Federal Court of Australia

Siddiqui v Karl Thomas and M Irfan Pty Ltd trading as Mowbray Physiotherapy Services (No 2) [2025] FCA 146

ORDERS

THE COURT ORDERS THAT:

1.    Order (2) of the orders made in the Federal Circuit and Family Court of Australia (Division 2) on 22 September 2023 in proceeding LNG 68 of 2021 is set aside.

2.    Within 30 days the first respondent must pay to the appellant a pecuniary penalty in the amount of $8000, in addition to the amount already paid of $2000, for each of the contraventions specified in the orders made in the Federal Circuit and Family Court of Australia (Division 2) on 17 July 2023 in proceeding LNG 68 of 2021.

3.    The interlocutory application dated 9 October 2024 for leave to adduce further evidence is dismissed.

4.    The appeal is otherwise dismissed.

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

REASONS FOR JUDGMENT

MCELWAINE J:

1    This appeal proves the truth of the wise counsel often given by senior barristers to juniors: If you have one good appeal point, don’t bury it in a morass of poor grounds.

2    The appellant, Ms Fatima Shoaib Siddiqui was employed as a physiotherapist by the first respondent Karl Thomas & M. Irfan Pty Ltd trading as Mowbray Physiotherapy Services (the company) between April 2021 and September 2021. On 29 December 2021, she commenced a proceeding in the Federal Circuit and Family Court of Australia (Circuit Court) and claimed pursuant to the Fair Work Act 2009 (Cth) (FW Act) breach of general protection provisions, adverse action, unpaid overtime, breach of the Health Professionals and Support Services Award 2020 and other miscellaneous contraventions of the FW Act and the Fair Work Regulations 2009 (Cth). In that proceeding she joined Mr Muhammad Irfan as the second respondent as personally liable as an accessory for contraventions by the company.

3    The proceeding before the Circuit Court was protracted. The primary judge heard the proceeding in January 2023 and for comprehensive reasons published on 17 July 2023, made limited declarations in favour of the appellant and adjourned for further determination the question of relief: Siddiqui v Karl Thomas and M Irfan Pty Ltd trading as Mowbray Physiotherapy Services [2023] FedFamC2G 616 (LJ). After receiving further submissions, the primary judge, for reasons published on 22 September 2023, made orders in favour of the appellant for the payment of quite modest sums: $4376.34 unpaid overtime and a civil penalty of $2000. Her Honour also ordered the first respondent pay a pecuniary penalty in the sum of $8000 to the Commonwealth: Siddiqui v Karl Thomas & M Irfan Pty Ltd trading as Mowbray physiotherapy services (No 2) [2023] FedCFamC2G 849 (RJ).

4    In each of those proceedings the parties had the benefit of legal representation. That is no longer the case for the appellant. The appellant is dissatisfied with the decisions of the primary judge and filed a notice of appeal in this Court on 20 October 2023. On 4 January 2024, the respondents applied for an extension of time to file a cross-appeal. I refused that application on 19 April 2024: Siddiqui v Karl Thomas and M Irfan Pty Ltd trading as Mowbray Physiotherapy Services [2024] FCA 389.

5    The appellant’s notice of appeal comprises 10 grounds which address the LJ and five grounds which address the RJ. The grounds have the appearance of being drafted with the benefit of limited legal advice. Before I turn to the grounds of appeal, it is necessary to understand what the primary judge decided.

6    The primary judge succinctly summarised the appellant’s claims at LJ [4] – [9]:

The failure to pay overtime rates claim is based on the assertions that:

(a)     On or about 29 November 2020, the Applicant was offered a position as a physiotherapist with the Employer and accepted the offer on the same day;

(b)     Her employment was pursuant to a written letter of offer dated 29 November 2020 and the Health Professionals and Support Services Award 2020 (“the Award);

(c)     The Applicant’s duties and responsibilities accord with a Level 1, pay point 3 of the Health Professional employee classification, as per sch A.2.2 of the Award;

(d)     The Applicant worked overtime, and was not paid any special rate for overtime as required by cl 24 of the Award;

(e)     The Employer contravened its obligation under s 535 of the FW Act to keep records consistent with regs 3.32 and 3.33(1) of the Regulations, and further to make a copy available to the Applicant as an employee on request contrary to reg 3.42 of the Regulations; and

(f)     By reason of the Employer’s contravention of reg 3.42 of the Regulations referred to at [4(e)] of these reasons, the reverse onus of proof is engaged by the operation of s 557C(1)(b)(ii) of the FW Act.

The Applicant’s general protections claim is two-fold: for adverse action pursuant to s 340 of the FW Act and for coercion contrary to s 343 of the FW Act.

The adverse action claim relies on the following contentions:

(a)     From May 2021 and in writing on 14 August 2021, the Applicant raised concerns about being required to work excess hours;

(b)     On 2 September 2021, the Second Respondent raised for the first time alleged issues with the Applicant’s performance;

(c)     On 6 September 2021, after the Applicant again raised the issue of her excessive hours, the Second Respondent made threats to reduce the Applicant’s employment status;

(d)     Having received advice from the Fair Work Ombudsman, the Applicant sent a text in accordance with said advice on the evening of 6 September 2021;

(e)     On 7 September 2021, the Second Respondent gave notice to the Applicant that she was dismissed, with dismissal to take effect in one month from that date;

(f)     The above chronology of events leads to the inference that the Employer dismissed the Applicant from employment because she had made complaints about her hours and asserted her workplace rights under the Award and the FW Act;

(g)     The Applicant’s dismissal constitutes adverse action and was therefore a contravention of s 340 of the FW Act, a civil remedy provision; and

(h)     By the operation of s 361 of the FW Act, it is for the Employer to prove that the dismissal was not for any protected reason.

The coercion claim relies on contentions that the Second Respondent made threats to the Applicant on 8 September 2021 to the effect that if she went to Fair Work, he would not provide a reference for future employment and would make a complaint about her to the Australian Health Practitioner Regulation Agency (“AHPRA”), which he in fact did do.

Finally, the Applicant has made other non-monetary and miscellaneous claims relating to unpaid meal breaks, a failure to make available copies of the Award and National Employment Standards (“NES”) and a failure to provide the Applicant with a Fair Work Information Statements.

There was a claim based on payment at the incorrect classification, but I was informed by both Counsel at the hearing that this was no longer pursued. Further, I was informed that it was agreed that the proper classification for the Applicant in her employment under the Award was Level 1. However, the Applicant says that Level 1 pay point 3 applies to her while the Respondents say that Level 1 pay point 2 applies.

7    In resolving each of those claims, the primary judge, in summary, found as follows. First, the appellant’s classification level pursuant to the award was Health Professional – Level 1, pay point 3: LJ [110] – [114].

8    Second, contrary to the appellant’s contention, her employment commenced on 12 April 2021, not 6 April 2021: [118] – [120].

9    Third, the appellant’s claims to the effect that she complained about her excessive working hours commencing in May 2021 were rejected: LJ [121] – [133].

10    Fourth, the contention that Mr Irfan agreed to pay the appellant her examination fees during a meeting in August 2021 were rejected: LJ [134] – [137].

11    Fifth, the appellant’s performance as a physiotherapist was largely regarded as satisfactory, corresponding with her level of experience and ability: LJ [138] – [142].

12    Sixth, Mr Irfan first considered terminating the appellant’s employment in late August 2021, and by 6 September 2021 he had made that decision, which was communicated in writing on 7 September 2021. Mr Irfan’s reasons for terminating the appellant’s employment concerned the inaccuracy of her timesheets, her adverse impact on the business of the company, her aggressive demeanour towards Mr Irfan and other staff members and her failure to follow lawful directions given by the company: LJ [143] – [157].

13    Seventh, the appellant’s contention that she was treated adversely and threatened because she was exercising workplace rights were each rejected: LJ [158] – [169].

14    Eighth, the appellant’s claim that she worked overtime, that is more than the Award stipulation of 38 hours per week, was not supported by her records or those of the company. The primary judge found that none of those records were accurate: LJ [177] – [185].

15    Ninth, relatedly to the last finding, the primary judge found that the timesheets and record keeping of the company did not satisfy the requirements of s 535 of the FW Act and regs 3.31, 3.32, 3.33, 3.34 and 3.35 of the Regulations: LJ [186] – [192]. Accordingly, the reverse onus at s 557C(1)(b)(i) of the FW Act applied and the company failed to discharge the burden of disproving the appellant’s allegations that she worked overtime, even though her Honour was not satisfied as to the accuracy of those claims: LJ [189].

16    Tenth, the adverse action claims failed: LJ [193]-[207]. The primary judge accepted the evidence that the reasons for the appellant’s termination genuinely related to her performance and did not amount to adverse action contrary to s 340 of the FW Act: LJ [199], [205]. Accordingly, the company discharged the onus at s 361 of the FW Act.

17    Eleventh, the coercion claims failed: LJ [208]-[217]. The primary judge was not convinced that Mr Irfan or Mrs Shehnila Irfan threatened the appellant in the manner contended.

18    Twelfth, the primary judge addressed some miscellaneous claims at LJ [218] – [222]. There was no failure to provide the appellant with a copy of her employment records upon request: LJ [218]. The company failed to provide the appellant with a copy of induction documents and policies upon commencement of her employment, contrary to cl 3.3 of the Award and s 125 of the FW Act, and that claim was upheld: LJ [219]. The appellant failed in her contention that the company failed to provide her with meal breaks, contrary to the Award: LJ [220] – [221]. The appellant also failed to establish a claim for non-payment of wages in the week 6 April 2021: LJ [222].

19    Finally, the primary judge dealt with the accessory liability of Mr Irfan and noted that there was no dispute as to his liability in the event that one or more claims succeeded and found accordingly on the basis that he was “a director, owner and principal” of the company with “intimate knowledge of the employment arrangements” of the appellant: LJ [223].

20    These findings led the primary judge to make the following declarations:

(A)    The Respondents contravened cl 24 of the Health Professionals and Support Services Award 2020 (“the Award”) in that they did not pay the Applicant overtime where she worked in excess of her ordinary hours.

(B)    The Respondents contravened cl 3 of the Award in that they did not ensure that copies of the Award and the National Employment Standards were made available to the Applicant.

(C)    The Respondents contravened s 125 of the Fair Work Act 2009 (Cth) (“the Act”) in that they did not give a copy of the Fair Work Information Statement to the Applicant.

(D)    The Respondents contravened reg 3.42 of the Fair Work Regulations 2009 (Cth) (“the Regulations”) in that they failed to provide the Applicant’s employee records to her upon request.

(E)    The Respondents contravened regs 3.31, 3.32, 3.33, 3.34 and 3.35 of the Regulations in that they failed to make and keep employee records in respect of the Applicant.

21    Dealing next with the RJ, the primary judge proceeded on the basis that the company and Mr Irfan were each responsible for the contraventions and then: “it is relevant to ensure that the quantum of the penalties imposed proportionately reflect the applicant’s loss, which is confined to a modest underpayment of overtime”: RJ [27]. The primary judge carefully noted and calculated the maximum civil penalty for each of the contraventions both for the company and Mr Irfan: RJ [27] – [39]. The appellant had sought the imposition of penalties of up to $540,000 for the company and $54,000 for Mr Irfan. Her Honour was not minded to award penalties at anything approaching those amounts. In particular the primary judge at RJ [50] observed: “in my view, the submissions on behalf of the applicant seek imposition of penalty (sic) way beyond that which can be proportionately and legitimately justified given all the circumstances of this case”. Her Honour then proceeded as follows at RJ [52] – [53]:

On the basis of the approach, I have taken to single and grouped contraventions described in my reasons, the contraventions reflect about 10 per cent of the worst-case penalties and so I provisionally assess the penalties as follows:

•    Contravention A: the First Respondent $6,660 and Second Respondent $1,332;

•    Contravention B & C: the First Respondent $2,200 and Second Respondent $440; and

•    Contravention D & E: the First Respondent $2,200 and Second Respondent $440.

In total, the assessment above results in payment required by the First Respondent of $11,060 and by the Second Respondent of $2,212 for pecuniary penalties, However, in stepping back to assess this outcome relative to the totality principle, I consider this is somewhat oppressive because of the factors referred to at [40] to [43] of these reasons. Accordingly, I apply a modest discount to the penalty to be paid by the First Respondent, and the Court will make orders as follows:

•    The First Respondent pay pecuniary penalties totalling $8,000 within 60 days; and

•    The Second Respondent pay pecuniary penalties of $2,000 within 60 days.

22    Her Honour then divided the payment obligation on the basis that the penalties payable by Mr Irfan should be paid to the appellant and those payable by the company be paid to the Commonwealth: RJ [54] – [56]. Her Honour did so in accordance with the decision of Mortimer J in Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 338 at [72] – [94], reasoning at [55] – [56]:

It is true that the Applicant had to prosecute her claims and some have been established, but not all were established and the entitlement to compensation recovered is extremely modest. The hearing did extend for a longer period because of the unsuccessful claims, and both parties are bearing the adverse effect of having to pay legal costs in respect of the extended hearing.

I do not have any evidence about the parties’ respective legal costs, but can infer that they would be significant for both. If all the penalties were paid to the Applicant, this would be disproportionate to the modest claim which succeeded, while the Respondents remain burdened by the additional costs caused by the unsuccessful claims. In these circumstances, I consider that the penalty payable by the Second Respondent should be paid to the Applicant directly, but the penalty payable by the First Respondent should be paid to the Commonwealth to serve and emphasise the broader public interest purposes discussed by Mortimer J in Sayed at [76].

23    What was not brought to the attention of the primary judge is that the Full Court allowed the appeal from the orders made in Sayed: Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4; (2016) 239 FCR 336, Tracey, Barker and Katzmann JJ (Sayed FC).

24    It is common ground that the penalties were paid in October and November 2023.

The appeal

25    It is regrettable that the appellant does not have legal representation in her appeal. Her written outline of submissions of 9 August 2024 is not illuminating as to the extensive errors asserted in her appeal grounds. Her oral submissions, less so in that her arguments strayed well beyond the grounds of appeal and into entirely new territory. One must grant indulgence to litigants in person for whom a court appearance is a daunting experience and where nervousness can lead to much confusion. Anticipating these difficulties, I undertook much preparation prior to the commencement of the hearing with the objective of guiding the appellant to the essential issues and the arguable errors as identified in the notice of appeal. Ultimately, that course achieved a measure of success.

26    A particular difficulty with the structure of the appellant’s written submissions is that they fail to proceed sequentially by reference to each appeal ground. Rather, it is in the form of a narrative expression of multiple complaints. Also, there is much in the appellant’s submissions that delve into the minutiae of secondary findings of fact with customary asserted errors, but there is no attempt to explain how those errors infected the primary findings of fact as made by the primary judge: see generally Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157;(2002) 234 FCR 549 at [4], Branson J; Massoud v Nationwide News Pty Ltd [2022] NSWCA 150;(2022) 109 NSWLR 468 at [143], Leeming JA.

27    Further, in multiple respects the appellant’s submissions amount to no more than assertions that the primary judge should have made different findings of fact where there is no attempt to identify why the findings as made were not open. An appeal is not a game of double or nothing: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833;(2001) 117 FCR 424 at [22]-[30], Allsop J; Bahonko v Sterjov [2008] FCAFC 415;(2008) 166 FCR 415 at [3], Gyles, Stone and Buchanan JJ.

28    A major hurdle which the appellant fails to grapple with is that the primary judge consistently made findings contrary to the evidence of the appellant where it conflicted with contemporaneous documents or the evidence of Mr Irfan. In doing so, her Honour found that the appellant was not a credible witness, and made multiple findings based on the credibility the evidence of Mr Irfan: for example, LJ [119], [130], [148],[154] and [181].

29    Doing the best that I can, I will address the grounds seriatim. In conjunction with some of the grounds, I address the interlocutory application of the appellant dated 9 October 2024, for leave to adduce further evidence pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth).

30    Each ground is reproduced with original emphasis, punctuation and errors.

Ground 1

31    This ground provides:

The learned trial judge erred at [121] to [124], [128], [130] of the Primary Judgement in failing to consider the statement of Second Respondent in paragraph 11 of Form F8A filed on October 20, 2021 where Second respondent accepted "The Respondent acknowledged that the claimant spoken to Mrs. lrfan, one of the directors of the company that she has been working 50 hours a week every week'. Second Respondent also mentioned in paragraph 70 of Defence filed on April 27, 2022 where Second Respondent provide detail of discussion on 6 August 2021 about excess hours.

32    The impugned reasoning of the primary judge must be read with all her Honour’s findings at [121]-[133] which concern a component of the appellant’s adverse action claim that, between May 2021 and 14 August 2021, she raised concerns about being required to work excess hours. The findings were:

The Applicant claims that she had several conversations with the Second Respondent about working excessive hours, with the first of these occurring in May 2021.The Second Respondent denies this and says the first time workload or excess hours was raised was on 11 August 2021.

I reject the Applicant’s claims and prefer the Second Respondent’s evidence that complaints and concerns about excess hours/overtime or excess workload were first made in mid-August 2021 for the reasons that follow.

The Applicant’s own evidence in her affidavit filed 25 August 2022 at [7] to [21] conveys two clear sentiments. First, that she was motivated to obtain residency in Australia and, second, had chosen to work in Tasmania because of her preference to pursue the musculoskeletal field of physiotherapy and to work in this field, she needed to pass exams.

Having commenced employment with the Employer in Tasmania in April 2021, in the context of her evidence referred to at [123] of these reasons, I find it unlikely that the Applicant began complaining or discussing excess workload or overtime with the Second Respondent in May 2021, being just a little over one month from when she commenced work with the Employer.

Although the Second Respondent agrees the Applicant’s workload increased when another physiotherapist resigned, her own evidence is that she was contracted to work 40 hours per week on average, which she was not initially doing.

Between May 2021 and June 2021 inclusive, the booking diaries show a trend in increased patient load. I find that the Applicant’s hours of work increased to accommodate this. However, the booking diaries on which the Applicant relies show that patients were not scheduled/booked from the same total hours daily and on some days no patients were booked after a certain time. This tends to coincide with the evidence of the Second Respondent and Mrs Irfan that they sought to adjust hours so that they averaged to 40 per week consistent with the terms of the contract of employment.

The variation in patient bookings is also consistent with the Applicant’s evidence about discussions with Mrs Irfan in particular.] It is notable that the evidence of the Applicant about conversations with Mrs Irfan about her hours is very particular, but not so in respect of asserted conversations with the Second Respondent.

I find that the Applicant did raise concerns about her hours of work with Mrs Irfan in late May and June 2021, but not with the Second Respondent in this period. I conclude that the discussions were in the nature of a request to work different and fewer hours to enable her to meet family responsibilities.

I infer and find, based on the Applicant’s own evidence that a tension developed between her needs and commitments to family on the one hand and the hours of work she had contracted to do on the other. I find that by early August 2021, this came to a head when she requested sick leave and absence from work due to her husband having a minor operation.

I reject the Applicant’s claims that the subject of the conversations with Mrs Irfan in May and June 2021 and her conversations with Mrs Irfan and the Second Respondent in early August 2021 were a complaint about working excessive hours, overtime or workload per se. I consider that the Applicant has subsequently perceived them as such to suit her case, but at the time, I find that she was seeking to vary the total and spread of hours she was required to perform for personal reasons.

I find, on the basis of the Applicant’s evidence, that on 11 August 2021 she alleged to the Second Respondent that he had previously promised to pay exam fees, this being very soon after the disagreement about the Applicant’s hours of work and sick leave claim in early August 2021.

I find on the basis of the Applicant’s own evidence that by mid-August 2021, she appreciated that the job she had taken was not suiting her and her needs. This triggered her email of 14 August 2021 and the content of it..

The Applicant has not formulated her claim for adverse action on the basis of a refusal on the part of the Employer to provide leave contrary to a provision of the Award. The Employer accommodated many of her requests for time off to meet personal commitments and provided benefits to her beyond the terms of the Award or her contract of employment.

(footnotes omitted).

33    Form F8A as referred to in this ground was not before the primary judge. It is a document that was before the Fair Work Commission in matter C2021/6608. The interlocutory application fails to identify the new evidence that the appellant seeks to adduce in support of this ground. However, the evidence is identified in the appellant’s affidavit in support made on 9 October 2024.

34    The reference to a discussion in August 2021 is consistent with the pleaded defence of the respondents and the extracted findings of the primary judge. The appellant’s written submissions stray well outside this appeal ground and into the likelihood that she would make complaints within the first month of her employment, her personal motivations for making complaints, the examination by the primary judge of the appellant’s diaries, a contended erroneous assumption that the appellant’s purpose of raising the topic of her excessive workload was due to her family responsibilities and a contention that the booking diaries ,which are Honour referred to at LJ [126], were fabricated. The appellant does not have leave to raise these matters.

35    The affidavit identifies Form F8A as a component of the new evidence as relevant to grounds 1 and 11. It is asserted to be relevant to a claim that the primary judge should have imposed civil penalties on the spouse of Mr Irfan, Mrs Irfan, because she was at the relevant time a director of the company and therefore was involved in the established contravention. I refuse the application, as that evidence, if before the primary judge, would not have very probably affected the outcome: Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [16]. Mrs Irfan was not a party to the application before the primary judge and the bare assertion that liability is attracted because she was a director of the company fails to engage with s 550(2) of the FW Act.

36    There is nothing in the appellant’s written submissions, or in her oral arguments as put to me, which discloses the contended error under this ground and within this component of the reasoning of the primary judge. Accordingly, the ground fails.

Ground 2

37    This ground provides:

The learned trial judge erred at [126], [154d] & [184] of Primary Judgement considering booking dairies as evidence for which Second respondent has accepted in a trial that he has done changes to booking dairies. This was the reason Applicant in subpoena filed on November 21 , 2022 had requested to produce "all printed hard copies of the electronic daily appointment dairy, containing any hand annotations evidencing new, cancelled and amended appointments" however, Second Respondent did not produce those records.

38    In submissions, the appellant directed me to the transcript of evidence before the primary judge at Appeal Book (AB) Part C, 652 which is part of the cross-examination of Mr Irfan. It concerns the patient booking records. Her submission is that the primary judge overlooked the evidence that the handwritten records did not disclose “catch-up” time when the corresponding entries in the printed records did. It was submitted that the late production of the records inhibited the ability to explore the inconsistency more intensely. However, as I explained to the appellant, she was represented by counsel at the trial and no application was made to adjourn the hearing due to the late production of relevant documents. As such, it is unpersuasive for her to now make that complaint on appeal.

39    The additional impugned paragraphs are LJ [154] and [184]. The first is in that part of the judgment which addresses the reasons for the appellant’s termination. Once again it is important to understand the context. The primary judge commenced at LJ [143] by accepting Mr Irfan’s evidence that he considered terminating the appellant’s employment from late August 2021, arising from a false allegation put to him by the appellant to the effect that he had broken his promise about the payment of her examination fees. The primary judge accepted the evidence of Mr Irfan in preference to the evidence of the appellant. At LJ [144] the primary judge found that Mr Irfan’s evidence as expressed in his affidavit of 3 October 2022, concerning his reason for the termination of the appellant’s employment, was “clear and entirely consistent with the evidence he gave under cross-examination”. That evidence was corroborated by an independent witness, Ms Nur: LJ [145]. At LJ [148], the primary judge made a damning finding concerning the credit of the appellant:

On 30 August 2021, the Applicant made the Facebook post attached to the Second Respondent’s affidavit filed 3 October 2022 as Annexure MI-15. This post is not mentioned at all in the Applicant’s first affidavit filed 25 August 2022. In view of the explanation subsequently given in the Applicant’s affidavit filed 4 November 2022 at [17], this in my view is a telling omission which conveys that the Applicant has selectively put evidence before the Court to suit her narrative.

40    At LJ [149], the primary judge accepted Mr Irfan’s evidence that the employment relationship had become “untenable” as of 30 August 2021. To that end, the appellant at that time commenced seeking alternative employment: LJ [149] – [150]. There was a performance meeting between Mr Irfan and the appellant on 2 September 2021, where her Honour found that the respective accounts of the appellant and Mr Irfan were largely consistent as evidencing a mutual difference of opinion and tension: LJ [152]. Her Honour then made several inclusive findings that Mr Irfan made the decision to terminate the appellant’s employment on 6 September 2021 at LJ [154]:

I accept that the decision to terminate the Applicant was effectively made on 6 September 2021 and then confirmed in writing on 7 September 2021. During the discussion between the Second Respondent and Applicant on 6 September 2021, the Employer was affording procedural fairness to the employee and communicating the reasons for termination. My reasons for this finding include:

(a)     The evidence of the Second Respondent about the meeting on 6 September 2021 is detailed and thorough, and I accept it. He maintained his evidence very firmly despite repeated and persistent challenge and cross-examination;

(b)     The Applicant denied that there was a performance meeting on 6 September 2021, but then agreed there was a discussion about performance;

(c)     The Applicant denied that the Second Respondent had raised concerns about how she was recording her work hours in her timesheets, but then stated that the Second Respondent had told her that Ms Nur was to complete the time in and time out;

(d)     The Applicant’s evidence that there was an ad hoc meeting at 1:10pm does not accord with what the booking diary clearly shows was a performance meeting scheduled at 12:50pm on 6 September 2021. The evidence is that the booking diary was maintained by reception staff and they have no reason to fabricate the record

(e)     The Applicant’s timesheet entry for this day is amended but the purpose and meaning of this is unexplained;

(f)     Although the text message sent at 9:57pm on 6 September 2021 accords with some of what the Applicant says was discussed at the meeting on 6 September 2021, it is plainly not a complete record and it is self-serving. It is telling that there is no record of the communication claimed to have occurred with the Fair Work Ombudsman. This is in distinct contrast to the record produced by the Applicant concerning the enquiry made on 26 August 2021. Furthermore, while the Applicant states in her evidence that “advice was taken from Fair Work”, the text itself refers to “legal advice”;

(g)     The Applicant had received very specific advice from the Fair Work Ombudsman by late August 2021 about her concern relating to the Employer’s approach to averaging of her hours of work, but there is no evidence that she followed the advice in the response given which causes me to doubt the legitimacy of her claims; and

(h)     As the Applicant was already looking for other employment, it is entirely logical that the conversation would be as is stated by the Second Respondent in his evidence.

(footnotes omitted)

41    At LJ [155] the primary judge rejected the appellant’s evidence that she did not understand that the termination of her employment was likely as a result of the meeting and otherwise accepted the evidence of Mr Irfan: LJ [157].

42    There is nothing in the appellant’s written or oral submissions that exposes error in any of the paragraphs impugned by this appeal ground. The ground fails.

Ground 3

43    This ground provides:

The learned trial judge erred at [128] & [129] of the Primary Judgement in failing to consider the evidence FS-13 of Applicant Affidavit filed on August 25, 2022 where it is mentioned that "I never said that I have a problem doing extra hours. I want to be clear that, I only have a problem doing unpaid extra hours". Moreover, it should also be considered that Sick leave taken by the applicant was only one out of four accrued leave and it was the only leave she has taken in whole employment history.

44    I have set out the impugned paragraphs above. The appellant in her written submissions complains that the primary judge at [127] – [130] made a wrong assumption that when the appellant raised her concerns with Mrs Irfan it was in “the nature of request (sic) to work fewer hours due to her family responsibilities as [the appellant] requested sick leave in early August.”

45    In each of the identified paragraphs, the primary judge proceeded by making a finding of fact cross-referenced to the evidence. The finding at LJ [127] is to various paragraphs in the appellant’s affidavit made on 25 August 2022. The finding at LJ [128] is a reference to other paragraphs in that affidavit, as is the finding at LJ [129]. It should also be understood at this juncture that it was not in issue before the primary judge that the appellant made a complaint about working excess hours on 14 August 2021. In her statement of claim dated 11 March 2022, at [77] she pleaded as the fifth complaint her email of 14 August 2021. In the email she complained about many matters including having to work excessive hours “of nearly 50” hours per week. She attached a copy of the email to her pleading. The respondents in their defence of 27 April 2022, at [77] admitted the allegations.

46    Thus, on the pleadings there was no issue that the appellant had complained on 14 August 2021 about working for more than 40 hours per week.

47    Exhibit FS-13 is an email from the appellant dated Sunday 15 August 2021, sent at 4.30 pm to the generic email address of the company. It must be understood in the context of a series of emails sent and received between 14 and 15 August 2021.

48    The primary judge rejected the appellant’s evidence that there were discussions in May and June 2021 with Mrs Irfan, and in early August 2021 with Mr Irfan, during which the appellant complained about working excessive hours: LJ [130]. The appellant’s email of 15 August 2021, responded to a three page letter sent by Mr Irfan to her on that day at 1:34 pm. In that letter Mr Irfan stated, amongst other things (without correcting for errors):

In response to your concerns about working extra-hours, we confirm, we never made you work extra. Your standard caseload is significantly lower than the expected average per week. Please read page 1 of the contracts which explicitly stated that “you must work such hours as required in order to effectively and efficiently discharge the duties and responsibilities of our position”. You normally be expected to work from 8 AM to 7 PM Monday to Saturday. However, you have not worked such long hours and weekend so far. It was observed multiple time you stayed at my clinic a little longer to observe me treating the patients and learning new techniques. This eager to learn advanced manual therapy was highly appreciated. However, it was neither your working hours nor should be included in the timesheet to claim as “working time”. It was our willingness to improve your skills. In addition, management of Mowbray requires you to perform your duties efficiently by completing the paperwork during your working hours when you have a gap between the patients rather than waiting till the end of the day and holding the reception staff. This may significantly increase the cost associated with the operation of our business.

49    That correspondence is not referred to by the primary judge. It is certainly evidence (an admission by the company) that the appellant made a complaint prior to 15 August 2021 that her work hours exceeded her contracted hours. That is contrary to the finding at LJ [130] where her Honour rejected the appellant’s case that she made a complaint to Mr Irfan in early August 2021 about working excessive hours, over time or her workload per se, found that the appellant had reconstructed her evidence and that at the time the appellant was merely “seeking to vary the total and spread of hours she was required to perform for personal reasons”. It is also contrary to the acceptance by the respondents on their pleaded case that the appellant in her email of 4 August 2021, made a complaint about having to work excess hours.

50    If the finding by the primary judge at LJ [130] is that the appellant did not then make a complaint or inquiry within the meaning of s 341(1) of the FW Act, then with respect that was an error. Even if the appellant’s complaint was misconceived, she exercised a workplace right within the meaning of s 340 of the FW Act. Having carefully considered the entirety of the reasoning of the primary judge, I have concluded that this was a finding to that effect which in my view is made clear from what her Honour said when addressing the adverse action claims at LJ [158]-[169]. Within those paragraphs her Honour commenced by observing at LJ [159] that the workplace rights alleged “were not well defined” by the appellant or her counsel, that ultimately the appellant “seems to have mostly relied on the circumstances leading to his dismissal” and that in consequence, the primary judge directed herself to the statement of claim as pleaded: LJ [160].

51    At LJ [161], the primary judge rolled up each of the five complaints of exercise of a workplace right within the period 12 May 2021 to 14 August 2021, which her Honour characterised as “being a complaint that [the appellant] was required to work more than ordinary full-time hours and was not paid overtime”. Broadly, that characterisation by her Honour was correct.

52    The primary judge then found at LJ [162]:

The Applicant at no time in the relevant period complained that she was not being correctly paid for the hours of work. I have found that the complaints were as to the spread of hours and that they did not suit her personal needs. I find that the Employer did not require the Applicant to work overtime, but based on the records maintained by the Applicant she is deemed to have done so as a result of the reverse onus.

(footnotes omitted)

53    This finding then informed the ultimate conclusion of the primary judge on this issue at LJ [169]:

In the context of events that occurred between 30 August 2021 and 6 September 2021, I find that by sending the text message the Applicant was seeking to corroborate her self-serving interpretation of part of her discussion with the Second Respondent during the meeting. As I have rejected the Applicant’s account of this discussion, I am not persuaded that the text, as pleaded as an inquiry about the Applicant’s “workplace right”, was genuine, in good faith or for a proper purpose. In arriving at this conclusion, I have placed reliance on PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15; (2020) 274 FCR 225 and the reasons of Rangiah J at [26] and Charlesworth J and Snaden J at [137].

54    That finding, to the extent that it overlooked the admitted complaint by email was erroneous. When I raised this with Mr Pym for the respondents, he ultimately accepted the error. However, I have concluded that the error is of no material consequence to the outcome of the appeal because the primary judge reached the correct conclusion, albeit by a different pathway.

55    First, at LJ [121]-[133], the primary judge was concerned with the appellant’s pleaded claim to have worked more than 40 hours per week without receiving overtime payments in accordance with the Award. Although the primary judge rejected the appellant’s case and evidence, ultimately the excess hours claim succeeded because the company failed to keep the necessary employment records and failed to discharge the reverse onus at s 557C(1)(b)(i) of the FW Act: LJ [177]-[192]. Thus, the failure to refer to this evidence, is of no consequence to the ultimate finding in favour of the appellant at LJ [186]-[192] and the award of $4376.30, which accepted in full the appellant’s calculations: RJ [8].

56    Second, the appellant does not formulate any appeal ground to the effect that the primary judge erred in any of the adverse action findings at LJ [158]-[169] save for an oblique reference in ground 7 to LJ [163] which is about a request for leave to obtain a COVID-19 vaccination and has nothing to do with a complaint that the company required her to work excessive hours or that she made a related complaint about that.

57    Third, the appeal grounds do not contend that the primary judge erred at LJ [162] where her Honour found:

The Applicant at no time in the relevant period complained that she was not being correctly paid for the hours of work. I have found that the complaints were as to the spread of hours and that they did not suit her personal needs. I find that the Employer did not require the Applicant to work overtime, but based on the records maintained by the Applicant she is deemed to have done so as a result of the reverse onus.

(footnotes omitted)

58    That finding is fatal to any consequence the appellant claims flows from the findings at LJ [129]-[133], because her complaints were erroneous from the outset.

59    For completeness, there is one further matter that the appellant raised in FS-13; a complaint that the company had not honoured a promise to pay for her examination fees. The primary judge dealt with this aspect of the claims that LJ [134] – [137] and concluded, by finding in accordance with the evidence of Mr Irfan, that there was no offer to pay for the fees. Thus, the failure by the primary judge to reference FS-13 is of no consequence.

60    This ground fails.

Ground 4

61    This ground provides:

The learned trial judge erred at [143] & [144] of the Primary Judgement in failing to

consider that Fatima sent an email of 14 Aug 2021 on weekend when only Second

Respondent has accessed to email. The other email sent on 25 Aug 2021 was a general

request of COVID-19 Vaccination leave, which did not contain anything confidential.

Moreover, Email of 15 Aug 2021 (FS-13 of Applicant Affidavit filed on August 25, 2022) should also be considered here.

62    The impugned paragraphs comprise part of the findings of the primary judge about when a decision was made by Mr Irfan to terminate the appellant’s employment and for what reasons. Each is a summary of the more detailed findings that follow at LJ [145] – [157]. It is misleading to consider these paragraphs in isolation. The complete reasoning of the primary judge commencing at LJ [143] and concluding at LJ [157] is:

I accept the Second Respondent’s evidence that he was considering terminating the Applicant’s employment from late August 2021. In arriving at this finding, I have given significant weight to the Second Respondent’s evidence about the Applicant accusing him of breaking a promise about payment of the exam fees and the content of two emails which the Applicant admits she sent to the Employer’s general work email address dated 14 August 2021 and 25 August 2021 and which involved personnel issues between and employer and employee which are usually confidential.

The Second Respondent’s evidence in his affidavit filed 3 October 2022 at [36] regarding his reasons for terminating the Applicant’s employment is clear and entirely consistent with the evidence he gave under cross-examination as noted at [80] to [83] of these reasons concerning his affront at the content and tone of the email sent by the Applicant on 14 August 2021.

The Second Respondent’s evidence was also corroborated by Ms Nur, who heard the conversations between the Applicant and the Second Respondent. The description she gave of the Applicant’s demeanour in her affidavit and under cross examination accords with that of the Second Respondent.

In late August 2021, the Second Respondent was attempting to get a police check for the Applicant through the company CV Check, which he says was to enable him to secure a National Disability Insurance Scheme contract. The Applicant seems to agree, but does not address whether she had delayed in replying to the multiple prompts from CV Check to authorise it.

It may be that there was a lack of communication between the Second Respondent and Applicant as to the purpose of the police check. The Applicant says that she first received an email from CV Check on 25 August 2021, but does not address the representation by CV Check that they had sent a number of “emails and text messages”. I find that there was a delay in processing a police check for the Applicant and this caused additional frustration to the Second Respondent.

On 30 August 2021, the Applicant made the Facebook post attached to the Second Respondent’s affidavit filed 3 October 2022 as Annexure MI-15. This post is not mentioned at all in the Applicant’s first affidavit filed 25 August 2022. In view of the explanation subsequently given in the Applicant’s affidavit filed 4 November 2022 at [17], this in my view is a telling omission which conveys that the Applicant has selectively put evidence before the Court to suit her narrative.

The Second Respondent states that on 30 August 2021, the relationship was becoming untenable and he communicated to Ms Nur that he was considering terminating the Applicant’s employment. This state of mind accords with that of the Applicant’s knowledge about the state of the employer/employee relationship as she was seeking out other employment.

The Applicant says she was seeking other employment because the Second Respondent had threatened to terminate her employment “over the issues I had raised” However, the evidence in her affidavit filed 25 August 2022 at [91] makes it plain that the Second Respondent had serious concern that she had sent another email to the workplace email address which was visible by other employees. This is entirely consistent with the Second Respondent’s evidence as referred to at [80] to [83] of these reasons.

I consider it unlikely that the Second Respondent made threats to terminate the Applicant’s employment on 25 August 2021 or at any time. However, I find that the Second Respondent was probably exhibiting a high degree of frustration and loss of patience with the Applicant for:

(a)     Not following his directions about sending emails;

(b)     Affecting the business of the clinic with patients not returning and securing NDIS work; and

(c)     Calling his integrity into question and it being broadcast to his staff.

The Applicant and Second Respondent gave largely consistent evidence about a performance meeting on 2 September 2021. Their respective accounts mutually demonstrate a difference of opinion and tension about the degree of guidance and supervision the Applicant should receive from the Second Respondent on one hand and the standard of clinical knowledge and patient service the Second Respondent expected from the Applicant on the other hand.

I find that, although the Second Respondent was considering terminating the Applicant’s employment by late August 2021 and 2 September 2021, it was on 6 September 2021 he had decided to do so.

I accept that the decision to terminate the Applicant was effectively made on 6 September 2021 and then confirmed in writing on 7 September 2021. During the discussion between the Second Respondent and Applicant on 6 September 2021, the Employer was affording procedural fairness to the employee and communicating the reasons for termination. My reasons for this finding include:

(a)     The evidence of the Second Respondent about the meeting on 6 September 2021 is detailed and thorough, and I accept it. He maintained his evidence very firmly despite repeated and persistent challenge and cross-examination;

(b)     The Applicant denied that there was a performance meeting on 6 September 2021, but then agreed there was a discussion about performance;

(c)     The Applicant denied that the Second Respondent had raised concerns about how she was recording her work hours in her timesheets, but then stated that the Second Respondent had told her that Ms Nur was to complete the time in and time out;

(d)     The Applicant’s evidence that there was an ad hoc meeting at 1:10pm does not accord with what the booking diary clearly shows was a performance meeting scheduled at 12:50pm on 6 September 2021. The evidence is that the booking diary was maintained by reception staff and they have no reason to fabricate the record;

(e)     The Applicant’s timesheet entry for this day is amended but the purpose and meaning of this is unexplained;

(f)     Although the text message sent at 9:57pm on 6 September 2021 accords with some of what the Applicant says was discussed at the meeting on 6 September 2021, it is plainly not a complete record and it is self-serving. It is telling that there is no record of the communication claimed to have occurred with the Fair Work Ombudsman. This is in distinct contrast to the record produced by the Applicant concerning the enquiry made on 26 August 2021. Furthermore, while the Applicant states in her evidence that “advice was taken from Fair Work”, the text itself refers to “legal advice”;

(g)     The Applicant had received very specific advice from the Fair Work Ombudsman by late August 2021 about her concern relating to the Employer’s approach to averaging of her hours of work, but there is no evidence that she followed the advice in the response given which causes me to doubt the legitimacy of her claims; and

(h)     As the Applicant was already looking for other employment, it is entirely logical that the conversation would be as is stated by the Second Respondent in his evidence.

Collectively, the matters at [154(b)] to [151(h)] of these reasons mean that I do not accept the tenor of the Applicant’s account of what occurred at the 6 September 2021 meeting. I find that the Applicant was well aware that the Second Respondent was intending to terminate her employment for reasons relating to accuracy of timesheets, her impact on the business, and her aggression in challenging his integrity and failing to follow directions. I do not accept that he was intending to terminate the employment because she was raising her right to be paid overtime.

The text message of 6 September 2021 was sent in the knowledge that this was the second occasion the Applicant had been required to attend performance discussions which would likely lead to her formal termination being notified. The Applicant clearly had an appreciation that the Respondents were dissatisfied with her as an employee and the reasons for this.

I prefer the Second Respondent’s evidence about what occurred at the performance meeting/discussion on 6 September 2021 and I find that the Second Respondent put the Applicant on notice to “show cause” why she should not be terminated, but also stated he was agreeable to her working out the notice period.

(footnotes omitted)

63    The appellant’s complaint, as articulated in her written submissions, is about the weight that the primary judge placed on the evidence coupled with a new and unjustified assertion, that was not put to the primary judge, that Mr Irfan had “constructed” and “fabricated” his affidavit evidence. There is no basis for the making of that serious allegation and it was quite improper for the appellant to do so.

64    As to the findings made by the primary judge, the appellant makes no attempt to demonstrate in her written or oral submissions why the primary judge erred in each of her primary factual findings at LJ [143]-[157]. These findings were open on all of the evidence considered by her Honour. This ground fails.

Ground 5

65    This ground provides:

The learned trial judge erred at [146] to [147] of the Primary Judgement in failing to

consider FS-18 of Applicant affidavit where its showing receiving date of the police

check is 1st Sept 2021.

66    The appellant’s complaint, which is very difficult to understand, is to the effect that the primary judge erred by failing to consider that there was no delay by her in applying for a police check on 1 September 2021, and that in consequence it should not have been found that the company lost a National Disability Insurance scheme contract because of any delay by the appellant in procuring the document.

67    The National Police Certificate is dated 1 September 2021. It is addressed to the appellant at her home address. That said, the appellant fails to engage with the reasoning of the primary judge at LJ [146] – [147]. Her Honour made no finding that any National Disability Insurance scheme contract was lost to the company because the appellant was dilatory in applying for the Certificate. Rather, the finding is that Mr Irfan was attempting to secure a contract from that scheme and that, by reason of a processing delay, he became frustrated with the appellant.

68    Further, the primary judge found at LJ [146] that the appellant “seems to agree” that there was delay in obtaining the Certificate and that her evidence did not “address whether she had delayed in replying to the multiple prompts from CV Check [the company engaged by the employer to obtain the Certificate] to authorise it.”

69    The appellant’s reliance on the Certificate does not address whether there was anterior delay in procuring it.

70    This ground fails.

Ground 6

71    This ground provides:

The learned trial judge erred at [149] of the Primary Judgement in failing to consider that the Facebook post was posted on 30 Aug 2021 after the clinic was closed.

72    The appellant makes much of this in her written submissions. It is also the subject of the interlocutory application. She contends that the Facebook post contradicts the evidence of Mr Irfan. At the heart of her complaint is the time of the Facebook post: 7:38 pm on 30 August 2022. It is the appellant’s post, but was not attached to her affidavit. It was received in evidence as an attachment to an affidavit made by Mr Irfan. The primary judge concluded that the omission was “telling” and indicated that the appellant had “selectively put evidence before the court to suit her narrative”: LJ [148].

73    In submissions, the appellant took me to part of the affidavit evidence of Mr Ifran to the effect that this Facebook post was one of the matters that caused him, on 30 August 2022, to approach another employee of the company and ask them to “hold off” booking new clients for the appellant as he was then considering the termination of her employment. The appellant submits that it is quite unlikely that the Facebook post late in the evening of that day was a reason for that direction to an employee, well after the close of the business. To that extent, the appellant has a point. However, Mr Pym in his submissions drew my attention to the fact that this discrepancy was the subject of cross-examination at AB Part C, 732 that the direction was given “on or about” the end of August 2022, and Mr Ifran gave as a quite plausible explanation that his memory was not entirely clear as to the precise sequence of events.

74    I am not satisfied that this discrepancy is material to the primary findings of fact made by the primary judge. Moreover, the appellant fails to reveal how the timing of the Facebook post affects the credit finding at LJ [148] or how it relates to any subsequent primary finding of fact made by the primary judge. Thus, the timing of the post is immaterial to the outcome of this ground.

75    This ground fails.

Ground 7

76    This ground provides:

The learned trial judge erred at [150], [151] & [163] of the Primary Judgement in

misconstruing the nature of the evidence that the email sent on 25 August is a simple

leave request for COVID-19 Vaccination and did not contain anything confidential.

(FSS6 of Statement of claim filed on March 11 , 2022).

77    The additional impugned paragraph at LJ [163] is within that part of her Honour’s reasons that resolve the adverse action claims. Once again, it is misleading to selectively reference one component. I have referenced some of the paragraphs when dealing with ground 3, but to assist comprehension, the entire reasoning at LJ [158] – [169] is:

The Applicant relies on various purported conversations and written communications by email or text with the Second Respondent to establish that she was treated adversely and threatened because she was exercising workplace rights.

Those purported workplace rights that were alleged to be exercised were not well defined by the Applicant and her Counsel. Ultimately, the Applicant seems to have mostly relied on the circumstances leading to her dismissal.

In view of this unsatisfactory state of affairs, I have directed myself to the Statement of Claim and address that which is pleaded (albeit oppressively).

Regarding the complaints about excess hours said to amount to pursuit of a workplace right, the five complaints pleaded are between 12 May 2021 and 14 August 2021 and are collectively expressed as being a complaint that she was required to work more than ordinary full-time hours and was not paid overtime.

The Applicant at no time in the relevant period complained that she was not being correctly paid for the hours of work. I have found that the complaints were as to the spread of hours and that they did not suit her personal needs. I find that the Employer did not require the Applicant to work overtime, but based on the records maintained by the Applicant she is deemed to have done so as a result of the reverse onus

In the Statement of Claim at [80], an allegation is made about a request for leave to get a Covid-19 vaccination. I do not accept the Applicant’s evidence regarding the nature of the conversation she had with the Second Respondent about this request.

The inference the Applicant seeks to be drawn is that she was refused time off and not paid for the lunch period during which she attended the vaccination appointment. However, the evidence does not support this, nor does the Applicant’s characterisation of the discussion. The text exchange is polite and the Second Respondent responds “no problem” and agrees that the Applicant need not work during the afternoon. The Applicant agreed when cross-examined that she had been given the afternoon off after attending the appointment during a lunch break

In the Statement of Claim at [84] to [85], the Applicant pleads a workplace right concerning a complaint said to have been made to the Fair Work Ombudsman. However it is difficult to understand how this relates to the adverse action claim as nothing substantive is pleaded about the adverse effect said to have arisen because of the complaint. Indeed, the Applicant’s own evidence is that the Respondents were not made aware of the contact with the Fair Work Ombudsman on 26 August 2021. Accordingly, I find there is no causal nexus between the making of the complaint or pursuit of a workplace right and being treated adversely as I accept the evidence of the Applicant that she did not inform the Respondents that she had made a complaint to the Fair Work Ombudsman.

Matters are pleaded in the Statement of Claim at [85] about an AHPRA supervision report. There was considerable evidence about this topic, such as who prepared it, how it was prepared, and when it was first submitted to AHPRA.

The evidence was confusing and, to the extent the Applicant claimed she had completed the supervision report and the Second Respondent had told her to access a previous physiotherapist’s report to complete it, I reject her evidence. Much cross-examination of the Second Respondent and also Mrs Irfan occurred in relation to the preparation of the report, when it had been submitted and if it had been “changed”. Ultimately, it does not appear particularly material to the issues to be decided. However, preferring the Respondents’ evidence, I find that the document was more likely prepared by the Second Respondent, and then sent to the Applicant for approval and submission by her to AHPRA. However, it was not actually submitted until late August 2021 and resubmitted when AHPRA noted the report was not complete.

In the Statement of Claim at [89] to [99], the Applicant pleads various matters concerning the lead up to the termination of her employment and asserts that, by sending a text message on 6 September 2021, she was asserting a workplace right.

In the context of events that occurred between 30 August 2021 and 6 September 2021, I find that by sending the text message the Applicant was seeking to corroborate her self-serving interpretation of part of her discussion with the Second Respondent during the meeting. As I have rejected the Applicant’s account of this discussion, I am not persuaded that the text, as pleaded as an inquiry about the Applicant’s “workplace right”, was genuine, in good faith or for a proper purpose. In arriving at this conclusion, I have placed reliance on PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15; (2020) 274 FCR 225 and the reasons of Rangiah J at [26] and Charlesworth J and Snaden J at [137].

(footnotes omitted)

78    The appellant’s complaint is that the primary judge misconstrued the email of 25 August 2021 as revealing confidential information relating to the appellant’s employment. The primary judge made no such finding in any of the impugned paragraphs. The appellant also complains in her written submissions that the company took adverse action against her because she made legitimate requests for leave, either for herself or because her husband had a minor operation: LJ [129] – [131]. There is no merit in this complaint. Although the appellant raised these matters in evidence, as the primary judge correctly founded LJ [133]:

The Applicant has not formulated her claim for adverse action on the basis of a refusal on the part of the Employer to provide leave contrary to a provision of the Award. The Employer accommodated many of her requests for time off to meet personal commitments and provided benefits to her beyond the terms of the Award or her contract of employment.

79    The appellant’s attempt to re-agitate this issue on appeal manifestly fails. There is no merit in this ground.

Ground 8

80    This ground provides:

The learned trial judge erred at [220] to [221] of the Primary Judgement in failing to apply the statutory presumption under s 557C(1)(b)(i) of the FW Act.

81    In these paragraphs, the primary judge shortly addressed the appellant’s miscellaneous claim that the company had failed to provide her with meal breaks. Her Honour was not satisfied on the evidence that this contention was made out. Her Honour’s findings at LJ [220]-[221] were:

I do not accept that the Applicant was commonly assigned to work during meal breaks. The timesheets and booking diary entries largely provide for meal breaks and to the extent that the Applicant may at times have missed them, I conclude it was because she ran over time with patients, which can be inferred from her lack of experience and admission that she needed assistance with clinical skills.

In any event, the evidence simply does not rise to establishing on the balance of probabilities that cl 15 of the Award was contravened. The claims pleaded at [36] to [48] of the Statement of Claim fail.

(footnotes omitted)

82    The primary judge perfectly understood the operation and effect of the reverse onus provision at s 557C(1)(b)(ii) of the FW Act. At LJ [4] her Honour records that this is the appellant’s contention. At LJ [188] the primary judge found that the company failed to keep the records required by the Regulations and that in consequence “the hours of work asserted to have been performed by the applicant must be accepted”. This led her Honour to find in favour of the appellant that her overtime claim succeeded: LJ [192].

83    As to the discrete claim for meal breaks, the primary judge found at LJ [119] that the appellant commenced work on 12 April 2021 contrary to her contention that she commenced on 6 April 2021. That she attended the address of the company in the prior week to “address administrative matters” did not amount to her performing work as an employee: LJ [120].

84    It will be recalled that the primary judge at LJ [177] – [185] considered the evidentiary records relating to the appellant’s claims for non-payment of overtime and the failure to provide meal breaks. Her Honour was not satisfied as to the accuracy of the employment records, concluding that they were a reconstruction: LJ [185]. Accordingly, her Honour proceeded by application of the reverse onus from LJ [186]. The company failed to discharge that onus, with the consequence that the overtime claim succeeded: LJ [192].

85    The primary judge did not apply the same approach to the meal breaks claim. In fairness to her Honour, by this stage of her reasoning, it may be that she was experiencing a degree of frustration, and probably fatigue, in dealing with the appellant’s multiple unparticularised claims. Having found that the company failed to keep the required employment records and failed to discharge the corresponding statutory onus, at LJ [185] and [186]-[192], with respect her Honour should have also concluded that the company failed to discharge its onus on the related meal breaks claim. It was an error for her Honour to overlook the reverse onus, and proceed to an assessment of the appellant’s evidence, to then conclude that the evidence did not on the balance of probabilities establish a contravention at LJ [221]. The logical conclusion which flows from that finding is that the appellant was entitled, as the starting point, to the benefit of a finding in her favour on the pleaded case.

86    But what was the pleaded case? The appellant did not contend that no meal breaks were provided during the entirety of her employment between 12 April 2021 (the date of commencement as found by the primary judge) and her termination on 7 September 2021. Thus, what “allegation” was made by her as required by s 557C(1)(a) of the FW Act?

87    The meal break claim, as pleaded in the appellant’s statement of claim at [37]-[38], contended that during the entirety of her employment she was entitled, in accordance with cl 15.1(a) of the Award to a meal break of between 30 and 60 minutes, if she worked in excess of five hours. She did not particularise when and in what circumstances that entitlement arose. Rather she pleaded that the entitlement was capable of calculation upon discovery of relevant documents by the company. That calculation was not provided in the form of a pleading.

88    During submissions I invited the appellant to draw to my attention anything in AB Part A or C being a document or evidence that she contended was in form or substance an allegation of contravention of this clause of the Award, beyond the unparticularised contention in her statement of claim. She was unable to do so. I put the same question to Mr Pym, but also drew to his attention an aide memoir at AB Part C, 71. This document is asserted to be the company’s calculation of unpaid lunch breaks and paid prayer breaks. The document was not received into evidence and Mr Pym was unable to identify where in the evidence one may find source material for the calculations.

89    Thus, the difficulty with this claim is whether the appellant made “an allegation” of contravention of the meal breaks clause of the Award to engage the operation of s 557C(1)(a) of the FW Act. The consequence of the operation of this provision is that if the company fails to adduce sufficient evidence to disprove the allegation, then the claim must be upheld, unless the company has a reasonable excuse for non-compliance with the obligation to make and keep records: Ghimire v Karriview Management (No 2) Pty Ltd [2019] FCA 1627;(2019) 290 IR 331 at [13]-[16], Colvin J.

90    It is instructive to consider Ghimire in more detail. Justice Colvin allowed an appeal from the decision of an industrial magistrate sitting in the Western Australian Industrial Magistrates Court in the exercise of jurisdiction pursuant to the FW Act. Two former employees, Mr Ghimire and Mr Sharma, claimed that they had worked between December 2016 and January 2017 pursuant to business scheme visas. Their claim was that they “had worked long hours and were paid nothing for their work”: [2]. They particularised their claims by specifying the hours worked on handwritten schedules that were provided to the magistrate. These schedules “specified the hours alleged to have been worked each day” and each gave evidence “to the effect that the schedules were transposed from records kept by them at the time”: [5]. The employer failed to produce any employment records in answer to those claims.

91    The magistrate found against the former employees because he was not satisfied that each had proved their claims on the balance of probabilities: [9]. Although the magistrate was aware of s 557C of the FW Act, nonetheless, he found that the evidence of the former employees was not credible and, in any event, if wrong on that finding he managed to be satisfied that he would have “reached the same conclusion absent the reversal of the burden”: [9] (15).

92    Justice Colvin accepted that the magistrate misapplied the statutory burden of proof. His Honour had the benefit of submissions, notably in the form of an aide memoir, “that set out the hours claimed and the applicable calculations by reference to the allegations made by them”, the accuracy of which his Honour accepted: [42].

93    Having set out those matters, it is instructive to return to what His Honour said at [16]:

However, s 557C required an employer who did not keep appropriate records to disprove the allegation. If the evidence adduced by the employer did not rise to the level necessary, on the balance of probabilities, to affirmatively prove that Mr Ghimire and Ms Sharma did not work the hours that they claimed, then the effect of s 557C was that those claims were to be upheld. In that context, it was not enough that there may be reasons to question the credibility of the account given by Mr Ghimire or Ms Sharma. Even if their evidence was not accepted, Karriview would not have thereby disproved the allegation made by them as to the hours that they worked.

94    The contrast with this case is clear: in this case, the appellant did not make an allegation in her pleading that she was entitled to meal breaks on particular days, which she did not receive. Rather, she pleaded an Award entitlement if she worked more than five hours. She did not plead when that occurred. It would have been sufficient, if it was the case, to plead that she never received a meal break on any day where her hours of work exceed five. But she did not make that allegation. Her claim was simply that “during her employment” she had an entitlement to a meal break when she did work in excess of five hours. Her particulars foreshadowed that this claim would be calculated, following discovery. It was not.

95    In Gallagher v AAG Labour Services Pty Ltd [2020] FCA 1753, Jackson J determined a FW Act pleadings dispute. One issue was whether the statement of claim gave adequate notice to the respondents of the applicant’s claim that she had not been paid for all work undertaken as an employee. Ultimately, his Honour determined that the applicant should give “to the extent that is reasonably practical” further and better particulars of the days on which she performed work, any day on which she did not perform work and the hours of work as performed. In making orders to that effect, his Honour was not persuaded that the applicant should be compelled to “provide a daily breakdown of hours worked”, in order to give fair notice to the respondents of the claim for the purposes of s 557C(1)(a). In part His Honour reasoned as follows at [18]:

In my view, s 557C of the FWA does not relieve Ms Gallagher of the obligation to give the respondents fair notice of the basis on which she says she worked for the hours she has claimed. If s 557C applies, it reverses the burden of proving the allegations; it does not say anything about the level of detail an applicant should give in stating the allegations in her pleading. If anything, a requirement for the respondents to disprove the allegations would throw into even sharper relief the need for the respondents to know with particularity what the allegations are. The provision evidently reflects a legislative policy that if an employer has breached the FWA and the FWRs by failing to keep records of things such as hours worked, the employer should not be able to take advantage of that breach so that a claim for underpayment is defeated due to a lack of records. But that says nothing about the degree of specificity with which the claim should be articulated, as distinct from proved, in the first place. Ms Gallagher's submissions made much of the impossibility of her being specific about days and hours worked due to what she says is the respondents' failure to keep records of those things. The answer to that is found in what has been said above. If her claim is not based on such specifics, and it appears it is not, then the lack of specific records will not inhibit her ability to particularise the basis on which she calculates the hours she does claim she worked.

96    I agree with his Honour. The appellant’s pleaded case did not make an allegation that gave fair notice of the meal breaks claim with the consequence that s 557C(1)(a) was not engaged.

97    Turning next to whether evidence was adduced in support of this claim, despite the inability of the appellant to identify where in the evidence this issue was addressed, in drafting these reasons I identified some evidence on this issue. At AB 615-617, there was some cross-examination on this claim. The evidence was vague, and as noted by the primary judge “not responsive”. The appellant’s evidence went no further than at one point she could not remember how often she did not receive meal breaks and at another point she gave the speculative answer that she thought she received a break three times per week. There are also handwritten time sheets prepared by the appellant commencing at AB 136, but they do not assist the claim as many do not record breaks and those that do evidence substantial breaks, commonly recorded as between “1 and 2 pm” or marked as “1hr”.

98    I conclude there was no allegation to which the reverse onus applied and the primary judge was otherwise correct to conclude at LJ [221] that the claim was not supported by the appellant’s evidence. Thus, the error of the primary judge is not material to the outcome of the appeal and this ground fails.

Ground 9

99    This ground provides:

The learned trial judge erred at [204] to [221] of the Primary Judgement in failing to consider relevant evidence being the complaint to AHPRA about the former employee as evidence relevant to the Second Respondent's credibility (as opposed to any tendency), her learned trial judge failed to consider (or properly consider) relevant evidence.

100    Unhelpfully, this is a complaint about findings made in 17 paragraphs of the reasons of the primary judge; without any attempt to identify what error was committed, where and why it is an error. These paragraphs begin within the adverse action reasoning at LJ [193] – [207], embrace all of the findings on the coercion claim at LJ [208] – [217] and conclude with the meal breaks finding at LJ [221]. This ground fails to address the appellant’s basic obligation to identify what “relevant evidence” is being referred to and how the primary judge overlooked that evidence or made findings of fact inconsistent with it.

101    The appellant’s written outline takes the complaint no further, it being confined to a simple paragraph which commences by repeating the appeal ground and which then refers to “those complaints” to AHPRA without identifying what the appellant relies on. I received no additional assistance from the appellant in oral submissions.

102    The appellant must understand that my task on appeal is to consider contentions of error that are framed by the appellant. This appeal is not a rerun of the trial. Unless error is identified in appeal grounds, the appeal must fail.

103    Hence, failure to articulate error is fatal to the success of this ground.

Ground 10

104    This ground provides:

The learned trial judge erred by misconstruing the nature of the evidence and submissions that the Applicant sought to rely on to impugn the assessment of the Second Respondent's credibility and in doing so, the learned trial judge erred denied the Applicant procedural fairness.

105    The formulation of this ground attracts the same criticism as ground 9. However, the appellant’s written submissions at least identify the documentary evidence that is relied on. Nine documents are referenced, but without any explanation as to how it is said the primary judge misconstrued the documents and made adverse credit findings which had the effect of denying to the appellant procedural fairness in the conduct of the trial. What the appellant does not understand is that cherry picking documents that were before the primary judge does not make out any error absent coming to grips with where and why the primary judge misconstrued or misunderstood each document, which then led to one or more of the adverse credit findings. The failure to do so is fatal to the success of this ground.

Ground 11

106    The notice of appeal now moves to the penalty judgment. This ground provides:

The learned trial judge erred at [15] of the Penalty Judgement failing to consider the

statement of Second Respondent in Paragraph 11 of Form F8A filed on October 20,

2021 where Second respondent accepted that Mrs. lrfan was one of the directors of the

company.

107    The impugned finding at RJ [15] is one of the paragraphs which led her Honour to find that Mr Irfan was knowingly involved in the established contravention.

108    The interlocutory application to adduce fresh evidence is relevant to this ground. I reject the application for the reasons that I have given in dealing with ground 1.

109    In the result, this ground fails for the same reason: Form F8A was not before the primary judge, Mrs Irfan was not a party to the proceeding and the fact that she was a director of the company is insufficient to establish accessory liability on her part.

Ground 12

110    This ground provides:

The learned trial judge erred at [54] to [56] of the Penalty Judgement in concluding that under 546(3) of the Fair Work Act 2009 (Cth) (FW Act) the penalty payable by the First Respondent should be paid to the Commonwealth, and not the Applicant, to serve and emphasise the broader public interest.

111    The impugned reasoning at RJ [54] – [56] is:

Finally, the issue of whether the penalties ought to be paid to the Applicant must be determined. I have directed myself according to the authority of Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 338 (“Sayed”) from [72] to [94].

It is true that the Applicant had to prosecute her claims and some have been established, but not all were established and the entitlement to compensation recovered is extremely modest. The hearing did extend for a longer period because of the unsuccessful claims, and both parties are bearing the adverse effect of having to pay legal costs in respect of the extended hearing.

I do not have any evidence about the parties’ respective legal costs, but can infer that they would be significant for both. If all the penalties were paid to the Applicant, this would be disproportionate to the modest claim which succeeded, while the Respondents remain burdened by the additional costs caused by the unsuccessful claims. In these circumstances, I consider that the penalty payable by the Second Respondent should be paid to the Applicant directly, but the penalty payable by the First Respondent should be paid to the Commonwealth to serve and emphasise the broader public interest purposes discussed by Mortimer J in Sayed at [76].

112    This ground is not lacking in merit. As I have observed, her Honour applied the reasoning of Mortimer J in Sayed and overlooked that of the Full Court. The Full Court held that the power at s 546(3) of the FW Act to order that all or part of a pecuniary penalty be paid to the Commonwealth, a particular organisation or to a particular person, is one that ordinarily is to be exercised “by awarding any penalty to the successful applicant”: Sayed FC at [101]. See also [107], [117] and [120]-[122].

113    This is not to say however that in particular cases a principled exercise of the discretion may result in the payment of part of the penalty to a successful individual applicant, and the balance of the Commonwealth. As an example, see Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd (No 2) [2021] FCA 1149, Banks-Smith J, albeit a case where the applicant was a statutory regulator.

114    The difficulty in this case is that the primary judge directed herself in accordance with a summary of principles, which the Full Court disapproved, set aside the orders made by Mortimer J and substituted an order that the calculated penalties be payable to the applicant. With respect, her Honour proceeded on a wrong principle and it follows she erred in the exercise of her discretion.

115    For the respondents, Mr Pym submits that Sayed FC is not authority for the universal proposition that a successful applicant in a proceeding for contravention of the FW Act (and which attracts the power to impose pecuniary penalties) must be the beneficiary of the amounts imposed. That may be accepted, as it is self-evident from the permissive conferral of the power at s 546(3) of the FW Act. The problem in this case is that, with respect, the primary judge misdirected herself.

116    I raised with Mr Pym whether there is anything in this case that would justify departure from the usual position. With the frankness that this Court expects from counsel, he conceded there is not. In my view the order (2) made by the primary judge on 22 September 2023 in consequence of her findings in the RJ must be set aside. It then falls to me to determine whether the assessed penalty of $8,000 should be paid to the appellant or to the Commonwealth pursuant to s 546(3) of the FW Act. Despite losing many of her civil penalty contravention claims, the appellant had a measure of success on her overtime claim. Splitting the assessed penalty is not justified in this case. The appellant should receive the entire amount. In proceeding in that way it should be noted that ground 15 of the appeal (which is relevant to the quantum of the penalties) fails and I am therefore not required to redetermine the appropriate civil penalty.

117    During oral submissions I raised with the appellant and Mr Pym what order is appropriate in the event that I was satisfied that this ground succeeds. The Commonwealth is not a party to the proceeding, but is the beneficiary of the amount of $8,000 paid by the company. The position in inter partes litigation is clear: where an order for the payment of money is subsequently set aside the successful party “is entitled, on the reversal of the judgment, to repayment of the money paid by him with interest”: Commonwealth v McCormack [1984] HCA 57;(1984) 155 CLR 273 at 276. The principle is not so clear where obedience to an order requires payment to a non-party: see the discussion in Mason & Carter’s Restitution Law in Australia (4th ed LexisNexis) at [709] where the authors note that the “principles relating to mistaken payments apply”.

118    Ultimately, this is not a question that I need to resolve in this appeal. I am only concerned with the principled exercise of the discretion at s 546(3) of the FW Act. It will be a matter for the company to seek recovery from the Commonwealth.

Ground 13

119    This ground provides:

The learned trial judge erred in concluding that the maximum penalties for contravention of Fair Work Regulations 2009 (Cth) 3.31 , 3.32, 3.33, 3.34 and 3.35 are 100 penalty units for the First Respondent and 20 penalty units for the Second Respondent as the learned trial judge has applied s. 798 of the FW Act instead of s539, Item 29 for contravention of s 535 of the FW Act.

120    There is no merit in this ground. The primary judge applied s 546 of the FW Act: RJ [35]. There is no reference to s 798 in the judgment.

Ground 14

121    This ground provides:

The learned trial judge erred at [39] of the Penalty Judgement in concluding that 60

penalty units under s 539 of the FW Act for a contravention of s 44 (Item 1) and s 45

(Item 2) is the maximum penalty available in each instance if the contraventions are for a "serious contravention."

122    The impugned paragraph is the conclusion of the assessment of the appropriate penalty by the primary judge commencing at RJ [27]. At RJ [39], her Honour set out the maximum penalties for a serious contravention by categories:

123    Her Honour rejected the appellant’s serious contravention submissions at RJ [40]-[52]. In doing so, her Honour determined at RJ [50] that:

In my view, the submissions on behalf of the Applicant seek imposition of penalty way beyond that which can be proportionately and legitimately justified given all the circumstances of this case.

124    There is no error in that approach and no merit in this ground.

Ground 15

125    This ground provides:

The learned trial judge erred at [47] of the Penalty Judgement in applying the principle of proportionality to its determination of penalties.

126    The primary judge reasoned, commencing at RJ [27], with the correct understanding that the quantum of the penalties must be proportionate to the established contravention. Her Honour repeated that proposition at RJ [42], [47], [50], [51] and [56]. Her Honour understood the need to consider the totality principle; notably at RJ [53]. In that context, her Honour reasoned at RJ [45]-[47] as follows:

Essentially, the contraventions occurred because of the matters referred to at [42] of these reasons, along with poor management, administration and record keeping.

The fundamental purpose of imposing pecuniary penalties is deterrence, and I accept the Applicant’s submissions as to this in principle. However, if the Court approached the imposition of penalties in the manner submitted to by the Applicant at [50] of her written submissions, the penalties would be in the region approaching $540,000 by the First Respondent and about $54,000 by the Second Respondent.

The approach impressed by the Applicant ignores the findings I have made about a single course of conduct and common elements in a number of the separate contraventions. It also is excessive to that which is required in all the circumstances to achieve the need for general and specific deterrence, and it is disproportionate to the circumstances of this case when compared to the worst or most extreme cases.

(footnotes omitted)

127    Once again, the appeal ground fails to identify why her Honour erred and there is no elaboration in the appellant’s written or oral submissions. This ground fails.

Result

128    The appeal against the orders made by the primary judge on 17 July 2023 fails. The appeal against the orders made by the primary judge on 22 September 2023 succeeds to the extent that order (2) is set aside and it is ordered that the first respondent must pay a pecuniary penalty in the amount of $8000 to the appellant within 30 days. The interlocutory application must be dismissed.

Associate:

Dated:    6 March 2025