dorsch. That is because, notwithstanding the primary judge’s findings as to whether the action was taken by Mares AP, her Honour found that to the extent that Mr Michl did engage in the alleged conduct for and on behalf of Head Oceania and that it amounted to an injury in employment, there was no challenge to Mr Michl’s evidence denying that he engaged in that relevant conduct because of a reason or reasons including the exercise by Mr Dorsch of one or more of the pleaded workplace rights. Her Honour stated at PJ [316]:
Similarly, with respect to the sixth adverse action claim, regarding purported repeated unfair scrutinisation and false allegations, Mr Michl accepted that he had made a mistake when alleging discrepancies in Mr Dorsch’s travel expense claim. After Mr Dorsch had satisfied Mr Michl of the fact of the mistake, the issue was dropped. Mr Michl was not the subject of any challenge to his denial that his conduct was motivated by a prohibited reason. For all the reasons stated above, I accept his evidence.
70 At the hearing of the appeal, Counsel for Mr Dorsch conceded that this finding was not challenged by Mr Dorsch in his Amended Notice of Appeal. Thus, it follows that even if Mr Dorsch had succeeded in persuading us in respect of any of Grounds 3, 8 and 10 of the Amended Notice of Appeal, his attack on the orders that were made would in any event fail on the basis that Head Oceania had rebutted the presumption contained in s 361 of the FW Act. Accordingly, it is unnecessary that we should say anything further about these grounds.
F.3. Issue 3 – Grounds 5, 6 and 7
71 By these grounds, Mr Dorsch contended that the primary judge erred at PJ [272] by finding that his asserted workplace rights in the form of the unreasonable hours complaint and the lack of support complaint concerned his employment with Mares AP and not Head Oceania. Mr Dorsch also contended that the primary judge erred by finding that these “complaints” did not involve an actual or proposed exercise of a workplace right including the exercise of a responsibility under s 28 of the WHS Act.
72 As with Issue 2, we again consider that it is unnecessary to decide Mr Dorsch’s contentions in support of Issue 3. That is because, insofar as these complaints were relevant to the alleged non-dismissal adverse action, the primary judge found that Head Oceania had rebutted the statutory presumption in s 361 of the FW Act as to why that action was taken. Her Honour reasoned as follows at PJ [307] and [309]-[312]:
[307] Whilst not strictly necessary to decide, given my findings above, in the event I am wrong, for the following reasons, I am of the view that HEAD Oceania has rebutted the statutory presumption and proved that it did not take any of the non-dismissal adverse action for a reason that included the existence, exercise or proposed exercise of (or, relevantly, to prevent the exercise of) any of the following alleged “workplace rights” if found to have existed and been relied upon:
(a) because Mr Dorsch had the pleaded workplace rights;
(b) because Mr Dorsch had responsibilities under s 28 of the WHS Act;
(c) because Mr Dorsch was able to participate in, or initiate, a process under Pt 6, Div 1 of the WHS Act;
(d) because Mr Dorsch was able to make complaints or inquiries in relation to his employment with HEAD Oceania under:
(i) the terms of the 2018 Employment Contract;
(ii) Part 2-2 of Div 6 of the FW Act; or
(iii) section 62 of the FW Act;
(e) to prevent the exercise by Mr Dorsch of the rights in (a), (b) and (d) above;
(f) to prevent Mr Dorsch participating in or initiating an application under Pt 6 Div 1 of the WHS Act.
…
[309] HEAD Oceania contended that all of the alleged non-dismissal adverse actions (save for the ninth adverse action and the adverse action by omission) were alleged to have been engaged in by Mr Michl only. Mr Michl gave evidence in chief as to the state of his knowledge about Mr Dorsch’s alleged workplace rights, and “categorically denied” that any of his conduct or dealings with Mr Dorsch between April and June 2018 were engaged in for a reason including the alleged proscribed reasons.
[310] Further, HEAD Oceania contended that Mr Michl’s evidence in relation to the proscribed reasons allegations was not challenged in cross-examination. HEAD Oceania submitted that there was no reason to doubt Mr Michl’s evidence, and that his credit was not in any way impugned. Further, HEAD Oceania contended that if the Court found that any of the alleged non-dismissal adverse action occurred, it was not taken by Mr Michl for a proscribed reason.
[311] Mr Dorsch made no submission in reply to contest this submission. To the extent that I was able to decipher any challenge, it was on the basis of a limp submission regarding Mr Michl’s credit. Again Mr Dorsch made such a submission, largely baldly and without any reference to the evidence or deigning to provide transcript references. I do not accept that the fact of them having a “conflicting relationship” was such that Mr Michl’s evidence should not be accepted.
[312] Upon review of the entirety of the evidence, it is my view that HEAD Oceania has discharged its burden in proving that each of the claimed forms of adverse action were not taken for any of the claimed workplace rights.
73 In this appeal, Mr Dorsch does not challenge these findings. Nor does he challenge the primary judge’s findings as to Mr Michl’s credibility. When confronted with these matters, Counsel for Mr Dorsch fairly and properly accepted that the primary judge had made such findings and that they were not challenged:
HATCHER J: So for these two grounds, were there findings about the respondent’s reasons?
MR BRITT: I would have to conclude that at least in relation to Mr Michl’s involvement, it would appear that her Honour accepts that he did not do so for a prohibited reason, but not in relation to Mr Skrobanek’s involvement. She just didn’t address that issue on this point.
74 Similarly, to the extent that the unreasonable hours complaint and the lack of support complaint were relevant to the dismissal adverse action, Counsel for Mr Dorsch accepted that our conclusions in relation to Issue 1 (Grounds 1 and 2) would dispose of Mr Dorsch’s case in that regard, in circumstances where there was no alternative challenge to the primary judge’s finding that Mr Skrobanek had not made the termination decision for a proscribed reason or reasons.
75 There being no challenge to the finding that Mr Michl did not act for any proscribed reason in engaging in the non-dismissal adverse action, and as we have determined that Mr Skrobanek was the relevant decision-maker for the purposes of the dismissal adverse action, it follows that these aspects of Mr Dorsch’s attack on the orders made below must fail.
F.4. Issue 4 – Ground 12
76 By this ground, Mr Dorsch contended that the primary judge erred in finding that there was no adverse action by omission.
77 The claim was pleaded in Mr Dorsch’s Amended Statement of Claim (ASOC) at [67] as follows:
In the premises of the above, the Respondent failed to take adequate steps to:
a. address the Applicant’s concerns and complaints in the [sic] concerning the wellbeing and safety of staff of the Respondents’ employees [sic] including the Applicant promptly, or at all;
b. protect the Applicant from the Third Adverse Action, Fifth Adverse Action, Sixth Adverse Action, Applicant Workload, Covid Workload and/or Lack of Support;
c. ensure, so far as was reasonably practicable, the health and safety of the Applicant while he was at work in the Respondent’s business or undertaking; and further or in the alternative;
d. comply with its contractual obligations to the Applicant at [26] (above)
(together the Adverse Action by Omission).
(Emphasis retained).
78 Mr Dorsch submitted that the word “action” in s 12 of the FW Act is defined to include “an omission”. On that basis, Mr Dorsch contended that an omission (such as a failure to do an act) may therefore be adverse action. Mr Dorsch submitted that the primary judge erred by finding that his claim as to adverse action by omission was predicated only on the “purported failure of Mr Prete to provide adequate support and training to the accounting department” and that Head Oceania had failed to take adequate steps to address his concerns and complaints concerning the wellbeing of its employees, including himself. Mr Dorsch contended that these were only two of the bases relied upon by him to establish the relevant adverse action by omission. During the course of oral argument, Counsel for Mr Dorsch was asked to identify the other bases upon which the adverse action by omission case was presented, and our attention was drawn to the ASOC at [67] (which we set out above). Counsel for Mr Dorsch accepted that Mr Dorsch did not press [67](b) of the ASOC other than in relation to the sixth adverse action and lack of support.
79 Mr Dorsch submitted that at PJ [293]-[306], the primary judge only addressed the “adverse action case” by reference to the alleged failures on the part of Mr Prete, without addressing the balance of the matters pleaded in the ASOC at [67].
80 We do not agree.
81 In the PJ at [293]-[306], the primary judge examined the adverse action by omission case not only by reference to the alleged failures on the part of Mr Prete, but also by reference to an examination of where the responsibilities lay in respect of ensuring a safe workplace for Head Oceania’s staff: see PJ [297], [300]-[302]. In short, the primary judge did not accept the premises inherent in Mr Dorsch’s contentions including by finding that Mr Dorsch himself had a responsibility in respect of the relevant staff members. Further, as is apparent from PJ [306], the primary judge did not accept that Head Oceania had failed in its duties to take reasonably practicable steps to protect Mr Dorsch from a risk to his health and safety in the workplace. We discern no error in the manner in which the primary judge considered and determined Mr Dorsch’s pleaded claim in the ASOC at [67].
82 More critically, the primary judge found at PJ [303] that Mr Dorsch had not established that he suffered any injury or prejudicial alteration as a result of the alleged adverse action by omission. To put her Honour’s findings in context, it will be recalled that Mr Dorsch’s claim in the ASOC at [67] was that the omissions involved the failure to ensure the safety of Head Oceania’s staff including himself, and a failure to prevent certain adverse actions from being taken in the form of the sixth adverse action and the lack of support. In relation to these matters, the primary judge reasoned as follows at PJ [305]-[306]:
[305] Lastly, and relatedly, Mr Dorsch claimed that HEAD Oceania had failed to take adequate steps to address concerns and complaints concerning the wellbeing of its employees, including himself. As to the former aspect of this allegation, Mr Dorsch has failed to establish how this could be a form of adverse action as against Mr Dorsch. With respect to latter, for the reasons set out above, I do not accept that the various alleged forms of adverse action were in fact adverse action, and therefore I do not accept there was a basis upon which he derived any additional form of protection. Further, as set out above, I do not accept that he has established he had the level of workload nor suffered the alleged lack of support that he suggests.
[306] Finally, for the reasons set out below, I do not accept that Mr Dorsch can establish that HEAD Oceania failed to comply with its contractual obligations to take reasonably practicable steps to protect Mr Dorsch from a risk to his health and safety at the workplace.
83 It is apparent that the primary judge found that Mr Dorsch had not established how a failure to ensure the safety of others occasioned an injury to Mr Dorsch or prejudicially altered his position. The primary judge also found that Mr Dorsch had failed to establish that Head Oceania had failed to ensure his safety and thus he had not established that he had suffered any injury or prejudicial alteration in this respect. In relation to the alleged adverse actions, the primary judge had found that the sixth adverse action did not amount to an injury or prejudicial alteration given that Mr Michl had not pressed the inquiries any further after he received Mr Dorsch’s substantive responses to the queries about his expenditure, and the primary judge had rejected Mr Dorsch’s allegations as to the lack of support.
84 Mr Dorsch contended that the primary judge erred by applying the “wrong test” in determining whether he had been injured due to the omissions. Mr Dorsch contended that the words “injures the employee in his or her employment” used in s 342(1) (Item 1(b)) of the FW Act are words of wide import and are applicable to any circumstance where an employee in the course of his or her employment is treated substantially differently to the manner in which he or she is ordinarily treated and where that treatment can be seen to be injurious or prejudicial. Mr Dorsch submitted that the primary judge erred by finding that he did not suffer a purported injury or prejudicial alteration of his position because her Honour failed to consider the material adverse effect of the claimed omissions on Mr Dorsch’s workload above and beyond what he would ordinarily have in his position. We reject this contention. The primary judge did not apply the “wrong test”. Rather, the primary judge rejected the factual premises inherent in Mr Dorsch’s contentions and was not satisfied that he had established any injury to himself as a result of an alleged increase in workload of other employees, or any increase in his workload or any other alleged failure to ensure his safety.
85 It is obvious to us that the primary judge did not accept the factual premises of Mr Dorsch’s contentions. We are not persuaded that Mr Dorsch has identified any error in the primary judge’s rejection of those factual premises. Accordingly, we reject Ground 12.
86 As a result of our findings, it is not necessary for us to determine whether a case of adverse action by omission is maintainable under the FW Act or was maintainable on the facts of this case, including the more problematic questions as to how the statutory presumption in s 361 of the FW Act could operate in respect of omissions.
F.5. Issue 5 – Ground 11
87 By this ground, Mr Dorsch contended that the primary judge erred by finding that his claim under s 62 of the FW Act failed because he had neither established that he worked the excessive hours said to provide the foundation for the claim, nor that there was any request or requirement that he work those hours.
88 Section 62 provides as follows:
Maximum weekly hours
Maximum weekly hours of work
(1) An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
(a) for a full-time employee — 38 hours; or
(b) for an employee who is not a full-time employee — the lesser of:
(i) 38 hours; and
(ii) the employee’s ordinary hours of work in a week.
Employee may refuse to work unreasonable additional hours
(2) The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.
Determining whether additional hours are reasonable
(3) In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:
(a) any risk to employee health and safety from working the additional hours;
(b) the employee’s personal circumstances, including family responsibilities;
(c) the needs of the workplace or enterprise in which the employee is employed;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
(e) any notice given by the employer of any request or requirement to work the additional hours;
(f) any notice given by the employee of his or her intention to refuse to work the additional hours;
(g) the usual patterns of work in the industry, or the part of an industry, in which the employee works;
(h) the nature of the employee’s role, and the employee’s level of responsibility;
(i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;
(j) any other relevant matter.
Authorised leave or absence treated as hours worked
(4) For the purposes of subsection (1), the hours an employee works in a week are taken to include any hours of leave, or absence, whether paid or unpaid, that the employee takes in the week and that are authorised:
(a) by the employee’s employer; or
(b) by or under a term or condition of the employee’s employment; or
(c) by or under a law of the Commonwealth, a State or a Territory, or an instrument in force under such a law.
89 Mr Dorsch’s claim under s 62 of the FW Act was pleaded by reference to the following factual premises asserted in the ASOC at [39]-[42]:
39. Between about June 2017 and December 2021, the Respondent imposed such a workload on the Applicant, that the Applicant was required to work in excess of 38 hours per week on a regular basis in order to complete the work (Applicant Workload).
40. The Applicant regularly worked around 70 or 80 hours per week and was required to undertake extensive travel.
41. The Applicant did not receive additional payment or time in lieu for these additional hours.
42. The hours of work performed by the Applicant in excess of 38 hours per week were unreasonable in the circumstances.
Particulars
i. The Applicant was required to regularly work more than 12 hours per day;
ii. the Applicant was regularly required to work on weekends and take telephone calls late in the evenings;
iii. the Applicant was regularly required to work past midnight;
iv. there were occasions where work requirements demanded the Applicant to work to as late as 1.00am and 4.00am;
v. the Applicant regularly worked around 70 or 80 hours per week and was required to undertake extensive travel;
vi. this unreasonable pattern of work was repeated for several years.
…
46. In early 2020, the Applicant’s workload significantly increased due to the COVID-19 pandemic (Covid Workload).
Particulars
i. As a consequence of the COVID-19 pandemic, the Applicant was required to perform his usual work duties and additional work duties including, but not limited to,
A. organising and processing staff work rosters;
B. assisting with internal weekly reporting requirements;
C. attending regular conference calls during work hours in both Europe and Australia; and
D. dealing with integration issues in relation to setting up internal business structures.
90 The abovementioned factual premises were then advanced in support of the pleading in the ASOC at [85] that Head Oceania had contravened s 62 of the FW Act, as follows:
By reason of the Applicant Workload and further in the alternative Covid Workload the Respondent breached ss 62 and 42 of the FW Act by requiring the Applicant to work unreasonable additional hours.
91 The primary judge rejected Mr Dorsch’s claims because her Honour found that:
(a) Mr Dorsch failed to establish, with the required precision, when and what he says the hours were that he worked: PJ [338];
(b) Mr Dorsch provided no evidentiary foundation for who “required” him to work the hours he did and when: PJ [338] and [348];
(c) Mr Dorsch failed to put on any evidence as to what were the “work requirements demanded” of him as late as 1.00 am and 4.00 am, who imposed them and in what circumstances they were imposed: PJ [338]; and
(d) Mr Dorsch had the autonomy and discretion to organise his work and the hours he worked as he saw fit: PJ [361] and [362].
92 Both in his written and oral submissions in support of the appeal, Mr Dorsch submitted that the primary judge erred by making the abovementioned findings. However, beyond bare assertion, Mr Dorsch did not take us to any evidence to establish any error in respect of those findings. During the course of oral submissions before us, Counsel for Mr Dorsch took us to the evidence contained in Mr Dorsch’s affidavit from the proceedings below in support of this ground of appeal. Those paragraphs in their entirety were as follows:
51. In September 2019, I was no longer required to manage the Asia Pacific Export. The workload with HEAD Oceania and its growing business was already taking up all of my time and I was already working much more than normal work hours. Workdays would have been longer than 12-15 hours on a regular basis.
52. Since the commencement of my employment with the HEAD group in May 2008, business pressures, expectations and workloads were always extremely high. I was required to attend many evening and night-time meetings and undertake international travel for work purposes which often occurred outside of my usual work hours and over weekends. The excessive work hours interrupted my personal life. I was not able to engage in regular sport activities, have meetings with friends or spend uninterrupted time with my partner. On a regular basis, evenings and dinners were interrupted by afterhours meeting calls, email exchanges, work on the online platform ESSBASE. ESSBASE usually was only available during European day time. I also missed out on most Australian public holidays whilst travelling overseas.
93 We were taken to no other evidence in support of Mr Dorsch’s claims. Having reviewed this evidence, we are not satisfied that the primary judge erred in concluding that Mr Dorsch had failed to establish his pleaded case as to the requirement(s) imposed upon him by Head Oceania, let alone the hours he claimed to have worked.
94 Mr Dorsch submitted that it was not necessary for him to demonstrate that he worked 60 to 70 hours per week. He contended that the primary judge was required to consider the reasonableness of any additional hours that he worked that were in excess of 38 on any occasion. However, that is not the case that Mr Dorsch pleaded. As noted above, the material fact pleaded in the ASOC at [40] was that Mr Dorsch regularly worked 70 to 80 hours per week. The particulars to the pleading in the ASOC at [42] also repeated this assertion. It was that case which the primary judge was required to consider. The primary judge was not required to consider a hypothetical alternative case of an undefined lesser number of hours worked which was neither pleaded nor particularised by Mr Dorsch. Even in this appeal, Mr Dorsch was unable to identify this hypothetical alternative case.
95 Mr Dorsch submitted that a requirement to work additional hours may arise by implication from the work requirements imposed by the employer. We accept that may be the case: e.g., see Doherty v Prospa Advance Pty Ltd (No 2) [2024] FedCFamC2G 950 at [13]-[15]. However, it remains the case that Mr Dorsch failed to prove that a requirement of this nature was imposed by Head Oceania and that it led to him working the unreasonable additional hours pleaded by him: see PJ [338], [348], [361]-[362].
96 Accordingly, we reject Ground 11.
F.6. Issue 6 – Ground 14
97 By his new ground of appeal, Mr Dorsch contended that the primary judge erred by failing to calculate his entitlement to the payment of accrued annual leave upon termination on the basis of his combined remuneration from both Head Oceania and Mares AP. Mr Dorsch contended that the salary paid to him by both Mares AP and Head Oceania were in truth paid to him on behalf of Head Oceania for work performed by him for that entity.
98 Mr Dorsch contended that the payments made by Mares AP to him were payments made on behalf of Head Oceania for his employment in Australia because:
(a) Mr Dorsch’s only responsibility outside Australia was in Hong Kong;
(b) since 2016, his work in Hong Kong had decreased;
(c) the only increases he received in his salary or bonuses after 2016 were in respect of the Hong Kong side and this was done for tax purposes;
(d) any salary increase awarded to him reflected the work done by him in both Australia and Hong Kong;
(e) Mr Michl was negotiating his salary package including payments in Australia and Hong Kong;
(f) Mr Dorsch determined the split of income as between the two locations himself and this split did not reflect his responsibilities;
(g) there was in substance one salary over both units in Australia and Hong Kong;
(h) Mares AP would invoice Head Oceania for its costs including the cost of employing Mr Dorsch.
99 The primary judge found at PJ [326]-[327] that Mr Dorsch was contracted by Mares AP, at the same time as HEAD Oceania, to perform work for Mares AP. The primary judge also found that Mr Dorsch continued to perform work for Mares AP including the supervision of Mares AP employees in Hong Kong, including the local sales manager in Hong Kong who continued to report to Mr Dorsch. Further, her Honour observed that, on his own case, Mr Dorsch’s claim was that he was being paid, not solely, but “partially” by Mares AP for work performed in Australia. As a result, it did not follow that the salary paid in Hong Kong was in any event wholly to be regarded as consideration provided in respect of Australian work. Mr Dorsch did not challenge any of these findings of fact, including that he continued to perform work for Mares AP up until the termination of his employment.
100 Critically, the primary judge found at PJ [328] that there was nothing within the 2018 Employment Contract which supported Mr Dorsch’s claims.
101 We discern no error in the primary judge’s reasons. In particular, the primary judge correctly reasoned that in determining Mr Dorsch’s pay for the purpose of calculating his entitlement to payment of accrued annual leave under the 2018 Employment Contract and the FW Act, Mr Dorsch’s entitlements were to be determined by reference to that contract (absent any allegation as to it being a sham, or having been varied): citing Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; 275 CLR 165 at [43] (Kiefel CJ, Keane and Edelman JJ) and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; 275 CLR 254 at [8] (Keifel CJ, Keane and Edelman JJ).
102 Mr Dorsch’s claim was in relation to annual leave entitlements accrued under the FW Act in respect of his Australian employer. These claims were not governed by his separate employment in Hong Kong or his contractual entitlements in Hong Kong. We see no basis in law upon which Mr Dorsch could claim as against Head Oceania amounts payable and due under an employment contract with a separate entity, and we were taken to no authority in support of such a proposition.
103 We reject Ground 14.
G. DISPOSITION
104 For the foregoing reasons, leave to appeal should be granted but the appeal should be dismissed.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Snaden, Hatcher and Shariff. |
Associate:
