Federal Court of Australia

Serco Citizen Services Pty Limited v Parsons [2025] FCAFC 83

ORDERS

THE COURT ORDERS THAT:

1.    The objection to competency be upheld.

2.    The appeal be dismissed as incompetent.

3.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    Mr Parsons bought proceedings, at first instance, against Serco Citizen Services Pty Ltd alleging that Serco had taken “adverse action” against him because he had exercised “workplace rights”, contrary to s 340(1)(a)(ii) of the Fair Work Act 2009 (Cth) (FWA). The learned primary judge found, in a detailed and carefully reasoned decision, that Serco took adverse action against Mr Parsons in contravention of s 340(1)(a)(ii) of the FWA, by terminating his employment because he had exercised his workplace right to make a complaint: Parsons v Serco Citizen Services Pty Ltd [2024] FCA 754 on 11 July 2024 (Liability Judgment or PJ).

2    Serco originally filed an application for an extension of time and leave to appeal on 7 August 2024 against the Liability Judgment.

3    As part of the Orders made in the Liability Judgment, the primary judge made orders for any affidavits and submissions regarding the issue of any pecuniary penalty. The primary judge then delivered judgment on the question of penalty in Parsons v Serco Citizen Services Pty Limited (No 2) [2024] FCA 1103 on 19 September 2024 (Penalty Judgment).

4    On 10 October 2024, Serco filed a notice of appeal against the Liability Judgment and the Penalty Judgment alleging that the primary judge erred in holding that Mr Parsons was dismissed from his employment with Serco in contravention of s 340(1)(a)(ii) of the FWA and for Serco to pay a pecuniary penalty for that contravention.

5    Mr Parsons has filed two notices of objection to competency against each of the application for an extension of time and leave to appeal and the notice of appeal. Mr Parsons has also filed an interlocutory application seeking that the appeals be dismissed on the basis that the Appellant failed to file and serve the appeal book on time and in accordance with the Orders dated 4 December 2024 (Dismissal Application).

6    An initial issue arises and was addressed by way of supplementary submissions by Serco, which is whether Serco still requires leave to appeal.

7    Serco’s notice of appeal raises many grounds of appeal. All of the grounds involve the alleged error by the primary judge regarding the interactions, context and states of mind of each of Ms Sfitskis, being a “People and Capability Specialist”, which is a Human Resources position (the HR Specialist), and Ms Powell, who was at the relevant time Serco’s Operations Director. At its core, Serco relies on the different roles, tasks, responsibilities and knowledge of the HR Specialist who conducted the investigations, interviews and made the dismissal recommendation to the Operations Director and that of the Operations Director who received and accepted the dismissal recommendation and signed the termination letter (drafted by the HR Specialist). At the hearing, a key issue was identified as to whether the decision-maker was only the Operations Director, or if it were the Operations Director and the HR Specialist together.

8    Serco has distilled its grounds of appeal in its submissions, by way of the following three issues regarding the inferred factual finding of the Operations Director’s state of mind, being that the primary judge erred by:

(1)    ignoring the context of the role of the Operations Director which included whether or not to accept the HR Specialist’s recommendation;

(2)    ignoring the context of the HR Specialist’s views which were genuinely held and not contested; and

(3)    finding that the termination letter was unreasonable as the signatory of that letter (the Operations Director) must not have believed that the contents of the letter were true.

(Distilled Grounds)

To these issues must be added:

(1)    whether leave to appeal is required;

(2)    Mr Parsons’ objections to competency and Dismissal Application; and

(3)    whether the decision-maker was only the Operations Director or whether it was the Operations Director and the HR Specialist together.

9    Finally, by way of introductory matters, if successful, Serco sought an order for costs in its notice of appeal. At the hearing, Serco withdrew reliance on seeking any order for costs. It also formally withdrew reliance on ground 2(g), it not being the subject of any submissions.

10    It is convenient and appropriate to deal with the leave issue first.

DOES SERCO REQUIRE LEAVE TO APPEAL?

11    Serco submits that leave to appeal is not required as on and after delivery of the Penalty Judgment, the judgment was final. The notice of appeal, so Serco submits, was filed after the Penalty Judgment was handed down and as such leave is not required. Furthermore, Serco contends that after delivery of the Penalty Judgment, it was also able to submit that the Liability Judgment was in error (which it still refers to as “the interlocutory decision”).

12    Serco relies on the Full Court decision in Kazal v Thunder Studios Inc (California) (2023) 416 ALR 24; [2023] FCAFC 174 and s 24(1E) of the Federal Court of Australia Act 1976 (Cth) (FCA). Kazal, Serco submits, is on all fours with the present situation. As the notice of appeal relates to the Penalty Judgment, Serco submits, it is then permitted to raise appeal grounds in respect of the Liability Judgment. This, it is said, supports Serco’s position that the application for an extension of time and the leave to appeal are therefore redundant.

Legal Framework – Interlocutory or Final Judgment

13    Relevantly, s 24 of the FCA provides as follows:

Appellate jurisdiction

(1)    Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine:

(a)    appeals from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court;

...

(1A)    An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.

…

(1E)    The fact that there has been, or can be, no appeal from an interlocutory judgment of the Court in a proceeding does not prevent:

(a)    a party from founding an appeal from a final judgment in the proceeding on the interlocutory judgment; or

(b)    the Court from taking account of the interlocutory judgment in determining an appeal from a final judgment in the proceeding.

14    Section 4 of the FCA defines “judgment” as:

“judgment” means:

(a)    a judgment, decree or order, whether final or interlocutory; or

(b)    a sentence;

and includes a conviction.

15    The FCA does not provide a definition of “interlocutory judgment”. The Full Court in Australia Bay Seafoods Pty Ltd v Northern Territory of Australia (2022) 295 FCR 443; [2022] FCAFC 180 at [70] described the test as between a final or interlocutory judgment, which we adopt, as follows:

The test for determining whether a judgment or order appealed from is final or interlocutory is whether the judgment or order, as made, finally determines the rights of the parties: Cubillo v Commonwealth of Australia (2011) 112 FCR 455 at [182] per Sackville, Weinberg and Hely JJ, applying Carr v Finance Corp of Australia Ltd (No 1) (1981) 147 CLR 246 (Carr) at 248 per Gibbs CJ and at 253-254 per Mason J and Sanofi v Parke Davis Pty Ltd (No 1) (1982) 149 CLR 147 at 153 per Gibbs CJ, Stephen and Mason JJ. The test depends on whether the legal, not the practical, effect of the judgment is final; the legal effect of a judgment is not final where it would be open to a party to bring a second application, even if it would be doomed to fail: Carr at 248, 256; see also Brouwer v Titan Corp Ltd (1997) 73 FCR 241 at 242.

16    Although the test can be readily stated, its application can be difficult, depending on the context: Bay Seafoods at [71].

17    To resolve the question of whether a judgment is final or interlocutory, consideration must be given to whether the judgment finally determines the right of the parties, having regard to the legal rather than practical effect of the judgment. The question is whether the whole of the judgment finally determines, in a legal sense, all of the rights of the parties at issue in the proceedings: Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767; [1984] HCA 47 at 767-768; Caboche v Ramsay (1993) 119 ALR 215 at 225-226; NZI Securities Australia Ltd v Poignand (1994) 51 FCR 584 at 594; Thai v Deputy Commissioner of Taxation (1994) 53 FCR 252 at 259-261. Each of the orders made in Caboche and Poignand included a declaration as well as other orders, but those orders did not resolve all of the rights at issue in the proceedings. Similarly in Thai, the orders of Davies J at first instance only determined issues 1-4 as raised by Mr Thai, and the remaining matter was stood over. The Full Court in Thai observed (at 260):

In our opinion, the orders made by Davies J were interlocutory, both as a matter of form and as a matter of substance.

As a matter of form, the orders were made in the determination of preliminary questions in which only some of the grounds of opposition raised by the appellant were canvassed. Clearly, other matters remained to be decided on a separate and further occasion, as Davies J noted when giving his reasons for judgment.

18    The Full Court in Monash Health v Singh (2023) 327 IR 196; [2023] FCAFC 166 at [27]-[46] considered whether leave to appeal was required in circumstances where the learned primary judge made a declaration that Monash Health contravened s 340(1)(a)(ii) of the FWA by dismissing Mr Singh because he had exercised workplace rights and ordered that the questions of compensation and penalty be addressed at a later date: Monash Health at [3]. The primary judge in Monash Health had only determined the question of liability, by way of making a declaration; the question of what relief might be granted was reserved for further hearing and any relief to be granted had not yet occurred: Monash Health at [29] and [38]. Although the declaratory order may be final in nature, that was not determinative of whether the judgment was interlocutory pursuant to s 24(1A) of the FCA: Monash Health at [38]-[41]. That first judgment, determining only liability, was an interlocutory judgment for the purposes of s 24(1A) of the FCA, in respect of which no appeal could be entertained without a grant of leave: Monash Health at [28] and [44].

19    Therefore, in this case, the Liability Judgment, of itself, was interlocutory because it did not determine all of the rights, in a legal sense, of the parties at issue in the proceedings. Mr Parsons also sought the imposition of a pecuniary penalty on Serco: Liability Judgment at [2], [170(3)] and [192]; Originating Application dated 1 August 2022 at [5] of the relief sought; Amended Statement of Claim dated 27 June 2023 at [5] of the remedy sought. It is apparent that this is accepted by Serco.

20    The Penalty Judgment determined the remaining issue between the parties in the proceedings.

21    In Kazal, there were several interlocutory judgments. Relevantly, by Judgment No 5, the primary judge dismissed an application by Mr Kazal for an extension of time to comply with a self-executing order that resulted in his defence being struck out: Kazal at [91(1)]. An application for leave to appeal Judgment No 5 was dismissed prior to the trial. The principal judgment following the trial was Judgment No 12: Kazal at [91(5)]. An issue which arose in this context was whether the Court’s appellate jurisdiction had been exhausted as a consequence of the refusal of leave to appeal the interlocutory Judgment No 5: Kazal at [95]. Although the refusal of leave is not an adjudication on the merits of an appeal itself, the Court’s jurisdiction in relation to an appeal directly from the interlocutory orders had been spent: Kazal at [98]-[99]. However, it was then observed that (at [99]):

However, no leave is required to appeal the final orders, and on an appeal from final orders an appellate court can correct any interlocutory order that affected the final result, at least where it is shown that the error resulted in a miscarriage of justice: see, Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; 188 ALR 353; [2002] HCA 22 at [4]–[8] (Gerlach) (Gaudron, McHugh and Hayne JJ).

22    The passage referred to in Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 at [4]-[8] commences with a consideration of interlocutory orders made in the course of a trial or before the trial commences, with evidentiary rulings being an obvious example. The High Court qualified the proposition “that any interlocutory order can be challenged in an appeal against the final judgment” (Gerlach at [6]) to one “which affected the final result”: Gerlach at [7].

23    Serco did not address any difference in the kind of interlocutory orders dealt with in Gerlach at [4]-[8], Kazal or those in this case. Implicitly, this must be on the basis that Serco submits that there is no difference, as a matter of principle, between interlocutory orders or judgments made during or prior to trial and those made which are more akin to orders on separate questions. Furthermore, as advanced by Serco, as the notice of appeal was filed after the Penalty Judgment, leave is no longer required as the Penalty Judgment is a final judgment.

24    As already observed, generally, any interlocutory order which affects the final result can be challenged in an appeal against the final judgment: Gerlach at [6]-[7]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [78]. We say generally because there are circumstances in which the interlocutory judgment must be treated as concluding an issue as between the parties, as was identified in Gerlach at [8]; Michael Wilson at [78]. That observation was with reference to O’Toole v Charles David Pty Ltd (1990) 171 CLR 232; [1990] HCA 44 at 245 and Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 at 642. Those decisions describe a circumstance when the determination of a preliminary question of law or an issue of fact or law will bind the parties. As was expressly stated by Diplock LJ in Fidelitas, “the judgment upon that issue is an interlocutory judgment…[yet] the parties to the suit are bound by the determination of the issue”.

25    To be clear, the parties in this case were bound by the determination in the Liability Judgment, even though that was an interlocutory judgment.

26    Section 24(1E) of the FCA is set out above at [13]. It allows a party to challenge an interlocutory judgment from which there is not or cannot be, an appeal from an interlocutory judgment, if an error in a final judgment is founded on the interlocutory judgment or it affected the final judgment, such that the appeal from the final judgment should be upheld: Revill v John Holland Group Pty Ltd (2022) 295 FCR 269; [2022] FCAFC 178 at [108]. Section 24(1E) reflects the general proposition that an interlocutory judgment that affects a final judgment may be the subject of a ground of appeal from the final judgment: Revill at [114]-[116]. To the same effect, although expressed slightly differently, is that the correctness of the final judgment may be challenged on the ground that an interlocutory decision was wrong: Generic Health Pty Ltd v Bayer Pharma Aktiengesellschaft (2014) 222 FCR 336; [2014] FCAFC 73 at [116]; Kazal at [99].

27    From these principles, what is able to be appealed, as of right, is the final judgment. As a ground or grounds of appeal against the correctness of the final judgment, grounds can be advanced that an interlocutory judgment was wrong and that affected the result of the final judgment.

28    However, where an appeal is brought against a number of orders, some of which are final and some of which are interlocutory, leave is required: Peterson on behalf of the Wunna Nyiyaparli People v State of Western Australia [2017] FCA 1056 at [53]. The Full Court described a similar position as follows in Jackson v Health Services Union [2015] FCAFC 188 at [54]:

The [respondent] did not dispute that under s 24(1E) of the FCA Act a party could found an appeal from a final judgment on an interlocutory judgment and that, under that provision, the Court could take into account an interlocutory judgment in determining an appeal from a final judgment (as to which see Shannon v Commonwealth Bank of Australia [2014] FCAFC 108 at [17]-[18] per Logan J). However, as Mr Irving submitted, the notices of appeal here were drafted in a way which directly challenged the relevant interlocutory orders made by the primary judge rather than simply challenging them derivatively through the final judgment. The drafting of the notices of appeal and their reference to appealing not only from the whole of the judgment and orders made on 19 August 2015, but also “further” from the three relevant interlocutory orders and judgments means that leave to appeal was required under s 24(1A) of the FCA Act. The appeals in respect of these interlocutory matters are incompetent because, at the time the notices of appeal were filed, Ms Jackson had neither sought nor obtained leave to appeal in respect of them. And, although there was no requirement to obtain leave to appeal from the primary judge’s final orders made on 19 August 2015, the notices of appeal specified no other grounds of appeal in relation to those final orders other than those pleaded in respect of the interlocutory orders. Necessarily, therefore, the appeals are incompetent in their entirety.

Also see the discussion of Nettle J to a similar effect in Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (2016) 338 ALR 360; [2016] HCA 41 at [25]-[27].

29    Serco’s notice of appeal states:

The Appellant appeals from the whole of the judgments of the Federal Court given on 11 July 2024 and 19 September 2024 at Brisbane.

30    That is, Serco is seeking to challenge, by its notice of appeal, both the Liability Judgment and the Penalty Judgment. In oral submissions, Serco accepted that what it was seeking to advance was that the first judgment (the Liability Judgment) effectively merged into the second judgment (the Penalty Judgment). With reference to the above authorities, we do not accept that submission. There is no merger of the judgments. Properly understood, the interlocutory judgment, if it affected the final judgment, can be challenged in an appeal (as of right) of the final judgment. However, on the face of Serco’s notice of appeal, it seeks to separately challenge the Liability Judgment, which was interlocutory, and not merely by way of contending that the Penalty Judgment was in error.

31    Although Serco seeks to rely on the notice of appeal relating to the Penalty Judgment, as we have set out above, it also expressly relates to the Liability Judgment, for which leave to appeal has not been sought.

32    Serco also refers to ground 3 of the notice of appeal, which is as follows:

The learned primary judge erred in ordering the Appellant pay a pecuniary penalty for contravention of s 340(1)(a)(ii) of the Fair Work Act 2009 (Cth) for the reasons detailed in paragraphs 1 and 2 above.

33    Although somewhat lengthy, in this context it is worth setting out grounds 1 and 2 of the notice of appeal:

1.    The learned primary judge erred in holding that the Respondent was dismissed from his employment with the Appellant in contravention of s 340(1)(a)(ii) of the Fair Work Act 2009 (Cth).

2.    In particular, his Honour erred:

a.    in finding that, whilst Alana Sfitkis of the Appellant (who conducted the investigation into the Respondent's conduct) genuinely believed that the Respondent had engaged in misconduct, Rowena Powell of the Appellant (who relied upon that investigation) did not have such a genuine belief;

b.    in not taking into account, or not adequately taking into account, that the investigation into the Respondent's conduct was undertaken by Ms Sfitkis and not Ms Powell;

c.    in concluding, or impliedly concluding, that because the Court did not consider that the Respondent had engaged in misconduct then Ms Powell (although not Ms Sfitkis) must have similarly concluded that no misconduct took place, despite:

i.    Ms Powell’s reliance upon the conclusions of Ms Sfitkis; and

ii.    there being no evidence of Ms Powell possessing an improper motive;

d.    alternatively, in finding that s 340(1)(a)(iii) of the Fair Work Act 2009 (Cth) was established as the finding was contrary to, or not supported by, the evidence;

e.    by failing to find, on the evidence before the Court, that the Respondent was dismissed from his employment because he had victimised Ms Catherine Linnell following her complaint against the Respondent on 16 September 2021 Ms Powell accepted the findings and recommendations of Ms Sfitkis;

f.    by failing to find that, on the evidence before the Court, the Appellant had, on the balance of probabilities, proved otherwise, and within the meaning of s 361 (1) of the Fair Work Act 2009 (Cth), that:

i.    the Appellant did not dismiss the Respondent because he exercised workplace rights; and

ii.    the Appellant in fact dismissed the Respondent:

1.    by reason of the Respondent’s victimisation of Ms Linnell; and

2.     following a disciplinary investigation undertaken by Ms Sfitkis;

g.    by failing to afford the Appellant procedural fairness in relation to the cross­examination of Rowena Powell.

…

34    Grounds 1 and 2 are directed towards the substance of the Liability Judgment.

35    Serco’s notice of appeal is drafted in a way which directly challenges the Liability Judgment, being the interlocutory judgment. Serco does not advance the grounds of appeal by alleging error in the Penalty Judgment, which was caused by or affected by the Liability Judgment, such that the Liability Judgment affected the final result in the Penalty Judgment. As such, leave to appeal is required: Peterson at [53]; Jackson at [54]. Although Serco did initially file an application for an extension of time and leave to appeal, it was not included in the Appeal Books and it was not read or relied on (not even in the alternative). Serco later described it as redundant and expressly submitted in its supplementary submissions that leave to appeal is unnecessary. Furthermore, Serco submitted in the appeal of the Penalty Judgment that it was free to submit that the interlocutory judgment (the Liability Judgment) was in error. Although Serco could have done that, it could have advanced its notice of appeal in such a way that leave to appeal was not necessary. However, it did not do so.

36    On this basis the notice of appeal is incompetent. As such, Mr Parsons’ objection to competency should be upheld and there is no need to consider that issue further.

37    However, as the appeal was argued in full and there was in fact an application for an extension of time and leave to appeal filed (although not relied on), we will consider whether leave would have been granted.

38    When considering the power of the Court to grant leave to appeal, the Court must have regard to the requirement in s 37M(3) of the FCA. That is, the power to grant leave must be exercised in the way that best promotes the overarching purpose in s 37M(3), being the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: Nationwide News Pty Ltd v Rush [2018] FCAFC 70 at [2].

39    The principles applicable on an application for leave to appeal from an interlocutory decision were recently set out in Deputy Commissioner of Taxation v Miraki [2022] FCAFC 96. At [5], the Full Court relevantly stated (citations omitted, but referring to the often-cited Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 844 at 398-400):

…In general, the tests to be applied are: (a)whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court; and (b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong... The discretion to grant leave is not constrained by rigid rules. Leave to appeal has been granted where, for example, the questions posed for resolution on appeal “have general importance beyond the concerns of the parties”.

40    Before considering the substantive issues in the appeal, to ascertain whether the decision is attended with sufficient doubt, we will consider the final preliminary aspect, being Mr Parsons’ Dismissal Application.

DISMISSAL APPLICATION

41    On 26 February 2025, Mr Parsons filed an interlocutory application seeking that Serco’s appeal be dismissed because the Appeal Books were not filed on time in accordance with the Orders of the Registrar of 4 December 2024.

42    Order 7 of the Orders of 4 December 2024 required that Serco file and serve Part C of the Appeal Book, no later than 4.00pm 10 business days before the hearing.

43    The appeal was listed for hearing on 4 March 2025. Mr Parsons submits that Part C of the Appeal Book was due to be filed on 18 February 2025. Part C of the Appeal Book was filed on 21 February 2025. Part C of the Appeal Book is usually filed after the parties file and serve their submissions. Mr Parsons, although self-represented, still filed his submissions on time (and in accordance with the Orders, which as already noted would usually be filed prior to receipt of Part C of the Appeal Book). Furthermore, Mr Parsons also had the final sealed version of Part C of the Appeal Book approximately six business days prior to the hearing. In our view, Mr Parsons had obviously prepared for his oral address, and it is apparent he did so with the benefit of Part C of the Appeal Book, and so suffered no relevant prejudice.

44    Although we would not want to be seen to be encouraging delay or non-compliance with the Orders of the Court, the delay in this case was explained by way of an affidavit of a solicitor acting for Serco, for which leave was to granted to read and rely on at the hearing.

45    In all of the circumstances, we are not prepared to dismiss the appeal on the basis that Part C of the Appeal Books was filed late.

THE PRINCIPAL ARGUMENTS ON THE APPEAL

46    The Distilled Grounds are set out at [8]. To consider whether the primary judge’s decision is attended with sufficient doubt and because the grounds were fully argued, we will outline the arguments advanced by Serco under each issue and consider each in turn.

47    However, before doing so it is appropriate to consider the relevant statutory framework. It is only by doing so that the arguments can be properly understood. We do so observing that the Appellant does not contend that the primary judge erred in relation to his construction or application of the FWA. Although ground 1 (which is set out above) advances a ground that the primary judge erred in holding that Mr Parsons was dismissed in contravention of s 340(1)(a)(ii) of the FWA, it is based on a conclusion that the primary judge erred, on the basis of the matters advanced in ground 2. The Appellant does not advance any error of construction of the FWA by the primary judge.

Statutory Framework

48    Chapter 3 of the FWA provides for the rights and responsibilities of employees, employers, and organisations etc. The guide to Part 3-1 General Protections, in s 334, explains that the part provides general workplace protections and refers to Division 3 as being to protect workplace rights and the exercise of those rights.

49    Division 3 of Part 3-1 commences with s 340, which establishes the prohibition against adverse action, providing as follows:

Division 3--Workplace rights

340 Protection

(1)    A person must not take adverse action against another person:

(a)    because the other person:

(i)    has a workplace right; or

(ii)    has, or has not, exercised a workplace right; or

(iii)    proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)    to prevent the exercise of a workplace right by the other person.

Note:    This subsection is a civil remedy provision (see Part 4 - 1).

(2)    A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.

Note:    This subsection is a civil remedy provision (see Part 4 - 1).

50    From s 340, two phrases are of particular importance, those being “adverse action” and a “workplace right”. Section 342 of the FWA is headed “meaning of adverse action” and provides a table which sets out circumstances in which a person takes “adverse action” against another person. Relevantly, given the findings of the primary judge and the challenges on this appeal, item 1 provides “adverse action” is taken by an employer against an employee if the employer dismisses the employee.

51    Section 341 of the FWA identifies as a matter of substance that a person has a “workplace right” in specified circumstances: Qantas Airways Ltd v Transport Workers’ Union of Australia (2023) 278 CLR 571; [2023] HCA 27 at [32] and [79]-[80], as follows:

341    Meaning of workplace right

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

(a)    is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b)    is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c)    is able to make a complaint or inquiry:

(i)    to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

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

Meaning of process or proceedings under a workplace law or workplace instrument

(2)    Each of the following is a process or proceedings under a workplace law or workplace instrument :

(a)    a conference conducted or hearing held by the FWC;

(b)    court proceedings under a workplace law or workplace instrument;

(c)    protected industrial action;

(d)    a protected action ballot;

(e)    making, varying or terminating an enterprise agreement;

(f)    appointing, or terminating the appointment of, a bargaining representative;

(g)    making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;

(h)    agreeing to cash out paid annual leave or paid personal/carer's leave;

(i)    making a request under Division 4 of Part 2 - 2 (which deals with requests for flexible working arrangements);

(ia)    giving a notification, or receiving an offer or notice, under Division 4A of Part 2 - 2 (which deals with casual employment);

(j)    dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;

(k)    any other process or proceedings under a workplace law or workplace instrument.

Prospective employees taken to have workplace rights

(3)    A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.

Note:    Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement.

Exceptions relating to prospective employees

(4)    Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earnings.

(5)    Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2 - 8 or 6 - 3A (which deal with transfer of business).

52    The plurality in Qantas at [41] observed the following regarding adverse action:

…Importantly, adverse action will not offend s 340(1) if taken with mere awareness of an effect on another person’s workplace rights. Instead, adverse action will only offend the section if it is taken for a proscribed reason: “because” the person against whom it is taken has a workplace right or has (or has not) done something in relation to the exercise of a workplace right within the scope of s 340(1)(a), or “to prevent” the exercise of a workplace right by that person within the scope of s 340(1)(b)…

53    In the ancillary rules, s 361 provides a rebuttable presumption: Qantas at [63]. Gordon and Edelman JJ described it as follows (footnotes removed):

Section 361 of the Act establishes a rebuttable presumption that the adverse action was taken for the reason alleged, or with the intent alleged, if taking action for that reason or with that intent would constitute a contravention of Pt 3-1 of the Act (which includes s 340). A person takes action for a particular reason if the reasons for the action include that reason. The presumption in s 361 recognises that the decision-maker is uniquely placed to know the reasons for their action and should thus be made to prove them. An employer can discharge that onus by proving that none of its substantial and operative reasons for the adverse action was to prevent the exercise of workplace rights.

54    Section 361 of the FWA provides as follows:

361    Reason for action to be presumed unless proved otherwise

(1)    If:

(a)    in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)    taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(2)    Subsection (1) does not apply in relation to orders for an interim injunction.

55    That provision refers to both a particular reason or a particular intent. Relevant to the particular reason is s 360, which relevantly provides that a person takes action for a particular reason if the reasons for the action include that reason. The proscribed reason must be a substantial and operative reason for taking the adverse action.

56    Section 361 reverses the onus of proof by way of the rebuttable presumption. Sections 360 and 361 work together to provide a balance between the parties to a workplace dispute: Rumble v The Partnership Trading as HWL Ebsworth Lawyers (2020) 275 FCR 423; [2020] FCAFC 37 at [33]. The employer must prove, as a fact, that none of the reasons for their action included as a substantial and operative factor any reason or intent that the FWA proscribed them from having: Rumble at [34]. It is important to carefully identify the true reasons for adverse action that is alleged to contravene s 340 of the FWA: Qantas at [31]. In this regard, whether a particular inference can be drawn from the facts found is a question of law and if such an inference is not open, then that would amount to appealable error. However, if the inference is one about which minds might differ, there will be no error: Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union (2001) 112 FCR 232; [2001] FCA 349 at [215]-[216].

57    To our observations we would add the principles helpfully summarised by the Full Court in Alam v National Australia Bank Ltd (2021) 288 FCR 301; [2021] FCAFC 178 at [14], as follows:

14    Several matters bearing upon the application of s 361 in relation to s 340 are settled:

(a)    in order to attract the application of s 361, an applicant should allege with sufficient particularity both the action said to constitute “adverse action” and the particular reason or particular intent with which it is said the action was taken: Short v Ambulance Victoria (2015) 249 IR 217 (Dowsett, Bromberg and Murphy JJ) at [55];

(b)    the party making the allegation that adverse action was taken “because” of a particular circumstance must establish the existence of that circumstance as an objective fact: Tattsbet Ltd v Morrow (2015) 233 FCR 46 at [119]. That is, it is for the applicant to establish all the elements of the alleged contravention other than the reasons of the respondent for taking the adverse action: Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347 (ABCC v Hall) at [100];

(c)    an employer takes adverse action in contravention of s 340 if a proscribed reason is a “substantial and operative” reason for the action or if the reasons for the action include the proscribed reason: Bendigo v Barclay at [104] (Gummow and Hayne JJ);

(d)    the discharge of the s 361 onus requires proof on the balance of probabilities and usually requires decision-makers to give direct evidence of their reasons for taking the adverse action: Bendigo v Barclay at [43]-[44];

(e)     the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding: Bendigo v Barclay at [41], [45] (French CJ and Crennan J); at [101] (Gummow and Hayne JJ); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 (CFMEU v BHP Coal) at [7] (French CJ and Kiefel J); Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 (CFMEU v Anglo Coal) at [27]; ABCC v Hall at [19];

(f)    while the evidence of the decision-maker as to the reasons for the taking of the adverse action may, if accepted by the Court, satisfy the s 361 onus, such evidence is not a necessary pre-condition: CFMEU v BHP Coal at [192]; Australian Red Cross Society v Queensland Nurses’ Union of Employees (2019) 273 FCR 332 at [72];

(g)     the Court’s rejection of the evidence of the decision-maker as to the reasons for the adverse action will ordinarily be “a weighty consideration and often a determinative consideration” in the determination of whether the reason alleged by the applicant was a substantial and operative reason for the action (Cummins South Pacific Pty Ltd v Keenan (2020) 281 FCR 421 at [116]), but such a rejection does not relieve the Court from considering all the evidence probative of whether the reason asserted by the applicant has been negated: ibid; CFMEU v Anglo Coal at [27]; Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 at [272]. When there is evidence of a broad range of facts and circumstances, which are not dependent on acceptance of the decision-maker’s evidence about his or her asserted reason for the dismissal, such evidence must be taken into account in assessing whether the reasons asserted by an applicant were a substantial and operative reason for the action; ibid at [113]; TechnologyOne Ltd v Roohizadegan (2021) 309 IR 262 at [105]-[106];

(h)     even if the reasons advanced by a respondent as the actual reasons for the decision are accepted, the absence of evidence that there were no additional reasons or that the actual reasons did not include the alleged proscribed reasons, may result in a failure to rebut the presumption: National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139 at [20]; PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225 at [154] (Snaden J);

(i)     the decision-maker’s knowledge of the circumstance asserted by an applicant to be the reason for the adverse action, and even its consideration, does not require a finding that the action was taken because of that circumstance: Bendigo v Barclay at [62]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) (2012) 228 IR 195 at [80] (Jessup J); Shea v TRUenergy Services Pty Ltd (No 6) (2014) 242 IR 1 at [777]. Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason: CFMEU v BHP Coal at [20], [87]-[88]; Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150 at [32], [47]-[48] (Jessup J); and

(j)    adverse action taken against a person because of conduct resulting from the exercise of workplace rights may not offend the s 340(1) prohibition: CFMEU v BHP Coal; Endeavour Coal at [52] (Perram J).

58    Finally, to these principles, given the way Serco advanced its argument on the appeal (although without reference to any authorities for its propositions – Serco summarised the legal principles in one paragraph as being “well established”), we observe that there may be a certain tension in the current authorities as identified by Snaden J in Serpanos v Commonwealth [2022] FCA 1226 at [96]-[124] and particularly at [123]. Also see the observations by Kennett J in Avard v Australian Capital Territory [2024] FCA 690 (upheld on appeal, [2025] FCAFC 72, however, this issue was not raised on the appeal). Also see Snaden J again expressing doubts in Pilbrow v University of Melbourne (2024) 334 IR 141; [2024] FCA 1140 at [78].

59    However, this Court was not invited to reconsider the authorities or delve into any potential tension. As it was not argued that the current state of the law or the authorities in this Court are “plainly wrong”, we should follow them: Telstra Corp Ltd v Treloar (2000) 102 FCR 595; [2000] FCA 1170 at [26]; NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506; [2003] FCAFC 292 at [61]; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; [2006] FCAFC 2 at [8]–[9] and [146]–[149]; New Zealand v Moloney (2006) 154 FCR 250; [2006] FCAFC 143 at [135]–[138]; Selim v Lele (2008) 167 FCR 61; [2008] FCAFC 13 at [54].

(1)    Context of the Operations Director’s role in accepting a recommendation of the HR Specialist

Submissions

60    In essence, Serco submits that the primary judge erred because relevant evidence was not taken into account and/or an incorrect inferential factual finding as to the state of mind of the Operations Director was made. Serco relies on what it suggests is a common position in larger organisations, that the decision to dismiss Mr Parsons involved two staff; one being the HR Specialist and the other being the Operations Director. Serco submits that the HR Specialist interviewed witnesses, considered the evidence and gave the Operations Director a written recommendation of dismissal. The Operations Director accepted that recommendation. The HR Specialist drafted a termination letter and the Operations Director signed it.

61    In this context, Serco submits that the recommendation of the HR Specialist was a key part of the factual foundation to the decision to dismiss. However, the error submitted by Serco was that the primary judge at [106] found that the HR Specialist’s recommendation and motives were irrelevant and the primary judge then considered the Operations Decision as if the HR Specialist was not involved. The termination letter, for example, is said to be analysed as if the Operations Director was the author as opposed to its signatory. This, it is submitted by Serco, had a crucial impact on the outcome of the case and the primary judge’s consideration of the evidence.

62    It is contended that the primary judge fell into error by objectively analysing the termination letter and dismissal process without considering the context of the decision-making process that the Operations Director operated in. Serco further submitted that the primary judge ought to have considered why the Operations Director accepted the recommendation and signed the termination letter of the HR Specialist, whereas the Court treated the termination letter and process as if it were entirely the work of the Operations Director.

63    Serco submits that this finding was in error because it treated the Operations Director as if she were in a position and undertook tasks that she in fact did not. It also, so Serco contended, ignored an earlier finding at [58] that the Operations Director was “comfortable with the content” of the draft prepared by the HR Specialist. Serco also relies on the passage from the primary judge at [149], which it then submitted was in error because the Operations Director did not “state” that information as she signed a letter drafted by the HR Specialist containing that statement. The conclusions that the Operations Director did not conduct the “rudimentary check” are then said to not be open to the Court because these matters were assessed without the relevant context. Serco takes similar issue with the PJ at [160]-[161], submitting that the Operations Director did not select or interview the witnesses as that was undertaken by the HR Specialist.

64    Serco contends that the situation would be different if the HR Specialist had been ignored by the Operations Director. The Court erred, it is suggested in [106], finding that “[The Operations Director] did not suggest that her reasons were influence by [the HR Specialists] views]. It is submitted that this was self-evident when considered in the proper context, as there was no need to say that the Operations Director was influenced by the views of the HR Specialist. Further, the evidence of the Operations Director was that she draws on the “support of a HR specialist assigned to support”, that she saw no reason to “challenge” the HR Specialist’s decisions, and that she was “comfortable with the content”. Serco submits that this demonstrates that the Operations Director was consciously aware of and adopting the HR Specialist’s approach. Serco also submits in this context that the HR Specialist wrote the termination letter and there was no finding that in doing so, she was uninfluenced by her own recommendation.

65    Mr Parsons’ submissions do not separately address the grounds of appeal or the Distilled Grounds as articulated in the Appellant’s submissions. This observation is not meant by way of criticism as the grounds of appeal and the Distilled Grounds overlap. We have sought to extract the parts of Mr Parsons’ submissions which appear to fit best under each issue. However, we have considered the totality of Mr Parsons’ submissions on each issue. Given the overlap, this is the appropriate way to proceed.

66    Mr Parsons submits and refers to Serco’s submissions before the primary judge which expressly refer to the Operations Director investigating the complaint, upholding the complaint and taking disciplinary action (by dismissal), because she agreed with Ms Linnell (the complainant, not the HR Specialist). Mr Parsons submits that now Serco is changing its case. Mr Parsons refers to many instances of the submissions and evidence before the primary judge in which Serco was advancing a case that it was the Operations Director who made the relevant decisions, including which witnesses to interview (which did not include Ms Linnell).

67    Mr Parsons also submits that the HR Specialist was actually a relatively new employee and not such a specialist at all. Her role, Mr Parsons contends, was to support and was defined by the Operations Director. Mr Parsons submits that it was the Operations Director who was in control of this process and made the decision.

Consideration - Context of the Operations Director’s role

68    The primary judge (with respect) correctly applied the orthodox approach to such matters by first considering whether Mr Parsons exercised a workplace right, which was a matter for Mr Parsons to establish: PJ at [78], [80], [82], [100] and [101]: See, Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347; [2018] FCAFC 83 at [100]. His Honour then considered whether Serco had discharged its onus to rebut the presumption in s 361(1) of the FWA. That required the Court to presume that the adverse action was taken because Mr Parsons exercised a workplace right, in the absence of evidence to discharge the presumption: PJ at [83], [101], [103].

69    The primary judge outlined the two relevant decisions (PJ at [105]), being the 7 October 2021 written warning (first decision) and the 6 May 2022 termination decision (second decision). Although Serco only challenges the Liability Judgment in relation to the second decision, because it is the only aspect upon which Mr Parsons succeeded, it is necessary to read the Liability Judgment as a whole, which includes matters relating to the first decision.

70    Turning to the first decision. The primary judge dealt with and considered the outcome of Ms Linnell’s first complaint, which resulted in the first decision: PJ at [40]-[42]. Earlier the primary judge outlined the Operations Director’s role and that it was her who made the first decision and the second decision: PJ at [15]. This was in the context of the primary judge also outlining the HR Specialist’s role, including that she was “responsible for conducting investigations into Mr Parsons’ conduct, attending meetings with him, taking notes, preparing documentation and drafting correspondence…”: PJ at [16].

71    The primary judge held that the first decision did constitute adverse action: PJ at [96].

72    From PJ at [103], the primary judge considered whether Serco had discharged its onus by the direct evidence of the Operations Director. This was in the context that it was not in dispute that it was within the scope of the Operations Director’s actual or apparent authority to take the adverse action that was taken: PJ at [95]. The primary judge identified the question that Serco had to satisfy as “to identify the true reasons for the adverse action”, with reference to Qantas at [31]: PJ at [104].

73    Then at PJ at [106], the primary judge stated as follows:

Ms Powell’s evidence was that while Ms Sfitskis drafted the decision letters, Ms Powell was the sole decision-maker. In that context, Ms Sfitskis’ written recommendation on 10 February 2022 that the allegations leading to the second decision be found to be substantiated and her reasons for making that recommendation assume no relevance. I reject the submission that since Ms Sfitskis’ views were genuinely held (their genuineness not having been challenged), that supports the inference that Ms Powell’s views were also genuinely held. Ms Powell did not suggest that her reasons were influenced by Ms Sfitskis’ views. The necessary enquiry is as to Ms Powell’s true reasons for making each of her decisions.

74    This reference by the primary judge to the drafting of the “decision letters” and that the Operations Director was the sole decision-maker was supported by the evidence. The whole passage of the relevant evidence (in part referred to at PJ at [58], quoted below) was as follows:

All right. So Ms Sfitskis provided you with a recommendation of sorts, didn’t she?---She provided the findings and the – the recommendation that – to go to a show cause, and termination was a consideration through – through the whole process which was outlined to Mr Parsons as part of the disciplinary - - -

And did Ms Sfitskis have – did she have any role in preparing your letter of 9 March 2022, which is the one at page 87 of your affidavit?---I – in – in all matters, I draw on the support of a HR specialist assigned to support me, but the decision and what went into the letter was – was from my guidance – my decision.

All right. And who wrote the letter? Was it you or - - -?---No.

- - - did you get assistance from Ms Sfitskis?---Ms – Alana – I can’t pronounce her surname – Alana supports the writing of the letter.

What does that mean? Does it mean?---I don’t – I don’t write the letters myself. I make the decision. I make sure I’m comfortable with its content, and it’s signed from me. I – I take responsibility of – of the letter and the decision. That does not sit with a HR specialist, in terms of the decision and the content.

75    After referring to a passage from Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 at [44]-[45], the primary judge stated the following at [108]:

The starting point is that Ms Powell expressly deposes that in making her decisions, she had no regard to Mr Parsons’ complaints which constitute the exercise of workplace rights. It is also at least implicit in Ms Powell’s evidence that she made the first decision and the second decision for the reasons she set out in her letters of 7 October 2021 and 9 March 2022 respectively. It is necessary to examine whether there are any reasons to doubt the reliability of Ms Powell’s evidence.

76    From PJ at [109], the primary judge considered the first decision in detail, and at PJ at [117], accepted the Operations Director’s evidence that she had taken the action described for the reasons set out in the letter. From [118]-[126], the primary judge considered the whole of the evidence and accepted, as a finding of fact, that Serco had discharged its onus and that the true reasons for the adverse action were those as stated in the first decision.

77    Turning then to the second decision. In this context, the primary judge dealt with and considered Mr Parsons’ complaint against the Operations Director from PJ at [43]-[44]. Further, the primary judge considered the second complaint from Ms Linnell about Mr Parsons dated 30 November 2021: PJ at [45]-[55]. The primary judge observed that the HR Specialist sent to the Operations Director a document entitled “Findings and Recommendations” on 10 February 2022: PJ at [56]. Then on 9 March 2022, the Operations Director wrote to Mr Parsons, with an invitation to show cause, subsequent to the disciplinary meeting on 8 February 2022: PJ at [57]. At PJ at [58]-[59], the primary judge stated:

[58]    Under cross-examination, Ms Powell’s evidence was that Ms Sfitskis, “supports the writing of the letter” of 9 March 2022. Ms Powell added:

I don’t write the letters myself. I make the decision. I make sure I’m comfortable with its content, and it’s signed from me. I – I take responsibility of – of the letter and the decision.

[59]    I understand Ms Powell’s evidence to mean that Ms Sfitskis drafted the 9 March 2022 letter, but that Ms Powell considered the content to accurately reflect her views; that she adopted the content of the letter by signing it; and that she (and not Ms Sfitskis) made the decision finding the allegations to be substantiated.

78    We have set out the entire relevant passage from the transcript in relation to this evidence above at [77], which is also relevant to the second decision.

79    From PJ at [127], the primary judge considered in detail the second decision, noting it stemmed from Ms Linnell’s second complaint. At PJ at [129], the primary judge compared the different approaches to interviewing Ms Linnell, in relation to her first complaint, but did not do so in relation to her second complaint. The primary judge then outlined the relevant steps and matters undertaken (in the context of his Honour’s decision as a whole) from PJ at [130]-[132]. It was the 9 March 2022 letter which stated that the first and second allegations had been substantiated and it was on the basis of those findings that Mr Parsons’ employment was subsequently terminated.

80    The primary judge considered it was necessary then to consider whether the reasons given in the 9 March 2022 letter for her findings were her “true reasons”: PJ at [133]. This was to ascertain whether Serco had discharged its onus of proof, such that the presumption under s 361 of the FWA would not apply. In doing so, the primary judge considered the following three matters “of context”: PJ at [135]. First, the bullying and victimisation allegations were very serious, as were the possible consequences for Mr Parsons, including termination of his employment. Second, on 7 October 2021 (as part of the first complaint and first decision), findings about Mr Parsons had been made that his communications with Ms Linnell had been inappropriate and unprofessional. Modification of Mr Parsons’ behaviour towards Ms Linnell was expressly required by Serco as a result of the first decision: PJ at [137]. Thirdly, Ms Linnell was not informed by Serco of the outcome of her first complaint. Specifically, she was informed that any specific outcomes would remain confidential. Mr Parsons had also been told that the matter was confidential and he was not permitted to inform Ms Linnell that he had been directed to change his communication style with Ms Linnell. The Operations Director was aware of these matters: PJ at [138]. The primary judge then observed that the second complaint, in essence concerning a change in style and frequency of communications, should have been viewed in this context: PJ at [138].

81    The primary judge then, from PJ at [139]-[163], considered the reasons given in the 9 March 2022 letter of the Operations Director to assess whether or not those were the “true reasons” for the termination decision. This was done in considerable detail and in the context of the matters from PJ at [135]-[138]. If the matters identified in the reasons of 9 March 2022 were accepted as being the true reasons, then those reasons may have satisfied Serco’s onus of proof; if not, then the presumption in s 361 of the FWA would apply. This was, with respect, the approach of the primary judge and it was correct. This is clear from PJ at [133]:

[133]    It is necessary to determine whether the reasons given by Ms Powell in her letter of 9 March 2022 for her findings were her true reasons. That issue is centrally relevant to determining whether Serco has discharged its onus of proving that Ms Powell did not make those findings and terminate Mr Parsons’ employment because he had made one or more of the complaints constituting the exercise of workplace rights.

82    The primary judge was well aware of the role of the Operations Director and that of the HR Specialist. The primary judge considered the notes taken at meetings of each of the HR Specialist and Mr Parsons’ support person, in this context (which were earlier set out in the Liability Judgment): PJ at [51]-[52], [54]-[55], [144], [146], [152], [153], [157] and [163]. The primary judge found, as a finding of fact, that it was the Operations Director who made the second decision, being the termination decision. This was a finding of fact which was open to the primary judge on the evidence and arguments before him.

83    The suggested characterisation by Serco of the primary judge’s reason at PJ at [106] is not accepted. The evidence of the Operations Director, which was accepted, was that she was the sole decision-maker. Furthermore, the suggested distinction sought to be made by Serco between someone who is merely a signatory to a decision and the drafter of that decision, again, is not accepted as applying in this case. It is a reasonably common position that a decision-maker will adopt a draft statement of reasons, which by doing so, then becomes the decision-maker’s reasons for decision. In such circumstances, the decision-maker is required to do more than merely “rubber stamp” the draft reasons. The decision-maker must engage in an active intellectual process to adopt and make the decision, which is encapsulated in the draft reasons. By doing so, the decision-maker accepts that the draft reasons accurately reflect that person’s actual reasons for the decision made. In this regard, the evidence which was accepted by the primary judge was that the Operations Director had the assistance of the HR Specialist through the whole process. However, the Operations Director explained under cross-examination that “the decision and what went into the letter was – was from my guidance – my decision” and that she makes sure she is “comfortable with its content”, being the content of the letter, and that she “take(s) responsibility” for the “letter and the decision”. That is, the Operations Director adopted the draft reasons, which then became her reasons for decision. There was no error in this regard by the primary judge, as is contended by Serco. The primary judge did not ignore his finding at PJ at [58]. As we have explained, this is consistent with a common approach of decision-makers, and an orthodox approach to a consideration of reasons for decision, when such reasons are properly adopted by the decision-maker.

84    There was no error, as contended of the primary judge, that the termination letter and the process was entirely the work of the Operations Director. This is clear given the references of the primary judge to the involvement of the HR Specialist in the entire process. However, the primary judge found, as a fact, that the second decision to terminate was solely one of the Operations Director. On this basis, the suggested error at PJ at [149] is also rejected. Upon the Operations Director adopting the draft letter and those being the reasons for the termination decision, the matters in that letter were statements of the Operations Director.

85    Serco also submits error by the primary judge by undertaking an objective analysis. We disagree. It is clear (as we have outlined) that the primary judge was aware of the correct approach, of looking for the “true reasons” for the second decision to ascertain whether Serco had discharged its onus. The detailed analysis undertaken by the primary judge from PJ at [139]-[163] was a contextual one, taking into account, the:

(a)    three contextual matters identified at PJ at [135]-[138];

(b)    matters the subject of (or not the subject of) the second complaint by Ms Linnell;

(c)    matters which did not appear to have any evidential basis from the complaint;

(d)    interviews or meetings undertaken; and finally

(e)    apparent or absence of a rational and logical considerations of the relevant events.

86    We deal with the argument regarding PJ at [164] under the second Distilled Ground. Although there is overlap between the objective analysis argument and the second Distilled Ground, it is convenient to consider it under that ground.

87    Finally, Serco also submits error in the witness interview selection process or absence of that, by the Operations Director. However, at PJ at [160] the primary judge recorded the Operations Director’s evidence about why she did not recommend that Ms Linnell be interviewed as “I didn’t feel it was needed”. The evidence of the Operations Director was not that “this wasn’t my decision to make” or that “the decision as to who to interview was a decision for the HR Specialist”. Implicit in the response by the Operations Director is that it was her decision as to the appropriate people to interview and it was unexplained why it was the case that the complainant was not interviewed in relation to the second complaint.

(2)    Context of the HR Specialists belief in Mr Parsons engaging in misconduct

Submissions

88    Serco commences these submissions with the proposition that a belief held by one person is not direct evidence of the belief of another. It is accepted by Serco, however, that it is direct evidence that the belief is possible. This issue is said to arise due to the Court’s findings at PJ at [164], where the primary judge stated:

In my opinion, the reasons expressed by Ms Powell for her findings that Mr Parsons had engaged in retaliation and bullying of Ms Linnell because she had made a complaint against him are so lacking in objectivity and plausibility as to indicate they are not genuinely her reasons for those findings.

89    This finding is said to be without consideration that the HR Specialist’s views were direct and unchallenged, she not being subject to cross-examination. Further, Serco submits that the finding at PJ at [136] is at odds with the balance of the primary judge’s decision, which was said to be critical of the Operations Director, referring to her “poor management”: PJ at [120].

90    Mr Parsons submits that the findings in the letter of 9 March 2022 included matters which could not have been known by the HR Specialist without the input of the Operations Director and therefore must have been findings of the Operations Director. The Court correctly found, Mr Parsons submits, that the Operations Director was the sole decision-maker, again referencing matters from a one-on-one conversation between the Operations Director and Mr Parsons, demonstrating her direct involvement.

91    Mr Parsons submits that the Operations Director arranged and conducted all of the relevant meetings and furthermore that he did not have any correspondence, emails, telephone calls or meetings between himself and the HR Specialist. Mr Parsons submits that it was the Operations Director who was in control of this process and made the decisions.

92    In reply, Serco submits that that the HR Specialist’s involvement in recommending dismissal and drafting the dismissal letter is relevant to the assessment of the Operations Director’s state of mind. Serco also takes issue with how some of the material has been referred to by Mr Parsons in his submissions.

Consideration of the context of the HR Specialist’s belief

93    The arguments regarding the primary judge failing to consider or falling into error due to his approach to the role and involvement of the HR Specialist, in the context of the Operations Director’s decisions, have been dealt with above, under the first Distilled Ground. We reject those submissions.

94    The conclusion expressed by the primary judge at PJ at [164] was one reached after considering the detailed analysis we have described above. The primary judge’s description that the reasons were “so lacking in objectivity and plausibility” such that those reasons were “not genuinely her reasons” was not in error by way of an objective analysis. Rather, properly understood, the primary judge’s reasons were that the Operations Director’s reasons were flawed when considered against the full factual matrix and therefore were not the true reasons for the decision. The reference to “lacking in objectivity” (being a lack of actuality) was a reference to the Operations Director’s reasons being deficient when considered against the existence of the actual facts, not when considered against an objective standard. There was no objective analysis undertaken when the primary judge’s reasons are properly considered as a whole.

95    We do not accept Serco’s submissions that the primary judge has erred, given his finding at PJ at [136] that the Operations Director “impressed me as being very competent” while also being critical of her “poor management”. This shows the primary judge dealing with the various aspects of the Operations Director’s evidence and the relevant facts, in the context of this matter, as a whole.

96    It is clear that the primary judge did not make an overarching adverse credibility finding against the Operations Director. Rather, the primary judge considered the evidence, in the appropriate context, with regard to the first decision and the second decision.

97    These two observations were regarding different facts. The observations regarding the “poor management” was in relation to the first decision, which the primary judge held that Serco had discharged it onus and established the true reasons for that decision. That being that the adverse action taken against Mr Parsons was not taken because he exercised a workplace right, even if the action was taken in circumstances of poor management.

98    The findings relating to the competency of the Operations Director were in relation to the second decision. These matters were in the context of Mr Parsons having been expressly directed or required to modify his style and frequency of communication with Ms Linnell. This direction was not known by Ms Linnell but was known by the Operations Director. The primary judge was observing that this factual context should have been taken into account when considering the second complaint.

99    Finally, we have dealt with the aspects concerning the Operations Director’s state of mind and the role of the HR Specialist and the factual finding that she was the sole decision-maker above.

(3)    Court ought not to have inferred that because it found allegations unreasonable, the Operations Director cannot have believed they were made out

Submissions

100    Serco submits that the case did not involve any evidence that the Operations Director was influenced by workplace rights. Yet, so Serco submits, the Court reached that conclusion, not by examining how the Operations Director reacted to the 7 October 2021 complaint but by assuming that because the Court found that the termination letter was unreasonable, the Operations Director could not have genuinely believed it. Serco relies on the Court’s objective approach as opposed to considering the subjective intent, which is submitted is evident from what Serco describes as the “Court’s own cross-examination” of the Operations Director.

101    Serco submits that the inference was incorrectly drawn. The more likely explanation, so Serco submits, is simply that the Operations Director did not analyse the termination letter with the same rigour. Furthermore, the inference did not take into account the full context of the involvement of the HR Specialist, the seriousness of the finding and the Briginshaw standard (Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 at 362) and finally, that people can make unexpected factual assessments.

102    Serco submits that there was no evidence supporting an inference that the Operations Director shared the Court’s view of the allegations against Mr Parsons, but chose to first not take any steps to address such matter and, secondly, knowingly commit serious misconduct by engaging in the very victimising behaviour of which Mr Parsons was accused. Serco submits that this finding should not have been made.

103    Mr Parsons’ submissions do not seek to separately address the grounds of appeal or the distilled way the Appellant now advances its case. However, given that arguments clearly overlap, we have considered all of Mr Parsons’ submissions.

Consideration – the Court should not have drawn an inference

104    Serco’s submission is misplaced. Serco’s submission is incorrectly framed, when consideration is given to s 361 of the FWA. The Court did not find and did not need to find that the Operations Director was influenced by a workplace right. The primary judge correctly considered whether Serco had discharged its onus to rebut the presumption in s 361 of the FWA. The primary judge found that it had not. The reasons of 9 March 2022, which the primary judge held were the reasons for the second decision, being the termination decision, were held not to be the “true reasons” for that decision. Therefore, Serco was held to have not rebutted the presumption. As such, the statutory presumption that the adverse action was taken because Mr Parsons exercised a workplace right applied.

105    The primary judge undertook the correct and orthodox approach within the statutory framework of the FWA. This ground as distilled by Serco seeks to displace the statutory presumption. There is no error, as contended by the primary judge, on this basis.

CONCLUSION

106    None of the grounds of appeal or now as stated in the submissions (being the Distilled Grounds) can be accepted. The primary judge’s decision is not attended with sufficient doubt to support a grant of leave to appeal. Furthermore, there is no error identified by Serco in the reasons of the primary judge.

Associate:    

Dated:    24 June 2025