Federal Court of Australia

Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

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

REASONS FOR JUDGMENT

SNADEN J:

Part 1: Overview

1    Between 1 July 2014 and 3 May 2017 (and at other times beyond), Senator Jacquiline Lambie, served as a member of the Australian Senate. In her capacity as such, she maintained offices in Burnie, Tasmania and at Parliament House in Canberra; and was entitled to (and did) engage a complement of staff to assist her in the discharge of her duties. Two such staff members who were employed during that period (to which I shall refer hereafter as the “Relevant Period”) were the husband-and-wife applicants in the two proceedings to which these reasons relate: namely, Mr Robert Desmond Messenger (the applicant in matter TAD28/2017) and Mrs Fern Ashleigh Messenger (the applicant in matter TAD32/2017).

2    Although engaged and supervised (and, in the end, dismissed) by Senator Lambie, each of Mr and Mrs Messenger was in fact employed over the Relevant Period by the Commonwealth. The precise nature of their respective engagements is explored in more detail below; but, for now, it suffices to note that they were engaged, respectively, as Senator Lambie’s “Chief of Staff” and “Office Manager” (or, at the very least, in roles that came to be known by those descriptions).

3    By their respective actions, Mr and Mrs Messenger each maintain that they had occasion over the course of their employment to raise with Senator Lambie various matters concerning the operation and output of her offices. Those matters—which are the subject of detailed exploration below—ranged from issues of office security and staff workloads to the manner in which Senator Lambie handled certain situations. Those communications (to the extent that they occurred) assume some significance, to which much attention will shortly turn.

4    In the second half of 2016 and early 2017, the relationship between Mr and Mrs Messenger (on the one hand) and Senator Lambie (on the other) soured. That degeneration manifested in various ways, including in the form of confrontation. Both of Mr and Mrs Messenger were subjected to “show cause” processes, by which each was required to respond to various allegations that were made against them. By written notice provided to each of them on 3 May 2017, both were summarily dismissed from their employment.

5    The Messengers maintain that their respective dismissals, and their earlier subjection to the “show cause” processes just described, amounted to “adverse action” for the purposes of pt 3-1 of the Fair Work Act 2009 (Cth) (the “FW Act”). They attribute those fates to the fact that they had raised inquiries or complaints about various matters with Senator Lambie. Each submits that, by those various communications, they should be understood to have exercised “workplace rights”; and that the “adverse action” to which they were each subjected was taken against them in contravention of s 340(1) of the FW Act. They each allege that Senator Lambie was “involved in” those contraventions. They seek, as against both the Commonwealth and Senator Lambie (respectively the first and second respondents in each matter), relief in the nature of declarations, compensation and the imposition of pecuniary penalties in connection with those alleged statutory contraventions.

6    Additionally, Mr and Mrs Messenger each submit that their employment was terminated contrary to the requirements of an applicable enterprise agreement. Specifically, each submits that they were entitled to—but not afforded—notice of the termination of their employment, or, more specifically, payment in lieu thereof. They allege that, by effecting their dismissals in the manner in which they were effected, the Commonwealth contravened ss 50 and 323 of the FW Act; and that Senator Lambie was “involved in” those contraventions. Again, they seek as against both respondents relief in the nature of declarations, compensation and the imposition of pecuniary penalties in connection with those alleged contraventions.

7    A third cause of action is pursued against Senator Lambie alone. It concerns a radio interview that she gave in November 2017. At around (or not long before) that time, it emerged that Senator Lambie was constitutionally ineligible to sit as a member of the Commonwealth Parliament. The Senate vacancy created by that reality was to be filled by another member of the “Jacqui Lambie Network” political party, Mr Steven Martin. During the interview in question, Senator Lambie was asked about the prospect that Mr Martin might, upon (or in connection with) his ascension to office, employ either or both of the Messengers, who by then had commenced the present proceedings. Senator Lambie indicated that, were he to do so, Mr Martin would face being dis-endorsed by the “Jacqui Lambie Network”. Mr and Mrs Messenger each allege that Senator Lambie’s comments were made with the intention of coercing Mr Martin into not employing them; and, therefore, contravened s 355 of the FW Act. They each seek as against Senator Lambie relief in the nature of declarations, compensation and the imposition of pecuniary penalties in connection with that alleged contravention.

8    For the reasons that follow, none of the causes of action that are advanced is made out. Both proceedings must (and will) be dismissed.

Part 2: The proceedings

9    Each of the present proceedings was commenced by originating application. In the case of Mr Messenger, that instrument was dated 31 July 2017. The equivalent document pertaining to Mrs Messenger was dated 11 August 2017. Both were subsequently amended in ways that require no exploration. By orders made by a former docket judge on 11 May 2018, it was determined that the two matters would be heard together and decided upon evidence common to both. Consistently with usual practice, it was further determined that questions of liability would be determined separately and prior to any consequential questions concerning what, if any, relief the court ought to grant.

10    The matters progressed on the strength of pleadings, which were prepared and filed in the orthodox way. At the time of the trial, each of the Messengers relied upon a second further amended statement of claim dated (in each case) 1 June 2018.

11    At that point (mid 2018), Mr and Mrs Messenger were each represented by a firm of solicitors and their pleadings were, in each case, settled by counsel. Not long thereafter, the Messengers’ representatives withdrew from each proceeding and Mr and Mrs Messenger represented themselves from that point onwards.

12    As it sometimes does, that reality proved costly to the efficient disposition of the matters. Although they were, at all times, courteous and conscientious, Mr and Mrs Messenger were curtailed by a poor grasp of the law, of the cases that they had pleaded and of relevant trial processes. That observation should not be mistaken for criticism. On the contrary, the Messengers approached the prosecution of their matters with great energy and diligence. Nonetheless, their matters required substantial pre-trial case management and they embarked upon a series of procedural endeavours that more discerning litigants might have avoided. Two consequences emerged: first, the matter took substantially longer to proceed to trial than it ought to have (largely in consequence of the case-management concerns to which the court’s attention was directed, both before and after the matter found its way into my docket); and, second, the trial itself took substantially longer than it ought to have.

13    That second reality, in particular, deserves some exploration. As can sometimes occur with litigants who labour under the disadvantage of self-representation, Mr and Mrs Messenger had a tendency to fix upon matters that were irrelevant to the causes of action to which their pleadings gave voice. On occasions, they sought to amplify matters of political controversy, which, although irrelevant to those causes of action, they nonetheless had an apparent personal interest in ventilating. Appropriately enough, many of the procedural liberties that they took throughout the course of the trial (knowingly or otherwise—and overwhelmingly otherwise) were waived through without objection. Some were occasioned at the invitation of the court (or, more commonly, after it was made known that objection would be futile). To their credit—and quite obviously with a view to minimising the natural limitations that attend self-representation—the respondents extended to the Messengers considerable leeway in the way that they conducted the trial. On occasions, additional liberties were extended over the respondents’ polite and concise objections. A balance was struck between the need to progress the trial efficiently (on the one hand) and the need to ensure that all parties were treated fairly and in a manner befitting of the occasion of a trial in this court (on the other). Nonetheless, it is fair to say that the trial did not progress in an orthodox manner.

14    By way of example, each of the applicants gave viva voce evidence in the presence of the other; sometimes in narrative (and often sprawling) form; other times by way of answer to questions posed by the other. Each was present during the cross-examination of the other. The questions that they asked, both of each other and of the other witnesses (and regularly in “tag team” format), were very often not of a standard that this court would typically permit. Many ventured into irrelevant territory, or into territory that strayed beyond the observable limits of the pleadings. Many assumed the form of statements or submissions rather than interrogatories. Conscious of the difficulties under which they laboured (and anxious to minimise their regrettable impacts), Mr and Mrs Messenger did their best to confine themselves to what they thought required ventilation and their efforts in difficult circumstances are to be commended. Nonetheless, they required accommodations that came at considerable cost to the efficient progression of the proceedings.

15    Furthermore, the Messengers were, at times, unable to contain the obvious personal animus that they reserve for Senator Lambie. On occasions, they put matters—both in their evidence in chief and by way of questions to each other or to other witnesses—that were highly inappropriate and ought never to have been put. Some such matters were self-evidently scandalous and of no significance to either proceeding. Despite repeated warnings, the Messengers appeared at times determined to turn the trial into some kind of broad-ranging judicial inquiry into Senator Lambie’s character; or, which is worse, into a trial by media.

16    Those repeated excursions from what was appropriate to explore in evidence meant that the trial took considerably longer than it should have. What ought to have taken in the order of three or four days to hear instead extended over 16. It involved three separate sittings that spanned some seven months. The Messengers’ evidence alone occupied no fewer than six hearing days.

17    Again, those observations are offered not in criticism but as context. The slow progress of the matters through the ordinary processes of case management, to trial and now to judgment have been beset by difficulties that, in more ideal circumstances, would best have been avoided.

18    And that is so even before mention is made of the impact wrought by executive reaction to the covid-19 pandemic. Due to restrictions on people’s freedom of movement (particularly from and within Victoria, where my chambers are located), the entirety of the trial—14 days of evidence and two days of oral submissions—was conducted by remote means. It was attended by every conceivable limitation that could attach to hearings of that kind.

19    It is time to move past those cathartic observations. At trial, oral evidence was led from 14 witnesses. In addition to themselves, Mr and Mrs Messenger led evidence from nine others, namely:

(1)    Mr Mitchel Walker;

(2)    Ms Kelcey Walker;

(3)    Ms Lyn Carey;

(4)    Mr Trevor Reading;

(5)    Ms Tammy Tyrell;

(6)    Ms Karen Philpott;

(7)    Ms Gemma Lynd;

(8)    Ms Aryelle Sargent; and

(9)    Ms Kirsty Balthazaar-Proctor.

20    With the exception of Ms Carey and Mr Reading, all of those individuals were former or current members of Senator Lambie’s staff with whom Mr and Mrs Messenger had previously worked. All of them (that is, all other than Ms Carey and Mr Reading) gave evidence on subpoena. Ms Carey is a retired cleaner who cleaned Senator Lambie’s electorate office in Burnie, Tasmania. Mr Reading was a local graphic designer who provided various services to Senator Lambie’s office.

21    The respondents led evidence from three witnesses, namely:

(1)    Mr Andrew Witheford;

(2)    Ms Toni Rikys; and

(3)    Senator Lambie herself.

22    Mr Witheford and Ms Rikys were each, at relevant times, employees of a division within the Commonwealth Department of Finance known as “Ministerial and Parliamentary Services” (or, it seems more generally, “MaPS”). MaPS exists to provide to members of the Commonwealth Parliament advice and support services regarding the employment of their staff. It serves, in effect, as a human resources function in respect of parliamentary staff. In ways that are the subject of exploration below, both Mr Witheford and Ms Rikys were involved in the “show cause” processes that ultimately culminated in the termination of the Messengers’ employment within Senator Lambie’s office.

23    In addition to that oral testimony, 151 documents were tendered and received into evidence. Although I have considered them all, a significant portion of them are largely irrelevant and comparatively few are referred to in these reasons.

24    The parties also filed extremely comprehensive and helpful written submissions, upon which they elaborated orally (and, in part, by post-hearing written material).

Part 3: Background

25    For the most part, the evidence presented before the court was the subject of heated contest. There are, however, aspects of it that were not materially in doubt, which it is convenient now to set out.

3.1 The employment relationships

26    Mr and Mrs Messengers’ stints as members of Senator Lambie’s staff began (or, at least, officially began) upon her assumption of office on 1 July 2014. They were each employed pursuant to pt IV (and possibly also pt III) of the Members of Parliament (Staff) Act 1984 (Cth) (the “MOPS Act”). Between 1 July 2014 and 18 April 2017, their employment was covered by an enterprise agreement made under pt 2-4 of the FW Act: namely, the Commonwealth Members of Parliament Staff Enterprise Agreement 2012-2015. Thereafter (until their dismissal on 3 May 2017), their employment was covered by a successor agreement, namely the Commonwealth Members of Parliament Staff Enterprise Agreement 2016-2019 (hereafter, the “EA”).

27    Although formally classified (at least for most of the Relevant Period) as an “Adviser (Non-government)”, Mr Messenger was known within Senator Lambie’s office as her “Chief of Staff”. Mrs Messenger was engaged in the role of “Electorate Officer” but was apparently known as Senator Lambie’s “Office Manager”. Nothing turns on the differing nomenclature.

28    Mr Messenger’s duties included the following, namely:

(1)    protecting and enhancing the Senator’s reputation;

(2)    writing Senator Lambie’s policies, and advising her on political strategy, Parliamentary processes and legislation;

(3)    writing and researching Parliamentary speeches and questions, media releases and newsletters, and producing multimedia content for social media platforms;

(4)    engaging with the media, including managing media inquiries and public relations;

(5)    meeting with other politicians, community representatives and lobbyists;

(6)    counselling and managing Senator Lambie generally;

(7)    recruiting, training and managing Senator Lambie’s staff; and

(8)    ensuring staff safety, including by identifying and reporting risks about work health and safety, and liaising with security and law enforcement personnel as required.

29    Mrs Messenger’s key tasks included:

(1)    the management of Senator Lambie’s electorate office, including staff, personnel and administrative issues;

(2)    establishing office administration and record-keeping procedures;

(3)    recruiting and hiring staff;

(4)    training or arranging training for staff;

(5)    managing budgets, reconciling expenses, and overseeing Senator Lambie’s pecuniary register;

(6)    managing travel and accommodation booking;

(7)    diary management;

(8)    providing political and tactical advice to Senator Lambie;

(9)    identifying and reporting work health and safety risks;

(10)    implementing measures for complying with work health and safety policies;

(11)    ensuring that work health and safety roles within the electorate office were filled and performed;

(12)    liaising with security and law enforcement personnel about safety concerns and threat referrals; and

(13)    personal administration for the Senator (such as banking and dealing with real estate issues).

3.2 Relevant time periods

30    The events of primary relevance to these matters all occurred within four discrete time periods. The first spanned the period between July 2014 and July 2016, during Senator Lambie’s first term as a member of the Senate. The second spanned July 2016 through until December 2016, after she commenced her second term. The third concerns February and March of 2017. The fourth concerns the period from 27 March through until 3 May 2017, when the Messengers’ employment was (in each case) summarily terminated.

31    There is a fifth point of secondary relevance: namely Tuesday, 28 November 2017, when Senator Lambie was interviewed about (amongst other things) the possibility that her then-successor, Mr Martin, might engage the Messengers as members of his staff.

32    I will separately address the events of each relevant period.

3.3 July 2014 to July 2016—the first term

33    Senator Lambie was first elected to the office of Senator for the state of Tasmania in 2013. She assumed her office with effect from 1 July 2014.

34    At the point that she was elected, Senator Lambie was a member of what was then known as the Palmer United Party. A few months after her election, she resigned her membership of that organisation and served as an independent. By her own admission, she was inexperienced in the art of politics. She was introduced to Mr Messenger and, shortly thereafter, agreed to engage both he and Mrs Messenger as members of her Parliamentary staff. Mr Messenger was (and is) a former member of the Queensland Parliament. Mrs Messenger had experience working in a political office. Senator Lambie considered that she would be—and, at least initially, she was—reliant upon Mr and Mrs Messenger for political, strategic and administrative advice.

35    Throughout the course of Senator Lambie’s first term, the Messengers claim to have raised with her several matters that they now characterise as complaints related to their employment. Those communications are the subject of evidential dispute and are addressed in greater detail below. For now, it suffices to note two things. The first concerns the subject matters that the Messengers contend were the subject of the communications upon which they rely. Specifically, they say that, during that first term, they raised with Senator Lambie the following by way of complaint:

(1)    her “aggressive and confrontational” behaviour;

(2)    her regular use of profane and vulgar language;

(3)    her “excessive alcohol consumption”;

(4)    her operation of a work vehicle whilst medicated or recovering from a medical procedure;

(5)    her “bullying, derisive and unfairly critical treatment of staff”;

(6)    her public discussion of her sex life during a radio interview in July 2014;

(7)    the volume of work that she expected of her staff, particularly in relation to the provision of assistance to military veterans;

(8)    the physical security of the Senator’s Burnie office; and

(9)    threats to her personal safety associated with a speech that she gave at a Melbourne high school.

36    Second, the respondents contend that many of the communications to which the Messengers point were not, in fact, made; that they did not, in any event, qualify as “complaints”; and/or that they were not, in any event, complaints the making of which qualified, in each case, as the exercise of a workplace right for the purposes of pt 3-1 of the FW Act. Some, they say, were explored in evidence despite having not earlier been pleaded; and they maintain objections to those matters factoring into the court’s deliberations. It will be necessary to return to each of those considerations later.

3.4 July 2016 to December 2016

37    At the double dissolution election of July 2016, Senator Lambie was returned to the office of Senator for Tasmania. Between July and December 2016, the Messengers claim to have had occasion to raise with her various other matters by way of relevant complaint or inquiry.

38    The first was raised during a meeting that the Messengers had with Senator Lambie in the boardroom of her electorate office in Burnie in early July 2016. Again, the content of that discussion is the subject of contest. For now, it suffices to note what is alleged to have been discussed. Mr Messenger maintains that he complained to Senator Lambie about a range of grievances, including the long hours that he and Mrs Messenger were working, the Senator’s insistence on providing assistance to military veterans and the resultant stresses under which her staff were labouring, her (Senator Lambie’s) use of inappropriate language, her “excessive alcohol consumption” and how her “behaviour was a risk to staff”, “risky”, “erratic” and “abusive”.

39    In late November of 2016, the relationship between Senator Lambie and the Messengers began to show more outward signs of decline. The week commencing Monday, 28 November 2016 was the final Parliamentary sitting week of that year. Mrs Messenger, Ms Tyrell, Ms Sargent and Ms Balthazaar-Proctor all travelled with Senator Lambie to Canberra for that week. Mr Messenger, who usually travelled with the Senator during sitting weeks, remained in Tasmania.

40    On Wednesday, 30 November 2016, Mr Messenger made attempts to contact Senator Lambie by telephone in order to discuss a matter of business that was before the Senate. The Senator did not answer or return his calls. He then rang Mrs Messenger directly and asked that she put him on to the Senator. Mrs Messenger made approaches to the Senator to that end but, again, Senator Lambie declined them, indicating to Mrs Messenger that she was busy and, in any event, felt that she was able herself to handle the issue that was to be transacted in the Senate chamber.

41    By all accounts, the exchange that took place between Mrs Messenger and Senator Lambie was a heated one. In consequence of it, Mrs Messenger declined an invitation to dine with the Senator and her other staff that evening. She then decided to return home to Tasmania the following day (rather than on the Friday, as had earlier been arranged). She did not discuss her change of plans with the Senator.

42    On Tuesday, 6 December 2016—and at least partially in consequence of the exchange between Senator Lambie and Mrs Messenger in Canberra the previous week—Mr Messenger was moved to commence what became a series of emails exchanged as between he and Senator Lambie. The content of that exchange bears some significance and it is convenient to replicate it in full. It began thus (errors original):

Dear Jac,

I'm very worried about the harmful effect your emails are having on Fern.

She's working very hard and very efficiently - and you seem to be finding fault with everything.

Your criticism and constant inaccurate sniping are not welcome or warranted.

If you'd like to call and have a chat - that would be great.

Constant - unwarranted criticism - is very wearing.

Its seems that your default position of late - is to make myself or Fem guilty of any perceived offences - when the opposite is true.

We're both working very hard - and we're on top of our game.

Is there another agenda at work?

Are you deliberately trying to break our spirit?

Cheers

Rob

43    Later that evening, Senator Lambie responded:

If you can actually find anything harmful in those emails you let me know. Ta

44    Mr Messenger responded a few minutes later (errors original):

I'm being very serious - we all want to make you happy - and have a smoothly running office - Ferns near in tears tonight after your latest emails ..

We've all been under a lot of stress ...

She's been spot on with answering emails and organising diary- and Xmas functions ...

If you think we need to improve our performance - fair enough thats your right as a boss - and I happy to talk about how you want us to do better ... but you of all people who rallies against bullies in the military - should not be treating your staff in a way that is hurtful to them .. .

If you are having trouble with your pain levels - OK lets have a chat - but in the wind down to Xmas let just have a happy office - and be nice to one another?

45    Mr Messenger’s reference to the Senator’s “latest emails” is unclear (and was not clarified during evidence). Regardless, Senator Lambie responded later that evening (errors original):

I still have no idea what you are talking about I said if there is an email that has been a problem let me know, but by attacking and patronising me for something that I haven't done, will not fix whatever ferns issue is, thank you

46    The following morning, Mr Messenger replied (errors original):

HI Jac,

I'm not patronising you - I'm telling you the truth.

Because of your wild mood swings you have a whole office which is scared of you and walking on egg shells around you.

This is a problem that only you can fix.

We'll continue doing out best - but its clear from your comments and the fact you will not engage or speak with me or Fern - that our best is not good enough for you.

And to be frank - it realy hard to write a book about someone that is being nasty to you.

If I was giving you advise - or doing work that was harming you - I could understand your anger - but the work and advise I've given to you is top shelf stuff.

The same goes for Fern and others.

But you hardly ever acknowledge good work, and you pounce on what you perceive is the slightest error - and often there is no error- but you've failed to read a diary properly or someone has whispered the wrong strategy in your ear.

Its time to relax - and its time you ensured that good work was acknowledged

Cheers

Rob

47    That same week, Senator Lambie, Ms Tyrell and Ms Balthazaar-Proctor embarked upon a road trip through north-west Tasmania to speak with constituents. At some point during that trip, Senator Lambie raised for discussion the events that had transpired in Canberra the previous week as between her and Mrs Messenger. That led to Ms Tyrell and Ms Balthazaar-Proctor raising with Senator Lambie a number of concerns of their own about the Messengers. The Senator was told that:

(1)    her staff regarded Mr Messenger as “intimidating” and “overpowering”, and prone to displays of disrespect toward them;

(2)    her staff had been asked by Mr Messenger to report back to him about conversations and meetings in which the Senator participated without him;

(3)    the Messengers (or, at the least, Mr Messenger) had requested that staff use their personal rapport with the Senator to influence her decisions or positions on certain matters;

(4)    the Messengers actively and regularly discriminated against staff who expressed opinions that were contrary to their own;

(5)    the Messengers were able to (and did) track the Senator’s movements via software linked to her mobile telephone;

(6)    Mr Messenger insisted upon working externally to Parliamentary information technology systems; and

(7)    her staff had wanted to raise with her their issues concerning the Messengers but had not felt comfortable doing so.

48    Upon her return from the road trip, Senator Lambie had discussions with other members of her staff about the Messengers and the matters that Ms Tyrell and Ms Balthazaar-Proctor had raised with her, the substance of which was to similar effect. She resolved to act upon the concerns that had been ventilated with her in the new year.

3.5 February and March 2017

49    On 9 February 2017, Ms Tyrell—at Senator Lambie’s request—sent an email to MaPS (specifically, to a generic “mpshelp” address) requesting “…a detailed brief on each of her current staff detailing their progression of pay grades, allowances, annual and sick [l]eave applications and if medical certificates were provided etc”. According to Senator Lambie, this information was sought because she “had just about lost confidence” in Mrs Messenger.

50    On 15 February 2017, Senator Lambie and Ms Tyrell met with Mr Witheford and another MaPS employee. The Senator sought advice from Mr Witheford as to how she might best address the concerns that she had about the Messengers and the breakdown of her working relationship with them. One potential pathway that emerged from that meeting was the possibility of engaging in some form of mediation.

51    Later that month (on 22 February 2017), Senator Lambie and Mrs Messenger had an ugly confrontation in the boardroom of the Senator’s Burnie office. The particulars of the exchange are contested; but the fact that it occurred and is fairly described as ugly are not. Although it could be clearer, it appears to have concerned (or partly concerned) the work of Ms Walker. Not long after it, Mrs Messenger visited her general practitioner, whereupon she was issued a medical certificate that she later emailed to the Senator. She was absent from work on personal leave on Thursday, 23 February 2017.

52    On that day (Thursday, 23 February 2017), Ms Walker tendered her resignation from the Senator’s office. She did so by email, within which she recorded that her decision had been made (or partly made) “…due to [her] mental health deterioration which ha[d] been a result of [her] employment within the office.”

53    Meanwhile, the possibility of some kind of formal mediation was progressed. On Wednesday, 1 March 2017, Senator Lambie spoke with Mr Witheford and asked him to arrange for a session to occur with Mrs Messenger. She had, by then, formed the view that it might be possible “to work things out” with Mrs Messenger but did not consider that the same could be said of Mr Messenger, with whom she considered that her relationship was “too far gone”. Later that day (1 March 2017), Mr Witheford confirmed by email that he would arrange for a specialist provider, Davidson Trahaire Corpsych, to coordinate the planned mediation with Mrs Messenger.

54    Also on 1 March 2017, Senator Lambie received an email from Mr Greg Isolani, a solicitor known to her and, more broadly, to the Jacqui Lambie Network party. Unbeknownst to the Senator, Mrs Messenger had sent a copy of Ms Walker’s resignation email to Mr Isolani, which prompted him to respond. It was that response that was copied to Senator Lambie.

55    A few days later, Senator Lambie wrote an email to Mrs Messenger (and, it would appear, to Mr Messenger) about her having sent to Mr Isolani a copy of Ms Walker’s resignation email. She expressed some concern about “a break in protocol” and explained her belief that there had been “a breach of privacy”. That prompted a response from Mr Messenger in the following terms (errors original):

Good call Jac,

A meeting will be important.

Although I don't think Veterans privacy/ protocol was breached - no Veterans' personal details were ever released from our office - and any time you spoke in parliament using Veteran stories we always had their permission. So I'm confident we're OK on that legal aspect.

However I think you and the office could be exposed to a large worker's comp claim - if [Ms Walker] decides to pursue any sort of legal action.

Greg being a personal injury Lawyer will be able to give you an authoritve legal opinion. Its important that you are fully briefed on this matter and aware of any threats to your personal finances.

But exposing staff members to suicide calls from Veterans - and stories of rape, assault etc without proper training or counselling - is a very serious matter that we'll have to address before a new person takes [Ms Walker]’s old DVA position.

We don't want them being harmed in the same way [Ms Walker] was.

I think Fern has already contacted MOps - and asked them provide advise on what staff should do when they receive those nasty harmful calls.

It will be interesting to see what they say. The Government must have some sort of training in place for DVA workers - and if they can do it for them - why not our staff?

Cheers

Rob

56    At or around that time, Senator Lambie arranged to employ another member of staff, Mr Norbert Keough. On Wednesday, 8 March 2017, Mr Messenger sent an email in the following terms to Ms Sargent, which Senator Lambie subsequently saw (errors original):

Dear Jac,

I've just found out. Congratulations on employing Norbert. He sounds like a nice guy.

Just a few suggestions regarding the DVA position.

I understand that Norbert has a law degree which is a great addition to the office skills set, however when Norbert is speaking to constituents as an employee of our office, he must be very careful not to offer legal advise on legislation or the personal circumstances of those constituents.

It would expose you personally and the office generally to legal action by constituents who may follow that advise - and then claim they suffered harm or detriment as a result of following that legal advice authorised by Senator Lambie's employee.

Any advise legal or otherwise - that we refer back to constituents on your letter head or in official phone calls / conversations - must always come from a government minister - after we've advocated for those constituents to the government minister.

In other words, I strongly recommend that Norbert follow the office processes that we have in place currently to deal with constituent inquiry and complains.

Another important suggestion I'd like you to consider - is to put in place a process that will protect Norbert and the staff from the harmful psychological effects of disturbing, threatening and or suicidal calls -which in the past have mainly come from Veterans.

I suggest as part of workplace health and safety that we keep a log of all calls that staff have to deal with which can reasonably considered disturbing, threatening and suicidal.

For example, I now know that a lot of damage was caused to [Ms Walker] as a result of her receiving calls from Veterans detailing rapes and other sexual assaults - and also expressing their intention to commit suicide.

It's important to remind staff regularly - that we are all in a high stress work environment where daily we deal with life and death matters - and that a free confidential counselling service is available to all employees of the government - and there's no shame in accepting or seeking out that mental health service.

And lastly - I recommend that we officially find out whether specialised training is available for all staff which shows us how to safely deal with people who say they are going to kill themselves - or want to disclose details of graphic personal trauma.

My first concern is for the safety and wellbeing of the staff - who can be seriously harmed after hearing the details of rapes, assaults etc. in phone calls.

At what point should a staff member say in a distressing phone conversation,

"Look, I understand how much this event has harmed you, but I don't think I'm a qualified person to hear about this - perhaps its best you ring .... (insert name of a councillor) if you want to talk with someone, however I'm happy to send your complaints to the minister if you write your complaint on our constituent form. "?

I'm happy to have a meeting at any time to further discuss my recommendations and any other issue you want me to be aware of.

Regards

Rob

57    Later on 8 March 2017, there was a further email exchange as between Mr Messenger and Senator Lambie concerning Ms Walker’s resignation. Senator Lambie told Mr Messenger that she had asked for information from her staff as to whether anybody had contacted Ms Walker during periods during which she was absent on sick leave, or “…about work or her condition”. By way of reply later that evening, Mr Messenger inquired as to whether Ms Walker had “…started formal legal action” and whether he ought to “…ask [his] lawyer for legal advise [sic]”.

58    The following morning, Senator Lambie responded to Mr Messenger as follows (errors original):

Firstly I didn't know about the lunch, just like I was not told that a dinner had been organised outside work to tell Mitch he would not be re employed, thirdly if Fern has been sick because of stress and it is work related then I need to make sure she is getting the support she needs.

59    Mr Messenger replied later that morning (errors original):

Jac,

Firstly, if its not illegal - Its not your business what staff do outside work hours.

Secondly Mitch was not told he would not be re-employed. He was told that he's done a good job and any employment decision is up to you.

Thirdly - Fern is sick because of work stress, but her and her medical professionals are managing it nicely - just like you manage your mental health issues with your medical professionals.

However trying to force Fern to illegally fill out "statements regarding [Ms Walker]" is not helping the stress levels - and contacting staff members on their recreational leave is also not helping. Both acts could be interpreted as harassment and bullying. Check with Greg if you think I'm giving you wrong advise.

The resignation of [Ms Walker] was a huge shock and very stressful event for all the office - we've all got different ways of coping with it. We're all trying to move on and do our jobs to the best of our ability.

Norbett is a good choice - but that doesn't mean we can't learn the lessons from [Ms Walker].

And I'm really glad that Norbert has strongly recommended that we do not take on any more veterans from mainland - its something you'll recall I'v been calling from since the election win.

Today I'm working very hard on the book.

Have a great weekend.

We'll be doing lots of great personal stuff and be ready for work bright and early on Tuesday.

Rob

60    On Friday, 10 March 2017, Mr Witheford rang Senator Lambie’s office for the purposes of obtaining information about a potential mediation session with Mrs Messenger. Later that day (and apparently in consequence of the matters that had earlier been discussed), he drew up a document for the purposes of briefing a mediator, within which he recorded details about the parties that would participate (namely, Mrs Messenger and Senator Lambie) and a brief description of the conflict that had arisen between them. He provided a draft of that document to the Senator’s office later that day (Friday, 10 March 2017). Under the heading “Nature of conflict”, Mr Witheford recorded:

Issues between the parties have been escalating for the last six months, and are now at the point where communication between the two parties has broken down completely. There are significant performance issues and moodiness, to the point where the functioning of the office is seriously impacted.

61    That description was accepted as an accurate summary of Senator Lambie’s concerns at the time.

62    Later in March 2017, Ms Tyrell sent by email to Mr Witheford a document titled “Issues for Mediation Prepared by Sen. Lambie”. The purpose of that document (to which I shall hereafter refer as the “Draft Mediation Paper”) was to “outline[…Senator Lambie’s] specific concerns” ahead of the then-proposed mediation. Primary responsibility for its creation lay with the Senator herself, although Ms Tyrell and at least some others also had input into it.

63    The Draft Mediation Paper identified matters regarding Mrs Messenger that were of concern to Senator Lambie. Those matters included some of what was raised with the Senator by Ms Tyrell and Ms Balthazaar-Proctor during their December road trip (see above, [47]), as well as other matters.

64    The preparation of that document coincided with what might fairly be described as an air of general tension in Senator Lambie’s office. On Wednesday, 15 March 2017, Mr Messenger commenced a period of personal leave, which he attributed to workplace stress. On or around that same day, Mrs Messenger reported to Ms Balthazaar-Proctor that she felt as though Senator Lambie no longer wanted her to be in the office. She resigned her position as secretary of the Jacqui Lambie Network that day.

65    On Tuesday, 21 March 2017, Ms Tyrell and Mr Witheford exchanged emails about the progression of the then-proposed mediation. Mr Witheford undertook to provide a copy of the Draft Mediation Paper to the proposed mediator, which he then did. In the afternoon of Thursday, 23 March 2017, Mr Witheford spoke to Ms Tyrell and asked her to make enquiries of Mrs Messenger as to whether she (Mrs Messenger) would be prepared to participate in a mediation session with Senator Lambie. Ms Tyrell then did precisely that. Mrs Messenger told Ms Tyrell that she was agreeable to participating in some form of mediation, which Ms Tyrell then fed back by email to Mr Witheford.

66    Later that day, Ms Caroline Deeks, from Davis Trahaire Corpsych, left a message on Mrs Messenger’s answering machine requesting that she (Mrs Messenger) return her call. At approximately 9:00am on the following day (Friday, 24 March 2017), Mr Messenger called Ms Deeks on Mrs Messenger’s behalf. That call was placed from the Messengers’ car and Mrs Messenger was present. Unbeknownst to Ms Deeks, Mr Messenger recorded the conversation that ensued.

67    Mr Messenger asked Ms Deeks whether she was aware that Mrs Messenger was on sick leave. As it happens, Mrs Messenger was not (or not yet) on sick leave; but little if anything turns on that. Mr Messenger also asked whether there was a “list of grievances”. Quickly appreciating that Mrs Messenger might not have been as amenable to a mediation session as she had been led to believe, Ms Deeks encouraged Mr Messenger to speak with Mr Witheford. Ultimately, she told Mr Messenger that she would call Mr Witheford herself and tell him that she would “…withdraw [her]self from the situation until he is working with [Mr and Mrs Messenger] about when you are in a state where it is OK to go ahead with a mediation”.

68    Mr and Mrs Messenger then attended upon their general practitioner, Dr Wassam, who gave Mrs Messenger a medical certificate to excuse her from work that day.

69    Shortly (and perhaps immediately) after Mrs Messenger’s medical appointment, Mr and Mrs Messenger drove to Senator Lambie’s electorate office. Senator Lambie was not there at the time (she was in, or was returning from, Hobart). That was a reality of which they were aware in advance. Whilst Mr Messenger waited in the car, Mrs Messenger went into the office via the rear entrance. She made her way into her office and emerged with a tub of papers, which she then took to another room that housed a secured “shredding bin” and a shredding machine. What then happened was the subject of some contest (which it is not necessary to resolve); but, at the very least, Mrs Messenger proceeded to feed a volume of documents into the secured “shredding bin”. That enterprise took somewhere in the order of 20 (and possibly as many as 30) minutes, whereupon Mrs Messenger re-joined Mr Messenger in their vehicle and they left.

70    At approximately lunch time on that day, Mr Walker attended at the Messengers’ home. Whether he did so upon his own volition or at their invitation was the subject of some contest; but, regardless, the events that followed are a matter of record. Whilst at the Messengers’ home, it was agreed (and, again, the particulars of that agreement needn’t now be explored) that Mr Walker would sign a statutory declaration attesting to some of his experiences as an employee in Senator Lambie’s office. That document was drawn up at the Messengers’ home and signed later that day at a nearby pharmacy (to which Mr Messenger and Mr Walker travelled for that purpose once the document was ready).

71    Mr Walker’s statutory declaration raised serious criticisms concerning the operation of Senator Lambie’s office (and of her behaviour more generally). It is convenient to replicate parts of it (errors original):

On a daily basis I witnessed bullying harrassment as defined by the Members of Parliament (Staff) Act 1984 in the form of:

•    Abusive , insulting or offensive language - for example , Senator Lambie's use of [identified phrases that needn’t here be replicated]…and as a male I found this very offensive and made me feel very uncomfortable.

•    On 22 February 2017 at approx. 9:30am I witnessed an outburst by Senator Lambie directed at my Office Manager, Fern Messenger, using language that frightened me, humiliated me in front of all the staff. I heard her distinctly scream "no they don’t understand the law" to which Fern responded "you haven't offered them any training" to which she responded "they just don't get it" . This was in regard to my and [Ms] Walker's job performance. The Senator then stormed into the office area screaming at Fern "How about you do some more hours and start doing your fuking job".

…

During a staff "handover meeting I witnessed Senator Lambie lie about the workload that the position entailed. She stated that overtime was never necessary and the workload was not that great. In fact she inferred that [Ms Walker] was not up to the job and that the DVA client files were incomplete and in disarray. This was a blatant lie which my office manager refuted in the meeting.

…

My office manager was on two days annual leave (9 & 10 March) and I witnessed the senator colluding with 2 of my colleagues (one a casual) to undergo training as an office manager - and this was done in a very secretive way.

…

I fear for the safety and well-being of my colleagues as I believe Senator's Lambie is unstable and this results in harm to her staff. I have been left with feelings of anxiety, stress, worthlessness and inadequacy has affected my self esteem and personal relationships.

72    It will be necessary later to return to the circumstances surrounding the creation of that document.

73    As that development played out, Senator Lambie learnt of the discussion (or the import of the discussion) that Ms Deeks had had earlier that day with Mr Messenger. Ms Deeks told Senator Lambie that the mediation was unlikely to succeed given Mrs Messenger’s apparent reluctance to participate.

74    At around that time, Senator Lambie spoke by telephone with Ms Philpot. Ms Philpot informed the Senator that Mrs Messenger had attended at the electorate office and had fed a volume of documents into the secure “shredding bin” and the shredding machine.

75    Senator Lambie returned to her electorate office sometime late in the afternoon of Friday, 24 March 2017. She made arrangements to have the secure “shredding bin” opened so that the content of what Mrs Messenger had fed into it could be reviewed. That occurred. Neither Senator Lambie nor her staff noticed anything in the shredding bin that was noteworthy.

76    Thereafter, Senator Lambie spoke by telephone with Mr Witheford. She told him that Mrs Messenger had attended at her office earlier that day for the purposes of destroying (or disposing of) documents. Senator Lambie informed Mr Witheford that her relationship with both of the Messengers had deteriorated to the point that she no longer trusted either of them, and that she wanted to progress toward severing their respective employment relationships. Mr Witheford told Senator Lambie that he would draft some “show cause” letters outlining her concerns, to which the Messengers would be invited to respond. Mr Witheford was concerned to ensure that the process that would ensue was procedurally fair. He and the Senator also discussed steps that might be taken more immediately to limit or remove the Messengers’ access to information technology and communications systems, and to the Senator’s office.

77    At 5:24pm on Friday, 24 March 2017, Ms Tyrell emailed the Department of Parliamentary Services (or, more specifically, a generic inquiries email address) to request that Mrs Messenger’s access to her parliamentary email address be removed owing to “…concerns [that] government documents may be jeopardised”. That request was swiftly actioned.

3.6 27 March to 3 May 2017—the show cause process and the dismissals

78    Over the weekend of 25 and 26 March 2017, Mr and Mrs Messenger drew up a document that they have come to describe as a “public interest disclosure” or “PID”. Its precise statutory character is the subject of consideration below; but, for now, it suffices to record its content and what was done with it.

79    The so-called PID comprised of a signed, 8-page letter dated “27 March 2016 [sic 2017]” addressed to the then Prime Minister, The Hon. Malcolm Turnbull MP. Attached to that letter were a number of documents, one of which being a copy of the statutory declaration that Mr Walker had signed in the afternoon of Friday, 24 March 2017 (above, [70]-[71]).

80    The terms of the so-called PID are best not replicated; but it is convenient to recite a couple of its proverbial high notes. Amongst other things, the document accused Senator Lambie of having:

(1)    embarked upon “illegal or negligent conduct causing an unsafe work place”;

(2)    “negligently [and] in a drunken state…disregarded the safety and health” of a member of her staff;

(3)    embarked upon a “bizarre, cold-hearted argument where Senator Lambie wanted [the Messengers] to guess how long [a staff member’s terminally ill] mother had left to live” and of having “complained…about the length of time it took for [that staff member’s] mother to die”;

(4)    confided in the Messengers that “…she had ‘upped her medication’ used to treat her mental illnesses”;

(5)    engaged in “excessive swearing” in the presence of her staff (graphic examples of which were then outlined);

(6)    regularly made inappropriate comments to her staff about her sex life;

(7)    failed “…properly [to] understand or respect the rules of conduct regarding the wastage of public money or the abuse of public trust”; and of having

(8)    impaired “memory and cognitive function” to a point adverse to “…staff safety and Australia’s national interests”.

81    By an email sent at 9:18am on Monday, 27 March 2017, Mr Messenger provided the so-called PID (including its attachments) to three members of the Prime Minister’s staff, the then Senate President, Senator the Hon. Stephen Parry, and the then Attorney-General, Senator the Hon. George Brandis (as well as members of Senators Parry and Brandis’s respective staffs).

82    The timing assumes some significance. Later on Monday, 27 March 2017, each of Mr and Mrs Messenger was sent correspondence requiring that they show cause as to why their employment ought not to be terminated. Mr and Mrs Messenger maintain that a reason why that course was embarked upon was that they had, earlier that day, emailed their so-called PID to the offices of the Prime Minister, the Senate President and the Commonwealth Attorney-General.

83    The documentary evidence tells a different story. Consistently with the discussion that he had had with Senator Lambie in the afternoon of Friday, 24 March 2017, Mr Witheford sent an email to Ms Tyrell at 11:23am, within which he set out some “[p]ossible wording to draw upon” in the correspondence that it was anticipated would be sent to the Messengers:

This seems to me a clear indication that our working relationship has broken down to the extent that it is irretrievable. In the circumstances, I am forming the view that I may have no real option other than to terminate your employment. This would not be a decision I would take lightly and before reaching a decision, I would like to give you the opportunity to put your views. If you wish to respond, would you do so in writing please no later than…...

84    Ms Tyrell then set about typing and formatting what ultimately became the first “show cause” letters of 27 March 2017 (to which I shall hereafter refer as the “First Show Cause Letters”). At 12:43 that afternoon, she sent to Mr Witheford drafts of the two letters, in respect of which he suggested (by reply email sent at 2:05pm) some stylistic changes. After getting approval from Senator Lambie to do so, Ms Tyrell emailed the First Show Cause Letters to the Messengers at approximately 3:10pm.

85    It is convenient to replicate the First Show Cause Letters in full. The letter that was sent to Mr Messenger read as follows:

It has come to my attention that there has been a significant breakdown of employer–employee trust as a number of concerns have been brought to my attention. The main concerns are as follows:

(a)     You have asked staff to ‘spy’ or to report back on my activities;

(b)     You have asked staff to use their personal rapport with me to influence decisions or positions;

(c)     You suppressed personal staff advice. Staff were yelled at, belittled or given the ‘cold shoulder’ and thus punished for expressing opinions that conflicted with your stated positions;

(d)     Your unpredictability, moodiness, overt negativity to staff, and/or vindictive attitudes to staff, and your undermining me in front of staff verbally have had a negative impact on staff in the office;

(e)     Without my permission, linking my iPhone to an iCloud account maintained by the Advisor Rob Messenger which enables mirroring of phone calls, logging of phone calls and messages and personal location tracking - running a second iCloud diary without using the APH diary system;

(f)     Refusing to work on Parliamentary devices, information sharing systems, and using a private Bigpond email account even when I had directed you transfer over to the appropriate Parliamentary systems.

The above conduct evidences a breakdown in our working relationship to such an extent that I believe I can no longer have trust or confidence in you. In the present circumstances, and given the seriousness of the actions you have taken, as detailed above, I am of the view that I may have no real option other than to terminate your employment. Such a decision would not be taken lightly and before reaching a decision, I would like to give you the opportunity to put your views on this matter forward. If you wish to respond, please do so in writing no later than close of business Wednesday, March 29, 2017. After I have time to consider any response you may have, I will make my final decision on your continued employment in my office.

I look forward to your response.

Yours faithfully

Senator Jacqui Lambie

Senator for Tasmania

86    The equivalent letter that was sent to Mrs Messenger read as follows:

It has come to my attention that there has been a significant breakdown of employer–employee trust, as a number of concerns have been brought to my attention. The three main concerns are as follows:

(a)     I have been made aware that you provided an employee’s resignation letter to a known legal practitioner, without my knowledge or permission;

(b)     I have been made aware that you have linked my iPhone to an iCloud account maintained by Robert Messenger, which enabled mirroring of phone calls, logging of phone calls and messages, and personal location tracking; and

(c)     I am aware that you attempted the unauthorised destruction of documents in the Burnie Electorate Office on March 24, 2017, when such documents were placed in a security bin destined to be shredded.

The above conduct evidences a breakdown in our working relationship to the extent that I believe I can no longer have trust or confidence in you. In the present circumstances and given the seriousness of the actions you have taken, as detailed above, I am of the view that I may have no real option other than to terminate your employment. Such a decision would not be taken lightly, and before reaching a decision, I would like to give you the opportunity to put your views on these matters forward. If you wish to respond, please do so in writing no later than close of business Wednesday, March 29, 2017. After I have time to consider any response you may have, I will make my final decision on your continued employment in my office.

I look forward to your response.

Yours faithfully

Senator Jacqui Lambie

Senator for Tasmania

87    As is apparent, each letter identified “concerns” that Mr and Mrs Messenger were invited to address. The terms in which those concerns were expressed were crafted by Senator Lambie, with some assistance from Ms Tyrell and Mr Witheford. Regardless, they were, in each case, a faithful reproduction of the concerns that Senator Lambie wished to ventilate.

88    Each of the First Show Cause Letters envisaged that its recipient would reply by the close of business on Wednesday, 29 March 2017. That deadline was not enforced and, through their lawyers, the Messengers indicated instead that they would respond on or before Wednesday, 12 April 2017.

89    On Tuesday, 28 March 2017, Mr Messenger received an email from Mr Ben Bartlett, Senior Adviser to the Prime Minister regarding the so-called PID. Mr Bartlett advised Mr Messenger that MaPS was responsible for “…handling matters such as those raised in your letter” and that a Ms Sharon Forester, MaPS Director, would be available to discuss those matters with him.

90    On Wednesday, 12 April 2017, Mr and Mrs Messenger responded to the First Show Cause Letters. That response assumed the form of correspondence from their solicitor, to which was attached a 9-page letter addressed to Senator Lambie and signed jointly by both of Mr and Mrs Messenger. Each was dated 12 April 2017. The terms of the solicitor’s letter are unimportant; save to note that it recorded that a copy of the attached correspondence from the Messengers (hereafter, the “First Show Cause Response Letter”), together with copies of the First Show Cause Letters in respect of which it had been produced, had “…been emailed to both the Prime Minister’s office and the Director of M[a]PS”.

91    Although lengthy, it is prudent to set out in full the terms of the First Show Cause Response Letter (errors original):

Despite recent events involving serious breaches of the WPHS Act and certain conduct by yourself, which has made the workplace unsafe for all your staff - being each served a show cause notice has come as a great shock to Fern and myself.

We've often had conversations with you where you've indicated that we would be employed at least until the end of your new 6-year tenure as a Senator, most likely beyond because you have stated that you need us to help win re-election again in 2022.

So we structured our finances accordingly to reflect those circumstances and promised employment security. At no stage prior to receiving our show cause notices did you officially or unofficially indicate to us that the quality or professional standards of our work were lacking, and that there was a threat to our employment security.

Fern ensured that the electoral office in Burnie, Tasmania ran as smoothly as possible given the unique and dangerous challenges staff found being employed by yourself.

And I made sure that when Parliament sat, the Canberra office ran as efficiently as possible and you made speeches, questions and parliamentary contributions, ministerial and prime ministerial representations - that put forward the best interests of your chosen pet subject "Veterans and ADF members' welfare" and in the best interests of all Tasmanians.

The public record will show that your staff, during the time that Fern Messenger and I were in key office management positions - were as safe as possible given the extra security challenges created by your public statements and your sometimes unpredictable behaviour.

From all key indicators and feedback from parliamentary services both the Canberra and Tasmanian offices ran very effectively, efficiently and successfully.

Feedback from constituents and positive results we achieved while advocating for them also will show the office processes and procedures we established in your office were very effective.

Your office, under our senior management, would have submitted to Ministers and the Prime Minister, one of the highest number of professionally written letters and briefs on behalf of the people we advocated for which often produced positive results.

Use of Private Email Account and Computer

For the time I've worked for you - I've written nearly every speech and official Question Without Notice while receiving little correction or advice from you who accepted my work with little questioning.

Sometimes you would change an adjective and add a "bloody" to a sentence. However, you have never warned me officially or unofficially not to use my personal email account and Apple Mac for this work - in fact you encouraged me to do so for the following reasons:

•    Following a disastrous interview by you on local commercial radio regarding your love life, which made headlines worldwide and resulted in an extraordinary number of abusive phone calls and emails to staff - with your whole-hearted agreement, I then put in place a strict media management policy.

•    Practically it meant that all media questions were put to me in writing and I replied to their questions and requests in writing - or I wrote a script for you to read, and I then videoed your performance - edited the footage of you reading my words and posted it online for the media to access.

•    This lessened the risk of you speaking off the top of your head and repeating the disastrous public relations blunder on Heart FM and thereby exposing staff to more extreme abuse and ridicule.

•        I then began writing policy for you to memorise and parrot during further media interviews. Until recently all of your policy, parliamentary contributions, major interviews, media commentary, election ads and newsletters were written and edited by myself.

•    During all major media interviews I prepared scripts and especially during radio interviews where the journalists could not see that you were reading from a prepared script - you parroted the lines I wrote for you, dropped in a few "umms" and "ahhhs" to pretend you were answering the questions spontaneously.

•    You knew that for me to provide you with a comprehensive, Public Relations Digital Media service which was able to quickly respond to questions and requests from journalists from remote locations, I needed to operate a laptop Apple Mac computer with its superior digital media editing platform and to use a private email account for my work address and online posts.

•    You approved the creation of at least two different sets of my business cards showing my position as Chief of Staff and bearing my private email account.

•    For years you personally handed my business cards displaying my private email address out to lobbyists, ministers, ministerial staffers and members of the public and allowed them to be displayed in both the Canberra and Burnie offices.

•    If your allegations regarding my personal email and computer usage were truthful, why were you so eager to hand out my business cards as recently as my last trip to Canberra?

•    You knew and acknowledged that the most efficient and quickest way for me to operate remotely away from the blue lead of the parliamentary intranet - was to use my private email account and laptop Apple Mac computer.

•    In fact, you ordered me to buy back-up storage devices for those devices which I did so from my own funds.

•    You also knew that official personal email addresses, especially in the 44th parliament where you held a share of the balance of power in the Australian senate - were the target of frequent organised denial of service attacks - and the use of private email accounts offered some protection from these damaging denial of service attacks.

•    You, as recently as a few weeks ago, when I commenced sick leave, still used a private email account, for the same reason above - and like myself, had the Office Manager monitor, edit and manage our official email account.

If you can use a private email account and refuse to use a work computer - why would you make your Chief of Staff do the opposite?

So for you to suddenly use my use of a private email account and computer as grounds for a show cause notice, which skipped all the normal procedural warnings prior to me receiving it - and while I was on sick leave - beggar's belief!

High Standard of Work

During my time as COS the speeches and parliamentary contributions from you often received high praise and compliments from parliamentarians from all political backgrounds.

For example on the 17.6.2015, Senator Ian McDonald a noted critic of yourself said:

http://www.aph.gov.au/Parliamentary Business/Hansard/Hansard Display?bid=chamber/hansards/b72114df-d068-4aeb-8fd0-833d5a01f955/&sid=0216

That being the case, perhaps I should not have jumped in before the minister. As I have the call, I just want to draw the senator's attention to a wonderful speech made this morning by Senator Lambie on this very subject. Senator Lambie, as a Tasmanian senator, understands what this is all about. I was delighted that Senator Lambie has shown herself to be the only non-government senator from Tasmania who understands just what a destructive force the Greens political party has been in the whole debate and in the Tasmanian economy as well.

As shown, some of that praise for your speeches is recorded in official Hansard.

You would often relay to your staff that a speech or question I had written had "kicked arse" and you'd enjoyed the praise of fellow senators and their staff after my work had been delivered.

During the time I was Chief of Staff, you were prolific in your parliamentary contributions. The official senate statistics will show that you, as an independent senator, made one of the highest contributions to the chamber with lengthy detailed speeches - which was largely due to the long hours I worked and the good management, supervision and monitoring of staff under my direction.

You, following my advice and work, became one of the few crossbench senators in parliamentary history to have their private member's bill passed by the senate.

And once again following my tactical political advice single-handedly forced the previous Prime Minister to deliver a fair pay rise to members of our ADF.

You, also following my advice and reading my speeches, convinced the senate to establish historic investigations into Veterans' suicide, likely breaches of the Geneva Convention and human rights by Special Forces during their Resistance to Interrogation training, the so-called Jedi Council sex scandal which exposed the high level corruption in the ADF and the corruption and mismanagement within the Australian dairy industry.

Swearing at Staff

Watching the delivery of my speeches live on the Canberra office TV situated above my desk was a time of great excitement and often frustration - because your reading and speaking skills are very poor causing embarrassing and cringe worthy mispronunciations - which would spoil the effect of a well written, reasoned speech and argument.

Sometimes during those moments when you stumbled over words with more than 2 syllables - or misread a speech - I would verbalise my frustration towards the Canberra office TV monitor above my desk, at your failure to competently read and pronounce simple words.

Those private expressions of disappointment I made at a TV monitor are now being used to incorrectly allege that I yelled at or swore at staff who I greeted each day with a cheery "Hello beautiful people!"

And constantly praised in an effort to make up for your lack of acknowledgement of good work and sudden wild angry mood swings which left all staff drained of energy and felt as though they were walking on "egg shells".

What you have failed to state in your show cause letters was that the majority of the time when you followed the script - all staff cheered and excitedly celebrated (high fived each other) following the successful delivery of a speech or question by yourself in the chamber.

Indeed, in your own quirky way (even though you consistently failed to offer praise, even for praise worthy work) would tell all who would listen, that your success was due to the fact that you were "just the Billboard" and we (Fern and I) were the brains behind the message that went on the Billboard.

In fact, on some occasions both sober and under the influence of alcohol - you bluntly and succulently said "I would be fucked if we (Fern and I) ever left."

This general assertion is supported by the facts.

Putting aside the press releases, video production, online presence, letter writing, constituent advocacy, strategic political advice and policy creation Fern and I undertook on a volunteer basis for 9 months - between the time of the 2013 election and when you officially took your seat in the Senate in July 2014 - we were able to increase your political effectiveness, profile and popularity despite some major public relations disasters.

The obvious test of our work came during the historic double dissolution election when you, despite the odds, increased your primary vote from approx. 1200 to 69,074, the second highest vote for a Tasmanian senator that won you a 6-year senate term.

This achievement came at a great personal cost to Fern and myself. To keep you performing at a high level Fern and I took on an unbelievable workload.

Fern in particular, while carrying out her normal office duties, after hours organised the registration of the Jacqui Lambie Network (JLN), ran the JLN as the secretary of the JLN and complied with all the AEC requirements, ran the state election campaigns for 4 senate teams, while also managing all the personal and tax finances of yourself and some of your family.

In short Fern and I were available to you 24/7, even during weekends, family holidays, sick leave (the rare occasions we took it) and regularly completed 80 to 90 hours of work - sometimes greater - each week.

In fact, our slavish devotion to duty for such a long period of time, led you to think it was normal to be able to contact us by phone or email during weekends, recreational leave, even following the recent election win.

Our workload and your insistence to contact us outside work hours was a contentious issue - which we raised with you during a key meeting following your last political victory. This was the meeting where we raised a number of contentious matters which we described in our PID - and this meeting marked a change in your attitude towards us.

Until recent times when our physical and mental health failed us and following critical work place incidences, that are also the subject of an official Public Interest Disclosure - Fern and I each accrued about two months sick leave in the space of about 2.5 years' service. We believe this shows how high our level of loyalty was personally to you and how much belief we had in the good that was caused by all the staffs' hard work.

Until recently both Fern and I sincerely believed that despite the pitfalls and hazards of working for a person who was at times unpredictable - we were making a positive difference for all the people who approached us for help.

Denial of Natural Justice and Attempt of Constructed Dismissals

However, being served show cause notices without any of the usual procedural warnings and while on official sick leave - has increased our feeling of shock and created additional feelings of dread, depression, fear and left us wondering if all our efforts have been worthwhile.

The manner in which you have attempted to execute the show cause notices - has also contributed to the great harm Fern and I are currently suffering.

It's clear from the content and timing of your show cause notices, combined with your hiring of key staff without informing Fern Messenger, the Office Manager and myself - and withholding other information - that you have attempted to predetermine and / or construct our dismissals.

"Spying" on Senator Lambie.

When Fern and I read that one of the reasons why we are being asked to show cause is because we are trying to monitor or spy on your behaviour - then it further increases our feelings of confusion, helplessness, dread and depression given that your actions, words and behaviour over 3 years shows that you see nothing wrong with:

1.     Exposing staff to extraordinary public abuse after telling a radio host in a cringe worthy radio interview that any man who wants to get to know you personally, They must have heaps of cash and they've got to have a package between their legs, let's be honest," and asking a telephone caller to the radio program if he was "well hung."

2.     taking staff members shopping in Adult stores, for sex toys.

3.     trying to sack a young staff member who spent too much time away from work while caring for a mother who suffered terminal cancer and was in palliative care.

4.     regularly announcing to staff members, including a young male - that you "haven't got laid in a long time" and you desperately "need a root".

5.     regularly using vulgar / obscene language in front of the staff - particularly using [an identified phrase] to describe critics and people who disagreed with you.

6.     ringing a staff member during business hours while you were under the influence of alcohol- and then giving orders which seriously harmed that staff member and led to their resignation,

7.     requiring untrained staff members to take suicide calls or calls containing details of graphic sexual assault at all times of the day, from war veterans.

8.     the office staff becoming the target of a credible, unresolved death threat from an Australian terrorist/ ISIS supporter (or supporters) but then failing, along with the Commonwealth, to put in place proper security measures, despite a total of 20 official office security threat referrals being made to the AFP and other security agencies over a 2.5 year period.

9.     regularly swearing at, abusing and bullying staff members, including myself and Fern.

10.     criticising most staff at some stage for poor work performance, while the facts and official records showed the opposite.

11.     constantly ringing staff outside work hours, on weekends, on sick leave and on recreational leave raising petty personal and work related issues.

12.     regularly abusing the Office Manager because she took action to prevent questionable claims and behaviour relating to your personal travel and accommodation.

13.     regularly abusing the Office Manager because she took action to prevent breaches of standing orders, contempt of parliament and questionable behaviour relating to your pecuniary interest register.

14.     constantly failing to properly read official meetings / travel times and dates linked electronically to your IPhone, while then blaming the Office Manager for your own failure to note the dates and times.

Putting aside the obvious fact that part of any competent Chief of Staff's role is to make themselves aware of and take action to avoid any threat to the physical, mental or public reputational well-being of their employer - to be forced to answer the charge in a show cause letter that the Office Manager and myself spied on or excessively monitored your behaviour - given the above facts and at times your unpredictable behaviour, resulting in frequent explosive public/parliamentary demonstrations, we find it an insult and very hurtful that we have to defend ourselves from false and defamatory claims.

In summary

Our response to the individual points outlined in the show cause letters to both myself and Fern Messenger is that they are baseless, factually incorrect, malicious, designed to hurt our personal and professional reputations and grossly defamatory.

We will take every opportunity to defend our personal and professional reputations and reserve the right to take legal action against any person who repeats or rebroadcasts these easily disprovable lies.

The fact that your show cause letters fail to reasonably and properly raise questions about our competencies in the roles of Office Manager and Chief of Staff, while also conveniently ignoring the massive workload imposed on us by yourself, and the highly dangerous and unsafe workplace your actions have caused, indicates that your correspondence is unbalanced, unfair, misleads by omission and is designed to illegally construct our dismissal.

It is important to note that the majority of the staff have at varying stages over the last 2 years expressed to both of us their serious concerns about your behaviour.

In fact, in recent times the majority of the staff indicated to both of us that should Steve Martin, a JLN number 2 senate candidate have been successfully elected as a senator for Tasmania, then the majority of staff would like to leave your employ and immediately work for Mr Martin.

These show cause letters by yourself may have been based on false reports from fellow staff who may have been coerced by you or you have just made up the allegations to suit your purpose to quickly terminate our employment.

If the staff were allowed to express their views about your behaviour without the threat of dismissal and losing their income for the next 5 years, it is our firm view that they would agree with everything stated in this letter.

We will take every opportunity to give fellow staff an opportunity to swear under oath and disprove the points in our reply to your show cause letters.

We eagerly look forward to an opportunity of putting our hands on the bible and swearing to tell the truth to an appropriate tribunal of fact or court which is empowered to make a decision on whether illegal conduct and breaches of the Workplace Health and Safety Act has occurred by both you and the Commonwealth Government.

Lastly, as previously mentioned, our concerns about certain conduct and an unsafe work environment were put in an official Public Interest Disclosure and given to the Prime Minister and other authorised internal parliamentary office holders.

Approximately 6 hours and 3 mins after that official PID was made, your employment show cause letters were delivered to us by email. This now raises the possibility that your show cause letters were part of an official reprisal act as described in the Public Interest Disclosure Act 2013 after the contents of our PID were leaked illegally to yourself.

We also hereby give notice that we reserve the right to make complaints and take legal action under the Commonwealth Public Interest Disclosure Act 2013 in order to protect our legal rights.

92    It bears repeating that the Messengers sent that correspondence to the Prime Minister’s office.

93    That afternoon (Wednesday, 12 April 2017), Ms Tyrell forwarded a copy of the First Show Cause Response Letter to Ms Rikys (who, by then, had assumed a role relevantly equivalent to that in which Mr Witheford had previously served). Later, she and Senator Lambie spoke to Ms Rikys about how matters might progress. Senator Lambie made clear to Ms Rikys how angry she was that the Messengers had insisted upon saying what they had said in correspondence that they had copied to the office of the Prime Minister, and indicated that she wished to terminate their employment.

94    Although the First Show Cause Response Letter referred to the so-called PID, none of Senator Lambie, Ms Tyrell or Ms Rikys had, by then, acquired a copy of that document. It was the subject of discussion between them during the afternoon of Wednesday, 12 April 2017; but Ms Rikys made it clear that she was unable to shed any light upon its content or nature, because she had not seen it and did not, in any event, know what a PID was. She also told Senator Lambie and Ms Tyrell that she did not consider that the PID, whatever it might have said, was relevant to the show cause process that had already been set in train.

95    Ms Tyrell made some attempt to obtain a copy of the so-called PID. On Wednesday, 19 April 2017—and at Senator Lambie’s request—she again contacted Ms Rikys and enquired as to how a copy of it might be obtained. Ms Rikys told Ms Tyrell that she did not have a copy of it, that she could not obtain a copy, and that she did not consider it relevant in any event to the show cause process upon which the parties had embarked.

96    The content of the First Show Cause Response Letter and the fact that it had been aired with the office of the Prime Minister sparked at least some measure of anger on the part of Senator Lambie. She resolved to issue the Messengers with a further show cause letter, which Ms Tyrell and Ms Rikys helped to draw. On Friday, 28 April 2017, Ms Rikys proposed a draft for the Senator’s consideration. Later that afternoon, Ms Tyrell (upon Senator Lambie’s instruction) sent the Messengers a letter dated that day and signed by Senator Lambie. It is convenient to replicate in full the terms of that letter (hereafter, the “Second Show Cause Letter”):

I refer to my letter to you dated 27 March 2017 (show cause letter), and to your solicitor’s letter dated 12 April 2017, which enclosed your response to the show cause letter.

Your response to the show cause letter was sent to me, as well as to the Prime Minister’s office and a Director of Ministerial and Parliamentary Services at the Department of Finance.

Your response to the show cause letter ridiculed me and contained other sensitive information about me which is unrelated to your employment. Your decision to send it to the Prime Minister’s office was inconsistent with your obligations of good faith and fidelity. As a result I am currently considering terminating your employment on the grounds of serious misconduct.

I invite you to provide a written response to my proposed decision, together with any relevant information or material by 5:00 pm Monday 1 May 2017.

If you do not provide a response or any further information or material for my consideration by that time, I will consider the matter and decide how to proceed based on the information presently available. I will then communicate my decision regarding your employment to you.

97    The Messengers responded to the Second Show Cause Letter by correspondence dated Monday, 1 May 2017. Again, that correspondence (the “Second Show Cause Response Letter”) was provided by email by their solicitor; and a copy of it was copied to Mr Bartlett from the office of the Prime Minister and to Ms Forester, from MaPS. Again, it is convenient to set out the relevant terms of the Second Show Cause Response Letter (emphasis original):

Response to Letter dated 28 April 2017

We refer to your letter emailed to our solicitor’s office on Friday 28 April 2017 at 3.57pm where you referred to our response to your Show Cause letter which was emailed to you on 12 April 2017, some sixteen (16) days after having received our letter. You now demand a response by 5.00pm on Monday 1 May 2017. In effect, we are given one (1) day to respond.

This again is a denial of natural justice and a breach of procedural fairness as we are entitled to a reasonable time in which to respond to your correspondence.

You have now had our response to your Show Cause letters for a period of nineteen (19) days and yet you have not responded to it. This delay in advising us as to the status of employment is again a breach of the principles of natural justice and procedural fairness.

Further, in your letter to us dated 28 April 2017, you are threatening to terminate our employment because of the content of our response to your Show Cause letters. We stand by the content of this letter and it will be relied upon at any legal proceedings that may flow from this matter.

We have been advised that your staff are telling people who contact your office asking for us that “… we no longer work at your office …”. Clearly, this amounts to “constructive termination” of our employment because we certainly have not been advised by you that our employment has been officially terminated.

It is our intention to keep the Prime Minister’s office fully informed as to developments in this matter and we shall be doing likewise with Ms Sharon Forester.

…

Again, we reiterate that we stand behind our response dated 12 April 2017 to your Show Cause letters and make no retraction in regards to any part of these letters. The fact that it has taken you sixteen (14) days to respond to our letter is of concern to us.

Again, we will continue to wait as to your advice concerning the status of our employment.

98    The Second Show Cause Response Letter was the subject of discussion later that day as between Senator Lambie and Ms Rikys. Senator Lambie impressed upon Ms Rikys that she was angry about its content, and said that she wished to terminate the Messengers’ employment. Ms Rikys undertook to provide Senator Lambie with a form of words addressed to that end.

99    On Tuesday, 2 May 2017, Ms Rikys did just that. By email sent that afternoon, she suggested that the Senator (or her staff) should review the terms that she had drawn and, if satisfied with the content, transfer them onto the Senator’s letterhead and send separate versions to each of Mr and Mrs Messenger.

100    Ms Rikys’s prose found favour with the Senator and, on the morning of Wednesday, 3 May 2017, Ms Tyrell sent to each of the Messengers, by separate emails addressed to their lawyer, correspondence entirely in the form that Ms Rikys had proposed. Although two letters were sent (one for each of Mr and Mrs Messenger), each was in identical terms, namely (emphasis original):

Notice of termination of employment

I refer to my letters dated 27 March 2017 and 28 April 2017 and to your letters dated 12 April 2017 and 1 May 2017.

I hereby notify you that I have decided to terminate your employment under section 23(2) of the Members of Parliament (Staff) Act 1984 (Cth).

I indicated to you in my letter dated 28 April 2017 that I was considering terminating your employment on the grounds of serious misconduct. Your letter of 1 May 2017 provides further evidence that you are not prepared to comply with your obligations as an employee.

In the circumstances, I am satisfied that you have engaged in serious misconduct within the meaning of paragraph 1.07 of the Fair Work Regulations 2009 (Cth). Accordingly, I have decided that your termination is effective immediately, without pay in lieu of notice, pursuant to clause 63 of the Commonwealth Members of Parliament Staff Enterprise Agreement 2016-2019 (MOPS EA).

…

I remind you that you remain under a duty not to disclose or use any confidential information obtained by you during the course of your employment without my permission. If you fail to comply with that obligation, further action may be taken against you.

The Department of Finance will contact you in due course in relation to the payment of your accrued entitlements and any benefits to which you may be entitled under the terms of the MOPS EA.

3.7 Post-script: the Brian Carlton interview

101    It is a matter of record that, some weeks after their dismissals, Mr and Mrs Messenger commenced their actions in this court. Several months later, on Tuesday, 28 November 2017, Senator Lambie—who was, at that point in time, ex-Senator Lambie (see above, [7])—was interviewed by Mr Brian Carlton on a radio segment known as “Tasmania Talks”. During that interview (the “Carlton Interview”), Mr Carlton asked Senator Lambie whether her former staff would continue to work in the office of her successor, Mr Martin. Senator Lambie indicated that it was her hope (and perhaps her expectation) that Mr Martin would employ “the remaining” staff from her office. The following exchange was then broadcast:

Mr Carlton:    OK – you know why I’ve asked that question… don’t you?

Senator Lambie:    Yes I do.

Mr Carlton:    You don’t want to go there – do you?

Senator Lambie:    Ohh – you know what – I’ll be brutally honest with you. If that was the scenario – Umm – then that’s going to be a problem. And I’ll be brutally honest with you – this morning … if that person was to be employed – umm – the damage that’s already – been done to my staff ... and the process … the court process that is going on …

    That’s going to make very – things very, very difficult.

    The network … ahh – prides itself on its own integrity … and I’ll tell you right now … if that was to happen then the network would be looking for 500 signatures – because Martin would be as an independent.

    I’ll be brutally honest about that this morning.

Mr Carlton:    OK so the - the … it’s not quite a veiled threat … what can you do should Steve Martin – the individual we’re talking about here – is your former Chief of Staff Rob Messenger.

    And presumably his wife … now the media reporting suggests that ahh – ahh he is prep...– ahh – angling if you like – to get his old job back – and part of the trade off there is – he’ll drop his legal action you should that happen…

    Is that how – is that how you read it?

Senator Lambie:    Yeah – that’s how I read it… I found it quite sickening to be honest. Umm ... You know like I said … I’ve got … well they are not my staff any more... but … they’ve been through a lot … umm … they are going to be witnesses … and this is going to make things very, very difficult.

    So – Umm – to not put them through that … if that be the case … if Steve decides to go down that way – then umm – he’ll be on his own two feet as an independent. Simple as that …

Mr Carlton:    So – if okay … again let me clarify here completely Jacqui … if Steve Martin hires Rob Messenger – his wife or both – as ahh – as staff … senior staff – or any kind of staff … you will what, dis-endorse him?

    You’ll throw him out of the party?

Senator Lambie:    No well … he’ll go out – as an independent … so... umm I think he’s...

Mr Carlton:    What, what mechanism would that be Jacqui … you’d throw him out or he’d resign?

Senator Lambie:    Well he can umm – you know, he can resign … but people would know – umm what this is all over … and all the rest…. Umm – whether I dis-endorse him or he resigns – but something will have to happen fairly quickly.

Mr Carlton:    Do you know whether Steve Martin is in discussion with Rob Messenger over that … ahh any potential job?

Senator Lambie:    Ahh you know what – I just read the papers like you do… Brian … Umm and that’s what’s going on at the moment.

Mr Carlton:    So you’ve not – you’ve not discussed this with Steve Martin actually?

Senator Lambie:    No – umm - No I haven’t … so I’m not quite sure where Steve … I’m not quite sure that Steve knows what – where’s he’s going with it either so – which is more frightening for me…. I just … yeah it’s the integrity of the network…

    And see – it’s what I owe – umm the former employees in my office. It’s what I owe them – and it is the right to do. But I’ll be standing by them through thick and thin … just like they will be with me – as witnesses going through a court process.

    And ahh – it will be a very silly move of Steve Martin to do that…

Mr Carlton:    What’s your relationship with Steve – working … working relationship?

Senator Lambie:    Umm … look I … I’ve only spoke with Steve yesterday … we’re talking about organized crime. He’s obviously put out a statement today. Ahhmm... you know – well – I’ve spoken to him I think, for about five minutes … that’s not a problem.

    There’s been a couple of emails over the last week. He – he understands that – ahh – is very clear that I’m out there trying to help the candidates and do what I can – and that’s where my time is right now. And he still has his Mayor duties. And until we can figure out what’s going on in the High Court – whether or not he’s going to be referred – we are just getting on with the job – that we’re supposed to be getting on with.

Mr Carlton:    OK – Interesting developments – ahh behind the scenes – there in the Jacqui Lambie Network.

Part 4: The adverse action case

4.1 Summary

102    Mr and Mrs Messenger each allege that they were subjected to three forms (and the same three forms) of adverse action (within the meaning attributed to that concept by pt 3-1 of the FW Act), namely that:

(1)    they were, by the First Show Cause Letters, required to show cause why their employment should not be terminated;

(2)    they were, by the Second Show Cause Letter, required to show cause why their employment should not be terminated; and

(3)    they were dismissed from their employment.

103    Each instance of adverse action alleged is said to have been effected in contravention of s 340(1) of the FW Act because, so the Messengers maintain, it was actuated (or partly actuated) by the fact that Mr and Mrs Messenger had each exercised “workplace rights” (within the meaning attributed to that concept by s 341(1) of the FW Act).

104    The workplace rights that are said to have been exercised are all said to have manifest in communications, both written and oral, that the Messengers each made to or about the Senator. It is said that those communications—the particulars of which are explored in detail below—were in the nature of complaints or inquiries that the Messengers were able to make in relation to their employment; and, thus, qualified as the exercise of workplace rights that they each possessed by operation of s 341(1)(c)(ii) of the FW Act. It was also suggested—at least at the level of the pleadings—that some of those communications were in the nature of complaints or inquiries that Mr and Mrs Messenger were able to make to persons that had the capacity under workplace laws to seek compliance with such laws or with workplace instruments (and, thus, qualified as the exercise of workplace rights that they each possessed by operation of s 341(1)(c)(i) of the FW Act). As will become clearer, that latter contention was not obviously pressed; but I record it for present purposes nonetheless.

105    Before unpacking the factual basis upon which those strands of the two present matters proceed, it is prudent to identify relevant aspects of the statutory schemes upon which the Messengers rely.

4.2 Relevant legislative provisions

106    There are three different legislative sources that warrant attention, namely:

(1)    the MOPS Act;

(2)    the FW Act; and

(3)    the Public Interest Disclosure Act 2013 (Cth) (the “PID Act”).

4.2.1 The MOPS Act

107    Mr and Mrs Messenger were each employed pursuant to pt IV of the MOPS Act. That part, headed “staff of senators and members”, confers upon elected members of the Commonwealth Parliament certain powers to employ and dismiss staff.

108    Section 20 of the MOPS Act provides (and, at all times relevant, provided) as follows:

20     Senators and Members may employ staff

(1)     A Senator or a Member of the House of Representatives may, on behalf of the Commonwealth, employ, under an agreement in writing, a person as a member of the staff of the Senator or Member.

(2)     The power conferred on a Senator or Member of the House of Representatives by subsection (1) is not exercisable otherwise than in accordance with arrangements approved by the Prime Minister, and the exercise of that power is subject to such conditions as are determined by the Prime Minister.

109    Section 23 confers (and conferred) a corresponding power of dismissal, relevantly:

23     Termination of employment

…

(2)     A Senator or Member of the House of Representatives may at any time, by notice in writing given to a person employed by the Senator or Member under this Part, terminate the person’s employment.

    …

110    Part III of the MOPS Act may (or may not) also have some operation presently. It concerns (and concerned) the employment and dismissal (amongst other matters) of staff of certain “office holders”. It suffices to note that pt III contains provisions equivalent to ss 20 and 23: MOPS Act, ss 13 and 16.

4.2.2 The FW Act

111    Part 3-1 of the FW Act is entitled “general protections”. Amongst other things, it provides for a suite of protections designed to safeguard the exercise of “workplace rights”. One of those protections is afforded by s 340(1) of the FW Act, which provides (and, at all relevant times, provided) as follows:

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.

112    Section 342(1) of the FW Act defines “adverse action”. Relevantly, an employer subjects an employee to adverse action if the employer:

(1)    dismisses the employee;

(2)    injures the employee in his or her employment;

(3)    alters the position of the employee to the employee’s prejudice; or

(4)    discriminates between the employee and other employees of the employer,

(FW Act, s 342(1), item 1).

113    The definition of adverse action extends to incorporate conduct amounting to a threat to do any of those things: FW Act, s 342(2)(a).

114    Section 341(1) of the FW Act identifies the circumstances in which a person might be understood to possess a “workplace right”. It relevantly provides (and provided) as follows:

341 Meaning of workplace right

…

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

…

(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.

115    “[W]orkplace law” is defined to include the FW Act and (relevantly) “…any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters)”: FW Act, s 12.

116    Section 360 of the FW Act recognises that some adverse action might be taken for a variety of reasons, including some unrelated to reasons that pt 3-1 of the FW Act proscribes. In order to be actionable under pt 3-1 of the FW Act, it is sufficient that relevant adverse action is taken for reasons that include such proscribed reasons.

117    Section 361 of the FW Act creates a rebuttable presumption concerning the proof, in any given case, of the reasons for which adverse action was taken. If, in an action alleging that conduct was engaged in in contravention of pt 3-1 of the FW Act, a person is accused of having done something for a particular reason; and if the doing of that thing for that reason would constitute a contravention of that part, it is presumed that the conduct was engaged in for that reason, unless or until the person who engaged in it proves otherwise.

118    Section 539(1) of the FW Act is entitled “applications for orders in relation to contraventions of civil remedy provisions”. Amongst other things, it identifies the provisions of the FW Act that qualify as “civil remedy provision[s]”. Section 340(1) is amongst them. Section 539(2) of the FW Act confers jurisdiction upon this court to hear applications for relief relating to contraventions of that section. The court has the power to grant relief in the nature of declarations, compensation and penalties (amongst other things).

119    Section 550 of the FW Act concerns accessorial liability. It establishes that a person is taken to have contravened a civil remedy provision if he or she is “involved in” another person’s contravention. A person is “involved in” another’s contravention of a civil remedy provision if (amongst other possibilities) he or she “…has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to…” the other person’s contravention.

120    Section 795 of the FW Act is entitled “public sector employer to act through employing authority”. It provides, relevantly:

795 Public sector employer to act through employing authority

Employer to act through employing authority

(1)    For the purposes of this Act and the procedural rules, the employer of an employee (a public sector employee) employed in public sector employment must act only through the employee’s employing authority acting on behalf of the employer.

Acts done by or to employing authority

(2)    For the purposes of this Act and the procedural rules, anything done by or to a public sector employee’s employing authority acting on behalf of the employee’s employer is taken to have been done by or to the employer (as the case may be).

Application of subsections (1) and (2)

(3)    Subsections (1) and (2) apply despite any other law of the Commonwealth, a State or a Territory.

Meaning of public sector employment

(4)    Public sector employment means employment of, or service by, a person in any capacity (whether permanently or temporarily, and whether full‑time or part‑time):

…

(h)    under a law prescribed by the regulations.

…

Meaning of employing authority

(6)    An employing authority of an employee is the person prescribed by the regulations as the employee’s employing authority.

121    The MOPS Act is a law prescribed by the regulation for the purposes of s 795(4)(h): Fair Work Regulations 2009 (Cth) (“FW Regulations”), reg 6.08(1)(d). Regulation 6.09 of the FW Regulations then explains, by reference to sch 6.3 to those regulations, the identity of a public sector employee’s employing authority. Relevantly, item 5 in sch 6.3 provides that the employing authority of a person employed under pt III or IV of the MOPS Act is “[e]ach person empowered under the MOPS Act to employ persons”. Applied to the present facts, Senator Lambie was empowered to employ (and did employ) the Messengers pursuant to s 20 of the MOPS Act, which sits within pt IV of that act (see [108] above). Accordingly, Senator Lambie was the Messengers’ employing authority for the purposes of s 795 of the FW Act.

122    Section 795 of the FW Act contrasts with s 793, which concerns the liability of bodies corporate. It provides, relevantly, as follows:

793 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.

Meaning of state of mind

(3)    The state of mind of a person includes:

(a)    the knowledge, intention, opinion, belief or purpose of the person; and

(b)    the person’s reasons for the intention, opinion, belief or purpose.

123    Section 793(1) has a parallel in s 795(2), in that they provide, respectively, for the attribution of conduct to a body corporate (in the case of s 793(1)) and acts to a public sector employer (in the case of s 795(2)). However, s 793(2), which deals with the attribution of a person’s state of mind to a body corporate, has no parallel in s 795. It is unnecessary to explore whether that is a matter of any significance. It is not presently controversial that, for the purposes of assessing the reason or reasons for which the Commonwealth here acted in the ways that it did, it is appropriate to interrogate the states of mind of those through whom it acted: most significantly (if not wholly), Senator Lambie. Whether that is so because of s 795, s 793(2) or by application of common law attribution principles (as to which, see the discussion in ACCC v Australian Safeway Stores (2001) 119 FCR 1, 186-189 [805]-[810] (Goldberg J)) is of no moment.

4.2.3 The Public Interest Disclosure Act 2013 (Cth)

124    The PID Act establishes a raft of statutory protections that attach to those who make what are recognised as “public interest disclosures”. The significance of the enactment for present purposes is this: the Messengers maintain that the so-called PID that they prepared over the weekend of 25 and 26 March 2017, and sent in the morning of Monday, 27 March 2017 (above, [78]-[81]), was a public interest disclosure made in accordance with the provisions of the PID Act and that, by its making, they can be understood to have agitated a complaint or inquiry (or complaints or inquiries) that they were relevantly able to make in relation to their employment. If that is so, it would (or might) follow that their making of that disclosure amounts to their having exercised a workplace right for the purposes of pt 3-1 of the FW Act. Insofar as any of the three species of adverse action to which they allege that they were subjected was actuated, or partially actuated, by that reality, it would (or, again, might) follow that they were subjected to it in contravention of s 340(1) of the FW Act.

125    Throughout the course of (and prior to) the trial—and, indeed, in the First Show Cause Response Letter—the Messengers sought (or potentially sought, or appeared at times to seek) to expand upon the significance of the PID Act by characterising the show cause process and their subsequent dismissals as acts of “reprisal”. For the purposes of the PID Act, an offence is committed if a person “takes a reprisal” against another person: PID Act, s 19(1). A person “takes a reprisal” against another person if (amongst other things) they subject that other person to detriment because, or for reasons that include the fact that, he or she believes that the other person has made a public interest disclosure: PID Act, s 13. It bears noting at this juncture that neither of Mr or Mrs Messenger, by their pleading, alleged, nor sought any relief in consequence of, any contravention of those protections.

126    Section 26 of the PID Act identifies the circumstances in which a public interest disclosure is deemed to have been made. It is prudent to set that provision out in full:

26     Meaning of public interest disclosure

(1)     A disclosure of information is a public interest disclosure if:

(a)     the disclosure is made by a person (the discloser) who is, or has been, a public official; and

(b)     the recipient of the information is a person of the kind referred to in column 2 of an item of the following table; and

(c)     all the further requirements set out in column 3 of that item are met:

(2)     However, a disclosure made before the commencement of this section is not a public interest disclosure.

…

(3)    In determining, for the purposes of item 2 of the table in subsection (1), whether a disclosure is not, on balance, contrary to the public interest, regard must be had to the following:

(aa)     whether the disclosure would promote the integrity and accountability of the Commonwealth public sector;

(ab)     the extent to which the disclosure would expose a failure to address serious wrongdoing in the Commonwealth public sector;

(ac)     the extent to which it would assist in protecting the discloser from adverse consequences relating to the disclosure if the disclosure were a public interest disclosure;

(ad)     the principle that disclosures by public officials should be properly investigated and dealt with;

(ae)     the nature and seriousness of the disclosable conduct;

(a)     any risk that the disclosure could cause damage to any of the following:

(i)     the security of the Commonwealth;

(ii)     the defence of the Commonwealth;

(iii)     the international relations of the Commonwealth;

(iv)     the relations between the Commonwealth and a State;

(v)     the relations between the Commonwealth and the Australian Capital Territory;

(vi)     the relations between the Commonwealth and the Northern Territory;

(vii)     the relations between the Commonwealth and Norfolk Island;

(b)     if any of the information disclosed in the disclosure is Cabinet information the principle that Cabinet information should remain confidential unless it is already lawfully publicly available;

(c)     if any of the information disclosed in the disclosure was communicated in confidence by or on behalf of:

(i)     a foreign government; or

(ii)     an authority of a foreign government; or

(iii)     an international organisation;

the principle that such information should remain confidential unless that government, authority or organisation, as the case may be, consents to the disclosure of the information;

(d)     any risk that the disclosure could prejudice the proper administration of justice;

(e)    the principle that legal professional privilege should be maintained;

(f)     any other relevant matters.

127    As will be immediately apparent, the PID Act proceeds upon a number of defined terms that inform, or potentially inform, whether any given disclosure qualifies as a public interest disclosure. It is necessary to trace through at least some of them.

128    Section 69 of the PID Act defines the concept of “public official”. That definition is expansive and need not here be set out in full. It suffices to note that it includes Australian Defence Force personnel.

129    “[S]upervisor” is defined in less expansive terms to mean “…in relation to a person who makes a disclosure…a public official who supervises or manages the person”: PID Act, s 8.

130    Section 29 of the PID Act defines the concept of “disclosable conduct”. It, too, is expansive and need not here be replicated. It suffices to note that it includes conduct that amounts to “maladministration” or “an abuse of public trust”, or that unreasonably endangers the health or safety of one or more persons.

131    Section 22 of the PID Act also assumes some relevance. It provides as follows:

Without limiting the operation of the Fair Work Act 2009, Part 3-1 of that Act applies in relation to the making of a public interest disclosure by a public official who is an employee (within the meaning of that Part) as if, for the purposes of that Act:

(a)     this Act were a workplace law; and

(b)     making that disclosure were a process or proceeding under a workplace law.

4.3 Relevant legal principles

132    In order to make out their respective “general protections” cases, Mr and Mrs Messenger must each demonstrate that the Commonwealth (acting via the agency of Senator Lambie), subjected them to “adverse action” and did so because (or for reasons that included that) they had exercised a “workplace right” or “workplace rights”.

133    From the authorities pre-dating this matter, the following points of legal principle emerge.

4.3.1 Adverse action

134    In Wong v National Australia Bank & Anor [2021] FCA 671 (Snaden J; hereafter “Wong”), I made the following observations (at [60]):

In most general protections matters, the conduct to which an applicant employee (or former employee) was subjected and its qualification as “adverse action” are not in issue. Typically, that conduct and its character are apparent from the pleadings. Particularly is that so in cases involving the termination of a former employee’s employment, as this one does.

135    Presently, the respondents accept—as plainly they must—that Mr and Mrs Messenger were each subjected to adverse action when, on 3 May 2017, their employment was terminated.

136    That concession does not extend to the other two species of adverse action that the Messengers claim were taken against them: specifically, their having been issued with the First Show Cause Letters and the Second Show Cause Letter. In each case, Mr and Mrs Messenger both allege that those letters constituted a threat to terminate their employment; and, therefore, that each properly qualified as adverse action by reason of s 342(2)(a) of the FW Act.

137    For the purposes of s 342(2)(a) of the FW Act, a threat to take action that, if taken, would constitute adverse action under s 342(1) requires that there be some communication of an intention to act in that way: Community and Public Sector Union v Telstra (2000) 101 FCR 45, 48-49 [15] (Finkelstein J). To communicate only a possibility that such action might be taken, whether dependent upon the satisfaction of identified conditions or otherwise, is not to threaten it: Fair Work Ombudsman v Australian Workers Union (2017) 271 IR 139, 155 [55] (Bromberg J).

4.3.2 Complaints or inquiries related to employment

138    An employee possesses a workplace right for the purposes of pt 3-1 of the FW Act if (amongst other means) he or she is able to make a complaint or inquiry in relation to his or her employment: FW Act, s 341(1)(c)(ii).

139    In PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225 (hereafter, “PIA”), 252-253 [134]-[139], I made the following relevant observations on those scores:

In order that the making of a complaint or inquiry might amount to the exercise of a workplace right of the sort to which s 341(1)(c)(ii) of the FW Act refers, it must pertain, as a matter of substance, to its maker’s employment. That being so, it is necessary to consider whether either or both of the [complaints that were made in that case] were of that nature: that is, were they complaints or inquiries that pertained to Mr King’s employment?

That requires analysis at two levels: first, did each of the [relevant complaints] qualify as a “complaint or inquiry”; and, second, did each arise “in relation to [Mr King’s] employment”?

The Macquarie Dictionary relevantly defines “complaint” and “inquiry” respectively as follows:

complaint

...

1. an expression of grief, regret, pain, censure, resentment, or discontent; lament; fault-finding.

2. a cause of grief, discontent, lamentation, etc.

…

inquiry

…

2. the act of inquiring, or seeking information by questioning; interrogation.

3. a question; query.

– phr 4. make inquiry (or inquiries), to request information: to make inquiries at the office.

A “complaint”, then, is a communication that states a grievance or that otherwise asserts the existence of a state of affairs that its maker alleges is unsatisfactory, undesirable or unacceptable: see, in that vein, Hill v Compass Ten Pty Ltd (2012) 205 FCR 94 (Cowdroy J). In Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346…this court had occasion to consider what might qualify as a “complaint” for the purposes of s 341(1)(c)(ii) of the FW Act. Dodds-Streeton J there observed (at 353-354 [29]) that:

…in the context of s 341(1)(c)(ii) of the [FW] Act:

(a)    a complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;

(b)    the grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;

(c)    the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose; [and]

(d)    the proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii)…

I respectfully adopt her Honour’s reasoning. I note that the second of the four propositions to which her Honour adverted in the passage above was the subject of some consideration on appeal: see Shea v EnergyAustralia Services Pty Ltd (2014) 242 IR 159, 163 [12] (Rares, Flick and Jagot JJ). Whilst the full court did not appear to adopt Dodds-Streeton’s J implication of good faith, they did not reject it and the appeal was decided on other issues: see, on that score, The Environmental Group Ltd v Bowd [2019] FCA 951, [144] (Steward J)...

Whether a complaint or inquiry qualifies as a complaint or inquiry made “in relation to…employment” depends upon the subject matter that is sought to be agitated. It is not necessary that a complaint be directly related to its maker’s employment: Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697, [64] (Katzmann J); Shea, [631] (Dodds-Streeton J). In Walsh v Greater Metropolitan Cemeteries Trust (No 2) (2014) 243 IR 468, 476 [42] (Bromberg J), this court determined that the connection between a complaint and employment would likely exist in circumstances “[w]here the subject matter of the complaint raises an issue with potential implications for the complainant’s employment”.

That reasoning has been followed (see, for example, Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19, [68]-[69] (Mortimer J)) although not universally without qualification (see, for example, The Environmental Group Ltd v Bowd [2019] FCA 951, [126] (Steward J)).

140    In The Environment Group Pty Ltd v Bowd (2019) 137 ACSR 352 (hereafter, “Bowd”), Steward J questioned whether the “potential implications” test might be appropriate for senior management employees, whose conduct as such might be thought always to have at least potential employment ramifications. His Honour observed (at 392 [126]):

…in the case of a CEO, the complaint must be one directed at or concerned with that person’s employment in a substantive way. In that respect, observing the required nexus may be direct or indirect, may not greatly assist. It must, as a matter of substance, be about that CEO’s employment.

4.3.3 What does it mean to be “able to” complain or inquire?

141    Insofar as is presently relevant, s 340(1) of the FW Act prohibits the taking of adverse action against a person because he or she has exercised a workplace right. Section 341(1) identifies the circumstances in which a person should be understood to possess such a right. For present purposes, it is only in circumstances where a person exercises a right that he or she possesses that the protection for which s 340(1)(a)(ii) provides is enlivened.

142    A person has—and, therefore, may exercise—a right to complain or inquire in relation to their employment, or in order to obtain compliance with a workplace law if that complaint or inquiry is one that they are “able to make”: FW Act, s 341(1)(c). In Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346, (hereafter, “Shea”; Dodds-Streeton J), this court made the following relevant observations (at 440 [625]):

…the requirement that the complaint be one that the employee “is able to make” in relation to his or her employment suggests that there are complaints which the employee is not able to make in relation to his or her employment. The ability to make a complaint does not arise simply because the complainant is an employee of the employer. Rather, it must be underpinned by an entitlement or right. The source of such entitlement would include, even if it is not limited to, an instrument, such as a contract of employment, award or legislation.

143    Her Honour’s observations have been endorsed at a full court level: PIA, 229 [12] (Rangiah and Charlesworth JJ), 257-258 [164] (Snaden J); Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46 (hereafter, “Whelan”), 55-56 [28] (Greenwood, Logan and Derrington JJ).

144    In Cummins South Pacific Pty Ltd v Keenan (2020) 302 IR 400 (hereafter, “Cummins”), 413-419 [45]-[67] (Bromberg J in obiter, with whom Mortimer J agreed; Anastassiou J contra at 462-467 [281]-[291]) described the reasoning in PIA, Whelan and Shea as “plainly wrong” (or, perhaps more accurately, indicated that he would have described it thus had it been necessary in that case to do so). That indication notwithstanding, this court has since applied equivalent reasoning, both at trial and appellate levels: National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709, [186]-[187] (Thawley J); Salama v Sydney Trains [2021] FCA 251, [102] (Burley J); Wong, [76] (Snaden J); Alam v National Australia Bank [2021] FCAFC 178, [97] (White, O’Callaghan and Colvin JJ); Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75, [77]-[78] (McElwaine J, with whom Rangiah and Downes JJ, on this point, agreed); cf Sabapathy v Jetstar Airways [2021] FCAFC 25, [57] (Logan and Katzmann JJ, with whom Flick J agreed).

145    Support for the reasoning that attracted itself to Bromberg J in Cummins is also to be found. In Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liq) (No 4) [2021] FCA 1242, Katzmann J referred to that reasoning and observed, without needing to decide the point, that it was consistent with the judgment of the full court in Tattsbet Ltd v Morrow (2015) 233 FCR 46 (“Tattsbet”; Allsop CJ, Jessup and White JJ). Her Honour noted (at [623]) that Tattsbet had not been the subject of consideration in either Whelan or PIA.

146    In Tattsbet, the respondent claimed that she had been subjected to adverse action in contravention of ss 340(1)(a)(iii) and 340(1)(b) of the FW Act; specifically, that the appellant had terminated her engagement because she had proposed to initiate or participate in—or otherwise to prevent her from initiating or participating in—a process or proceeding under the Superannuation Guarantee (Administration) Act 1992 (Cth). It had been accepted in the proceeding below that “…in point of fact, the SGA Act did provide scope for a person in the position of the respondent to initiate a process or proceedings to have determined, one way or the other, whether she was entitled to superannuation”: Tattsbet, 73 [107] (Jessup J, with whom Allsop CJ and White J relevantly agreed). Jessup J held that, in order that she might be understood to have possessed a workplace right (that she had proposed to exercise or whose exercise the appellant had sought to prevent), it was sufficient that that scope existed. As his Honour put it (at 73 [107]):

The operation of s 341(1)(b) is not limited to proposals to initiate processes or proceedings which would lead to the upholding of the right or entitlement sought to be vindicated.

147    Thus, the question of whether the process or proceeding there in focus was a process or proceeding that the respondent was “able to” initiate or participate in did not arise. Perhaps for that reason, the court did not consider what Dodds-Streeton J had said the previous year in Shea. Regardless, I respectfully take the view that nothing can be made of the fact that Tattsbet was not referred to in Whelan or PIA (nor, indeed, in Cummins). I discern nothing relevantly inconsistent as between Tattsbett, Whelan and PIA, all of which remain binding upon me.

148    In SBP Employment Solutions Pty Ltd v Smith [2021] FCA 601, Rangiah J said the following (at [134]-[142]) in defence of the reasoning that has emerged from Shea (and in answer to the doubts as to its correctness that Bromberg J, with Mortimer’s J concurrence, expressed in Cummins):

Although Bromberg J did not directly explain how the phrase “is able to” in s 341(1)(c)(ii) of the FWA was to be interpreted, I understand his Honour to have construed the phrase as meaning “is capable of”. Under that construction, as long as an employee is able to make, in the sense of being capable of communicating, a complaint or inquiry in relation to his or her employment, the employee has a “workplace right”. It would follow that in any circumstance where an employee makes a complaint or inquiry in relation to his or her employment, the employee exercises a workplace right.

I accept that the true construction of s 341(1)(c)(ii) of the FWA is uncertain. At least three different views have been expressed, and each is fairly arguable. While I appreciate the force of Bromberg J’s carefully reasoned judgment, I adhere to the opinion expressed by Charlesworth J and myself in PIA Mortgage Services that the expression “is able to” in s 341(1)(c)(ii) of the FWA implies that an employee must have an entitlement or right to make a complaint in relation to his or her employment.

The word “able” and the phrase “is able to” are ambiguous. One meaning ascribed by the Macquarie Dictionary is, “to have the capability or capacity to”. That is the meaning that I understand Bromberg J to have adopted. However, that is not the only possible meaning. Another is, “is qualified to”. It is in that sense that the phrase was interpreted in Shea and PIA Mortgage Services. An employee “is able to” make a complaint or inquiry if he or she qualified to do so. The qualification that is required is an entitlement or right to make a complaint or inquiry.

Which meaning is to be ascribed must depend upon the context in which the words are used. An important aspect of context is, as Dodds-Streeton J pointed out in Shea at [625], that the phrase “is able to” suggests that that there are complaints which an employee is not able to make in relation to his or her employment. In that sense, “is able to” are words of limitation, and imply that there must be an entitlement or right to make a complaint. It is true, as Bromberg J observed in Cummins at [46], that people are ordinarily free to make an “inquiry” of others without some right or entitlement to do so, but the construction of the phrase as requiring an entitlement or right has work to do in respect of “complaints”.

This construction of “is able to” in s 341(1)(c)(ii) of the FWA is consistent with the way the same phrase is used in s 341(1)(b) and in s 341(1)(c)(i). Under s 341(1)(b), a person has a “workplace right” if, “the person...is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument”. It may be noted that this provision applies, not merely to an employee, but to “a person”. The provision seems most unlikely to be intended to apply to any person who is merely physically and mentally capable of initiating or participating in a relevant process or proceeding. The provision envisages that the person has a qualification – a right or entitlement – to initiate or participate in a relevant process or proceeding. In other words, the provision implies that the person must have the standing, or at least arguably have the standing, to do so. Section 341(1)(c)(i) of the FWA provides that person has a “workplace right” if, “the person...is able to make a complaint or inquiry...to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument”. That provision also envisages that the person has a right or entitlement to make a complaint to the relevant body. A construction of the same phrase in s 341(1)(c)(ii) as imposing no similar qualification would be discordant.

The construction preferred by the majority in Cummins would have the consequence that ss 340(1)(a) and 341(1)(c)(ii) of the FWA prohibit an employer from taking any adverse action against an employee because the employee has made or proposes to make any complaint in relation to his or her employment. The phrase “in relation to” is one of considerable width. The construction in Cummins is consistent with s 340 having the purpose of protection of employees. But, it must also be recognised that such protection is provided within limits. Section 340(1) prohibits adverse action taken because a person has, exercises or does not exercise, or proposes to exercise or not exercise, “workplace rights”; or to prevent a person from exercising such rights. Section 341 then limits the width of protection by defining what “workplace rights” are. The scope of the protection is also limited by the definition of “adverse action” in s 342. That there are inbuilt limits to the scope of the protection is unsurprising, given that the object of the FWA is, under s 3, “to provide a balanced framework for cooperative and productive workplace relations”.

As the object of the FWA is to provide balance, it would be surprising if the scales were tipped in favour of employees to the extent that would occur under the construction of s 341(1)(c)(ii) of the FWA given by the majority in Cummins without that intention being made clear. If there is any such intention, it can only be gleaned through one possible interpretation of the ambiguous phrase “is able to”. Under that construction, just as there is no room for the implication of a requirement of an entitlement or right to complain or inquire, there would be no room for the implication of any other limitation. There could be no implication of the requirement by Dodds-Streeton J identified in Shea at [29] that a complaint must be in good faith and for a proper purpose. There could be no implication of any limitation where a complaint in relation to employment is made, not to the employer or some statutory body, but, for example, to the media or to the public via social media. Just as there are some vexatious litigants, there may be vexatious employees who repeatedly make genuinely believed, but objectively unjustified, complaints against fellow employees or an employer. Yet the protection for an employee who makes a complaint in relation to his or her employment would, under the interpretation in Cummins, be so broad that the employer could not threaten or take any disciplinary or legal action, amounting to adverse action, against such an employee, even to protect other employees or the employer’s business. Even though the same outcome might occur in some situations under the interpretation given in Shea and in PIA Mortgage Services, that interpretation may potentially provide some measure of protection for an employer against contravening a civil penalty provision. In my opinion, that measure of protection explains the legislative intention in requiring that an employee must have an entitlement or right in order for the employee to “be able to” make a complaint.

The thorough analysis of the legislative history undertaken by Bromberg J in Cummins is instructive, but I do not consider that it supports the construction of s 341(1)(c)(ii) of the FWA favoured by his Honour. That history shows that there has been a progressive widening of the circumstances in which employers are prohibited from taking adverse action against employees. However, the width of the protection afforded would be expanded to the extent that there is absolute protection against adverse action for an employee who makes a complaint in relation to his or her employment. The history does not support an inference that a broadening to such an extent was intended.

I accept that the Explanatory Memorandum for the Fair Work Bill provides support for the construction adopted by the majority in Cummins. It states that cl 341(1)(c)(ii), “specifically protects an employee who makes any inquiry or complaint in relation to his or her employment”. However, the section itself does not refer to “any” inquiry or complaint. The implication of limitation given by the expression, “is able to make a complaint or inquiry”, cannot be ignored. The Explanatory Memorandum cannot displace the countervailing considerations.

149    I respectfully agree with his Honour’s analysis. Section 341 does not invest employees with new rights. It merely characterises existing rights or entitlements as “workplace rights”, the possession or exercise of which is the subject of protections located elsewhere in pt 3-1 of the FW Act.

150    I am bound in any event by what successive full courts have now made clear: in order that a complaint or inquiry made in relation to employment might qualify as the exercise of a workplace right, an employee must first demonstrate that it was made in the exercise of, or otherwise to protect or vindicate, some right or entitlement conferred upon them, whether instrumentally or otherwise. It is not sufficient that a complaint or inquiry is made simply because the employee feels (with good justification or otherwise) that he or she has something about which to complain or inquire.

4.3.4 Proof of a proscribed purpose

151    As it does in most adverse action matters, s 361—and the statutory presumption for which it provides—looms large in these matters. In Wong, [78]-[83], I made the following observations about that presumption, none of which is presently controversial (and all of which are ripe for application in these matters):

The reason or reasons actuating conduct that visits “adverse action” are matters of fact that must be proved. An applicant who alleges that he or she was subjected to adverse action for a reason or reasons that Pt 3-1 of the FW Act proscribes is afforded substantial assistance in that regard by s 361. As has been explained, that section creates a rebuttable presumption in an applicant’s favour. If a respondent is alleged to have engaged in conduct for a reason that Pt 3-1 of the FW Act proscribes (and, thereby, to have contravened that part), it is presumed to have acted for that reason unless or until it establishes otherwise.

In order to rebut the presumption to which s 361 of the FW Act gives effect, a respondent must typically lead evidence to show that the proscribed reason or circumstance that is alleged did not factor in any substantial or operative way as a reason for the conduct that the applicant seeks to impugn: General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605, 612 (Gibbs J), 619 (Mason J, with whom Stephen and Jacobs JJ agreed). It falls to the court to determine “the actual reason of the decision-maker, in his or her own mind”: CFMEU v Endeavour Coal (2015) 231 FCR 150, 161 [32] (Jessup J, with whom Perram J agreed at 169 [77], Bromberg J dissenting).

In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 (hereafter, “Barclay”), the High Court had occasion to consider how an employer might rebut the presumption that s 361 of the FW Act creates. French CJ and Crennan J observed (at 517 [44]-[45]) (references omitted):

…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?”

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…

Where, by way of rebuttal of the presumption established by s 361 of the FW Act, a respondent leads evidence as to why it engaged in the conduct that an applicant seeks to impugn, the relevant inquiry starts and ends with whether, in fact, those reasons relevantly actuated that conduct. It is not necessary for a respondent to prove that the reasons that actuated its conduct were procedurally or substantively fair: Khiani v Australian Bureau of Statistics [2011] FCAFC 109, [31] (Gray, Cowdroy and Reeves JJ).

Thus where, as here, a respondent employer cites, as its reasons for taking adverse action against an applicant, opinions that it formed about his or her conduct or capacity, the relevant inquiry is not whether those opinions were fairly or properly formed, or vindicated in fact. Rather and more simply, the relevant inquiry is whether the opinions were formed at all and, if they were, whether the respondent was moved to act as it did in consequence of them. A claim under Pt 3-1 of the FW Act “…is not a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome”: Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17, [48] (Bromberg J).

In some circumstances, it might be possible to infer from evidence tending to show that a respondent’s opinions were formed wrongly or unfairly—that is to say, inconsistently with fact or in a way otherwise susceptible to some other legitimate criticism—that those opinions either were not, in fact, formed or did not relevantly actuate the respondent’s conduct (or both). Such circumstances might warrant the rejection of the respondent’s evidence as to why it did what it did and a finding that the respondent failed to rebut the presumption established by s 361 of the FW Act. But, regardless, the inquiry remains: did the respondent form the views that it said that it formed; and, if it did, was it actuated to conduct itself in the way that it did on account of them (and not on account of any proscribed reason)?

4.3.5 Attribution of purpose

152    Where a decision that visits adverse action upon a person is made on the part of a body corporate, questions arise as to how the reason or reasons for which it acted should be ascertained. By their nature, bodies corporate have no minds within which proscribed reasons might form. They can act only through the agency of their human officers.

153    In the present case Mr and Mrs Messenger allege that they were subjected to adverse action by the Commonwealth. They allege that it dismissed them from their employment and, before that, subjected them to the show cause processes detailed above; and that, in each case, it did so for reasons that pt 3-1 of the FW Act proscribes (whether amongst others or not).

154    All of the parties proceeded upon the assumption that it would be in the minds of those by whose conduct the Commonwealth acted—relevantly here, Senator Lambie—that the reason or reasons for the conduct of the Commonwealth should be found (as to which, see above, [120]-[122]).

4.3.6 Accessorial liability

155    Mr and Mrs Messenger contend that Senator Lambie was relevantly “involved in”—and is, thereby, taken also to have committed—the contraventions of ss 50, 323 and 340 that they allege as against the Commonwealth. In Wong, [99]-[101], I made the following observations relevant to that issue:

Section 550 of the FW Act establishes a form of accessorial liability whereby those who are “involved in” the conduct in which others engage in contravention of civil remedy provisions (including s 340(1) of the FW Act) are taken also to have committed those same contraventions. In this case, Ms Wong submits that Ms MacLeod was knowingly concerned in or party to NAB’s contraventions of s 340(1) of the FW Act.

In Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365, [176]-[179] White J summarised what must be shown in order to implicate a person as an accessory to another person’s statutory contravention:

Although the general principles relating to accessorial liability are settled, their application in a case such as the present is not without difficulty. In order to aid, abet, counsel or procure the relevant contravention, the person must intentionally participate in the contravention with the requisite intention: Yorke v Lucas (1984) 158 CLR 661 at 667. In order to have the requisite intention, the person must have knowledge of “the essential matters” which go to make up the events, whether or not the person knows that those matters amount to a crime: Yorke v Lucas at 667. Although it is necessary for the person to be an intentional participant and to have knowledge of the matters or things constituting the contravention, it is not necessary for the person to know those matters or things do constitute a contravention: Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213; (2002) 118 FCR 236 at [159]-[160]. That is to say, it is not necessary that the accessory should appreciate that the conduct in question is unlawful. …

Actual, rather than imputed, knowledge is required. So much was made clear in Giorgianni v The Queen (1985) 156 CLR 473 at 506–7 by Wilson, Deane and Dawson JJ …

The notion of being “knowingly concerned” in a contravention has a different emphasis from that of aiding, abetting, counselling or procuring” a contravention. To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection between” the person and the contravention: Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; (2007) 164 IR 299 at [26]; Qantas Airways Ltd v Transport Workers’ Union of Australia [2011] FCA 470; (2011) 280 ALR 503; at [324]–[325].

As indicated, these principles are not in doubt. The more difficult question arises from their application to the circumstances of this case and, in the identification of the essential facts about which an accessory must have actual knowledge.

Those observations were quoted with apparent approval in Fair Work Ombudsman v Hu (2019) 289 IR 240, 245-246 [15] (Flick and Reeves JJ).

The statutory presumption for which s 361 of the FW Act provides does not apply in relation to an allegation that a person has been “involved in” the contravention of a civil remedy provision contained within Pt 3-1 of the FW Act: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50, [59] (Greenwood, Flick and Rangiah JJ). Thus, in order to implicate her as an accessory to any contravention by NAB of s 340(1) of the FW Act, Ms Wong must establish that Ms MacLeod knew that at least one of the reasons for which NAB relevantly acted was that Ms Wong had made any or more of the complaints or inquiries upon which she relies.

156    None of those observations is controversial presently. For reasons that are likely already to be apparent, it is not necessary that I should expand upon them to any degree. As has been foreshadowed, I have concluded that the Commonwealth did not commit any of the statutory contraventions that are alleged against it. That being so, there is nothing in respect of which Senator Lambie might be thought to have been accessorily liable.

4.4 Were the Messengers subjected to adverse action?

157    The parties are not in dispute as to whether or not the three instances of conduct that are said to qualify as adverse action in fact occurred. It is accepted—and could hardly be doubted—that each of Mr and Mrs Messenger received the First Show Cause Letters (or, in each case, the one that was addressed to them), that each of them received the Second Show Cause Letter and that each of them was dismissed with effect from 3 May 2017.

158    As has been noted, the respondents accept—and, again, it could hardly be doubted—that the termination of Mr and Mrs Messengers’ employment amounted, in each case, to adverse action. They do not accept, however, that either of the show cause processes did (at least not in the way that was alleged).

159    That controversy turns upon whether or not the show cause processes to which the Messengers were subjected might properly qualify as a “threat” to terminate their employment. That is how, by their pleadings, they sought to constitute those processes as adverse action.

160    By the submissions advanced at the conclusion of the trial, Mr and Mrs Messenger sought also to invoke the third element in the definition of the relevant species of adverse action: specifically, the notion that their positions as employees had been altered to their prejudice (see above, [112]). The respondents submit that Mr and Mrs Messenger ought not now to be permitted to expand upon the case that they advanced prior to the trial; in other words, that they should be held to the case that they pleaded.

161    They should be. Had the respondents been made aware in advance of the case that the Messengers now seek to advance, it is conceivable (though perhaps not probable) that they might have led additional evidence or pursued additional avenues in cross-examination. Although, for reasons that will emerge, it doesn’t much matter, the Messengers cannot fairly expect to succeed upon a contention of which they did not, by their pleadings, give notice. They are not to be relieved of that elemental obligation merely because they are self-represented. It is to be recalled that their pleadings were drawn—and, later, amended—by counsel.

162    I return to the issue of present relevance: were the show cause letters that were sent to the Messengers on 27 March and 28 April 2017 properly understood as threats to terminate their employment?

163    The relevant text of the First Show Cause Letters (which was common to both) bears repeating. It spoke of:

…a breakdown in our working relationship to the extent that it is irretrievable. In the present circumstances, I am forming the view that I may have no real option other than to terminate your employment. Such a decision would not be taken lightly and before reaching a decision, I would like to give you the opportunity to put your views forward. If you wish to respond, please do so…

164    Those letters did not, in terms, threaten the Messengers with dismissal. Plainly enough, they made known the Senator’s view that circumstances had accumulated to a point that dismissal might eventuate, or perhaps even have been inevitable. They did, perhaps, threaten that the possibility of their dismissal was one that the Senator would consider in a way or ways that might take account of anything that they wished to put beforehand. But there was no threat to dismiss. As is made clear above: a communication that alludes only to the possibility, conditional or otherwise, that something might happen is not a communication by which that possibility is threatened: Fair Work Ombudsman v Australian Workers Union (2017) 271 IR 139, 155 [55] (Bromberg J).

165    It was not suggested—and it is, in any event, difficult to see how it might be—that the First Show Cause Letters amounted to threats otherwise than by their terms. There could be, for example, no cause for considering that those letters were inauthentic or otherwise some kind of administrative fig leaf designed to disguise a reality that, though unstated, was to be nonetheless well-understood. Both by appearance and circumstance, the First Show Cause Letters presented as nothing more than what they purported to be: an invitation to the Messengers to respond to the concerns that Senator Lambie had formed.

166    It follows that I do not consider that the First Show Cause Letters amounted to adverse action (as pleaded) for the purposes of pt 3-1 of the FW Act.

167    Similar observations arise in respect of the Second Show Cause Letter. As with its predecessor, it articulated some concerns that were said to be animating Senator Lambie, invited the Messengers to address those concerns (if they wished to), and indicated an intention on the part of the Senator to make a decision regarding their employment one way or the other (see above, [96]).

168    Again, nothing about that language or the circumstances that attended it could be said to communicate an intention, on the Senator’s part, to dismiss the Messengers. On the contrary, the letter’s purpose was clear on its face: it was to give Mr and Mrs Messenger an opportunity to explain, if they wished to, why the Senator’s concerns were unfounded or not otherwise of a kind that might warrant their dismissal.

169    Given the progression of matters to that point, it might be said that the Messengers’ fate was decided; or something of a foregone conclusion. But even assuming that that is so, the issue presently is whether that was a reality that the show cause letters communicated. They did not. Indeed, they did the opposite: they made clear that the Senator would consider what, if anything, Mr and Mrs Messenger chose to advance. Whether or not the Messengers believed that is beside the point. It is what the letter communicated. It was not a threat to dismiss them.

170    It follows that I do not consider that either of the First Show Cause Letters or the Second Show Cause Letter amounted to a threat to terminate the Messengers’ employment or, thereby, to adverse action.

171    It might be said in criticism of that conclusion—and my related inclination not to entertain the Messengers’ attempts to constitute the First Show Cause Letters and the Second Show Cause Letter as prejudicial alterations to their position as employees (see above, [161])—that the Messengers are denied a course that they might have prosecuted with a simple amendment to their pleadings, to which the respondents would very likely have had no answer. Had Mr and Mrs Messenger pleaded prejudicial alteration in those ways, it seems all but inevitable that the court would have concluded that those letters sufficed to visit adverse action upon them: see, for example, Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131, 156-157 [95] (Branson J); Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22, 51 [99]-[101] (Collier J); Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2010) 193 IR 251, 263 [47]-[48] (Tracey J). Two observations are warranted. First, that reality is no answer to what is said above about why the Messengers should be held to the case that they pleaded (above, [161]). Second, for the reasons that follow (in sections 4.6.1 [307] and 4.6.2 [316]), the outcome of the two matters would remain unchanged in any event.

4.5 Did the Messengers exercise workplace rights?

172    As the background recited earlier makes apparent, the Messengers’ actions are predicated on their having exercised certain workplace rights. Those exercises are said to have assumed the form of a raft of complaints or inquiries that they allege that they made in relation to their employment. Those communications date back to Senator Lambie’s first term in office and extend through until the Second Show Cause Response Letter.

173    As will become apparent, the evidence that was led to establish that each of Mr and Mrs Messenger did, in fact, make the complaints or inquiries that are said to have amounted to their exercising of workplace rights was not always particularised to the highest standard. Some of the complaints or inquiries that are said to have been made were said to have been recurring matters, in respect of which the evidence lacked specificity.

174    The analysis that follows addresses each species of complaint or inquiry upon which the Messengers rely. In respect of each, four questions arise: first, was the communication made; second, was it in the nature of a complaint or inquiry; third, was it made in relation to Mr or Mrs Messenger’s employment; fourth, was it a complaint or inquiry that either or both of Mr and Mrs Messenger was or were relevantly “able to” make?

4.5.1 Some preliminary observations

175    Much of the evidence relevant to the analysis in this section was contested. It is prudent that I should make some observations at the outset about witness credibility; and, in particular, about the evidence of Mr and Mrs Messenger.

176    Mr and Mrs Messenger did not present as credible witnesses. Throughout the trial, they were consistently argumentative, and exhibited the clearest and most constant desire to exact upon the Senator as much reputational damage as they could by ventilating the many and various matters about which they claimed to have complained during their employment. Much of what they said—particularly about some of the communications that they claim to have made early on in the Relevant Period—had a distinct air of reinvention to it. Mr Messenger, in particular, appeared very carefully to curate his evidence such that he might more easily characterise the discussions that he recounted as complaints or inquiries related to his employment. Despite repeated warnings from the court—stated in escalating terms over the course of the trial—he exhibited an unrelenting tendency to air matters of scandal prejudicial to Senator Lambie, most apparently for the consumption of media representatives who observed and reported on the trial. His evidence appeared calculated and, at times, vengeful.

177    Mrs Messenger exhibited similar tendencies. She frequently overstated matters in the service of her case and regularly punctuated her evidence with gratuitous observations—usually slurs—self-evidently designed to humiliate or disgrace the Senator. Like Mr Messenger, she proceeded at times throughout both her evidence and her conduct of the trial more broadly as though the proceedings served as some form of judicial inquiry into the many and varied character shortcomings that she attributes to Senator Lambie. She, too, was warned against doing so; but, all too often, those warnings appeared not to dent her enthusiasm.

178    By contrast, all of the other witnesses—including those that appeared by subpoenas issued at the Messengers’ request—presented as honest and credible. Many (indeed, most) gave evidence that conflicted with that of Mr or Mrs Messenger. In all such cases (and I shall come to some specific examples momentarily), I prefer their evidence over that of Mr and Mrs Messenger.

179    With that acknowledged, a further observation warrants attention. To a very large degree, the evidential conflicts that developed over the course of the trial focused upon whether the various subjects about which Mr and Mrs Messenger claimed to have advanced complaints or inquiries were subjects about which such complaints or inquiries were properly advanced. In other words, they went to whether or not those complaints or inquiries were warranted, rather than the simpler (and far more relevant) matter of whether they were made.

180    It is unnecessary that I should make findings about whether or not Mr and Mrs Messenger had good cause to complain or inquire about the matters in respect of which they claim to have advanced complaints or inquiries. At the risk of repetition, an action under pt 3-1 of the FW Act is not an occasion for a court to embark upon some broad-ranging inquiry into matters that are said to have been the subject of relevant complaints or inquiries. Instead, the court’s focus is properly anchored to whether or not complaints or inquiries of the relevant kind were made (and, to the extent that they were, whether they actuated or partially actuated conduct amounting to adverse action). That is a matter upon which the evidential conflicts alluded to in the previous paragraph did not touch; and, save for a small number of references in the observations that follow, nothing more need be said about them.

4.5.2 Complaints about language

181    Mr and Mrs Messenger allege that, during Senator Lambie’s first term, they had occasion to complain to her about her use of foul or vulgar language at work. They offered many examples of the language about which they claim to have complained. It is not necessary to recite any.

182    Without intending criticism (particularly not given the historical nature of the alleged complaints), the Messengers’ evidence about the complaints that they made to the Senator about her use of bad language in the workplace was insufficiently particularised. Save to say that they alleged that they made them, it was very much unclear when, where or in what context that was said to have occurred, what the precise subject matter of each communication was, whether anybody else was present at the time of each, and so on.

183    Senator Lambie accepted that she—and others within her office, including Mr and Mrs Messenger—occasionally used bad language at work. Her evidence, though, was that neither Mr nor Mrs Messenger ever complained to her about it.

184    The evidence that each of Mr and Mrs Messenger gave was self-evidently exaggerated. Each of them claimed, for example, to have complained to the Senator about her language on a “daily” or perhaps “weekly” basis. That is difficult to accept, not least because the Senator was absent from her Burnie office (where at least Mrs Messenger was based) for approximately fifty per cent of her time. It also sat most uneasily with the evidence of the Messengers’ co-workers (or those who gave evidence), all of whom painted a very clear picture of an office environment in which a more or less unremarkable level of swearing or profanity was de rigueur. With one exception, none of them had had occasion to complain about the Senator’s language. The one who did did so directly to the Senator and her issue was addressed in a respectful and adult manner.

185    Senator Lambie’s language at work appears very much to be a device that the Messengers have resolved to repurpose in their public campaign against her. There seems little doubt that the Senator has employed language that some might regard as unbecoming of her high office. As they did on multiple fronts, the Messengers were very keen to impress upon the court (and, perhaps, upon representatives of the media that observed the trial) that perceived flaw in the Senator’s character. But whether the Senator partakes of bad language or not is not to the point; much less is it for the court to pass judgment on her if she does. At issue presently is whether the Messengers were moved to confront her about it when she employed them (as opposed to now, when their allegations might inflict upon her some measure of public embarrassment). On the state of the evidence just summarised, I do not accept that either of the Messengers spoke to the Senator during her first term about her language around the office. I accept Senator Lambie’s evidence that they did not.

186    But even if they did, it does not follow that those communications should qualify as complaints or inquiries of the kind described in s 341(1)(c)(ii) of the FW Act. Both of Mr and Mrs Messenger gave evidence that they were concerned about the impact of the Senator’s language on other staff and, potentially, upon her reputation in the community. Their evidence tended to suggest (albeit not with a level of clarity that might have been preferred) that they were concerned not with the impact of the Senator’s behaviour upon them or their employment; but with how her behaviour (as they painted it) potentially or actually impacted upon her staff and upon her standing in the community. In those senses (and on the assumption that my conclusion about their not having raised the issue at all is wrong), the Messengers’ communications appear to have assumed the character of guidance or counsel. They were advisory, not remonstrative.

187    That being the case, it is difficult to see how the communications—as vague and unparticularised as they remain—could qualify as complaints related to the Messengers’ employment. On the footing that they occurred at all, they strike as unremarkable instances of senior employees offering counsel to their employer for the avoidance of undesirable consequences.

188    More to the point, it remains unclear, to say the least, how any complaint that either or both of the Messengers raised with Senator Lambie about her language in the workplace should qualify as one that they were relevantly able to make. On that front, the Messengers alleged that those complaints were “underpinned by a legal right or entitlement to make them” under the FW Act, the MOPS Act, the PID Act, the Work Health and Safety Act 2011 (Cth) (hereafter, the “WHS Act”), and/or the Enterprise Agreement (or its predecessor). Compendiously though that submission was advanced, it falls at every hurdle. It was never explained how—and I do not consider that—any of the statutory instruments to which the Messengers point conferred upon them anything approximating the legal right or entitlement claimed. It is not possible to characterise the complaints that the Messengers claim to have made to the Senator about her language in the workplace as complaints the making of which any of those instruments could sensibly be said to have authorised. When (or if) the relevant communications were made, they were made not pursuant to some ability conferred to that end; but, rather, as a consequence of the Messengers’ belief that they had a valid issue that required ventilation with the Senator. That is not sufficient to invoke the protection that s 340(1) of the FW Act affords (see, above, 4.3.3 [141]-[149]).

189    By way of summary, then:

(1)    the discussions that the Messengers allege that they had with the Senator about her language in the workplace were not, in fact, had;

(2)    even if they were, the evidence fails to establish that they were in the nature of complaints;

(3)    even if they were, they were not relevantly related to the Messengers’ employment; and

(4)    even if they were, they were not complaints that either of the Messengers was relevantly able to make.

190    It follows that the Messengers did not exercise a workplace right or workplace rights by reason of the discussions that they said that they had had with the Senator regarding her use of bad language at work.

4.5.3 Complaints about alcohol consumption

191    Mr and Mrs Messenger next allege that, during the period between 1 July 2014 and 2 July 2016, they discussed with the Senator her “…excessive alcohol consumption, including at work, travelling for work and meeting with stakeholders and [P]arliamentary colleagues”. By his pleading, Mr Messenger particularised 11 discrete occasions on which he claimed to have had discussions of that nature with the Senator.

192    By her evidence, Mrs Messenger claimed that she “…made regular complaints to [Senator Lambie] with regard to her alcohol consumption and the effect it would have on her reputation as well as the safety of staff.” Those discussions, however, were never particularised. Mr Messenger, although identifying the 11 occasions to which his pleading referred, was unable directly to recall any of them during the trial.

193    Ms Sargent’s evidence was that Mr Messenger had expressed to her a concern about Senator Lambie consuming alcohol. She told the court that he had instructed staff who travelled with the Senator that they should limit what she consumed.

194    Senator Lambie acknowledged that she and Mr Messenger had discussed her alcohol consumption at points throughout his employment. She denied, though, that any of those conversations rose to the status of a complaint. She gave the following frank evidence:

…because of my past with alcohol abuse…he [Mr Messenger] would just remind me that I’d had that problem in the past and [to] be very, very careful. And just to make sure that, you know, we wouldn’t want to have me out on the front page with a drink in my hand, or anything like that…

195    Senator Lambie also gave evidence about the extent to which those conversations—specific particulars of which were not explored—married with Mr Messenger’s role as her Chief of Staff:

Of course it was [part of his job]. Well, part of his job but I thought it was more, you know, to me it was friendly advice and I appreciated him reminding me of that. There was no problem then, I think, you know, he was just trying to do the right thing and make sure that I didn’t fall back into any of that. So – but certainly, I didn’t say, take that as a complaint. As a matter of fact, it was quite caring the way he did it, so it was not – he was more worrying, you know, just be careful and, you know, you don’t want to go back into that and be careful.

196    Although it is difficult, if not impossible on the evidence presented, to say with much particularity what was discussed or when or with what frequency, it appears uncontroversial—and I accept—that there were some discussions at least between Mr Messenger and Senator Lambie about her consumption of alcohol. Senator Lambie was very candid with the court. She made no attempt to disguise her past struggles. I accept that Mr Messenger, acting diligently and with concern for his employer, did counsel her about measures that she might take to ensure that she did not slip back into previous habits.

197    I do not, however, accept that anything that was said to Senator Lambie—by either of Mr or Mrs Messenger—was said by way of complaint. The Messengers’ attempts throughout the trial to embarrass the Senator about her past transgressions were gratuitous and transparent. They regularly referred to her as an “alcoholic”; and even went so far as to suggest that her consumption of alcohol posed risks to their health and safety, or that of the other staff in Senator Lambie’s office. Those suggestions—like many others that the Messengers advanced—were absurd, unjustified, wanton and callous. The evidence and submissions that they advanced about having complained to the Senator about her use of alcohol were nothing more than an obvious reinvention of otherwise unremarkable conversations, posed in this forum not merely to support an unsupportable legal claim but also to exact a measure of public humiliation for the Senator.

198    But even putting that all to one side, it is anything but clear how it might be said that the conversations that were had (or alleged) amounted to complaints that Mr and Mrs Messenger were relevantly able to make. Able according to what, it might be asked… It was suggested that they were authorised by one or more of the same instruments that were said to have authorised the complaints that they claimed to have raised about the Senator’s language at work. But, again, none of those instruments in fact authorised what occurred (or is alleged to have occurred); and certainly not in any way that was explained. Even assuming that both of Mr and Mrs Messenger had occasion to discuss with the Senator her consumption of alcohol; and even assuming that they each did so by way of complaint; and even assuming that those complaints related in some way to their employment, the discussions were not a product of any right or entitlement conferred, instrumentally or otherwise, upon Mr or Mrs Messenger. Rather, they were had as an incident of the Messengers’ belief that they were appropriate to be had. As with the alleged complaints about Senator Lambie’s language, that is not sufficient to invoke the protection that s 340(1) of the FW Act contemplates (see, above, 4.3.3 [141]-[149]).

199    Again, to conclude by way of summary:

(1)    although it is difficult, if not impossible, to say with any particularity, there were some discussions, at least as between Senator Lambie and Mr Messenger, concerning the Senator’s consumption of alcohol;

(2)    such discussions as there were or might have been were not in the nature of complaints—but, rather, were had for strategic or advisory purposes;

(3)    even if they were in the nature of complaints, those discussions were not relevantly related to the Messengers’ employment;

(4)    even if they were, they were not complaints that either of the Messengers was relevantly able to make.

200    It follows that the Messengers did not exercise a workplace right or workplace rights by reason of the discussions that they said that they had had with the Senator regarding her consumption of alcohol.

4.5.4 Complaint about driving under medication

201    The Messengers next allege that they—or, at least, Mr Messenger—complained to Senator Lambie about her “…driving work motor vehicles after medical procedures and/or while affected by heavy medication”.

202    In July 2016, Senator Lambie travelled to Hobart to undergo eye surgery. Not long after her procedure—perhaps that same day or the following day—she travelled by car back to Burnie, where her electorate office is located. Ms Sargent accompanied her on that journey. Mr Messenger claims to (and may) have been with them as well.

203    Mr Messenger alleges that, prior to that journey, he had occasion to counsel Senator Lambie against driving herself home. He told the court that Senator Lambie had “insisted” that she drive the vehicle, and that he and she had a “robust discussion” during which he maintained that she was not permitted to drive “…given the fact that she had just undergone eye surgery a couple of hours prior and…was on heavy medication”.

204    Senator Lambie denied that any such discussion occurred. She recalled that she had arranged for Ms Sargent to travel with her to Hobart, specifically for the purpose (perhaps amongst others) of driving her back to Burnie after her procedure. She told the court that, after her surgery, her eyes were “very sensitive to the light” and, for that reason, had to remain covered. She never so much as thought about driving herself back to Burnie, let alone insist openly upon doing so. She could not recall if Mr Messenger was even present for that journey.

205    Ms Sargent’s evidence was consistent with that of the Senator.

206    I do not accept that Mr Messenger had any discussion with Senator Lambie about whether or not she ought to drive herself from Hobart following her eye surgery. The suggestion, in light of the evidence of the Senator and Ms Sargent—which I accept without reservation—that there might have been any occasion to do so is absurd. It is apparent that Mr Messenger has, not for the first time, sought to repurpose events with a view to shaming his former employer: here, by trying to paint her as some kind of reckless fool prone to poor judgment whilst under the influence of medication. Again, his opportunism is as plain as it is unkind.

207    In light of my conclusion, it is not necessary that I should examine whether or not any discussion, had it taken place, might have sufficed to qualify as an employment-related complaint that Mr Messenger was able to make (and, thereby, as the exercise of a workplace right). It is conceivable that such a discussion might have featured a sufficient connection with employment and might have been authorised by, or sufficiently related to obligations or rights established under, various species of legislation (for example, occupational health and safety or road safety regulations). How those possibilities might marry with the pleadings would remain to be seen; but, for obvious reasons, those are inquiries that it is not necessary for me here to entertain.

208    The discussions upon which the Messengers rely did not happen. Because they did not happen, there was no relevant exercise of any workplace right.

4.5.5 Complaints about staff treatment

209    The Messengers next allege that, during their employment, they had occasion to complain to the Senator about her “bullying, derisive and unfairly critical treatment of staff members”. Only one such instance is identifiable from the pleadings. It concerns a discussion that took place on 17 July 2015 about a member of the Senator’s staff, Ms Walker. At the time, Ms Walker’s mother was in palliative care, which had prompted her (Ms Walker) to take extended periods of leave from her work at the Senator’s office. It is not controversial that the Messengers discussed with Senator Lambie Ms Walker’s absences from work and the fact that she had exhausted her paid leave entitlements. However, two very different pictures emerged as to the specifics of the discussion that took place on 17 July 2015.

210    Mr and Mrs Messenger both gave evidence that Senator Lambie had complained about Ms Walker’s absence from work. Mr Messenger’s evidence was as follows:

Senator Lambie wanted [Mrs Messenger] and I to terminate [Ms Walker’s] employment, because in Senator Lambie’s opinion, she thought that [Ms Walker] was spending too much time away from work. The problem being was that [Ms Walker]’s mother was in hospital dying from cancer, and [Ms Walker] was visiting her mother in a palliative care ward in Launceston. And we had a very tense conversation when I had indicated to Senator Lambie that I wouldn’t stand by and watch [Ms Walker] being sacked because she was on compassionate leave visiting her mother who was dying in a cancer ward. That – that was a meeting that I – is burned into my mind.

…

…The words I recall was – Senator Lambie said words to the effect, “Do you know when [Ms Walker’s] mother is going to die? How long is it going to take?” And I replied words to the effect, “What do to want me to do? Ask [Ms Walker] how long it’s going to take for her mother to die before you can come back to work?” And I think I used an expletive during that conversation with Senator Lambie. I remember my wife walking out of the – staggering, more like it, out of the boardroom, and – after breaking down – and – and that was very emotional time. But we – we made that workplace complaint. We made a number of complaints regarding [Ms Walker].

211    Mrs Messenger’s evidence was to a similar effect. She maintained that Senator Lambie demanded to know how much longer Ms Walker would be absent from work, to which she (Mrs Messenger) replied that it was unclear. According to Mrs Messenger, Senator Lambie expressed her disapproval of Ms Walker’s absence and the uncertainty regarding for how long it would endure. Mrs Messenger’s evidence was that Senator Lambie threatened to sack Ms Walker and “…find someone to replace her”. It continued:

It was at that point that Rob Messenger said – made the complaint that, “You can’t sack a staff member for spending time with her mum in palliative care; it’s not right. It’s not morally right, and I don’t believe it’s legally right.” And I remember him saying to – because I know Rob had experienced his mum’s death from cancer – and I remember Rob saying to her, “Senator Lambie, do you want me to tell [Ms Walker] to tell her mother to die?”

And it was at that point Senator Lambie was, like, “argh” and I walked out of the office crying. I – actually – sorry – before that Senator Lambie said, “Well, what are people going to think? How am I going to explain her absence?” And I said – and I complained. I said that’s not a valid excuse to want to sack someone for spending time – a young girl. Anyway, I walked out of the office. I walked into Tammy Tyrrell’s office and had a good cry.

212    Before turning to the competing version of events, I should say something about the character of the conversation as the Messengers paint it. Assuming that it happened as they said it happened, it is clear enough that the discussion involved some difference of opinion: the Messengers expressed a measure of umbrage or opposition toward what they perceived to be the Senator’s uncaring or callous approach to the predicament in which Ms Walker found herself. They made known to the Senator their views that her complaints about Ms Walker’s absences were improper, unfair or wrong. But how, if at all, might that suffice to qualify as their having raised a complaint regarding their employment? And even if they should be understood each to have done so, how might it be said that what they raised was something that they were relevantly able to raise for the purposes of s 341(1)(c)(ii) of the FW Act?

213    Senator Lambie accepted that she had discussed with the Messengers the ramifications of Ms Walker’s absence. Specifically, she recalled that they had discussed the need to “come up with a solution” and that one such measure that she raised was that Ms Walker, having exhausted her leave entitlements, “…may need to take [leave] without pay”. In response, she recalled that Mr Messenger “went berserk”. As to whether she had threatened to dismiss Ms Walker or had otherwise lamented how much time she was spending with her dying mother, the Senator gave the following evidence:

Mr Messenger:     I put it to you, Senator, that you were very concerned that [Ms Walker] was not attending to her work?

Senator Lambie:    What we were discussing, Mr Messenger, is if we have to give her leave without pay or carer’s leave or what we needed to – if – if we needed to do that in the future. That’s what we were discussing.

Mr Messenger:     I put it to you, Senator, that you wanted to terminate [Ms Walker’s] employment because she was spending time with her mother in Launceston Hospital?

Senator Lambie:    You know what, Mr Messenger, that’s just plain cruel and that’s – no.

Mr Messenger:    I put it to you that – that we made complaints to you, Senator, about your plans regarding Ms Walker’s employment?

Senator Lambie:    There was no plans, Mr Messenger. You were discussing it. You were working out the plan of attack for the future. So, no.

214    Senator Lambie was visibly—and understandably—upset by the proposition that she was indifferent to Ms Walker’s suffering. Insofar as her evidence about the discussion of 17 July 2015 differs from that of Mr and Mrs Messenger, I prefer it. Not for the first time, I consider that the Messengers were concerned to exaggerate, perhaps to the point of invention, what the Senator is alleged to have said to them. They were at pains to portray her—perhaps for the benefit of the court but perhaps also for the consumption of the media present during the trial—as an uncaring brute who was wholly unsympathetic to the very unfortunate circumstances under which a member of her staff laboured. Although nothing turns on it, I do not accept that that reflects the reality.

215    More to the point, I am not persuaded that anything that the Messengers said to Senator Lambie during the discussion of 17 July 2015 rose to the standard of a complaint related to their employment that they were relevantly able to make. Although the boundaries might, in some cases, be blurred, there is a distinction to be drawn between criticism and complaint. Here, there can be no doubt that the Messengers sought to convey their criticisms of what they perceived (or said that they perceived) to be Senator Lambie’s callousness. But what they sought to achieve in doing so, other than to record their criticism, is not clear. They do not appear, for example, to have asked the Senator to do anything in response to what they said, nor to have indicated any particular course upon which they might have embarked in response to her. There was no promise or appeal for any particular course of action. The circumstances are akin to those that confronted the court in National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709, [188]-[189] (Thawley J).

216    Further, I do not consider that any complaint (if there was one) that the Messengers made was made in relation to their employment. Ms Walker’s predicament, whatever it might have been, was not a matter that had any obvious implications for the Messengers’ employment. They were, plainly and understandably enough, concerned to advance or protect the welfare of a colleague; but how that should be understood to relate to their own employment was never explained.

217    Further still, such complaint as they might be understood to have advanced was not obviously advanced in the exercise or vindication of some underlying right or entitlement. It was not one that the Messengers were relevantly able to make. Again, on that score, the Messengers contended that their complaint was authorised by any one or more of the FW Act, the MOPS Act, the PID Act, the WHS Act, and/or the Enterprise Agreement (or its predecessor); but, again, how that might be so was never developed. None of those instruments confers any right or entitlement to advance a complaint or inquiry of the kind presently under consideration (certainly none that was specifically identified or explained); and none establishes any right or entitlement in the vindication or advancement of which the discussion in focus presently could sensibly be thought to have proceeded. The complaint that was advanced (if there was one) was not advanced pursuant to some relevant ability; it was advanced because the Messengers felt that there was occasion to advance it. Again, that is not sufficient to invoke the protection conferred by s 340(1) of the FW Act.

218    By way of summary, then:

(1)    I accept that the Messengers had occasion to discuss with the Senator some aspects of her treatment, or potential treatment, of Ms Walker;

(2)    I do not accept that those discussions were in the nature of complaints;

(3)    even if they were, I do not accept that they were made in relation to either of Mr or Mrs Messenger’s employment; and

(4)    even if they were, they were not matters that were advanced pursuant to some relevant ability conferred to that end.

219    It follows that the Messengers did not exercise a workplace right or workplace rights by reason of the discussions that they said that they had had with the Senator regarding her treatment of staff.

4.5.6 Complaints about public statements

220    The Messengers next allege that they had occasion to raise with Senator Lambie a complaint concerning risks to workplace health or safety that arose from some public comments that she had made. The comments in question were made during a radio interview in which the Senator participated on 22 July 2014. During that interview, Senator Lambie was moved to discuss her sex life, which apparently prompted a volume of telephone complaints from constituents.

221    Mr and Mrs Messenger both gave evidence about discussions that they had with Senator Lambie in the aftermath of the radio interview. Mr Messenger’s evidence was that he:

…made complaints to her about her comments on the radio, indicating that the staff had received abusive phone calls from the public, that we were receiving abusive phone calls, and that it was a problem for her. I indicated to Senator Lambie that the best way to mitigate the public damage to her reputation was to issue an apology for the comments that she made.

222    Mrs Messenger’s evidence was to similar effect. She told the court that she:

…said to Senator Lambie…”You – you just can’t say those things on the radio, it’s just – it’s not proper. It’s – it’s rude. It’s – it’s just inappropriate.

223    Mrs Messenger’s evidence was that she implored the Senator to make a public apology; a course that was initially opposed, but to which the Senator ultimately agreed.

224    Senator Lambie’s evidence did not materially deviate from that of Mr and Mrs Messenger. She accepted that there had been discussions about the appropriateness of her comments, that Mr and Mrs Messenger had aired with her some concerns about telephone calls that had been made to her office in consequence of them, and that both had advised her that she should issue an apology, as she did.

225    As with the discussions that they had with her concerning Ms Walker, the Messengers’ discussions with Senator Lambie about her radio interview in July 2014 did not venture beyond the realm of criticism. More to the point, they did not venture beyond precisely the kind of discussions that diligent, senior employees might reasonably be expected to have from time to time in a political office. Senator Lambie had made comments that the Messengers calculated were not in her interests to make. The calls that the Senator’s office received in the wake of the interview might well tend to suggest that their calculations were correct. They said as much to the Senator and devised a recovery strategy.

226    That was all part of the work that the Messengers were employed to perform. They performed it; by all accounts appropriately and well. To shoehorn what was done into the shape of a complaint is a transparent exercise in revisionism. As on other occasions, Mr and Mrs Messenger have sought to repurpose their discussions for use in their present campaign. They not only mischaracterise what was said; but, in the process, they seek to dredge up yet further material with which they might publicly smear Senator Lambie.

227    Into that tawdry adventure this court must not be drawn. Others can debate whether it is beneath Senator Lambie’s office to make public comments of the sort that she made. What is clear presently is that the Messengers reacted to them not by means of complaint; but in precisely the manner that was to be expected, given the advisory nature of their roles.

228    Further, even if the Messengers’ reaction to the radio interview might properly be characterised as a complaint, it was not a complaint that was made in relation to their employment. Just as with the discussion that they had regarding Ms Walker, the subject matter of what was discussed bore no substantive connection with their employment. Again, the complaint (if that is what the discussions amounted to) rose no higher than an expression of disapproval about what the Senator had done and about what she should do to mitigate the effects of her actions.

229    Further still, there is nothing about the discussions that took place after the July 2014 radio interview that might qualify them as discussions in which the Messengers were relevantly able to partake. Again, the Messengers relied in that regard upon the same instruments that they submitted authorised the alleged complaints about Senator Lambie’s language at work, her consumption of alcohol and her treatment of Ms Walker. Again, none of those instruments conferred upon them (and certainly not in any way that was explained or explored) any right or entitlement to have the discussions that were had; nor did they confer any other right or entitlement in the vindication or realisation of which the discussions that took place after the July 2014 radio interview might sensibly be thought to have proceeded. There was no relevant, conferred ability to do that which was done. The Messengers had the discussions that they had because they felt that they were warranted.

230    To summarise then:

(1)    I accept that each of Mr and Mrs Messenger had occasion to discuss with Senator Lambie the folly (as they perceived it) of her having made the comments that she made during a radio interview in July 2014;

(2)    I do not accept that those discussions proceeded by way of complaint;

(3)    even if they did, they did not advance any complaint in relation to the Messengers’ employment; and

(4)    even they did, they were not complaints that either of the Messengers was relevantly able to make.

231    It follows that the Messengers did not exercise a workplace right by reason of the discussions that they had with the Senator in relation to her public comments.

4.5.7 Complaints about workloads

232    The Messengers next allege that they had occasion to complain to Senator Lambie about the amount of work that they and other employees were required to perform.

233    Senator Lambie is a former member of the Australian Defence Force. Since being elected to the Senate, she has publicly promoted her office as a portal through which military veterans who labour under various challenges, including mental health or financial welfare challenges, can seek and obtain such support as they might need.

234    Those efforts have produced a volume of approaches from military veterans, some of whom have complained about matters of great severity, including subjection to sexual assault and suicidal ideation. The Messengers claim to have raised with Senator Lambie, throughout the course of their employment, complaints regarding the volume and nature of that work.

235    As with some of the other matters that they claimed to have raised, Mr and Mrs Messenger were largely unable to particularise the discussions that they claimed to have had with Senator Lambie about their workloads, the workloads of their colleagues and/or the nature of the calls that they fielded from the various military veterans that made contact with the Senator’s office. Nonetheless, they maintained that those matters were topics of discussion that arose “on a regular basis” at least after July 2015.

236    Mrs Messenger gave evidence about having complained to Senator Lambie about the volume of veterans’ work that the office performed, about the assistance that was provided to veterans who did not reside in Tasmania, and about the lack of training that staff within the office had undertaken to assist in the provision of that work. Again, those discussions were said to have occurred regularly “throughout the first term”.

237    Senator Lambie denied that either of the Messengers had ever complained to her about the work that her office undertook in assisting veterans, including about the volume of such work, its scope or the training that they or other staff had (or had not) undertaken in relation to it.

238    I accept Senator Lambie’s evidence. The veterans’ assistance policy that was implemented in Senator Lambie’s office was one that Mr and Mrs Messenger—and particularly Mr Messenger—helped to devise. Part of the justification for it was the view—which all three of them apparently shared—that it would be popular within the community. No doubt it resulted, as Senator Lambie acknowledged, in the Senator’s staff having to confront some difficult issues. Nonetheless, I am unpersuaded that either of the Messengers was moved to lay criticism against a scheme that they helped to design. It might be presumed that they had discussions with the Senator about the operation of that scheme, and perhaps even about measures that might have improved how it was delivered upon or ironed out any delivery concerns. I do not, however, accept that any such discussions assumed forms that might credibly be described as complaints. Senator Lambie’s evidence on that front is preferred.

239    Even if I am wrong about that, there remains for the Messengers a further hurdle in their quest to qualify any discussions that were had as complaints about their employment that they were relevantly able to make. The subject matters about which they complained would appear to bear a sufficient connection to their employment; but it is not apparent that there was any relevant ability to agitate them. Again, the question may be put rhetorically: able pursuant to what? Again, Mr and Mrs Messenger identified the same suite of legislative instruments as were identified in respect of the other complaints that they alleged were made. Again, it was not explained (and it is not apparent) how any of those instruments conferred any right or entitlement to complain in the manner that is said to have occurred; nor how any of them established any right or entitlement to the vindication or realisation of which any such complaints might be said to have been directed.

240    To summarise:

(1)    I do not accept that either of Mr or Mrs Messenger complained to Senator Lambie about the volume or scope of veterans’ assistance work that was done from her office, or about the training that they and others had or had not undertaken in support of that work;

(2)    if they did, I would accept that those complaints were relevantly made in relation to their employment; but

(3)    even accepting that, they would still not have been complaints that the Messengers were relevantly able to make.

241    It follows that the Messengers did not exercise a workplace right by complaining to Senator Lambie about the volume or scope of veterans’ assistance work that was done from her office, or about the training that they and others had or had not undertaken for the purposes of it.

4.5.8 Complaints about office security

242    The Messengers next allege that, during the Senator’s first term, they complained to her about inadequate security at her office.

243    Although, during their evidence, Mr and Mrs Messenger each sought to convey that they had made many “regular” complaints to the Senator about office security, only one was evident from their pleadings. It concerned a death threat that Senator Lambie’s Burnie office received by mail on 27 February 2015 from the “Adelaide Islamic State Mujahideen”. The circumstances surrounding the receipt of that threat were not materially controversial. The parties all accepted that, upon its receipt, Mr and Mrs Messenger each made overtures to Senator Lambie about closing the office temporarily. That was a course that Senator Lambie declined to follow.

244    Much evidence was led about the nature of the death threat described above and the steps that were taken in the wake of it. Almost all of that evidence was irrelevant. Mr and Mrs Messenger were apparently concerned to impress upon the court the seriousness of the threat that had been received; and that Senator Lambie’s response to it was either lacking or incompetent or both. They sought to achieve that by recounting their engagement of senior Parliamentary and security personnel following its receipt. Given what they described as that level of response to the threat that had been received, it was suggested that Senator Lambie ought to have taken it more seriously, including by acceding to their advice that she shut down her office temporarily (and, thereafter, by insisting upon the installation of additional security measures, such as bullet-proof glass at her electorate office).

245    Senator Lambie’s evidence confirmed that, on the day in question, each of Mr and Mrs Messenger discussed with her the safety of her office. Both told her that they felt unsafe. She accepted that Mr Messenger had asked her to close down her office and that she had declined to do so. She did not, however, accept that either of the Messengers had said anything to her in the nature of a complaint. Rather, she characterised their discussions as advisory—or, at worst, as giving rise to a disagreement about what the best response to the threat was.

246    Although not without some hesitation, I accept that the discussions that Mr and Mrs Messenger had with Senator Lambie in the immediate aftermath of the threat described above were discussions that could aptly be described as complaints. By them, the Messengers sought to convey a grievance—namely, as to the inadequate physical safety of the Senator’s office—which they implored the Senator to address. The discussions appear to have transgressed beyond the sphere of reporting or advice: they carried a remonstrative or plaintive character more aptly associated with complaints.

247    They also, on any view, possessed a requisite connection to Mr and Mrs Messenger’s employment. The discussions were specific to their safety and to that of their colleagues (no doubt including the Senator herself).

248    Whether they were complaints that the Messengers were relevantly able to make is more difficult to discern. Again, Mr and Mrs Messenger submitted that their complaints were authorised under the same suite of legislative instruments that was said to have authorised their other complaints. The court was not taken to any specific provision of any instrument that might be thought to authorise—that is to say, convey or contemplate any relevant ability to make—the complaints that I accept were made.

249    Nonetheless, it is possible to envisage that such authority was present. Part 2 of the WHS Act is entitled “health and safety duties”. It imposes duties on various persons in relation to ensuring health and safety at a workplace. For example, s 19(1) of the WHS Act, which sits within pt 2, imposes an obligation on persons conducting a business or undertaking to ensure, so far as is reasonably practicable, the health and safety of workers engaged by the person, and workers whose activities in carrying out work are influenced or directed by the person, while those workers are at work in that business or undertaking. Section 19(3) then enumerates, without limitation, various matters that a person conducting a business or undertaking must ensure, so far as is reasonably practicable—including (amongst other things) the provision and maintenance of a work environment that is without risks to health and safety (s 19(3)(a)), the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking (s 19(3)(e)), and that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking (s 19(3)(g)). The remainder of pt 2 of the WHS Act sets out further duties in relation to ensuring health and safety at a workplace, as well as offences and penalties in respect of any failure to comply with those duties. Plainly enough, the WHS Act establishes obligations on employers and others charged with the management of a workplace, a failure to comply with which would be a matter about which an employee would possess a relevant ability to complain (at least on the strength of the authorities identified above at section 4.3.3 [141]). I accept that the complaint that was made on 27 February 2015 was one that each of the Messengers was relevantly able to make. By doing so, each exercised a workplace right for the purposes of s 340(1) of the FW Act.

250    Beyond what occurred in the immediate aftermath of the 27 February 2015 death threat, Mr and Mrs Messenger maintained that they made regular, ongoing complaints to the Senator about matters of office security. Senator Lambie denied that they did so. I accept her evidence. Given the lack of particulars about the discussions that were alleged to have transpired, it is difficult to say with requisite certainty that any relevant discussions took place. Nonetheless, it would appear—and the Senator appeared to accept—that there were at least some discussions about measures that might be taken in the office to upgrade its physical security. But it is not apparent that—or how—any such discussions ever rose beyond the normal tenor of discussions that might be expected as between a Senator, her chief of staff and her office manager. Save for the discussions that were had in the immediate aftermath of the threat described above, I do not accept that any discussions in the nature of complaints regarding office security ever took place as between the Messengers (or either of them) and Senator Lambie.

251    Mr Messenger also advanced an additional dimension to his discussions with Senator Lambie about matters of security. It concerned a speech that she gave at University High School in Melbourne on Friday, 22 May 2015. That speech apparently touched upon matters that excited some passions amongst the teenage crowd. As Mr Messenger was at pains to put it: the speech apparently involved “inflammatory public statements”. Mr Messenger’s evidence was that the audience reacted angrily to the speech, to a point that caused him to be concerned for his and Senator Lambie’s safety. Nonetheless, prior to leaving the school, the Senator received an invitation from a member of the school’s staff to return in future to speak again, which she said that she would accept.

252    Mr Messenger’s evidence was that, as he and Senator Lambie left the school, he had a “vigorous discussion” with her about whether or not she ought to return in future. He said that he told the Senator that he thought that, were she to do so, they were at risk of being physically harmed.

253    Senator Lambie denied that any such conversation took place. She acknowledged that the teenage audience was “a bit rowdy at the end” but told the court that the situation was, at all times, well under the teachers’ control. I accept her evidence. As with other aspects of his evidence, Mr Messenger’s suggestion that he felt physically threatened by an audience of teenagers at a school event to which the Senator was afterwards invited to return was embellished. His evidence about the events of Friday, 22 May 2015 was contrived as a vehicle through which to suggest, within the confines of these proceedings (and the inevitable media attention that they have attracted), that Senator Lambie is or was prone to making “inflammatory public statements”. I do not accept that he raised anything by way of complaint with Senator Lambie in connection with her speech of Friday, 22 May 2015.

4.5.9 The meeting of July 2016

254    The Messengers next contend that they raised an array of complaints during their meeting with Senator Lambie in the boardroom of her electorate office in early July 2016 (see above, [38]). It is not in dispute that that meeting occurred. At issue is the matters that were traversed throughout it.

255    Mr Messenger gave evidence about those matters:

We talked to the senator about a number of things, including her swearing and the effect it was having on her staff. As well as that, we then ran through a list of other grievances that we had with the senator.

…

Those grievances include our concern about the long work hours that we were working – the hundred hours a week that, regularly, my wife and I put in. We complained to the senator about the excessive work hours and the harmful effect that the excessive work hours were having. In addition to that, we were – we also raised with the senator the fact that we were expected to work during our recreational leave – in our time off.

…

In addition to the complaints about the excessive hours work, the swearing – there was also the issue of the veterans’ phone calls and when I say the veterans’ phone calls, I recall that we managed something like – in the end, about 640 different files from veterans all over Australia. And because of the advocacy in parliament that – and in public that Senator Lambie had undertaken. We were a lightning rod for veterans calling and disclosing their problems. Many of those phone calls were the desperate veteran. They were very, very sad – sad phone calls.

…

I said to the senator that the phone calls were a danger to the staff; that the staff weren’t trained to hear graphic details of sexual abuse, of veterans threatening suicide and that it was really putting a strain on the staff and on the office. I suggested that – and I recall my wife suggesting it, too – that we get special training for the staff if they were going to deal those phone calls and that we should try and limit the phone calls to veterans within Tasmania.

…

We also related the – the excessive alcohol consumption or the alcohol abuse that we felt that the senator was undertaking.

…

We – we also raised an issue of what we thought was an excessive bullying of a staff member.

256    Later, Mr Messenger expanded upon his evidence. He claimed that he and/or Mrs Messenger complained to Senator Lambie about the inappropriateness of comments that she occasionally made in the office about her sex life, about her “abuse” of Mrs Messenger and about other matters that were not alluded to in the pleadings.

257    Mrs Messenger’s evidence about the boardroom meeting of July 2016 was materially similar. Senator Lambie’s, however, was very different. She described a meeting that might aptly have been described as something of an intervention:

Both Mr and Mrs Messenger sat me down over the table and said that the staff were walking around on eggshells, and that they had made complaints, and that I had mood swings, and that I probably need to go back on medication and need to start seeing my psychiatrist again on a regular basis.

258    Asked about her reaction to being told those things, the Senator’s evidence was:

I was just floored because I just didn’t – I didn’t – I didn’t see what they were talking about and I just – you just finish running through an election and then to throw that across the table at me when – and I thought, “How could I possibly have six or 700 hours during that period of time till about 2012/13 of psychology and psychiatry and just, you know, the staff wouldn’t – why weren’t the staff telling me this? As if it was so bad, like, was I that bad? Was I that bad and they were that scared of me?” And I just found that really, really upsetting. You know, and I still had some – some trust left in the Messengers and I just thought – I just – it just floored me, to be honest. I just found it really upsetting.

…I wasn’t crying profusely or anything, but there were certainly tears coming down my cheek. I just had – and I had the biggest lump in my throat. It was just – it was just an awful – it was just something awful to sit through.

259    Senator Lambie denied that, during the boardroom discussion of early July 2016, the Messengers raised with her anything by way of complaint about staff workloads related to the veterans assistance work that her office undertook or about her language at work. Her evidence was that the meeting did not stray beyond the topics that she identified.

260    As with many other aspects of their testimony, the evidence that Mr and Mrs Messenger gave appeared gratuitous and embellished. It seemed very much calculated to embarrass Senator Lambie rather than inform the court. In every respect, I accept Senator Lambie’s evidence in preference to that of Mr and Mrs Messenger.

261    It is plain even from the Senator’s account of the meeting of July 2016 that the Messengers raised with her some issues of apparent concern. Looking at them generously, it might be said that they were raised by way of complaint (although it would appear far more likely that they were advanced by way of report and/or advice). Nonetheless, there is at least one and probably two hurdles that, for present purposes, the Messengers are unable to clear. The first is that the matters that I accept were raised with the Senator were not obviously raised in relation to the Messengers’ employment. They concerned the employment of the other staff. Second, it is anything but clear (which is to say that it was not explained) what might be the source of Mr or Mrs Messenger’s ability to complain about the subjects that were raised. The matters appear to have been raised not under any authority conferred or process convened to that end; but merely because the Messengers felt that there were matters of concern that they should raise.

262    Either way, such discussions as there were were not sufficient to qualify as the exercise of a workplace right or workplace rights.

4.5.10 The emails of 6 and 7 December

263    The Messengers next submit that the series of emails that Mr Messenger sent to Senator Lambie on 6 and 7 December 2016 (above, [42]-[46]) qualified as the exercise of a workplace right or workplace rights.

264    I do not accept that they did.

265    It is clear enough that the emails, at various parts throughout them, employed a remonstrative or plaintive tone that was sufficient to convey a sense of grievance. I accept that they qualified as complaints in the normal sense of that word. Furthermore, they were complaints that related, clearly enough, to Mr and Mrs Messenger’s employment.

266    Again, though, it is not apparent that Mr Messenger’s emails were sent as an exercise of some right or entitlement to complain that he possessed, instrumentally or otherwise; nor that the subject matters about which he felt obliged to complain were referrable to rights or entitlements conferred upon him. Such complaints as were made were made not in the exercise of, or to vindicate or realise, any relevant right or entitlement; they were made merely as an incident of his capacity to type an email. He may well have felt justified in raising what he raised; but that does not mean that he was “able to” do so in a manner that might excite the application of s 340(1) of the FW Act.

4.5.11 The emails of 5 and 8 March 2017

267    The Messengers next claim that they (or at least Mr Messenger) exercised workplace rights by sending the emails of 5 March 2017 regarding Ms Walker (see above, [55]) and 8 March regarding Mr Keough (see above, [56]).

268    Mr Messenger’s email of 5 March 2017 does not appear to convey anything in the nature of a grievance related to his or Mrs Messenger’s employment. It made the suggestion that Ms Walker had been poorly treated to the extent that she might “make a large worker’s comp claim”; and that there might be wisdom in ensuring that her replacement (and perhaps other staff in the Senator’s office) received some form of “proper training or counselling”.

269    Mr Messenger’s email of 8 March 2017 was similarly orthodox. Mr Messenger counselled Senator Lambie about processes to which he said it was advisable that Mr Keough adhere; and he again reiterated measures that might be employed to shield staff “…from the harmful psychological effects of disturbing, threatening and or suicidal calls [from military veterans]”.

270    By their terms, Mr Messenger’s emails of 5 and 8 March 2017 were both unremarkable communications between a chief of staff and his boss. Mr Messenger made some recommendations for Senator Lambie’s consideration. That was part of his job. He was doing what he was employed to do. He was not making any complaint or inquiry related to his employment.

271    Similarly, the emails do not seem to be—and it was never explained how they were—communications that Mr Messenger might be understood to have been relevantly “able to” make. In the absence of such an explanation, I could not conclude that he possessed (let alone exercised) any such ability in either case.

272    The sending of the 5 March and 8 March 2017 emails (or either of them) did not amount to the exercise of workplace rights by Mr Messenger.

4.5.12 The emails of 9 March 2017

273    The Messengers next claim that they (or Mr Messenger) exercised a workplace right by sending the email that he sent to Senator Lambie on 9 March 2017 (above, [59]).

274    That email was the culmination of an exchange between Mr Messenger and Senator Lambie concerning Ms Walker’s resignation. It is to be recalled that Senator Lambie had requested that her staff indicate in writing whether or to what extent they had contacted Ms Walker during periods when she was on leave.

275    In his email of 9 March 2017, Mr Messenger alleged that Mrs Messenger was “sick because of work stress”. He also suggested that “…trying to force [Mrs Messenger] to illegally fill out ‘statements regarding [Ms Walker]’ is not helping the stress levels” and that “contacting staff members on their recreational leave is also not helping”. Both, he said, “…could be interpreted as harassment and bullying” and he invited the Senator to check with her lawyer, Mr Isolani, if she felt that his (Mr Messenger’s) advice was wrong.

276    There is nothing about those passages (nor about any other parts of the 9 March 2017 email) that can fairly be described as a complaint or inquiry that Mr Messenger made in relation to his employment. The matters about which he felt moved to advise Senator Lambie were matters for him to advance if he wished. They were matters that a chief of staff might ordinarily raise. They were not expressions of grievance or requests for information. They were not matters that relevantly related to his employment. At worst, they were expressions of criticism: suggestions that Senator Lambie might be better advised to approach the issues that she wished to have addressed in a different manner.

277    Further—and at the risk of repetition—it was not explained how (and I do not accept that) Mr Messenger’s 9 March 2017 email was a communication that he was relevantly “able to” make for the purposes of s 341(1)(c)(ii) of the FW Act. It appears to have arisen simply because he felt it prudent to raise the matters that it addressed.

4.5.13 The PID

278    The Messengers next claim that, by sending the PID on the morning of Monday, 27 March 2017, they each exercised a workplace right for the purposes of s 340(1) of the FW Act.

279    There can be no doubt that the PID was couched in language that might ordinarily suffice to qualify as a complaint. Much of it was in the nature of gratuitous (and sometimes spiteful) criticism of Senator Lambie. Nonetheless, there are passages within it that quite clearly convey expressions of grievance and aspiration that something might be done to address them.

280    Nonetheless, the respondents submit that the PID was not, in fact, a communication in the nature of a complaint. Rather, they say, it was a device by which the Messengers sought to inoculate themselves from disciplinary action that, over the weeks preceding, had become more and more likely. That being so, the respondents maintain that the PID was “…sent as a calculated device to secure the protections contemplated by the PID Act for extraneous purposes”.

281    I accept that submission. Mr and Mrs Messenger both told the court that they were motivated, at least in part, to constitute their so-called PID as a public interest disclosure under the PID Act because they believed that, if they did so, no form of “reprisal” could lawfully be taken against them. They both conceded that they were concerned, at the time, about Senator Lambie’s intention to dismiss (at least) Mrs Messenger from her employment. They considered that their respective relationships with Senator Lambie were beyond repair.

282    Given those realities, I do not accept that the so-called PID was designed genuinely to prosecute grievances that each of Mr and Mrs Messenger had. Indeed, it is plain from the document as a whole—conveying, as it does, an array of unpleasant and spiteful criticisms—that the primary purposes of the so-called PID were to visit a measure of shame, embarrassment or reputational damage upon Senator Lambie and to afford the Messengers a measure of unwarranted statutory protection from “reprisal” in the form of disciplinary action. I do not accept that, by their so-called PID, the Messengers sought genuinely to agitate concerns related to their employment.

283    But even if I am wrong about that, the PID was, in fact, not a public interest disclosure for the purposes of the PID Act (and was not otherwise a complaint or inquiry that either of the Messengers was relevantly able to make). For the purposes of making good on that proposition, it should be noted that Mr and Mrs Messenger sought to constitute the PID as each and all of the four species of communication that are identified in s 26(1) of the PID Act (see above, [126]). It was, in fact, none of them. I shall deal with each species in turn.

284    First, it was said that the PID was an “internal disclosure” because it was sent to the office of the Prime Minister. Mr and Mrs Messenger submitted that the Prime Minister was their “supervisor”. That submission is plainly wrong. The Messengers’ supervisor was Senator Lambie. Any suggestion to the contrary is self-evidently absurd. The so-called PID was not an “internal disclosure”.

285    Second, it was said that the PID was an “external disclosure”. That, too, is plainly wrong. In order for a disclosure to qualify as an “external disclosure”, there must first have been a preceding “internal disclosure”. Here, there was not. The so-called PID was not an “external disclosure”.

286    Third, it was said that the PID was an “emergency disclosure”. In order so to qualify, three circumstances would have needed to exist (all of which are set out in the table subjoined to s 26(1) of the PID Act—above, [126]). First, Mr and Mrs Messenger would need to believe, on reasonable grounds, that the information that they sought to disclose concerned “…a substantial and imminent danger to the health or safety of one or more persons or to the environment”. Second, it would need to be shown that the disclosure went no further than was “…necessary to alert the recipient to the substantial and imminent danger”. Third—and in the absence of there having been a prior “internal disclosure”—it would need to be shown that there were “…exceptional circumstances justifying the discloser’s failure to make such an internal disclosure”. For reasons that are self-evident upon even the barest perusal of the PID’s terms (or even the summary of them contained above, at [80]), the Messengers cannot hope to satisfy any of those criteria. Any suggestion otherwise is arrant nonsense.

287    Finally, it was said that the PID was a “Legal Practitioner Disclosure”. It was not. As much is obvious from even a casual review of the terms of s 26. It cannot possibly be said that Mr and Mrs Messenger sent the PID for the purposes of obtaining legal advice or professional assistance in relation to their having made or proposing to make a public interest disclosure. Again, the very suggestion is circular and absurd and I reject it.

288    The so-called PID was not a public interest disclosure made pursuant to the PID Act. It was, instead, a vehicle that Mr and Mrs Messenger deliberately dressed up as such in the hope that they might attract protections reserved for far more worthy and genuine disclosures. It was nothing more than a malicious and vindictive exercise in embarrassing and prejudicing a person that they knew would soon become their former employer.

289    Those observations having been stated, it follows that the so-called PID was not a complaint or inquiry that either of Mr or Mrs Messenger was relevantly “able to” make for the purposes of s 341(1)(c)(ii) of the FW Act. By sending it (or, in Mrs Messenger’s case, by authorising it to be sent on her behalf, as she plainly did), neither can be understood to have exercised a workplace right.

4.5.14 The First Show Cause Response Letter

290    The Messengers next submit that, by the sending of the First Show Cause Response Letter, they should be understood to have advanced a complaint or inquiry related to their employment that they were relevantly able to make; and, thereby, to have exercised a workplace right.

291    The terms of the First Show Cause Response Letter speak for themselves. There is nothing about them that constitutes an inquiry. Nor can they properly be understood to have advanced any genuine, employment-related grievance. On the contrary—and much like the so-called PID—the First Show Cause Response Letter was little more than an exercise in criticising and embarrassing Senator Lambie. As much is clear from the Messengers’ insistence on sending it to the office of the Prime Minister.

292    I do not accept that the First Show Cause Response Letter advanced any genuine complaint related to Mr or Mrs Messenger’s employment. But, again, even if I am wrong about that, there is a bigger hurdle that cannot be cleared. It is impossible to see (and it was not explained) how any complaints that were advanced by means of the First Show Cause Response Letter were advanced in the exercise of some right or entitlement conferred upon the Messengers to that end, or otherwise pertained to some right or entitlement that they sought to vindicate or realise. On the contrary, the matters that are advanced in that correspondence appear to be advanced only because Mr and Mrs Messenger were minded to advance them. That is not sufficient to constitute the correspondence as the exercise of a workplace right.

293    I do not accept that, by the sending of that document, there was any such exercise.

4.5.15 The Second Show Cause Response Letter

294    Finally, the Messengers submit that, by their sending of the Second Show Cause Response Letter, they sought to prosecute a complaint or inquiry related to their employment that they were able to make; and, thereby, that they exercised a workplace right for the purposes of s 340(1) of the FW Act.

295    The observations made above in respect of the First Show Cause Response Letter apply equally to the Second Show Cause Response Letter. It is unnecessary to say any more about it.

296    By sending the Second Show Cause Response Letter, Mr and Mrs Messenger did not exercise any workplace right.

4.5.16 What about s 341(1)(c)(i)?

297    Both by their respective pleadings and by the closing submissions that they advanced, Mr and Mrs Messenger also contended that all of the communications upon which they relied (and to which extensive attention has been given above) amounted to complaints or inquiries that they were able to make to a person or body having the capacity under a workplace law to seek compliance with that law or with a workplace instrument. Insofar as that was so, it was said that, by making each such complaint or inquiry, they should each be understood to have exercised a workplace right of the kind that s 341(1)(c)(i) of the FW Act contemplates.

298    That contention did not rise beyond assertion. It is, then, very difficult to make much of it. Nonetheless, the following observations bear noting.

299    First, Mr and Mrs Messenger claim that their complaints or inquiries were made to a person or persons who had relevant capacities under three “workplace laws”, namely, the MOPS Act, the PID Act, and the WHS Act. Save insofar as concerns the so-called PID, the First Show Cause Response Letter and the Second Show Cause Response Letter—all of which were sent to recipients other than Senator Lambie (the first having been sent only to recipients other than Senator Lambie)—the complaints or inquiries upon which the Messengers rely were all made to the Senator.

300    Although the three legislative sources relied upon—the MOPS Act, the WHS Act and the PID Act—each qualify as “workplace law[s]” for the purposes of s 341(1)(c)(i) of the FW Act, it was never explained how any of the complaints or inquiries that are relied upon was made to a person that enjoyed, under any of them, any relevant capacity of the kind described by that sub-paragraph. How, for example, the MOPS Act or the WHS Act conferred upon Senator Lambie any such capacity was not explained (and is not apparent). Likewise, insofar as complaints or inquiries were made externally to Senator Lambie (as was the PID)—including to the offices of the Prime Minister, the Senate President, the Commonwealth Attorney-General, or to Ms Forester, of MaPS—it was not explained how (and nor is it apparent that) any recipient enjoyed any equivalent capacity under either of those enactments or the PID Act.

301    Those conclusions stated, it is not possible to find that any of the complaints or inquiries that are relied upon was directed to any recipient that had any relevant capacity under a workplace law. It necessarily follows that neither of Mr or Mrs Messenger possessed—or, by the communications alleged, exercised—any workplace right of a kind that s 341(1)(c)(i) of the FW Act contemplates.

4.5.17 Conclusion

302    Of the great many complaints or inquiries whose making Mr and Mrs Messenger sought to qualify as the exercise of workplace rights, only one in fact so qualified (see above, [249]). The remainder were, in some combination or another, either not made, not in the nature of complaints or inquiries, not sufficiently related to the Messengers’ employment (or that of either of them) or not of a kind that the Messengers were relevantly able to make.

4.6 Why was adverse action taken?

303    As has been made clear above (in section 4.4 [157]), the only instance of adverse action to which I accept that the Messengers were subjected was their dismissal. With the exception of the complaints that were aired during the discussion that took place in February 2015, following receipt of a terror-related death threat (see above, [249]), I do not consider that any of the communications upon which Mr and Mrs Messenger presently rely were made; nor, to the extent that they were (or might have been) made, that they amounted to the exercise of a workplace right or workplace rights.

304    Strictly speaking, then, the only question that remains to be resolved (at least in relation to the cases that were advanced under s 340(1) of the FW Act) is whether either of Mr or Mrs Messenger was dismissed because of what was said on 27 February 2015.

305    Nonetheless, the analysis that follows is broader in its scope. It assumes that the conclusions that I have stated above concerning the extent to which Mr and Mrs Messenger exercised (or, more accurately, did not exercise) workplace rights and were (or, more accurately, were not) subjected to adverse action are wrong. It goes further to identify whether, or to what extent, any of the three species of adverse action that the Messengers allege was actuated or partly actuated by any of the complaints or inquiries by the making of which they claim to have exercised workplace rights.

306    For the reasons that follow, none of the conduct to which the Messengers were subjected (and which they seek to constitute as adverse action) was taken because, or for reasons that included that, either or both of them had made any of the complaints or inquiries upon which they rely.

4.6.1 The First Show Cause Letters

307    The decision to send the First Show Cause Letters was Senator Lambie’s. That was not controversial. In order to determine whether that decision was actuated, or partly actuated, by a reason or reasons proscribed by pt 3-1 of the FW Act, it is necessary to consider the explanation that Senator Lambie gave as to why she made it.

308    That explanation was straightforward. Senator Lambie’s oral evidence was that the First Show Cause Letters were sent “…because of what was in the show cause letters”. She elaborated:

The reason that those show cause letters went out there is what is written in those show cause letters, and from what those girls told me in December, and everybody opened up to what was going on in my office.

309    Under cross-examination, Senator Lambie did not deviate from that evidence. Further, she denied that her decision to issue the First Show Cause Letters was related in any way to any complaint or inquiry that either of the Messengers claimed to have made.

310    Senator Lambie’s explanation sits very comfortably alongside the events that transpired in the lead up to the sending of the First Show Cause Letters. In late November, when Mrs Messenger accompanied Senator Lambie to Canberra for the final sitting week of 2016, there was a confrontation as between them. Soon thereafter, in December of 2016, Senator Lambie was alerted to some matters of obvious concern during the road trip that she took with Ms Tyrell and Ms Balthazaar-Proctor (above, [47]). Those concerns were amplified by the discussions that she had with other staff members immediately after that road trip (see above, [48]). In February 2017, there was a further deterioration in the relationship between Mrs Messenger and Senator Lambie (see above, [51]). At around the same time, efforts were made to establish, with the assistance of Mr Witheford, a process by which best to resolve the concerns that Senator Lambie said had formed in her mind. Initially, that process was to include a mediation session; but that broke down (see above, [62]-[67]). Shortly thereafter, Mrs Messenger made an unexpected visit to the Senator’s office, whereupon she set about destroying (and/or discarding) a volume of documents. That course of events is consistent with a desire on Senator Lambie’s part to commence the process about which the Messengers now complain.

311    Mr and Mrs Messengers’ case concept, on the other hand, is inherently unrealistic. They maintain, for example, that Senator Lambie sent the First Show Cause Letters in part because of complaints that they had raised well prior—in some cases, years prior. Of course, some of the complaints (or alleged complaints) that are relied upon were, at the time of the First Show Cause Letters, relatively contemporary (see, for example, the complaints that were said to manifest in Mr Messenger’s emails of 6 and 7 December 2016, and 5, 8 and 9 March 2017). Others, though, were by then matters of ancient history (see, for example, the complaints that were said to have been made about the Senator’s radio interview in July 2014 (see above, section 4.5.6 [220]).

312    Further, it must be borne in mind that the so-called PID, although sent in the morning of Monday, 27 March 2017 (a matter of hours prior to the First Show Cause Letters) did not make its way into Senator Lambie’s possession until much later. Senator Lambie’s evidence—which I accept—was that she did not see that document until well after the Messengers were summarily dismissed from their employment. Despite their best efforts (particularly during the cross-examination of Senator Lambie and Ms Tyrell—the latter of whom told the court that she believed that she became aware of the PID whilst in Canberra, possibly as early as March 2017), there was no evidence that contradicted the Senator’s testimony on that score, nor from which the court might draw inferences sufficient to warrant its rejection.

313    There is, then, no obvious reason to reject—and, in my view, some quite powerful reasons to accept—Senator Lambie’s explanation as to why she decided to send the First Show Cause Letters. To the extent that any of them was in fact made, none of the complaints or inquiries that Mr and Mrs Messenger rely upon presently factored in any way in, or otherwise bore causally upon, Senator Lambie’s decision to send the First Show Cause Letters.

314    Even if those various complaints or inquiries involved, in each case, the exercise of a workplace right, and even if the Messengers’ receipt of the First Show Cause Letters amounted to adverse action, I do not accept that the latter was actuated, or partly actuated, by any of the former.

315    It follows that the Messengers were not, by reason of the First Show Cause Letters, subjected to adverse action in contravention of s 340(1) of the FW Act.

4.6.2 The Second Show Cause Letter

316    As with the First Show Cause Letters, the decision to send the Second Show Cause Letter was Senator Lambie’s. Again, that was not controversial. In order to determine whether that decision was actuated, or partly actuated, by a reason or reasons proscribed by pt 3-1 of the FW Act, it is necessary to consider the explanation that Senator Lambie gave as to why she made it.

317    Obviously enough, those reasons are informed (if not constituted entirely) by Senator Lambie’s reaction to the Messengers’ First Show Cause Response Letter. As to that, the Senator’s evidence focused upon the Messengers’ decision to copy their First Show Cause Response Letter to the office of the Prime Minister. She testified as follows:

I just thought how demeaning, and why would you send it to a Prime Minister? I found it absolutely disgusting. It was the – it was the last stage, I think, of just – I just could not – why would you send that to a Prime Minister? What was he hoping to get out of it? You know, I’ve got to have a good relationship with ministers and Prime Ministers, and I just – me knowing myself, for the former Prime Minister Turnbull, that he’s a little bit bigger than this stuff made me feel a little bit better. But other than that, why – why would you do that?

…

So I was quite upset, quite angry about it…

…to send this to demean me and put this sort of rubbish out there through [the Prime Minister’s] office when there was no need to, and when I know very well [Mr Messenger]’s a former parliamentarian and knows better than that, I just found that quite – the lowest point.

…

I just found it, like, very demeaning, very – just trying to shame me, belittle me, everything like that and there’s bugger all truth in it and I just found it – and the other thing was, he never actually responded to anything in the show cause. It was a letter to get out there and how he felt about me and that’s it.

…

[I]t was completely out of order doing that. It should never have gone to the Prime Minister’s Office to check the Prime – and I think that was – it wasn’t just – so it’s not just the Prime Minister that sees that. It goes through his staff first. This was just him meaning this is – this – to me, it’s, like, last straw mate. Sorry. I’m done.

318    Senator Lambie’s evidence about her reaction to the First Show Cause Response Letter was reflected in the evidence of Ms Tyrell and Ms Rikys, with whom she discussed its content. It is patently clear from the evidence of all three that Senator Lambie’s reason for sending the Second Show Cause Letter was that she felt belittled and demeaned by the First Show Cause Response Letter. One need only read it to understand why she might have formed that view.

319    Mr and Mrs Messenger’s central contention concerning the sending of the Second Show Cause Letter was that it was a “reprisal” for their having sent their so-called PID. That assertion does not accord with the facts. Senator Lambie’s evidence, which I accept, was that, although curious as to its content, she had not seen that so-called PID at the time that the Second Show Cause Letter was sent. There was no evidence to the contrary (see above, [312]). The sum total of Senator Lambie’s knowledge about the existence or content of that document appears to be the brief reference that was made to it in the First Show Cause Response Letter. I accept that the so-called PID did not factor in any way in, nor in any way bear upon, Senator Lambie’s decision to send the Second Show Cause Letter.

320    Likewise, in light of my conclusions about the reasons that animated (and, just as importantly, did not animate) the sending of the First Show Cause Letters, it is self-evidently illogical to suggest that the Second Show Cause Letter was actuated in any way by any of the other alleged complaints upon which the Messengers relied (including those dating all the way back to 2014). Senator Lambie’s evidence was that it wasn’t and I accept that.

321    The Second Show Cause Letter was not sent because, or for reasons that included that, Mr and Mrs Messenger had made any of the complaints or inquiries that they allege were made over the course of their employment.

4.6.3 The Dismissals

322    Like the other instances of alleged adverse action, the decision to terminate the employment of each of Mr and Mrs Messenger was Senator Lambie’s. Again, that was not controversial.

323    As with her decisions to send the First Show Cause Letters and the Second Show Cause Letter, Senator Lambie’s evidence as to why she decided to terminate the Messengers’ employment was straightforward. She told the court about her reaction to the First Show Cause Response Letter and the Second Show Cause Response Letter: she was, to say the least, unimpressed that the Messengers had seen fit to air the unmistakably ridiculing and demeaning insults that were littered throughout that correspondence (in particular, the First Show Cause Response Letter) to the office of the Prime Minister. One need only read the correspondence to understand why or how she might have formed that state of mind.

324    In particular, Senator Lambie told the court that, upon receiving those letters, she felt that there was no prospect that she and the Messengers might ever be able to work together again. Her evidence was as follows:

I suspect that after doing all that, honestly, that they must have known – how was it ever – how was it going to ever function having them back in my office after all of that, Mr Harrington?

…

…there was nothing else left – I couldn’t do anything more. It was over. It was completely and utterly over. The relationship was completely broken down. There was no trust, and everything – while going through the Prime Minister’s office and everything else, there was nothing left, Mr Harrington. There was only one thing left, and that was to dismiss them.

325    Asked, point blank, why it was that she decided to proceed with the Messengers’ dismissals, Senator Lambie replied:

…because there was no turning around and going back from this…

326    Senator Lambie’s evidence aligned with that of Ms Rikys, with whom she spoke upon receiving the Second Show Cause Response Letter. Ms Rikys’s evidence was that, during their conversation, it became clear to Ms Rikys that Senator Lambie was angry about that correspondence. Her (Ms Rikys’s) evidence was that:

…Senator Lambie was angry. Again, she couldn’t believe the content. It wasn’t a response to the show cause. It was just reiterating the Messengers’ intent to keep the Prime Minister’s office fully informed and further demonstrated a breakdown in the employer/employee relationship.

…

She wanted to terminate the Messengers[’ employment].

327    Senator Lambie denied that her decision to proceed with the Messengers’ dismissals was actuated, or partly actuated, by their having made any of the complaints or inquiries that they said that they had made throughout the course of their employment. She was not cross-examined on that denial; nor, indeed, at all as to her reasons for deciding to proceed with the dismissals.

328    Again, Senator Lambie’s explanation for why it was that she decided to dismiss each of Mr and Mrs Messenger was inherently credible and sat in quite obvious harmony with the events that had led up to it (as to which, see above, [310]). Given the communications that were exchanged (and shared) after 27 March 2017, it could hardly come as a surprise that Senator Lambie formed the view that the Messengers’ ongoing employment was untenable. Indeed, Mr and Mrs Messenger themselves both agreed that their respective relationships with the Senator had broken down at least to a point of no confidence.

329    Conversely, the notion that Senator Lambie might have been motivated to act as she did, even partly, on the strength of complaints or inquiries that were advanced (or allegedly advanced), in some cases, many months or even years prior is inherently unconvincing. Again, the Messengers’ chief contention was that Senator Lambie had been moved to act against them because of their so-called PID; but, again, the evidence was very clear that that document had entered neither the Senator’s possession nor her consciousness. As with the other instances of alleged adverse action, there is every reason to accept—and I do accept—Senator Lambie’s evidence as to why she decided to dismiss each of Mr and Mrs Messenger from their employment. It is clear that none of the complaints or inquiries upon which Mr and Mrs Messenger rely factored in any way in, or otherwise bore causally upon, Senator Lambie’s decision.

330    Even assuming, contrary to what I have concluded above, that all of those communications transpired and that they all involved an exercise of a workplace right, I do not accept that Senator Lambie’s decision to dismiss either of Mr or Mrs Messenger was actuated, or partly actuated, by any of them. Rather, they were dismissed because Senator Lambie did not consider that they had adequately addressed the concerns that she had invited them to address and, more significantly, because they had insisted upon sending correspondence that was spitefully critical of her to the office of the Prime Minister.

331    It follows that neither of the Messengers was, by the termination of their employment, subjected to adverse action in contravention of s 340(1) of the FW Act.

4.7 Conclusions

332    Insofar as concerns Senator Lambie’s decisions to send to the Messengers the First Show Cause Letters and the Second Show Cause Letter—and to subject them to the process that those letters, in each case, envisaged—the following conclusions may be stated, namely:

(1)    neither of those decisions (or the action taken in consequence of each) sufficed to qualify as adverse action as the Messengers alleged (see above, section 4.4 [157]);

(2)    even if either had, neither was actuated, in any way, by any complaint or inquiry that either or both of the Messengers had made in relation to their employment (see above, sections 4.6.1 [307] and 4.6.2 [316]);

(3)    even if either was so actuated (or partly actuated), such complaints or inquiries were (with one exception—see above, [249]) either not made or, to the extent that they were (or might have been) made, were in any event (and in each case) not complaints or inquiries the making of which involved (or would or might have involved) the exercise of a workplace right (see above, section 4.5 [172]); and

(4)    the action to which the Messengers were subjected in consequence of each decision was not, in any case, adverse action taken against them (or either of them) in contravention of s 340(1) of the FW Act.

333    Insofar as concerns Senator Lambie’s decision to summarily dismiss each of Mr and Mrs Messenger on Wednesday, 3 May 2017 (and the action that was then taken to effect those dismissals), the following conclusions may be stated, namely:

(1)    that decision, or that action, amounted (in each case) to adverse action (see above, section 4.4 [157]);

(2)    it was not, however (and in either case), actuated, in any way, by any complaint or inquiry that either or both of the Messengers had made in relation to their employment (see above, section 4.6.3 [322]);

(3)    even if it were so actuated (or partly actuated), such complaints or inquiries were (with one exception—see above, [249]) either not made or, to the extent that they were (or might have been) made, were in any event (and in each case) not complaints or inquiries the making of which involved (or would or might have involved) the exercise of a workplace right for (see above, section 4.5 [172]); and

(4)    the action to which the Messengers were subjected in consequence of each decision was not, in either case, adverse action taken against them in contravention of s 340(1) of the FW Act.

334    None of the contraventions of s 340(1) of the FW Act that the Messengers alleged as against the Commonwealth is established. That being so, there are none in which Senator Lambie might be thought to have been involved for the purposes of s 550 of the FW Act. There was no wrongdoing of the kind alleged to which she could have been an accessory. It necessarily follows that none of the contraventions of s 340(1) of the FW Act that the Messengers alleged as against Senator Lambie is established.

335    For those reasons, the adverse action aspects of each of the Messengers’ matters must be dismissed.

Part 5: The underpayment case

5.1 Summary

336    The second of the Messengers’ three broad causes of action concerns the manner in which Senator Lambie terminated their employment. Each alleges that, pursuant to the EA, they were entitled either to notice of their dismissal or to payment in lieu thereof; and that, having not been afforded either, the termination of their employment was effected in contravention of ss 50 and 323 of the FW Act.

337    Resolution of those claims rests principally upon whether each of the Messengers was properly dismissed without notice on account of serious misconduct. The nature of that concept—serious misconduct—is discussed below. For now, it suffices to note that the Messengers’ entitlements under the EA to notice or payment in lieu thereof were dependent upon their not having committed acts of serious misconduct.

338    The respondents contend that, prior to their dismissals, the Messengers did just that. They submit that there was no obligation under the EA to afford either of the Messengers notice of their dismissal or payment in lieu thereof because each of them had engaged in instances of serious misconduct by reason of which the summary termination of their employment was authorised.

339    For the reasons that follow, I accept that contention. In the circumstances that transpired, neither of Mr nor Mrs Messenger was entitled to notice of the termination of their employment or payment in lieu thereof. Both were, for the purposes of the EA, “guilty of serious misconduct” such that their employment was properly “terminated without notice”. Neither dismissal gave rise to any contravention of ss 50 or 323 of the FW Act.

5.2 Relevant legislative provisions

340    This aspect of the Messengers’ cases turns upon the interaction of the EA (which applied to their employment at the time of their dismissal) with various provisions of the FW Act.

341    Part I of the EA was headed “termination of employment”. It commenced with cl 63, which relevantly provided as follows:

63.1     Subject to clause 63.5 below, where an employee’s employment is terminated under subsection 16(3) or subsection 23(2) of the MOP(S) Act, the employee is entitled to a period of notice of termination or a payment in lieu of notice calculated as follows:

63.2     Where an employee is over 45 years of age and has completed two years’ continuous service at the time of termination the employee will be entitled to one additional week’s notice of termination or payment in lieu of notice.

…

63.4     Where an employee is guilty of serious misconduct (within the meaning of paragraph 1.07 of the Fair Work Regulations), his or her employment may be terminated without notice.

342    Regulation 1.07 of the FW Regulations relevantly provides (and, at the material time, provided) as follows:

1.07     Meaning of serious misconduct

(1)     For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2)     For subregulation (1), conduct that is serious misconduct includes both of the following:

(a)     wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b)     conduct that causes serious and imminent risk to:

…

(ii)     the reputation, viability or profitability of the employer’s business.

(3)     For subregulation (1), conduct that is serious misconduct includes each of the following:

…

(c)     the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4)     Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

…

343    Section 50 of the FW Act provides (and provided) as follows:

50     Contravening an enterprise agreement

A person must not contravene a term of an enterprise agreement.

344    Section 50 of the FW Act applies subject to s 51, which relevantly provides (and provided) as follows:

51     The significance of an enterprise agreement applying to a person

(1)     An enterprise agreement does not impose obligations on a person, and a person does not contravene a term of an enterprise agreement, unless the agreement applies to the person.

(2)     An enterprise agreement does not give a person an entitlement unless the agreement applies to the person.

345    It was common ground as between the parties that, at the time of their dismissals, the EA applied to each of Mr and Mrs Messenger and the Commonwealth in relation to the Messengers’ employment as members of Senator Lambie’s staff.

346    Section 323 of the FW Act requires that employers pay employees amounts payable in relation to the performance of work. Again, there was no dispute that, if the Messengers were each entitled to payment in lieu of notice of their dismissal, the failure to afford them that payment would fall foul of what s 323 of the FW Act required.

347    Sections 50 and 323 of the FW Act are (and were) both “civil remedy provision[s]” for the purposes of pt 4-1. This court has jurisdiction to hear applications for relief relating to conduct engaged in in contravention of the requirements that they establish (see above, [118]). Section 550 of the FW Act applies in respect of those who are involved in such contraventions (see above, [119]).

5.3 The competing submissions

348    The respondents contend that the Messengers each engaged in serious misconduct for the purposes of cl 63.4 of the EA when they sent each of the First Show Cause Response Letter and the Second Show Cause Response Letter (hereafter, the “Show Cause Responses”). In both cases, it is said that those letters, having been circulated to the office of the Prime Minister, were calculated to embarrass Senator Lambie and cause her a measure of political or reputational damage. It was submitted that they were destructive of a continuing relationship of trust and confidence as between Senator Lambie (on the one hand) and the Messengers (on the other), and that they amounted to “…deliberate behaviour that was inconsistent with the Messengers’ continued employment”.

349    Further, the respondents contend that the Messengers engaged in serious misconduct by sending their Second Show Cause Response Letter to the office of the Prime Minister. That was said to be done contrary to a lawful and reasonable instruction issued to them, at least implicitly, by means of the Second Show Cause Letter.

350    I should say something about the pleadings. Normally, where a respondent intends to advance instances of serious misconduct by way of defence to a claim of non-payment in lieu of notice of dismissal, those instances need to be properly identified and particularised in its pleading. In the present matters, however, the pleadings took something of an unorthodox turn.

351    By their second further amended statements of claim, each of Mr and Mrs Messenger alleged that, “[o]n 3 May 2017 [Senator Lambie] terminated the Applicant’s employment with the [Commonwealth] for serious misconduct.” Unsurprisingly, both respondents admitted that allegation. Later, when the Messengers’ claims alleged that they were wrongly denied payment in lieu of notice of their dismissals, both respondents denied that any such wrongdoing had transpired. The Commonwealth referred back to its earlier admission. Neither of the respondents pleaded and particularised—or needed to plead and particularise—any of the serious misconduct that was the subject of their admission. That course was open to them given the unusual—frankly, regrettable—manner in which the notice claim against them was advanced.

352    Nonetheless, the matters did not proceed on the footing that the question as to whether Mr or Mrs Messenger had engaged in serious misconduct was resolved on the pleadings. It remained a live issue for the court to resolve. For the most part, it would be resolved not upon resolution of any evidential conflict; but upon the proper characterisation of events that the evidence established without controversy (in particular, the sending of the Show Cause Responses).

353    I say, “for the most part”. During his closing written and oral submissions, counsel for Senator Lambie sought to raise an additional allegation of serious misconduct that had not been apparent prior to the trial. It concerned the Messengers’ dealings with Mr Walker during the afternoon of Friday, 24 March 2017 (see above, [70]-[71]). Although that allegation was not—and, strictly, did not need to be—the subject of prior notice in the pleadings, and was not alluded to during the opening of Senator Lambie’s case or in any detail in her closing written submissions, it was nonetheless pressed as a matter of significance to the defence of the Messengers’ claims under ss 50 and 323 of the FW Act. Mr and Mrs Messenger were apparently content to (and did) address it. This aspect of the notice claims does turn upon the resolution of conflicting evidence.

354    Other than to deny that they had engaged in instances of serious misconduct sufficient to disentitle them to payment in lieu of notice of their dismissal, Mr and Mrs Messenger did not advance much by way of legal submission on the point. It was clear enough that they regarded the conduct in which they engaged—that is, their sending of the Show Cause Responses and their dealings with Mr Walker—to be warranted in light of the serious concerns that they said had formed in their minds about Senator Lambie. Insofar as their conduct was warranted in that way, their contention was that it did not amount to serious misconduct for the purposes of cl 63.4 of the EA.

5.4 Relevant legal principles

355    Despite identifying specific species of conduct that qualify as serious misconduct for the purposes of the FW Act, reg 1.07 of the FW Regulations does not expand the concept beyond its common law limits: Whelan, [38] (Greenwood, Logan and Derrington JJ). Although there is no fixed rule of law defining the degree of misconduct that might justify the summary termination of an employment contract, it is generally the case that conduct that is “…inconsistent with the due and faithful discharge by the employee of the duties for which he was engaged…” will suffice: Laws v London Chronicle Ltd (1959) 1 WLR 698, 700 (Lord Evershed MR, with whom Lord Jenkins and Willmer LJ agreed); see also Coope v LCM Litigation Fund Pty Ltd (2016) 333 ALR 524, 547 [139] (Payne JA, with whom Gleeson and Leeming JJA agreed); Sent v Primelife Corporation Ltd [2006] VSC 445, [17] (Mandie J); Serventi v John Holland Group Pty Ltd [2006] FCA 1049, [6] (Madgwick J). In LCM Litigation Fund Pty Ltd v Coope [2015] NSWSC 992, Stevenson J accepted (at [158]) that:

Serious misconduct may be established where it is established that the employee’s conduct was, in respect of important matters, incompatible with the fulfilment of the employee’s duty or involved an opposition, or conflict between his interest and his duty to his employer or impeded the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, but the conduct of the employee must itself involve the incompatibility, conflict, or impediment or be destructive of confidence: Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 at 81–82 per Dixon and McTiernan JJ. An actual repugnance between the employee’s acts and the employment relationship must be found and it is not enough that grounds for uneasiness as to future conduct arises…

356    Those observations were acknowledged (and not disturbed) on appeal: Coope v LCM Litigation Fund Pty Ltd (2016) 333 ALR 524, 547 [139] (Payne JA, with whom Gleeson and Leeming JJA agreed).

357    Where allegations of misconduct are raised by way of justification for a particular course of action by an employer—including, as in this case, the summary dismissal of an employee—the legal burden of establishing that justification falls upon the employer: Eldridge v Wagga Wagga City Council [2021] NSWSC 312, [293] (Bell P); Carter v Dennis Family Corporation [2010] VSC 406, [47] (Habersberger J); Rankin v Marine Power International Pty Ltd (2001) 107 IR 117, 142 [250] (Gillard J). The acceptance of such allegations involves findings that ought not lightly to be made: Ryder v Aphrodite Gold Ltd [2017] WASC 377, [234] (Banks-Smith J).

358    In order to assess whether either of Mr or Mrs Messenger did anything amounting to serious misconduct, it is first necessary to say something about the duties that they owed as employees. It was not controversial—and could hardly be doubted—that they each owed obligations to serve Senator Lambie loyally, in good faith, and a manner apt to maintain the trust and confidence crucial to their working relationships with her: Blyth Chemicals v Bushnell (1933) 49 CLR 66, 81 (Dixon and McTiernan JJ, Starke and Evatt JJ agreeing in the result); Cook v Australian Postal Corporation (2018) 264 FCR 72, 84 [45] (Rares, Perry and Charlesworth JJ). In Commonwealth Bank of Australia v Barker (2014) 253 CLR 169, 202-203 [66], Kiefel J made the observation in these terms:

The duty of trust and confidence…is not some abstract concept. It refers to conduct, on the part of an employee, which is contrary to the interests of the employer and serious enough to have the effect that the employer could not reasonably be expected to have confidence in the employee. The duty reflects an essential aspect of the relationship between employer and employee. Whilst trust and confidence is maintained, the relationship endures. In that sense, the employee's duty may be said to be directed to the maintenance of the relationship. Yet the law recognises that, where a point of no confidence is reached, it would be intolerable for the employer to continue with the relationship. In such a circumstance, termination of the employment is justified.

359    There is, of course, in these matters, an unusual feature about the employment relationships. Although in every practical sense, Mr and Mrs Messenger should be understood to have been employed by Senator Lambie, they were, in fact, employed by the Commonwealth. Nonetheless, I did not understand it to be controversial—and would, even if it were, readily conclude—that the Messengers’ obligations to serve loyally, in good faith and in a manner apt to maintain trust and confidence were obligations that were owed to, or at least in respect of their relationship with, Senator Lambie. It is impossible to see how their employment relationships would have been workable otherwise.

360    Serious misconduct need not be known to an employer at the time of dismissal in order that it might later be relied upon to defeat a claim for payment in lieu of notice: Concut Pty Ltd v Worrell (2000) 176 ALR 693, 701 [29]; 703 [38] (Gleeson CJ, Gaudron and Gummow JJ); Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427, 456-457 (Von Doussa J). It will suffice that serious misconduct has, in fact, transpired. At the least, that is so insofar as concerns claims made in contract (for example, a claim for notice or payment in lieu of notice under a contractual termination provision). There is no reason why that principle ought not also hold true in circumstances such as the present, where the entitlement that is claimed arises not in contract but under statute: see, by way of example, National Tertiary Education Industry Union & Anor v University of Sydney (2021) 392 ALR 252, 310 [223] (Jagot and Rangiah JJ, with whom Allsop CJ relevantly agreed).

5.5 Analysis of the relevant conduct

361    It remains, then, for the court to assess the conduct in which the Messengers engaged and reach a view as to whether or not it was conduct so repugnant to their continued employment as to amount to serious misconduct. It is convenient to split that analysis into two parts. The first, concerning the Show Cause Responses, does not require the resolution of any conflicting evidence: it is clear that the conduct in question took place and its nature is apparent from the terms of the correspondence and the recipients to whom it was sent. The second concerns the Messengers’ interactions with Mr Walker during the afternoon of Friday, 24 March 2017. Those interactions do require the resolution of conflicting evidence, to which I shall return shortly.

5.5.1 The Show Cause Responses

362    It is not necessary to repeat the terms or tenor of the Show Cause Responses. Like the so-called PID, they were laced with gratuitously hostile assessments of Senator Lambie’s character, her conduct and, at least implicitly, her fitness for office. The Messengers’ First Show Cause Response Letter, in particular, reads unmistakably as an attack piece focused firmly upon someone to whom they owed obligations of loyalty and good faith. That the Messengers saw fit to send their Show Cause Responses to the office of the Prime Minister—the leader of a rival political outfit—is a matter of some significance.

363    By way of defence, the Messengers maintained that they were genuinely concerned to prosecute what they believed were well-founded grievances. Whether that is what they were, in fact, doing, may be doubted. It is not difficult to conceive of far more appropriate ways—and avenues through which—to advance those grievances if they genuinely wanted to have them addressed. But, regardless, whether or not they felt that their concerns were proper to ventilate is not to the point. The question is best answered rhetorically: how can an employer seriously be expected to maintain the employment of people who have seen fit to communicate externally (to rivals, no less) about how dangerous and incompetent they are?

364    Nobody reading the Show Cause Responses (and the First Show Cause Response Letter in particular) could sensibly conclude that there remained any semblance or possibility of any continuing relationship of confidence. As Senator Lambie put it, the Messengers had embarked upon an exercise in “unvarnished hostility” that was unmistakably inconsistent with any notion of continuing employment.

365    The Messengers also sought to justify their sending of the Show Cause Responses to the office of the Prime Minister on the basis that he was their supervisor or “ultimate” supervisor, or was otherwise responsible for establishing protocols under the MOPS Act pursuant to which they were engaged. They submitted that they “…owed an overriding fidelity or duty and responsibility to the Commonwealth and its workplace laws through the Office of Prime Minister rather than to Senator Lambie.” They went so far as to suggest that the office of Prime Minister “…is not a political office”.

366    Those submissions were as misconceived as they were contrived. It is patently absurd to suggest that the operatives of a political office were duty bound to serve the interests of anybody other than the elected representative in whose service they were employed. It is even more absurd to suggest that the office of Prime Minister is “…not a political office”. If those contentions were even remotely sound, it would follow that disaffected staff within an opposition representative’s office could, with impunity, copy to the Prime Minister—to their representative’s primary political rival—all manner of embarrassing, scandalous or damaging allegations. That is a self-evidently preposterous notion to which, despite the obvious misgivings of the court, the Messengers unwisely adhered.

367    The ridiculing nature of the First Show Cause Response Letter, in particular, should not be undersold. In it, the Messengers made reference to Senator Lambie having “parroted” lines that were written for her, having feigned spontaneity during interviews, having “very poor” reading and speaking skills, having delivered “cringe worthy [sic] mispronunciations” during speeches, and having been unable to “competently read and pronounce simple words”. How it might ever be appropriate for a political staffer to share accusations like that with the Prime Minister’s office defies explanation.

368    The Show Cause Responses were transparent and calculated acts of betrayal. It beggars belief that they were shared with the office of the Prime Minister. There was no possible justification for the Messengers embarking on that course and no employee in their position could realistically expect to remain in his or her employment having done so. Their efforts in sending the Show Cause Responses constitute some of the clearest examples of serious misconduct imaginable.

5.5.2 Non-compliance with a direction

369    The respondents also suggest that the Messengers each engaged in an act of serious misconduct insofar as they sent the Second Show Cause Response Letter to the office of the Prime Minister, despite an implicit direction that they should not do so.

370    The Second Show Cause Letter made a point of communicating to the Messengers Senator Lambie’s opposition to their having shared their First Show Cause Response Letter with the office of the Prime Minister. Yet, in their Second Show Cause Response Letter, the Messengers defiantly reiterated what they had said in the First Show Cause Response Letter and indicated that they intended “…to keep the Prime Minister’s office fully informed…”

371    Whether or not the Second Show Cause Letter contained a direction to the Messengers that they should refrain from copying the Prime Minister’s office into their response may be doubted. It didn’t say so in terms; although it could not possibly have left the Messengers in any doubt that Senator Lambie was upset about them having taken that course.

372    Whether the sending of the Second Show Cause Response Letter to the office of the Prime Minister amounted to serious misconduct because it involved defiance of an implicit (and reasonable and lawful) direction or because it employed (or “reiterate[d]” from the First Show Cause Response Letter) deliberately derisive and scornful undertones doesn’t much matter. Either way, it was an act of serious misconduct.

5.5.3 The interaction with Mr Walker

373    Senator Lambie says, further, that Mr and Mrs Messenger were guilty of serious misconduct insofar as they persuaded Mr Walker on Friday, 24 March 2017, to sign a statutory declaration containing various allegations against her that did not, in truth, reflect what he felt; and that, in any event, were derogatory or damaging toward her.

374    There are multiple dimensions to that contention. The first is that the preparation and signing of Mr Walker’s statutory declaration—which, it is to be remembered, formed part of the material that was sent to the offices of the Prime Minister, the President of the Senate and the Attorney-General on Monday, 27 March 2017 (see above, [79])—was orchestrated at the Messengers’ initiative, rather than that of Mr Walker himself. The Messengers both told the court that they did not arrange for Mr Walker to visit them on Friday, 24 March 2017; and that the preparation of his statutory declaration was a matter that arose organically when he did. Mr Walker’s evidence, on the other hand—which he gave under subpoena issued at the Messengers’ request—was that he was summoned to their house on that day and that the preparation of the statutory declaration was their idea.

375    I prefer the evidence of Mr Walker. Unlike the Messengers, he presented as a credible and uninvested witness. He did not try to hide from the fact that his statutory declaration, despite his agreeing to sign it, contained content that he didn’t think was fairly reflective of his views about Senator Lambie or his time in her office. Moreover, the idea that he simply happened upon the Messengers with material that they might use, at a time when they knew that their relationship with the Senator was not healthy, is far too coincidental to be credible. I have no hesitation in accepting Mr Walker’s evidence that he was asked to attend upon the Messengers and that the preparation of his statutory declaration was something that they initiated.

376    Second, the evidence conflicted as to who it was that drafted the language up to which Mr Walker eventually signed. Mr and Mrs Messenger gave evidence that they merely assisted Mr Walker in the preparation of his statutory declaration; principally by typing it for him and ensuring that it assumed a proper form. Mr Walker’s evidence was that they did a little more than that. He told the court that Mr Messenger drove the inclusion of passages containing serious allegations against Senator Lambie, including the references to her being a liar and “unstable”.

377    Again (and for reasons equivalent to those outlined above, at [375]), I accept Mr Walker’s evidence over that of the Messengers. What happened during the afternoon of Friday, 24 March 2017 is tolerably clear. Mr and Mrs Messenger, correctly appreciating that their relationship with Senator Lambie was in its death throes, set upon a course to extract from Mr Walker a written indictment against the Senator, which they intended to use in corroboration of their own criticisms of her (which they ultimately did by including it as an attachment to their so-called PID). Mr Walker—whose own employment in the Senator’s office had come, or was about to come, to an end—was more obliging than was prudent. He agreed to the course that Mr and Mrs Messenger urged upon him and to the words that they effectively placed under his hand. He did so as a courtesy to them and without properly considering the significance of what they had asked of him. Regardless, the entire episode transpired at their direction. At the very least, they were active and willing participants in an exercise that was calculated to embarrass, damage and betray the Senator.

378    That being the case, it is not difficult to see that what Mr and Mrs Messenger did during the afternoon of Friday, 24 March 2017 was sufficient to constitute serious misconduct. They actively solicited or engineered a written document that was deliberately harmful to their employer, and they did so in order that they might use it to inflict that harm. No employee in their position could seriously expect to remain in employment having embarked upon that course. Mr and Mrs Messengers’ interactions with Mr Walker during the afternoon of Friday, 24 March 2017 were very clear examples of serious misconduct.

5.5.4 Conclusion

379    There is no doubt that, at the time of their dismissals, each of Mr and Mrs Messenger was guilty of serious misconduct.

5.6 Entitlement to payment in lieu of notice

380    It necessarily follows from the conclusion just stated that, at the time of their dismissals, neither of Mr or Mrs Messenger was entitled to notice of termination or payment in lieu thereof. The Commonwealth’s decision not to afford them such notice or payment in lieu thereof was not inconsistent with the requirements of cl 63 of the EA. There was no resultant contravention of either of ss 50 or 323 of the FW Act.

381    This aspect of the present matters should (and will) be dismissed.

Part 6: The coercion case

6.1 Summary

382    The third broad cause of action that the Messengers prosecute concerns the Carlton Interview of Tuesday, 28 November 2017 (see above, [101]). At the risk of over-simplifying their contention, Mr and Mrs Messenger allege that, by means of the things that she said during that interview, Senator Lambie threatened to take action against Mr Martin with the intent of coercing him into not employing them. That, they say, transpired in contravention of s 355 of the FW Act. They each seek relief in the nature of declarations, compensation and the imposition of pecuniary penalties in connection with that contravention.

383    Senator Lambie denies that anything that she said during the interview of Tuesday, 28 November 2017 was sufficient to contravene s 355 of the FW Act.

6.2 Relevant legislative provisions

384    Section 355 of the FW Act provides (and, at the material time, provided) as follows:

355     Coercion—allocation of duties etc. to particular person

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

(a)     employ, or not employ, a particular person; or

...

385    Sections 360 and 361 of the FW Act (above, [116]-[117]) apply in relation to s 355 in the same way as they apply to s 340(1) (see above, section 4.3.4 [151]).

386    Section 355 of the FW Act is (and was) a “civil remedy provision” for the purposes of pt 4-1. As with the other provisions upon which the Messengers each rely, this court has jurisdiction to hear applications for relief relating to conduct engaged in in contravention of its requirements (see above, [118]).

6.3 Relevant legal principles

387    Conceptually, coercion and persuasion are not the same. The former requires the satisfaction of two elements—the negation of choice and the use, to that end, of unlawful, illegitimate or unconscionable means: Esso Australia Pty Ltd v Australian Workers’ Union (2015) 245 FCR 39, 84 [174] (Buchanan J, with whom Siopis J agreed; Bromberg J not deciding); Fair Work Ombudsman v Maritime Union of Australia (2014) 243 IR 312, 354 [300]-[303] (Siopis J).

388    In order that a person might be understood, by reason of particular conduct (or threatened conduct), to have intended to coerce another, it is “…unnecessary that the person organising, taking or threatening the action know[s] that the action is, or intend[s] that the action be, unlawful, illegitimate or unconscionable”. It suffices that there be an intention to negate another person’s choices: Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551, 560-561 [2] (Kiefel CJ, Keane, Nettle and Edelman JJ). In combination, then, the section is engaged if action that is or would be objectively unlawful, illegitimate or unconscionable is organised, taken or threatened against a person with a subjective intention of negating that person’s choice as to some prescribed matter.

389    For the purposes of s 355 of the FW Act, conduct that is organised, threatened or taken will (or, at the least, may), if it is not unlawful or unconscionable, nonetheless be relevantly illegitimate if “…there is no reasonable or justifiable connection between the pressure being applied and the demand which that pressure supports”: Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366, 401 (Lord Scarman); applied in a context equivalent to the present in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 267 IR 130, 179-180 [148]-[151] (Reeves J). In Auimatagi v Australian Building and Construction Commissioner (2018) 267 FCR 268, a full court of this court observed (at 301 [160] (Allsop CJ, Collier and Rangiah JJ)):

In undertaking this analysis, it is useful to recall the comments of Madgwick J at [40] of Commonwealth Bank of Australia v Finance Sector Union of Australia (2006) 154 IR 467, especially where the conduct undertaken to exert pressure is lawful:

… it should not be assumed, without very clear words, that the legislature proposed to interfere with traditional democratic freedoms … Likewise, it is unlikely that the legislature would have wished to stifle a wide range of ways of vigorous activity and of exerting power or influence, otherwise lawfully permitted and engaged in without general disapprobation, intended to force another party’s compliance in commercial and related contexts.

390    For the purposes of establishing a contravention of s 355, it is unnecessary to show that a person against whom action was organised, threatened or taken was, in fact, coerced. Action may be engaged in or threatened with an intent that suffices to attract the operation of s 355 even if that intent goes unrealised: Esso Australia Pty Ltd v The Australian Workers’ Union (2016) 245 FCR 39, 84 [180] (Buchanan J, with whom Siopis J agreed).

6.4 Preliminary issue regarding s 361

391    By her written closing submissions, Senator Lambie advanced the following contentions (references omitted):

332.     The pleading of intention is at the heart of any cause of action alleging a breach of s.355 (or s.343 and/or s.348) of the FW Act. Where the pleading pleads no more than an intention to coerce, the pleading does not engage s.361 of the FW Act.

333.     The pleading in each proceeding does not expressly plead out the particular intention to negate choice. There is no more than a circular pleading of ‘intent to coerce’. In relation to s.361 of the FW Act, the ‘first pre-condition’ is absent: there must be a pleading of a particular intent, and it must be pleaded precisely and distinctly so as to be identified. There must be a pleading of the particular intent of an intention to negate choice.

334.     The pleading of the statutory cause of action is not complete by simply asserting, in a circular fashion, an intention to coerce. That creates ambiguity. The pleading is defective. The defect seeds an injustice to a respondent facing a civil penalty – what case must she meet? How does the respondent know what facts are advanced in respect of the ‘high degree of compulsion’ which must be alleged and proved against her?

335.     Accordingly, section 361 of the FW Act, the presumption, cannot be, and has not been, engaged by this pleading.

392    Those submissions rely heavily upon the following observations of the full court in Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347, 355 [14] (Tracey, Reeves and Bromwich JJ):

…an allegation under s 361(1)(a) must precisely and distinctly identify the alleged reason, or the alleged intent, for the contravening conduct. This need for care and precision in making the allegations in connection with which the presumption may operate is similar to that required with respect to the analogous situation of averments in criminal prosecutions (see Gallagher v Cendak [1988] VR 731 at 738–739 (Vincent J) and JD Heydon, Cross on Evidence (LexisNexis Butterworths, 11th ed, 2017) at [7105])…

393    Later (at 356 [19] and 358 [25]-[26]), their Honours continued: