FEDERAL COURT OF AUSTRALIA

Han v St Basil’s Homes (No 2) [2025] FCA 448

ORDERS

THE COURT ORDERS THAT:

1.    The respondent pay compensation to the applicant under s 545(2)(b) of the Fair Work Act 2009 (Cth) (FW Act) in the following amounts:

(a)    $175,000 for past economic loss;

(b)    $61,559.62 for future economic loss;

(c)    $75,000 for general damages; and

(d)    $10,000 for future out of pocket expenses.

2.    The respondent pay pecuniary penalties under s 546 of the FW Act in the following amounts:

(a)    $45,000 in respect of the contravention of s 351(1) of the FW Act; and

(b)    $15,000 in respect of the contravention of s 340(1) of the FW Act.

3.    The pecuniary penalties in Order 2 be paid to the applicant pursuant to s 546(3)(c) of the FW Act.

4.    The matter be listed for case management immediately upon delivery of the reasons for judgment dated 6 May 2025 to enable the parties to be heard as to whether:

(a)    the applicant presses any claim for interest in respect of the amounts in Order 1(a); and

(b)    any party makes a claim for costs under s 570 of the FW Act or any other applicable law.

5.    If no claims are made under Order 4, the proceedings be otherwise dismissed.

6.    If a claim is made under Order 4:

(a)    the applicant is to file and serve submissions not exceeding 3 pages on the issue of interest and costs by 4.00 pm on Thursday, 8 May 2025;

(b)    the respondent is to file and serve submissions not exceeding 3 pages on the issue of interest and costs by 4.00 pm on Tuesday, 13 May 2025; and

(c)    the applicant is to file and serve submissions in reply, if any, not exceeding 3 pages by 4.00 pm on Thursday, 15 May 2025.

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

REASONS FOR JUDGMENT

SHARIFF J:

1.    INTRODUCTION

1    The applicant (Ms Han) is a former employee of the respondent (St Basil’s). Ms Han worked for St Basil’s as a registered nurse on a permanent part-time basis at its aged care facility in Lakemba, Sydney (Lakemba Facility). St Basil’s terminated Ms Han’s employment on 23 January 2020. Ms Han then commenced proceedings in this Court alleging contraventions of ss 340(1)(a) and 351(1) the Fair Work Act 2009 (Cth) (FW Act). The proceedings were allocated to the docket of Rares J, who decided to hear and determine all questions of liability before and separately to the determination of questions as to penalty and compensation.

2    On 28 August 2023, Rares J handed down a decision in which his Honour found that St Basil’s contravened ss 340(1)(a) and 351(1) of the FW Act: see Han v St Basil’s Homes [2023] FCA 1010 (Liability Judgment or LJ). His Honour made orders for the service of evidence and submissions in relation to the questions of remedy. Shortly prior to his Honour’s retirement from the Court, the matter was allocated to my docket. Since that time, there were delays involved in listing the hearing before me due to disputes between the parties in arranging for Ms Han to be assessed by an independent medical practitioner at the request of St Basil’s.

3    The parties’ respective positions as to the orders that should now be made were both ambitious. The claims made on Ms Han’s behalf paid little attention to the statutory norm at stake. They also paid little attention to the findings made by Rares J and the actual evidence before me. Ms Han advanced a claim for compensation and penalties totalling $2,471,381.65. The Damages Schedule provided in support of Ms Han’s claim lacked precision and bore little relationship to the statutory and evidentiary foundations for the amounts claimed.

4    In response, St Basil’s contended that nothing more than a nominal amount of compensation should be awarded and that no penalties should be imposed. That position too was ambitious. It paid scant regard to the fact that Rares J had found that St Basil’s contravened important provisions of a Commonwealth law designed to protect workers like Ms Han from exactly the type of detriment to which she was subjected. Ms Han was entitled to protection from the taking of adverse action against her because of her exercise of workplace rights and because of her race. These propositions are as obvious as they are fundamental to the protections afforded by the FW Act.

5    I am satisfied that Ms Han has made out a claim for the payment of compensation and the imposition of penalties, but not to the extent of her claims. These are my reasons for ordering that St Basil’s pay to Ms Han the following amounts:

(a)    $175,000 for past economic loss;

(b)    $61,559.62 for future economic loss;

(c)    $75,000 for general damages; and

(d)    $10,000 future out of pocket expenses.

6    I have structured my reasons as follows:

(a)    Part 2 sets out the relevant evidence;

(b)    Part 3 summarises the salient findings made by Rares J in the Liability Judgment;

(c)    Part 4 addresses the claims for compensation;

(d)    Part 5 addresses the claims for the imposition of penalties; and

(e)    Part 6 sets out my disposition of the proceedings.

2.    THE EVIDENCE

7    The evidence before me was contained in a Joint Court Book, which also included the parties’ pleadings and submissions. The Joint Court Book also included the evidence that was before Rares J. The affidavits contained in that Joint Court Book were read without objection, the outlines of evidence were tendered (again without objection) and the various expert reports were also tendered, again, without objection.

8    In support of her claims before me, Ms Han relied upon the findings made by Rares J in the Liability Judgment, which I summarise in Part 3 below. In addition, Ms Han primarily relied upon the following further evidence in support of her claims for compensation and the imposition of penalties:

(a)    an affidavit deposed to by Ms Han on 19 February 2021;

(b)    the outlines of evidence of:

(i)    Ms Han dated 23 September 2021 and 30 November 2023;

(ii)    Ms Zaki Alahiotis dated 23 September 2021;

(iii)    Mr Cosgrove (Ms Han’s partner) dated 1 December 2023;

(iv)    Ms Macy Han (Ms Han’s niece) dated 1 December 2023; and

(v)    Mr Yuchen Hu (Ms Han’s son) dated 1 December 2023; and

(c)    the expert reports of:

(i)    Dr Richa Rastogi (Consultant Psychiatrist) dated 30 April 2021;

(ii)    Dr Abhishek Nagesh (Consultant Psychiatrist) dated 12 September 2023 (First Report) and 30 July 2024 (Reply Report);

(iii)    Ms Kayleen Engelsman (Occupational Therapist) dated 13 October 2023 (Past and Future Care Report);

(iv)    Ms Lucinda Smith (Occupational Therapist) dated 16 November 2023 (Vocational Assessment Report); and

(v)    Mr Abinash Dhungel (Forensic Accountant) dated 16 November 2023 (Earnings Assessment Report).

9    St Basil’s relied upon the following evidence:

(a)    an affidavit of Mr James Jordan (St Basil’s, Board Chairman) sworn on 13 May 2024;

(b)    an expert report of Dr Ian Sherman (Consultant Psychiatrist) dated 17 April 2024; and

(c)    a joint expert report of Ms Yolla Makhoul (Psychologist, Vocational Consultant and Labour Market Researcher) and Mr James Hill (Vocational Consultant, Labour Market Researcher and Rehabilitation Counsellor) dated 26 April 2024 (Earning Capacity Assessment Report).

10    As already noted, all of the evidence was received without objection, including the outlines of evidence (which were essentially treated by the parties as witness statements). None of the experts were required for cross-examination. The only witness who was cross-examined was Ms Han. That cross-examination was brief.

11    Whilst the parties are to be commended for the efficient way in which they conducted the proceedings, as I will return to below, it has not necessarily made the fact-finding process straightforward. Before returning to these matters, I will first provide an overview of the findings on liability.

3.    THE SALIENT FINDINGS MADE IN THE LIABILITY JUDGMENT

12    Both parties drew attention to and emphasised different aspects of the Liability Judgment as being relevant to their submissions as to the appropriate compensation to be awarded and the penalty to be imposed. It is unnecessary to rehearse every finding made in the Liability Judgment, but it is necessary to identify the essential findings as they are relevant to the issues before me.

13    Before turning to these essential findings, it is necessary to say something about the context. As noted at the outset, Ms Han is a registered nurse. By the time of the termination of her employment, Ms Han had worked for St Basil’s for over nine years on a permanent part-time basis. Ms Han is Chinese and is also known by the name, Casey.

14    In the period leading up to the termination of her employment, Ms Han claimed that she had been subjected to discriminatory and bullying conduct because she was Chinese. The specific context was that a number of other staff who worked at the Lakemba Facility were Filipino and, in Ms Han’s perception of things, were operating as a clique that “ganged up” on her: see, eg, LJ [84] and [111]. In particular, Ms Han claimed that the General Manager, Ms Mota, who was Filipino, as well as other managers, preferred the Filipino workers who worked at the Lakemba Facility: see, eg, LJ [238]. The other Filipino workers who worked at the Lakemba Facility included Ms Alcantara (LJ [37], [39]), Ms Pandey (LJ [43]), Ms Bangao (LJ [43]), Mr Dhungana (LJ [43]), Ms Lee (LJ [74]), Mr Agbada (LJ [153]) and Ms Young (LJ [153]).

15    Whilst Ms Han made assertions as to bullying and discrimination, her pleaded case fell within a narrow compass. As Rares J pointed out at LJ [2], Ms Han’s pleaded case asserted two instances of adverse action, being:

(a)    the issuing of a warning to Ms Han on 10 September 2019 (the First and Final Warning); and

(b)    the termination of Ms Han’s employment, which took immediate effect on 23 January 2020.

16    Ms Han’s case was that St Basil’s had engaged in these two instances of adverse action for one or both of the following reasons (LJ [2]):

(a)    because she had exercised her workplace right to make a complaint or inquiry in relation to her employment in contravention of s 340(1)(a) of the FW Act; and/or

(b)    because of her Chinese race in contravention of s 351(1) of the FW Act.

17    By reason of the operation of the statutory presumption contained in s 361(1) of the FW Act, the question before Rares J was whether St Basil’s had discharged its onus of rebutting the presumption that it had engaged in the alleged adverse actions for the substantial and operative reasons alleged by Ms Han, or for reasons that included those proscribed reasons.

18    Rares J upheld Ms Han’s claim that St Basil’s contravened both ss 340(1)(a) and 351(1) in relation to the adverse action constituted by the termination of her employment, but rejected Ms Han’s case in relation to the adverse action constituted by the First and Final Warning.

19    It is now necessary to say something by way of summary as to the essential findings that Rares J made in reaching this conclusion.

20    Rares J’s essential findings relating to the First and Final Warning are set out at LJ [42]–[82]. The incident that led to Ms Han being issued with the First and Final Warning was one that occurred on 4 August 2019. At the time, a co-worker, Ms Bangao (an aged care worker), was introducing a new staff member, Mr Dhungana, to Ms Han: LJ [42]. It was alleged that during that conversation, Ms Han had called Ms Bangao a “bitch”, which Ms Han did not deny but said her comment had been taken out of context and was not intended to be offensive: LJ [42]–[44]. A complaint was made about Ms Han’s conduct and it was investigated: LJ [46]–[49]. It is sufficient to note that the investigation process involved:

(a)    the receipt of the complaint and corroborating information: LJ [47]–[49];

(b)    a letter of allegations being sent to Ms Han, which did not disclose the full details of the incident: LJ [50];

(c)    Ms Han asking for further details: LJ [52];

(d)    Ms Han attending a meeting to discuss the allegations in general terms: LJ [55];

(e)    a further letter being sent, which set out more details of allegations and informing Ms Han that the complaint had been substantiated: LJ [56];

(f)    Ms Han being required to attend a show cause meeting: LJ [56]–[58]; and

(g)    the First and Final Warning being issued to Ms Han: LJ [60].

21    Rares J found that Mr Rooke (Chief Operating Officer at the Lakemba Facility), Ms Darwich (Director of Care at the Lakemba Facility) and Ms Mota were each involved in the decision and/or were the decision-makers in relation to the issuing of the First and Final Warning: LJ [77]. His Honour was satisfied that each of these persons decided to give the First and Final Warning because they believed that Ms Han had breached St Basil’s Code of Conduct by calling Ms Bangao “a bitch”: LJ [76], [78]. Rares J arrived at this conclusion notwithstanding that his Honour had formed unfavourable views about Ms Mota and, to a lesser extent, Ms Darwich: LJ [79]. His Honour observed that the decision to give the First and Final Warning may have also “suited a wish or desire of Ms Mota to prefer Filipino employees to the Chinese, Ms Han, in allocation of work and shifts” but was satisfied that this “congruence” was “not any part of Ms Mota’s substantial and operative reasoning for her decision on this occasion”: LJ [81]. Rares J concluded that Ms Han had not established her case that each of Ms Rooke, Ms Mota and Ms Darwich had taken the action of issuing the First and Final Warning for a substantial and operative reason that included that Ms Han had complained about the discriminatory conduct to which she claimed to be subjected or because of her race: LJ [81]–[82].

22    The findings in relation to Ms Han’s case in respect of the decision to terminate her employment are addressed at LJ [83]–[240]. Those paragraphs disclose a careful and detailed analysis of the documentary and testimonial evidence before Rares J. That analysis reveals that Ms Han had made complaints about various matters to either or both of Ms Darwich and Ms Mota and, up until a point in time, it appeared that St Basil’s was looking into her concerns, but then the “tables were turned”. One of the matters about which Ms Han had complained was turned into an allegation against her that she had not afforded appropriate or adequate clinical care to a resident of St Basil’s. It was this allegation that led to the termination of Ms Han’s employment. Ultimately, Rares J was not satisfied that St Basil’s had rebutted the presumption arising under s 361(1) of the FW Act that it had made the decision to terminate Ms Han for proscribed reasons. It is unnecessary to repeat Rares J’s analysis in detail here. It is sufficient to highlight some of the essential steps that led his Honour to these conclusions.

23    At a meeting on 26 September 2019 with Ms Darwich and Ms Mota, Ms Han provided a note to them of over six pages which raised concerns about various matters including understaffing and her increased responsibilities, as well as her feeling that she was being discriminated against and “ganged up” on by other staff who were Filipino: LJ [84] ff. At this time, Ms Han asked for her complaints to be investigated: LJ [86].

24    On 16 November 2019, Ms Han recorded an incident based on a complaint received from the daughter of one of the residents at the Lakemba Facility, which Ms Han considered to amount to elder abuse: LJ [91]. On 23 November 2019, Ms Han made a record of a further incident, being that she had observed another resident with bruises on both arms: LJ [93]. Ms Han took a photo documenting the bruising: LJ [93].

25    On 1 December 2019, Ms Han sent an email to Ms Mota in which she stated that she would “like to make a formal complaint” and listed a number of grievances, including three particular incidents that caused her concern: LJ [98]–[100]. Rares J referred to this email as the “1 December Complaint”. Ms Han concluded her list of grievances by stating that she felt she was being “repeatedly targeted by” Ms Pandey and “no longer [felt] safe to work at St Basils”: LJ [101]. Ms Mota acknowledged Ms Han’s email and indicated that her concerns would be escalated, and proposed to meet on 12 December 2019 to discuss the issues raised: LJ [102].

26    On Sunday, 15 December 2019, a number of incidents occurred during a shift that Ms Han worked at the Lakemba Facility. These incidents became a point of attention for further complaints she made, and, for different reasons, one of the incidents became the “catalyst” for the events that led to the termination of her employment: LJ [118] ff. The first event occurred when Ms Han asked Mr Agbada to help her in moving a resident who was sitting on the floor: LJ [121]. Ms Han claimed that instead of helping her, Mr Agbada walked away: LJ [121]. The second event related to Ms Han’s recording and reporting of a clinical incident. Relevantly it was reported to Ms Han that during the previous shift there had been no second signatory recorded in the “schedule 8 medicine register book” for obtaining and administering to a resident of “Targin”, a drug of addiction for pain relief: LJ [122]. The sole signatory was Ms Lee, but Ms Han considered that a second signatory was required and believed she was reporting a substantive error: LJ [122]. Rares J observed that reporting in these circumstances was required at law and under St Basil’s internal policies: LJ [122].

27    The final incident proved to be significant. Ms Han was assisting a resident to go to the toilet when she received a call from Ms Young to inform her that another resident’s vitals were showing an “oxygen saturation level” of 87%: LJ [123]–[124]. This resident was relevantly located in a different wing of the Lakemba facility, some five minutes away: LJ [124]. Ms Han told Ms Young that she was occupied with another resident but would come immediately to assist, but that the resident to whom Ms Young was attending may need to be transferred to a hospital and in the meantime to apply oxygen to that resident and inform her family and the relevant doctor: LJ [124]. Almost immediately after that call ended, Ms Young called Ms Han back and asked her to call the doctor. Ms Han then “ran down” to where Ms Young was, but found that she was not with the relevant resident: LJ [122]. Ms Han then assessed the resident’s condition as stable and telephoned the resident’s daughter and the treating doctor, who both told her that it was the resident’s “advanced care directive” to receive treatment at the Lakemba Facility and not at a hospital, and Ms Han was instructed by the doctor to administer oxygen to the resident at the Facility: LJ [124]. Ms Han then approached Ms Young to inform her about the treating doctor’s orders and asked her to administer oxygen to the resident, but Ms Young told Ms Han that she had finished work and needed to go home: LJ [124]. Ms Han felt that Ms Young would not let her talk and repeatedly told Ms Han that she was going home: LJ [124]. Ms Han then went and administered oxygen to the resident herself: LJ [124].

28    On 24 December 2019, Ms Han sent an email to Ms Mota and made two complaints about the lack of teamwork she had experienced on 15 December 2019: LJ [129]. Rares J referred to these complaints as the “24 December complaint”. These complaints related to the lack of assistance Ms Han had received in turn from Mr Agdaba and Ms Young (who she only identified in her written complaint as “T/L [team leader]”): LJ [129]. As things transpired, this was the final day that Ms Han worked at St Basil’s.

29    On 2 January 2020, Ms Mota telephoned Ms Han and asked her to attend a meeting with her and Ms Darwich on 6 January 2020, but Ms Han indicated that she was on annual leave until the end of January: LJ [131]. In the intervening period between 6 and 13 January 2020, it appears that Ms Mota sought out the accounts of Mr Agdaba, Ms Young and another employee, Ms Kakias, who was a witness to parts of the events of 15 December 2019: LJ [131].

30    Rares J found that by 13 January 2020, Ms Mota had “turned the tables” in the sense that, instead of investigating the 24 December complaint, Ms Mota had used the information from that complaint to investigate Ms Han’s conduct which was a “trumped up attack”: LJ [152]–[155]. By a letter to Ms Han dated 13 January 2020, Ms Mota wrote that Ms Han was required to attend “an outcomes meeting” and that the purpose of the meeting was to discuss Ms Han’s professional role in relation to her job description and the “quality of clinical care” being provided to “consumers of St Basil’s”: LJ [155]. Ms Han, who was then on annual leave, felt stressed by the letter and sought to re-schedule the proposed meeting to 23 January 2020: LJ [164]. There were then telephone discussions between Ms Han and Ms Darwich on 17 January 2020 where Ms Han explained she was unwell: LJ [166]–[167]. Eventually, during a phone call late on the evening of 17 January 2020, Ms Darwich told Ms Han that she was suspended from her employment: LJ [167]. No explanation was provided to Ms Han as to the reason for the suspension, but she was told that there was an investigation that was pending: LJ [168]. A meeting was arranged for 23 January 2020 but Rares J considered that there was a “deliberate opacity” in the communications with Ms Han about the allegations that were being made against her: LJ [170]. Ms Han was sent a letter of suspension on 20 January 2020, which provided no details as to the allegations being made other than to assert that the suspension had come about due to the “serious nature of allegations” made against her: LJ [170].

31    On 21 January 2020, Ms Mota sent Ms Han a letter requiring her to attend an “outcomes meeting” on 23 January 2020: LJ [171]. Rares J found (at LJ [172]) that St Basil’s provided “no clue” to Ms Han as to what was to be discussed at the “outcomes meeting”, let alone whether any disciplinary action would be considered: LJ [172].

32    The meeting on 23 January 2020 was attended by Ms Han, Ms Mota and Ms Darwich. At the commencement of the meeting, Ms Han gave to Ms Darwich a letter she had prepared the previous day that set out Ms Han’s detailed recollection of the events of 15 December 2019: LJ [178]. Ms Darwich informed Ms Han that the purpose of the meeting was to address the care she had given to the resident on 15 December 2019: LJ [182]. The essence of the allegation made against Ms Han was that she had failed to discharge her professional duties to provide appropriate clinical care to the relevant resident by leaving it to a team leader (who did not have appropriate qualifications) to apply oxygen to that resident and to contact the relevant medical officer and the resident’s family: LJ [182].

33    Ms Han was informed during the meeting that her employment was being terminated with immediate effect. Ms Han responded by saying that the termination was unfair and she would challenge it. Ms Darwich told Ms Han should could speak to Father Nicholas Stavropoulos, who then was the chief executive officer (CEO) of St Basil’s: LJ [189]. Within minutes of leaving the 23 January meeting with Ms Darwich and Ms Mota, Ms Han went to see Father Nicholas: LJ [196]. Father Nicholas gave evidence that described his role in Ms Han’s termination as being “to audit the process and to make sure due diligence had been exercised, and that the matters were conducted fairly and properly”: LJ [196]. He said he did not investigate the termination of Ms Han’s employment beyond whatever was involved in the ‘briefing’ that he received from others: LJ [196]. As the CEO, Father Nicholas had the ultimate authority to affirm or review Ms Darwich’s decision earlier on 23 January 2020 to terminate Ms Han’s employment: LJ [204]. Ms Han “begged” him to overturn the decision (LJ [198]), but he instead affirmed the decision because, as Rares J found, he considered that Ms Han was doing no more than seeking to justify her conduct and was raising other complaints in an inappropriate way: LJ [204].

34    Later that same day, Ms Darwich lodged an online complaint about Ms Han with AHPRA, which was subsequently referred to the Health Care Complaints Commission and the Nursing and Midwifery Council of New South Wales: LJ [205]–[208]. She did so because of Father Nicholas’ instruction.

35    On 5 February 2020, Ms Han texted Ms Darwich asking for a letter that confirmed the termination of her employment: LJ [210]. Ms Darwich replied, early on 6 February 2020, that she would ensure that Ms Han received a letter that day.

36    On 7 February 2020, Ms Mota emailed the 6 February letter that she had signed as general manager to Ms Han which, relevantly, stated (LJ [211]):

Dear Wei (Casey),

RE: Termination of Employment

The purpose of this letter is to inform you that we have made the decision to terminate your employment with St Basil’s Homes.

Our thorough investigation process took into account:

1.     Opportunities for you to understand and respond to the allegations, including at our meetings on 12/12/2019 and 23/01/2020.

2.     Interviews and obtaining statements from staff members; and

3.     Work undertaken to review and investigate your claims and assertions made during our interviews.

Our investigation found that you failed to provide the necessary care to residents of St Basil’s Nursing home, particularly the late Helen Toliopoulos, resulting in the delay of treatment to assist a resident with transition into active palliative care

In addition to this, we also identified that you had instructed unqualified staff to offer therapy which was outside of their scope of practice.

After the completion of the investigation and responses received from you on 23/01/20 St Basil’s reviewed the serious nature of these findings and also took into consideration your performance history with our organization. Based on these considerations, we have decided to terminate your employment, with an effective date of 23/01/2020.

(Original emphasis removed.)

37    In April 2020, the complaint that had been made to AHPRA was resolved on the basis that no further action was required: LJ [218]. This was confirmed by the Nursing and Midwifery Council in a letter which stated, amongst other things, that:

…the allegations imposed by the employer around your performance and conduct were imprecise and did not raise significant concerns about performance to warrant immediate action

38    In these circumstances, Rares J was satisfied that Ms Han had exercised a workplace right to make complaints, including those in her 1 and 24 December complaints: LJ [224]–[237]. However, his Honour was not satisfied that there was any, or any proper, investigation of these complaints: LJ [224]–[237].

39    Rares J was not satisfied as to a number of explanations given by Ms Mota and Ms Darwich about the events leading to the termination of Ms Han’s employment, including by reference to various inconsistencies in their evidence. Rares J concluded that he was not satisfied that St Basil’s discharged its onus of proof to displace the presumption in s 361(1) of the FW Act that, when it took the adverse action of terminating Ms Han’s employment on 23 January 2020, it did so because she had exercised her workplace right to make a complaint or inquiry in relation to her employment or because of her Chinese race: LJ [240].

4.    THE CLAIMS FOR COMPENSATION

4.1    Applicable principles

40    Section 545 of the FW Act provides as follows:

(1)     The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.

(2)     Without limiting subsection (1), orders the Federal Court or Federal Circuit Court may make include the following:

…

(b)     an order awarding compensation for loss that a person has suffered because of the contravention…

(Emphasis and additional emphasis added.)

41    The text of these provisions makes clear that the discretionary power to make remedial orders is conditional upon those orders being “appropriate” and upon the Court being satisfied that there has been a contravention of the FW Act. The text of s 545(2)(b) further makes plain that the discretionary power to order compensation applies in respect of loss that a person has suffered “because of” the relevant contravention. Each of these textual matters is important and operate cohesively together to empower the Court to make orders for compensation for loss suffered by a person where it is appropriate to do so and where that loss is suffered because of that contravention—ie, there is a causal connection between the loss suffered and the specific contravention that has been found.

42    In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157, Keane, Nettle and Gordon JJ stated at 190 [103]:

…the starting point of the process must be the text of s 545(1) read in the context of the Fair Work Act as a whole and, in particular, in light of s 546. So approached, the first and most immediate point of significance is the breadth of the terms in which s 545(1) empowers the court to make any order the court considers appropriate. What is “appropriate” for the purpose of s 545(1) falls to be determined in light of the purpose of the section and is not to be artificially limited. As the ABCC submitted, such broad terms of empowerment are constrained only by limitations that are strictly required by the language and purpose of the section…

(Footnotes omitted; emphasis added.)

43    The governing consideration is what the Court considers “appropriate”: Dafallah v Fair Work Commission [2014] FCA 328; 225 FCR 559 at [148]–[161] (Mortimer J, as her Honour then was). The statutory requirement that an order is “appropriate” highlights the necessity that any order is one the Court considers to be judicially appropriate, or “just”: Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481 at [18] (Lee J). Such a power leaves room for a Court to find in a given case that less than full compensation might be appropriate: Dafallah at [157].

44    The approach to be taken in identifying compensable loss was considered in Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120 at [28] ff (Allsop CJ, Mansfield and Siopsis JJ). There, the Full Court stated at [28]–[29]:

The task of the primary judge, having found the relevant contraventions, was to assess the compensation, if any, that was causally related to those contraventions. That involved not an examination of what did happen, but an assessment of what would or might have occurred, but which could no longer occur (because of the contraventions). Subject to any statutory requirement to the contrary, questions of the future or hypothetical effects of a wrong in determining compensation or damages are not to be decided on the balance of probability that they would or would not have happened. Rather, the assessment is by way of the degree of probability of the effects — the probabilities and the possibilities: Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 625 at 642–643; Sellars v Adelaide Petroleum NL [1994] HCA 4; 179 CLR 332 at 352–356. The above proposition must be qualified by the recognition that, where the fact of injury or loss is part of the cause of action or wrong, it must be proved on the balance of probability. Compensation is generally awarded for loss or damage actually caused or incurred, not potential or likely damage: Tabet v Gett [2010] HCA 12 ; 240 CLR 537; Sellars at 348; Wardley Australia Ltd v Western Australia [1992] HCA 55; 175 CLR 514 at 526; that is equally so here under ss 807(1)(b) and 545(2)(b).

Difficulties sometimes arise in relation to the distinction between these two principles: see Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153, discussed in Evans v Queanbeyan City Council [2011] NSWCA 230 at [54] per Allsop P, [59]–[61] per Hodgson JA, and [100]–[103] per Basten JA. Here, the statutes provide for an order requiring the defendant to pay an amount “as compensation for damage suffered by the other person as a result of the contravention“: s 807(1)(b) of the WR Act; and an order “awarding compensation for loss that a person has suffered because of the contravention“: s 545(2)(b) of the FW Act…Thus, there must be proved, on the balance of probability, to have been some “damage suffered…as a result of the contravention” and some “loss…suffered because of the contravention.” The wording is not dissimilar to the wording and structure of s 82(1) of the Trade Practices Act 1974 (Cth), which was dealt with by the High Court in Sellars: “A person who suffers loss or damage by conduct of another person that was done in contravention of a provision…may recover the amount of the loss or damage.”

(Original emphasis removed; Emphasis added.)

45    As the Full Court stated, determining whether there is a causal connection involves “not an examination of what did happen, but an assessment of what would or might have occurred, but which could no longer occur (because of the contraventions)” and has been subsequently stated by Lee J to involve “(as with causation inquiries in other areas of the law) consideration of the counterfactual”: Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 3) [2021] FCA 348 at [30]; see also Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; 193 FCR 526 at 592 [423] (Barker J). It has also been observed that the focus of such an order is “in a loose sense, the restoration of those affected by a contravention to the positions they would have occupied but for its occurrence”: Shizas v Commissioner of Police [2017] FCA 61 at [209] (Katzmann J).

46    However, it has also been observed that “compensation must not be based on remote connections” or “[d]ouble satisfaction”, “‘double dipping’ … must not be permitted” and that “[e]xemplary or punitive compensation” should not be awarded: Construction, Forestry, Mining, and Energy Union v Hail Creek Coal Pty Ltd [2016] FCA 1032 at [43] (Reeves J).

47    The principles of mitigation may also be brought to account. In International Aviation Service, in determining the appropriate award, Barker J took into account that the applicant had sought to mitigate his loss by attempting to obtain alternative employment in his field. Similarly, in Flavel v RailPro Services Pty Ltd (No 2) [2013] FCCA 1449, Perry J took into account the applicant’s duty to mitigate his loss by taking steps to obtain other suitable employment: see also Kennewell v MG & CG Atkins (t/as Cardinia Waste & Recyclers) [2015] FCA 716 at [84].

48    In any application for compensation under s 545(2)(b), focus must remain on the statutory wrong that is the source of the contravention. As the Full Court stated in Maritime Union of Australia at [30], “[w]hat such damage or loss is (in the present context) that must be proved on the balance of probability will be governed by an understanding of the statute” and the “protective purpose” of the relevant provisions. In the context of s 346 of the FW Act (which deals with whether a person is or is not a member of an industrial association or is or is not engaging in industrial activity, etc), the Full Court stated:

What such damage or loss is (in the present context) that must be proved on the balance of probability will be governed by an understanding of the statute. Given the evident protective purpose of provisions such as s 792 of the WR Act and s 346 of the FW Act, there would be no sensible statutory purpose in denying a proposition that the damage or loss in relation to prospective employment can be constituted by the loss of an opportunity or chance to be considered for employment as a result of, or because of, the contravention (which then has to be given a value to inform the order for compensation); and there would be no sensible statutory purpose in limiting the compensation to damage or loss proved by reference to the proof of events that would, on the balance of probability, have or have not occurred. Thus, if the relevant contravention by a party has prejudiced a person in prospective employment, it would conform entirely with the statutory purpose to identify the damage or loss by reference to, indeed as, that prejudice. Depending on the circumstances, such prejudice may best be seen as the loss of the chance or opportunity of particular employment. That certainly was the relevant prejudice here, and it can be seen to have been proved on the balance of probability — indeed, to the point of demonstration.

49    Section 545 is to be considered in light of the breadth of the statutory purposes promoted by the multitude of civil penalty provisions of the FW Act, but ultimately such an order must be appropriate to the particular contravention in question. As Mortimer J explained in Dafallah at [148]:

The language of s 545 is broad, allowing the court to provide remedies which meet the circumstances of any given contravention, taking into account the range of parties who may have brought proceedings in relation to the contravention, and the actions which might in any given circumstance be required to remedy the contravention, or to ensure it does not occur again. Awarding compensation for loss is but one example and may not be appropriate, depending on what other action has been taken in respect of any losses. Each case will turn on its facts in that sense.

50    Her Honour further pointed out at [149] that “fixing compensation under s 545 is a statutory task, and the court must not substitute that task with approaches derived from the general law” (citing Murphy v Overton Investments Pty Ltd [2004] HCA 3; 216 CLR 388 at [44]; Qantas Airways Ltd v Gama [2008] FCAFC 69; 167 FCR 537 at [94] per French and Jacobson JJ).

51    The approaches taken in the “general law” including in the assessment of contractual or tortious damage may not always be appropriate. In Qantas Airways Ltd v Gama [2008] FCAFC 69; 167 FCR 537, the Full Court considered similar statutory compensation provisions under s 46PO(4) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). French and Jacobson JJ observed at [94] that the:

…damages which can be awarded under s 46PO(4) of the HREOC Act are damages “by way of compensation for any loss or damage suffered because of the conduct of the respondent”. Such damages are entirely compensatory. In many cases, as in damages awarded under s 82 of the Trade Practices Act 1974 (Ch) the appropriate measure will be analogous to the tortious. That may not be every case. Ultimately it is the words of the statute that set the criterion for any award. In any case the discretionary character of the remedy allows an award of an amount “by way of compensation” which does not fully compensate for the loss suffered. In that respect, however, we are not satisfied that his Honour made any error.

52    Consistent with this, in Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; 223 FCR 334, Kenny J (with whom Besanko and Perram JJ agreed) expressed approval of the trial judge’s approach to assessing damages, observing (at [30]) that “the trial judge based his inquiry firmly on the terms of s 46PO(4)(d) and drew on tortious principles only to inform (but not define) the manner in which the statutory task was to be accomplished, to the extent that such principles were capable of providing appropriate guidance in the particular case”, which was relevantly “the approach sanctioned by previous Full Courts”: see generally at [25]–[30].

53    To a similar effect, in Hall v A & A Sheiban Pty Ltd [1989] FCA 65; 20 FCR 217 at 238–9, Lockhart J considered the approach to be taken to the assessment of compensatory damages under anti-discrimination legislation and observed (at 239) that it “would be unwise to prescribe an inflexible measure of damage in cases of this kind, and, in particular, to do so exclusively by reference to branches of law that are not the same, though analogous in varying degrees, as discrimination law”.

54    Before turning to the application of these principles to the present case, it is necessary to say something about the nature and quality of the evidence adduced by and on behalf of Ms Han and make findings as to the matters relevant to the determination of her claims as to compensation under s 545(1)(b) of the FW Act.

4.2    Ms Han’s case as to compensation and the nature and quality of the evidence in support of it

55    As noted in Part 2, I received a considerable body of evidentiary materials in the Joint Court Book. There was no challenge to any of that evidence by way of cross-examination. However, it does not follow that I am bound to necessarily accept that evidence. As Burley J stated in Gutierrez v MUR Shipping Australia Pty Limited [2023] FCA 399; 324 IR 58 at 76 [61]:

A trial judge is not required to accept evidence merely because it is unchallenged in cross examination, however, the fact that evidence is unchallenged may provide a cogent reason for its acceptance. As observed in Hull v Thompson [2001] NSWCA 359 at [21] (Rolfe AJA, Sheller JA and Davies AJA agreeing), “prima facie, if there is no cross-examination of an expert … there is no basis for a Judge not to accept the unchallenged evidence”. However, as the court there noted, it depends on the evidence in question, and where a report is ex facie illogical or inherently inconsistent, where it is based on an incorrect or incomplete history, or where the assumptions on which it is founded are not established, the report may be rejected or subject to criticism or doubt. But “in the absence of some such matters, there is no rational reason not to accept unchallenged evidence”; see Taupau v HVAC Constructions (Queensland) Pty Ltd [2012] NSWCA 293 at [130] (Beazley JA, Macfarlan and Basten JJA agreeing); Lloyd v Thornbury [2019] NSWCA 154 at [152] , [153] (Gleeson JA, Meagher and White JJA agreeing).

56    Burley J referred to the following relevant passages from Taupau v HVAC Constructions (Queensland) Pty Ltd [2012] NSWCA 293 at [132]–[133] and [135], where Beazley JA said (Macfarlan and Basten JJA agreeing):

…a trial judge placed in that position by the parties, is required to analyse the evidence in order to make findings on the issue to which the experts’ evidence is directed. This may and usually does involve the acceptance of one expert or group of experts over another, not on the basis of a demeanour finding, which is unavailable when none of the experts is cross-examined, but on the cogency of the evidence, given the issues addressed.

…The trial judge is required to engage with the issues canvassed and to explain why one expert is accepted over the other: see Archibald v Byron Shire Council [2003] NSWCA 292; 129 LGERA 311 at [54] per Sheller JA. This approach to the consideration of expert evidence and the determination of issues to which the expert evidence related is well-established in Australian jurisprudence, as the summary of cases in Wiki v Atlantis Relocations demonstrates. See also Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402 at [129] –[130] per Hayne J…

…

In my opinion, this approach applies a fortiori where there has been no cross-examination. There has to be a reasonable basis as to why some evidence is accepted and other evidence is not. In that regard, the evidence cannot be considered in isolation from other evidence. The cogency of the experts’ evidence is dependent upon there being a basis established in the evidence for the views expressed.

57    As I explain further below, in some respects, the evidence adduced by Ms Han was inconsistent with other evidence adduced on her behalf and aspects of it were based on assumptions or histories that were not established by other evidence before me. This impacted upon my assessment of the cogency of that evidence.

58    More importantly, the evidence adduced by and on behalf of Ms Han did not tether itself to the statutory norm. Much of the evidence appeared to be directed to a common law claim for personal injury, as opposed to a claim for compensation under s 545(2)(b) of the FW Act. The logic of Ms Han’s case proceeded on the premise that Ms Han had suffered personal injury by way of a recognisable mental harm caused by her workplace circumstances, including alleged instances of bullying and discrimination, being overworked and by being discriminated against in the allocation of shifts, and that St Basil’s was therefore obliged to compensate her for a range of losses she had suffered by reason of that injury.

59    This frame of analysis was not the correct one.

60    The fallacy with the approach taken on Ms Han’s behalf was that it did not situate itself in the statutory framework within which the Court is to exercise its discretion under s 545(2)(b). As explained above, the criterion for the exercise of the discretionary power under s 545(2)(b) is that it applies to empower the Court to make orders that are appropriate “if the court is satisfied that a person has contravened…a civil remedy provision” and in respect of the loss suffered by the other person “because of” that contravention: ss 545(1) and 545(2)(b). The subsection necessarily directs attention to the loss that is causally connected to the contravention and as to what is appropriate in the circumstances. As I will explain, Ms Han’s claims here assumed that the personal injury was caused by the contravention, without examining the actual contravention as found and the evidence before the Court as to the factors that caused Ms Han’s injury.

61    The starting point is to consider the statutory rights that were infringed. The true rights that were infringed were those located in Part 3-1 of Chapter 3 of the FW Act. As the titles to the Chapter (“Rights and responsibilities of employees, employers, organisations etc”) and the Part (“General Protections”) of the FW Act indicate, these are parts of the Act which establish general protections in respect of particular rights.

62    One set of rights protected by Part 3-1 are those that carry the statutory term “workplace rights” as contained in Division 3 (s 341). It has been observed that “341(1) is not a definition of ‘workplace right’ in the sense that it cannot be said that s 341 merely ‘shortens, but is part of, the text of the substantive enactment to which it applies’”: Qantas Airways Ltd v Transport Workers Union of Australia [2023] HCA 27; 278 CLR 571 at [32] (Kiefel CJ, Gageler, Gleeson and Jagot JJ). The relevant “workplace rights” include those specified in s 341(1)(c)(ii), being, where a person is an employee, that he or she “is able to make a complaint or inquiry…in relation to his or her employment”. The protection of these rights is afforded by making unlawful any “adverse action” taken because of, or for reasons including, the exercise or proposed exercise of those rights (ss 340 and 341).

63    Another set of rights protected by Part 3-1 are those set out in Division 5 (s 351) relating to the protected characteristics and attributes pertaining to a person. The protection of these rights is afforded by s 351 which makes it unlawful for “adverse action” to be taken because of, or for reasons including, the relevantly protected characteristics and attributes.

64    The “rights” protected and promoted by Part 3-1 may have as their source other laws or contractual arrangements between the parties. As the title of the Part indicates, the relevant provisions are cast in terms of general protections from the taking or threatening of adverse action, which includes termination of employment. The purpose of the relevant protections is to promote and protect those rights and their exercise, and the scope of the freedoms they entail. This purpose is made plain by the objects of Part 3-1, which are identified in s 336 as follows:

336    Objects of this Part

(1)    The objects of this Part are as follows:

(a)    to protect workplace rights;

(b)    to protect freedom of association by ensuring that persons are:

(i)    free to become, or not become, members of industrial associations; and

(ii)    free to be represented, or not represented, by industrial associations; and

(iii)    free to participate, or not participate, in lawful industrial activities;

(c)    to provide protection from workplace discrimination;

(d)    to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part.

65    These provisions and similar earlier analogues have a long and complex history in Commonwealth industrial and employment regulation. As stated in Qantas Airways at [20]:

There is a long and complex history of provisions in Commonwealth industrial legislation that protect workplace participants against unfair treatment. At a high level of generality, the historical arc of the protections against adverse action has generally tended to expand the scope of workplace rights, the classes of persons who are covered by the general workplace protections, and the limits upon adverse action. For example, the current Act is not limited by an equivalent of s 792(4) and (8) of the former Workplace Relations Act 1996 (Cth) which required that, for conduct to contravene the predecessors to the adverse action provisions, the entitlement to the benefit of an industrial instrument must have been the “sole or dominant reason” for the conduct. The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) notes that the provisions in Pt 3-1 were “intended to rationalise, but not diminish, existing protections”, and that, “[i]n some cases, providing general, more rationalised protections has expanded their scope”. It went on to explain that “the new provisions protect persons against a broader range of adverse action”.

(Footnotes omitted.)

66    The object and purpose of these provisions and the protections they afford are “secured through civil regulatory remedies enforceable by the Fair Work Ombudsman and affected parties”: Qantas Airways at [22].

67    Returning to the present case, Ms Han’s pleaded case was she had exercised workplace rights by making complaints about her employment and that she had a further right to be protected from the termination of her employment because of her race. In more specific terms, her case was that she was entitled to have made workplace complaints and to participate in her workplace irrespective of her race and was entitled to be protected from adverse action taken by her employer because she had these rights or had exercised them. This was the pleaded case that Rares J decided.

68    Rares J ultimately found that Ms Han’s rights were infringed as St Basil’s had terminated her employment because of those rights. The case for compensation under s 545(2)(b) had to be directed to the appropriate orders for compensation by reference to the loss that was causally connected to the contraventions as found by Rares J.

69    The contraventions alleged by Ms Han did not require there to be a determination that she had actually been bullied or been subjected to discrimination in her workplace. The pleaded case was about the protection of her rights to complain about those matters. Nor were the alleged contraventions ones which required there to be a finding that Ms Han was actually overworked or less favourably treated relative to her Filipino peers, as opposed to protecting her right to complain about those matters. The subject matter of Ms Han’s complaints were contextual facts which informed her exercise of her workplace rights.

70    The contravention of s 351 was of a different character. It required an assessment as to whether a substantial and operative reason for the termination of Ms Han’s employment was because of her race and whether St Basil’s had rebutted the statutory presumption to that effect. Nevertheless, the relevant adverse action for the purpose of s 351 was confined to the act of termination and not to the broader contextual acts alleged by Ms Han to the effect that she had been unfavourably treated on other occasions.

71    In relation to each of these alleged contraventions, the question before Rares J was whether, having regard to the overall context, St Basil’s had rebutted the presumption in s 361(1) of the FW Act that it had not acted for the proscribed reasons.

72    Viewed within this statutory context, any personal injury suffered by Ms Han is not compensable because the personal injury had arisen due to Ms Han’s workplace circumstances. Rather, the relevant question is whether that personal injury was caused by the contraventions that were found by Rares J. It is important in this respect to reiterate that the text of s 545(2)(b) directs attention to the “loss that a person has suffered because of the contravention” (emphasis added).

73    As I explain below, whilst I accept that the evidence before me establishes that Ms Han suffered an injury, the evidence establishes that it was an injury that was, at least in part, one she had suffered prior to the termination of her employment (being the adverse action that was alleged and found to have occurred by Rares J). There were other causes that contributed to that injury. As I will explain, all the relevant experts accepted that the termination of Ms Han’s employment was one factor that caused her to suffer the relevant injury.

74    Ms Han’s submissions did not engage with these matters. Instead, reliance was placed upon the decision of Rares J in Leggat v Hawkesbury Race Club Ltd (No 3) [2021] FCA 1658 at [218]–[219]:

The Parliament did not limit the Court’s powers to award compensation under s 545(2)(b) or make orders that it considers appropriate under s 545(1). The Parliament contemplated that claims to the Fair Work Commission for an order to stop bullying can be made under Pt 6-4B of the Fair Work Act that will attract the remedies from the Commission that Pt 6-4B provides. The federal Act is not constrained in respect of the compensation that can be awarded by the separate operation, in a different sphere, of the State Workers Compensation Act. In my opinion, the Club’s conduct, through Mr Rudolph, effectively destroyed Mrs Leggett’s life. She cannot work and, as the joint experts agreed, is permanently incapacitated from doing so because of Mr Rudolph’s and the Club’s conduct. That conduct caused a very serious psychiatric illness that may never be cured, or ameliorated to any significant degree. That injury occurred in no small part because Mrs Leggett’s breaking point was Mr Rudolph’s treatment of her on 9 and 10 October 2016. That included his reaction in his 10 October email that he sent to her because she exercised a workplace right. He subsequently acted to drive the nail home later, as I found on the second s 340 claim, by persisting in his bullying conduct throughout the balance of Mrs Leggett’s employment, ignoring the Club’s contractual and statutory obligations to her and taking adverse action against her because she had both taken sick leave and exercised her workplace right to make a complaint about his behaviour. As Perram J, with whom Collier and Reeves JJ agreed, asked rhetorically in Hughes v Hill (2020) 277 FCR 511 at 521 [47], in a case of sexual harassment contrary to s 28A of the Sex Discrimination Act 1984 (Cth), “what is the ruin of a person’s quality of life worth?” (see too at 521 [47]–[48]).

I am of opinion that Mrs Leggett should be awarded $200,000 pursuant to s 545(1) and (2)(b) of the Fair Work Act for the loss she has suffered by reason of the Club’s contraventions of the Act and in all of the circumstances.

75    Rares J was in these passages considering an award of “general damages”. His Honour’s reasoning here was directing itself to the very point I have addressed above (at [72]), which is that, there, Rares J considered the award of general damages that was connected with the particular conduct that gave rise to the contravention.

76    Before turning to the relevant evidence, it is necessary to observe that the evidentiary case advanced on behalf of Ms Han took a non-discriminating approach to the determination of the loss she had suffered because of the contraventions. This evidentiary case involved the tender of three reports from two psychiatrists (Dr Rastogi and Dr Nagesh), a report from an Occupational Therapist, a report from a Vocational Assessor, and a report from an Accountant. As I will explain further below, some of these reports contradicted each other, and others made assumptions that were not proved. These reports, and Ms Han’s submissions which relied upon them, did little to tie themselves back to the actual contraventions that were found.

4.3    Findings relevant to Ms Han’s claims as to compensation

4.3.1    Ms Han’s diagnosis and prognosis

77    Ms Han claimed that she had suffered an injury in the nature of mental harm by reason of St Basil’s conduct. I received both lay and expert evidence as to the nature and extent of that injury, its impact upon Ms Han’s capacity to work and earn income, and her prognosis towards full recovery. However, as I have noted above, and explain further below, this evidence did not discriminate as to when that injury was suffered relative to the contraventions that were found.

78    Prior to June 2019, Ms Han enjoyed her duties working as a registered nurse and led an active social life. She was social, outgoing and took pride in her appearance. She had no health issues of any concern. She remained healthy and fit by engaging in regular activities such as yoga (twice a week), Zumba (once a week), going to the gym (three times a week) and occasionally swimming. She attended to domestic chores and tasks including cleaning, grocery shopping, laundry and gardening.

79    Ms Han’s evidence was that her life took a turn from in or about June 2019. Prior to that time, she had not suffered from any psychological symptoms nor had she experienced any difficulties in her work or her relationships with her fellow workers. However, her evidence was that, since then, she has suffered such symptoms and breakdowns in relationships. She has become more detached and no longer enjoys work or the other activities she previously engaged in. Ms Han no longer socialises, rarely goes out with her family, and feels embarrassed and ashamed about what has happened to her. She no longer takes the same level of care of herself or her appearance as she did prior to June 2019. Ms Han has experienced various symptoms such as feelings of self-doubt, loss of confidence, poor concentration, feelings of victimisation, impaired motivation, fatigue, agitation and irritability, impaired sleep and nightmares, panic attacks, headaches and palpitations, forgetfulness and hypertension. At times, her anxiety has been acute, and Ms Han was admitted into St George Hospital on 20 July 2020 and Sutherland Hospital on 30 November 2020 due to panic attacks related to the loss of her employment.

80    Ms Han has felt less inclined to undertake any domestic duties, and she does not shower regularly or change her clothes often. The majority of the domestic duties that Ms Han had previously performed are now performed by her son and her niece. The duties that Ms Han’s niece and son have been performing include meal preparation (though Ms Han now eats many ready-made or purchased meals), changing bed linen, vacuuming monthly, grocery shopping and irregular cleaning. Other domestic tasks have not been performed such as the cleaning of her car and gardening.

81    The evidence given by Mr Cosgrove, Mr Han and Ms Hu largely corroborated Ms Han’s evidence. Mr Cosgrove considered that his relationship with Ms Han has become strained. All three witnesses have observed the manifestations of the symptoms that Ms Han described.

82    It will be immediately apparent from Ms Han’s evidence that the relevant turning point for her was June 2019. That is not the time at which it was alleged, or found, that St Basil’s had taken adverse action against her and thereby contravened the FW Act.

83    I received conflicting expert opinions as to Ms Han’s diagnosis and prognosis.

84    Dr Rastogi’s report was first in time as it was dated 30 April 2021. His diagnosis is that Ms Han is suffering from an “Adjustment disorder with anxious distress with exacerbation” which qualifies as a DSM-V recognised disorder. Dr Rastogi’s opinion is that this disorder “was wholly attributed [to] and arose during” Ms Han’s employment with St Basil’s. It will be apparent that Dr Rastogi did not here identify when the relevant disorder was caused or the particular causes of it other than in general terms. Dr Rastogi expressed the opinion that Ms Han’s “vocational ability is limited” and that her “grievances need to be addressed for her to move on as legal issues are further perpetuating her condition”.

85    In Dr Nagesh’s First Report dated 12 September 2023, Dr Nagesh expressed the opinion that Ms Han met the criteria for “major depression of moderate degree with anxious distress”. Dr Nagesh was asked to opine as to the causes of the condition. The question asked of Dr Nagesh and his response were as follows:

5. Your opinion as to the relationship between our client's condition and the allegations in the course of employment, particularly focusing on the findings of adverse action against our client in regard to her race and her exercising her right to make a workplace complaint.

In my opinion, your client's alleged psychological injury is due to the alleged stressors at her employment where she was bullied, harassed, targeted, ignored, humiliated, and discriminated against by her colleagues. There was an increased workload. There was a lack of support from the management team. Your client was falsely accused of misconduct, and she was deprived of exercising her right to make a workplace complaint.

It has given rise to her alleged psychological injury.

86    As will be apparent, the question asked of Dr Nagesh was put on the basis of the relationship between Ms Han’s condition and the “allegations in the course of [her] employment, particularly focusing on the findings of adverse action…”. Dr Nagesh’s opinion was that the cause of the condition he had diagnosed was the “alleged stressors” in Ms Han’s employment where “she was bullied, harassed, targeted, ignored, humiliated, and discriminated against by her colleagues”, had an “increased workload”, given a “lack of support” and “falsely accused of misconduct” and deprived of exercising her right to make a workplace complaint. Dr Nagesh did not confine the cause of the condition to the particular adverse action that was found and his opinion as to the causes included those that were “alleged”.

87    Dr Nagesh considered Ms Han’s prognosis to be “guarded” as she had been symptomatic for three and a half years. He expressed the opinion that Ms Han will need the care of a psychiatrist on a monthly basis and psychologist on a fortnightly basis for the next 12 to 24 months.

88    Dr Sherman was engaged as an independent expert by St Basil’s. He examined Ms Han on 20 March 2024. Dr Sherman’s diagnosis was that Ms Han is suffering from an “Adjustment Disorder with Mixed Anxiety and Depressed Mood” which met “DSM 5TR criteria”. His opinion is that Ms Han’s condition was caused by several actions taken by St Basil’s. The question asked of Dr Sherman and his response was as follows:

Question 6: If the answer to Question 5 is in the positive, what is the reason, cause and/or basis for said symptoms and/or mental health conditions?

In my opinion the reason, cause and basis for the adjustment disorder were several actions taken by the employer which included:

1.    Increasing her workload by 30% (adding 11 patients to a workload of over 30);

2.    Removing some of her weekend shifts that she had been accustomed to doing for a long time and giving them to a relative of the manager;

3.    Perceptions that there was constant favouring of relatives of one of the managers and attempts to give them the tasks or hours which Ms Han had been accustomed to doing;

4.    Falsely accusing her of misconduct in relation to supervising the provision of oxygen to a patient with a terminal illness and reporting this to the nurses’ registration board, a matter which was then dismissed by the Healthcare Complaints Commission;

5.    Subsequently terminating her employment in circumstances which have been deemed illegal by the Federal Court and relate to Ms Han having made complaints or inquiries about her employer as well as relating to her race.

89    As with Dr Nagesh, and in a relatively more fulsome way, Dr Sherman’s view was that Ms Han’s condition was caused by “several actions” which went beyond those limited to the contraventions that were found by Rares J and included matters relating to Ms Han’s “perceptions” of events.

90    Dr Sherman expressed the opinion Ms Han was fit for part-time work for up to 24 hours per week. Dr Sherman further expressed the opinion that Ms Han did not yet have full capacity to return to pre-injury duties but that “once the legal proceedings have concluded” he expected Ms Han would recover in “no less than 12 to 24 months”. However, this recovery was subject to Ms Han continuing to be treated, which he considered to involve fortnightly sessions with a clinical psychologist for the next 12 months at the cost of $250 per session or approximately $7,000 per annum.

91    In his Reply Report dated 30 July 2024, Dr Nagesh provided an update on the previous opinions he expressed and responded to Dr Sherman’s report. Dr Nagesh’s view was that Ms Han remained depressed. He expressed the further view that Ms Han “has had reasonable treatment” and could continue to see a “psychologist or GP on a monthly basis for the next 6-12 months” and if her condition remained stable, she could be discharged back to the care of a GP. As to questions of causation, Dr Nagesh was asked, and answered, the following question:

5.     Whether you are of the opinion that our client’s symptoms and disabilities continue to relate to the allegations of bullying and harassment, which she experienced in the course of employment and particularly in regard to the adverse action against our client in regard to her race and her exercising her right to make a workplace complaint.

I am of the opinion that your client's symptoms and disabilities continue to relate to the allegations of bullying and harassment, which she experienced in the course of her employment and particularly in regard to adverse action against your client with regard to her race and exercising her right to make a workplace complaint. My rationale is I could not identify any other factors outside of her employment, which have given rise to her alleged injury.

92    As will be evident, Dr Nagesh’s opinion continued to be that the relevant symptoms and disabilities related to the “allegations” of bullying and harassment.

93    In response to Dr Sherman’s report, Dr Nagesh opined as follows:

I have reviewed the report of Dr Sherman. I do agree with [Dr Sherman’s] diagnosis of adjustment disorder with depressed and anxious mood but in my opinion an appropriate diagnosis would be one of major depression of moderate degree with anxious distress. My rationale is [Ms Han’s] symptoms have persisted beyond 6 months in spite of being away from the alleged stressors at a workplace. I do also agree with [Dr Sherman’s] opinion regard to causation. However, I do partially agree with regard to [Dr Sherman’s] opinion regarding capacity. My rationale is, in my opinion Dr Sherman has opined that Ms Han can work up to 24 hours per week which I partially agree with. In my opinion, the client can work only up to 15 to 20 hours per week as working more than 20 hours per week can be detrimental to your client's mental state. [I] also agree with [Dr Sherman’s] recommendations regarding treatment.

94    St Basil’s relied upon the Earning Capacity Assessment Report of Ms Makhoul and Mr Hill. Ms Makhoul and Mr Hill expressed the opinion that, although Ms Han was not fit to work 38 hours per week, she was fit to work 30 hours per week. This report also concluded that Ms Han’s capacity to work “can improve” including by “resolution” of her legal claims. It was also recommended that Ms Han would benefit from 6-12 sessions of cognitive-behavioural approaches and a psychiatrist’s review may also be beneficial. Based on these various assessments, Ms Makhoul and Mr Hill identified three working options that would be available to Ms Han: first, as a registered nurse, the second as a “Care Manager” and the third as a Pathology Collector / Phlebotomist. Based on their labour market research, Ms Makhoul and Mr Hill estimated particular ranges of earnings that Ms Han could expect to earn in each of those three working options on the assumption that Ms Han worked for 30 hours per week.

95    As will be evident from the foregoing, all three psychiatric experts (Drs Rastogi, Nagesh and Sherman) agreed that Ms Han had suffered an injury. All of these experts also generally agreed that Ms Han’s condition had been caused by various contributing factors that were not limited to the “adverse action” actually found by Rares J, which related to the termination of Ms Han’s employment because of her exercise of workplace rights. There were, however, differences between the three experts as to the particular condition that Ms Han had suffered from and in the opinions expressed as between Dr Nagesh, Dr Sherman and Ms Makhoul and Mr Hill as to Ms Han’s present capacity to perform work and her prognosis.

96    Without the benefit of these experts being cross-examined, I have had to consider the reports to determine which opinions to prefer. In conducting this assessment, I have closely examined each of the reports and have concluded that Dr Sherman’s opinion is preferable. My conclusion is supported by several matters, which includes the following. First, although Dr Sherman was retained by St Basil’s as an independent expert, he was nonetheless prepared to express opinions that were adverse to St Basil’s. Next, Dr Sherman’s report was slightly more fulsome than the respective reports of Dr Rastogi Dr and Nagesh. Further, Dr Nagesh had the opportunity to respond to Dr Sherman’s report and expressed the view that he largely agreed with him, with only limited areas of disagreement. In view of these factors, I have afforded greater weight to Dr Sherman’s opinion than I have to the opinions of Dr Rastogi and Dr Nagesh.

97    In relation to Ms Han’s present and future capacity to return to work, I consider that the Earning Capacity Assessment Report of Ms Makhoul and Mr Hill should be preferred to each of the reports of Dr Rastogi, Dr Nagesh and Dr Sherman. Whereas each of the psychiatrists had expressed their opinions based upon their expertise as medical professionals in assessing mental health conditions and their impact, Ms Makhoul and Mr Hill had expressed their views by reference to their expertise as Vocational Counsellors with greater attention being given to the functional aspects of Ms Han’s profession as a registered nurse. Ms Makhoul had also done so with the benefit of her additional qualifications as a registered psychologist.

98    Based on the totality of the evidence, I am satisfied that Ms Han has suffered an injury. Dr Sherman’s opinion as to Ms Han suffering from an “Adjustment Disorder with Mixed Anxiety and Depressed Mood” was broadly consistent with Dr Rastogi’s diagnosis of an “Adjustment disorder with anxious distress with exacerbation”. For the reasons I have stated above, I prefer Dr Sherman’s opinion to Dr Nagesh’s opinion that Ms Han is suffering from major depression.

99    Each of the experts expressed the opinion that the cause of Ms Han’s condition was the combination of events that occurred in the workplace at the Lakemba Facility. Relevantly, each of the experts considered there was no single cause and all agreed that it included the instances of alleged bullying and harassment as well as the ultimate termination of Ms Han’s employment. This evidence was consistent with Ms Han’s evidence that she commenced experiencing various adverse symptoms from about June 2019. Based on the totality of the evidence, I accept that Ms Han’s condition of “Adjustment Disorder with Mixed Anxiety and Depressed Mood” was caused by a combination of workplace stressors including the ultimate termination of her employment.

100    As to Ms Han’s present capacity to perform work, I preferred the opinions expressed by Ms Makhoul and Mr Hill to those of Dr Sherman and Dr Nagesh. Dr Rastogi did not express any opinion on the topic. Dr Sherman’s opinions as to Ms Han’s present capacity was that she was fit for part-time work for up to 24 hours per week. Dr Nagesh expressed no view about the topic in his first report but then responded to Dr Sherman’s report by expressing the opinion that Ms Han only had capacity to work up to 15 to 20 hours per week. Ms Makhoul and Mr Hill expressed the opinion that Ms Han was fit to perform work for up to 30 hours per week. In expressing this opinion, Ms Makhoul and Mr Hill had during their examination of Ms Han pressed her on particular functional aspects of her work such as task comprehension, concentration, decision making, teamwork, dealing with members of the public, dealing with pressure and taking reasonable direction. By contrast, neither Dr Sherman nor Dr Nagesh exposed the basis upon which they had made conclusions as to Ms Han’s functional capacity. Further, as I will return to below, Ms Makhoul and Mr Hill’s opinions are more closely aligned to the hours of work that Ms Han has actually been performing.

101    As to Ms Han’s prognosis, Dr Sherman, Ms Makhoul and Mr Hill were the only experts to have directly addressed this question in any meaningful way. Dr Sherman expressed the view that Ms Han would recover in “no less than 12 to 24 months” once the “legal proceedings have concluded”. Ms Makhoul and Mr Hill opined that Ms Han’s capacity to work “can improve”, including by “resolution” of her legal claims. These opinions accorded with Dr Rastogi’s opinion that Ms Han’s “grievances need to be addressed for her to move on as legal issues are further perpetuating her condition”. Dr Nagesh’s views were less clear and at one time he expressed the view that Ms Han’s working life had “significantly reduced by at least 50% because of her ongoing symptoms”. However, it is instructive that when Dr Nagesh was asked to comment on Dr Sherman’s report, he did not take issue with Dr Sherman’s assessment as to Ms Han’s prognosis.

102    My own assessment of Ms Han during the brief period in which she gave evidence before me is that she has clearly been affected by the legal process. The opinions expressed by Dr Sherman and Dr Rastogi that the conclusion of the legal proceedings will aid her recovery rings true.

103    On the evidence before me, I am satisfied that Ms Han will be able to recover within 12 to 24 months of the conclusion of these proceedings and I will approach the assessment of her claims for compensation at the mid-point of that range, being 18 months.

104    As to future treatment, the experts largely agreed that Ms Han would benefit from further treatment and, again, I prefer Dr Sherman’s views in this regard for the reasons I have stated above.

4.3.2    Income earned by Ms Han since her employment was terminated

105    Prior to the termination of her employment, Ms Han worked for three employers, St Basil’s, the Australian Nursing Home Foundation (ANHF) and Affinity Health Pty Limited (Affinity Health) which was also referred to as “St George Private” or “Ramsay Health”. Ms Han’s evidence briefly touched upon these issues, but otherwise she tendered records of the hours she had worked together with payslips. None of this evidence was presented in a digestible form on Ms Han’s behalf. This resulted in me seeking further assistance from the parties by way of supplementary submissions.

106    I have closely examined Ms Han’s evidence including her timesheet and payslip records. During her employment with St Basil’s, Ms Han generally worked 15 hours per week and her hourly rate at the time of her dismissal was $41.05. Occasionally, Ms Han also worked overtime. In the period from 1 January 2019 to 23 January 2020 (a period of 55 weeks), Ms Han worked the following hours (including hours allocated as annual leave and sick leave for which Ms Han was paid):

Table 1: Average hours worked per week to termination of employment

107    Following the termination of her employment with St Basil’s, Ms Han continued to work for Affinity Health and ANHF. She also obtained additional employment with Catholic Healthcare Holy Spirit Croydon (CHC) and IRT Kirrawee (IRT) from the second half of 2022 (at or about 11 July 2022 and 3 October 2022, respectively). Again, I have examined Ms Han’s evidence including her timesheet and payslip records relating to the period following the termination of her employment and identified that she worked the following hours:

Table 2: Average hours worked per week since termination of employment

108    In calculating the average hours worked per week at CHC and IRT throughout Period 3 (being the period from 1 January 2022 to 31 December 2022), I have had regard to the fact that Ms Han did not commence working for these employers until later in the year. To reflect this, I have included a pro-rated weekly average of the hours worked in this period and I have taken these hours into account when calculating the total hours worked across the period and in determining the average hours worked per week during the period.

109    As to the hourly wage rates that Ms Han derived from each of her various employers, the evidence enables me to identify the following:

Table 3: Hourly rates of pay from all employment sources

110    These basal wage rates do not take into account the additional wage rates Ms Han was paid for overtime hours and any additional allowances she received. As I return to below at [121], the documentary evidence adduced in support of her claim comprised individual payslips received from each of Ms Han’s various employers on a fortnightly basis over a period of a number years. Needless to say, this evidence was voluminous. The principal difficulty with this evidence, however, related to its interpretation. This difficulty was a product of the fact that the payslips each had line entries for a range of factors other than Ms Han’s ordinary pay, including allowances and loadings that were paid on conditional bases where the relevant conditions for payment of them were not disclosed beyond bare assertions as contained on the face of the payslips. The existence of these line entries, and the numeric values associated with them, differed as between individual payslips and as between employers. In light of this, I was not in a position to readily recognise any patterns in the payslips (if any existed). Nor could I otherwise easily digest and synthesise the information in the evidence. Even if I were capable of undertaking such a task, it is not desirable that the Court’s limited resources should be expended in undertaking what, in essence, involved a forage through the evidence for information that might be of assistance to a party’s case. This is especially so in circumstances where that party could readily have provided guidance to interpreting voluminous evidence that is beset by some complexity or, alternatively, where substantively similar evidence could be adduced in a simple, comprehensible form.

111    It will be apparent from each of the Tables above that, whilst it is certainly correct that Ms Han worked reduced hours per week for the year or so after the termination of her employment with St Basil’s, Ms Han has since that time been able to not only obtain alternative employment but has also at times increased her hours of work. That is consistent with the evidence of the experts that she does have present capacity to work, subject to some limitations.

4.3.3    The other expert evidence

112    I found the balance of the expert’s reports that were tendered on Ms Han’s behalf to be of no weight. They were inconsistent with the opinions expressed by other expert opinions relied upon by Ms Han and the objective documentary records.

113    The Vocational Assessment Report of Ms Smith expressed the view that but for her injuries Ms Han would have been able to perform certain types of roles including in her present occupation as a registered nurse until retirement age. However, Ms Smith expressed the opinion that by reason of the injuries Ms Han had suffered she was no longer able to perform these roles at all. Ms Smith acknowledged that Ms Han was presently working as a registered nurse, but expressed the view that she must immediately cease such work as she is not fit to do so. Ms Smith expressed the further view that Ms Han’s prospects to earn income in the open labour market in unrestricted employment in a recognised occupation was “poor”.

114    Ms Smith’s opinions stand in stark contrast to those expressed by Dr Nagesh and Dr Sherman who each expressed the opinion that Ms Han has present capacity to perform work of somewhere between 15-24 hours per week in her chosen occupation. They are also inconsistent with Dr Sherman’s opinion, which Dr Nagesh did not contradict, that Ms Han’s prognosis is one which will see her recover within 12 to 24 months of the legal proceedings concluding. Accordingly, I give the Vocational Assessment Report no weight.

115    The Earnings Assessment Report of Mr Dhungel provided a “commercial value” for various roles based on the opinions of Ms Smith as set out in her Vocational Assessment Report. The report was based on accepting assumptions about Ms Han obtaining one or more of those roles. Further, Mr Dhungel said in his report that it did not comply with any expert code of conduct and should not be served as evidence. Despite these clear statements made by Mr Dhungel, the report was nevertheless served and tendered as evidence on Ms Han’s behalf. Mr Dhungel’s report contained a series of calculations, which did not disclose in any clear way the basis of the calculations or assumptions made. I received no assistance about how to interpret his calculations. In any event, as I have given the Vocational Assessment Report no weight, the Earnings Assessment Report too is of no weight.

116    The Past and Future Care Report of Ms Engelsman sought to quantify and place a value on the past gratuitous care provided to Ms Han and an estimate of the future value of future care. Very little was said about the contents of this report, to which I will return. As I explain later, I do not regard the Past and Future Care Report to be compelling or to have anything other than weight.

4.4    The specific claims for compensation

4.4.1    The claim for past economic loss

117    As explained above, one approach to the determination of “appropriate” compensation is to make an “an assessment of what would or might have occurred, but which could no longer occur (because of the contraventions)”: Maritime Union of Australia at [28] (Allsop CJ, Mansfield and Siopis JJ). The approach is to be based on an assessment of probabilities and possibilities as to what was likely to occur as at 23 January 2020. The period of past economic loss is from the date of the termination of her employment 23 January 2020 to the date of the hearing before me (the Past Economic Loss Period).

118    I am satisfied that but for the contraventions, Ms Han would likely have continued in employment with St Basil’s and would have also continued in her concurrent employment with ANHF and Affinity Health. I do not accept St Basil’s contention that as Ms Han had been issued the First and Final Warning it was unlikely she would remain in employment much longer than when her employment was, in fact, terminated. Ms Han’s employment may have become more precarious by reason of the issue of the First and Final Warning, but there is nothing in the evidence that indicates that there were any issues raised with Ms Han as to the performance of her work that made it likely that her employment would be imminently terminated. On the evidence before me, the incident leading to the issue of the First and Final Warning appears to me to have been an aberration in an otherwise unblemished work history.

119    However, I cannot be certain that Ms Han would have continued to work the full hours that she was working up to the time that her employment had terminated. The evidence establishes, including on Ms Han’s own account, that she had since June 2019 already developed symptoms consistent with the conditions she was diagnosed with. In view of this evidence, I cannot be certain that, on average, Ms Han would have continued to work 44.5 hours per week during the Past Economic Loss Period.

120    Ms Han’s case did not address these matters. Rather, Ms Han’s claim for past economic loss was determined by reference to a number of other assumptions. She claimed that her average earnings in the 52 weeks prior to the termination of her employment were $2,488.06 gross per week. She next submitted that since her dismissal, she has earned an average of $40,692.60 gross per annum or an average $782.55 gross per week (excluding what she was paid for sick/personal leave or annual leave). The applicant submitted that her average loss calculated at the date of dismissal is $1,705.51 and indexed thereafter at 2% per annum was as follows:

121    I was provided with no assistance as to the particular basis upon which these calculations had been determined. Based on the written submissions made on behalf of Ms Han (which were of limited assistance), it appears that the calculations were based on the assertion that Ms Han had earned an amount of $129,379 in the 2018/2019 financial year (which divided by 52 weeks provides a figure of $2,488.06 gross, as used in Ms Han’s calculations). There was no group certificate or other singular document that corroborated this amount, but the case appeared to proceed on the basis that I could be satisfied about this amount by conducting my own mathematical calculations by reference to the payslips that were tendered into evidence. I do not accept that such an approach is consistent with the obligation imposed on parties and their legal representatives under s 37N(1)-(2) of the Federal Court of Australia Act 1976 (Cth) to conduct a proceeding in a way that is consistent with the overarching purpose expressed in s 37M(1), which relevantly entails facilitating the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. In particular, such an approach is in conflict with a principal objective of the overarching purpose, being the efficient use of judicial and administrative resources available for the purposes of the Court: s 37M(2)(b). As noted above, it should not be left to a trier of fact to trawl through (at times) indecipherable business records to ascertain basic facts, especially where it was within the power of one of the parties to present them in a better form or to provide better assistance to the Court.

122    Returning to the subject of the wages that Ms Han received prior to the termination of her employment, it was not explained why reliance was placed on the amounts she had earned in 2018/2019. The written submissions filed on behalf of Ms Han also identified that in the financial year 2019/2020 and up until the date of the termination of her employment with St Basil’s, Ms Han had earned a total amount of $37,876 from all her sources of income. Again, there was no group certificate or other singular document that corroborated this amount.
Nevertheless, Ms Han’s case was put on the basis that, in the period from 1 July 2019 to 20 January 2020, Ms Han earned $37,876. This period is slightly more than 6 months in duration and spans 29 weeks. Dividing this figure by the number of weeks in the period results in a gross average weekly income of $1,306.07 per week. Assuming 52 weeks in the year, one can then multiply this figure by 52 to ascertain an approximate annual gross figure. This results in $67,915.59 per annum, which is an amount far lower than the previous financial year of $129,379. No explanation was provided for why Ms Han’s case was being put on the basis of using an amount asserted to be from a financial year that was not the most recent.

123    Nor was any explanation given as to the basis upon which it had been determined that Ms Han had “earned an average of $40,692.60 gross per annum or an average $782.55 gross per week (excluding what she was paid for sick/personal leave or annual leave)”. Again, the case that was advanced on Ms Han’s behalf assumed that I would be able to work out this amount for myself. Yet, the amount claimed in the Damages Schedule was inconsistent with that contained in the written amount identified in Ms Han’s written submissions. There, the following was submitted:

The average of her Gross earnings in the period post termination is approximately $53,350 per annum. (Nett $44,500).

Past Economic Loss

The Applicant was terminated on 23 January 2020.

Her weekly earnings in the year immediately preceding her termination were $129,379. (Gross) being Nett $91,425.

The Applicant claims the difference in her earnings from December 2019 to date as compared to the earnings of a full-time registered nurse as set out in the Earnings Report prepared by Abinash Dhungel dated 19.10.2023.

A schedule of damages for economic loss will be provided at or prior to the hearing.

124    Ms Han’s submission that she had earned on average $53,350 per annum since the termination of her employment results in an amount of $1,025.96 gross per week and not $782.55 gross per week as claimed in the Damages Schedule. If these figures have been calculated on the basis of excluding what “Ms Han was paid for sick/personal leave or annual leave”, no rational reason was advanced in support of that position, and it was not clear whether the same approach had been taken to the determination of the amount of $129,379 that Ms Han had earned in the financial year 2018/2019.

125    I am not satisfied that Ms Han has established the quantum claimed for past economic loss as specified in the Damages Schedule.

126    The following Tables demonstrate the different approaches to quantification that are able to be discerned from the amounts identified in the Damages Schedule and Ms Han’s submissions:

Table 4.1: Claim in the Damages Schedule

Table 4.2: FY18/19 earnings and post-termination earnings alleged in submissions

Table 4.3:    FY19/20 earnings and post-termination earnings alleged in submissions

127    Tables 4.1, 4.2 and 4.3 each demonstrate the significant differences between the various calculations.

128    Based on my review of the evidence, another approach is to consider the differential in hours Ms Han worked before and after her dismissal from St Basil’s and, doing the best I can, to calculate loss on that basis. As set out in Table 1, prior to the dismissal of her employment, Ms Han was working on average 44.5 hours per week: see [106]. Since that time she has worked, on average, the hours specified in Table 2: see [107]. Those differentials may be expressed as follows:

Table 5: Differential in hours worked pre-dismissal and post-dismissal

129    Having identified the differential in hours in each period, the quantification of that differential hours in monetary terms requires the identification of the appropriate wage rate to apply. It is impossible to be precise about the hourly rates that would have applied including because from time-to-time Ms Han worked overtime and also received some additional allowances. It is also possible that Ms Han may have increased her work with other employers or lowered her work at St Basil’s in view of the symptoms she had already developed since June 2019. I have decided that for each period, the best measure would be the average hourly rate set out in Table 3: see [109].    

Table 6: Quantification using differential in hours assuming average hourly rate

130    I accept that the above calculations are not precise, but they are the best that can be done given the absence of genuine assistance that I received.

131    The result is that I have different options from which to determine the “appropriate” compensation to be awarded for past economic loss. Those options are:

(a)    $440,463.59 as set out in Table 4.1;

(b)    $359,676.60 as set out in Table 4.2;

(c)    $68,907.06 as set out in Table 4.3; and

(d)    $175,040.81 as set out in Tables 5 and 6.

132    In other contexts, it is well settled that a judge faced with a paucity of evidence as to the assessment of damages “must simply do the best that he or she can to assess the extent of the plaintiff’s loss”: Harriton v Stephens [2006] HCA 15; 226 CLR 52 at [84] (Kirby J, though his Honour was in dissent, the point is well established). The Full Court (Sheppard, Morling and Wilcox JJ) in Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 4 FCR 450 stated at [57]:

The principle is clear. If the court finds damage has occurred it must do its best to quantify the loss even if a degree of speculation and guess work is involved. Furthermore, if actual damage is suffered, the award must be for more than nominal damages. We should add that we can see no reason why this principle should not apply in cases under the Trade Practices Act as well as in cases at common law…We emphasise, however, that the principle applies only when the court finds that loss or damage has occurred.

133    To this may be added the observations of Brooking J in JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237, where his Honour stated at 241-242 that:

A plaintiff cannot recover substantial as opposed to nominal damages unless he proves both the fact and the amount of damage: The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 80 per Mason CJ and Dawson J; at 99 per Brennan J, at 118 per Deane J and at 137–8 per Toohey J. If he proves the fact of the loss but does not call the necessary evidence as to its amount he cannot be awarded substantial damages (McGregor on Damages, 14th ed, pp 190 and 222): he must put the tribunal in the position of being able to quantify in money the damage he has suffered: Watts v Rake (1960) 108 CLR 158 at p 159, per Dixon CJ. So juries in personal injuries cases are often directed that the plaintiff must prove to their satisfaction what he has suffered and will suffer and what is fair and reasonable compensation in respect of that. It is often said that the amount of damage must be proved with a certainty, but this only means as much 'certainty' as is reasonable in the circumstances: Ratcliffe v Evans [1892] 2 QB 524 at pp 532–3. Where precise evidence is obtainable, the court naturally expects to have it; where it is not, the court must do the best it can: Biggin & Co Ltd v Permanite Ltd [1951] 1 KB 422 at p 438; The Commonwealth v Amann Aviation Pty Ltd (supra) per Mason CJ and Dawson J at p 83. The nature of the damage may be such that the assessment of damages will really be a matter of guess work, as in the well-known case of Chaplin v Hicks [1911] 2 KB 786, where the plaintiff had lost a chance of winning an engagement as an actress as a prize. So damages will be assessed for the wrongful detention of a race horse even though it may be necessary to guess at the amount: Wilson v Matthews [1913] VLR 224; compare Howe v Teefy (1927) 27 SR (NSW) 301 …

134    In the present case, I am satisfied that Ms Han has suffered past economic loss. I am also satisfied that Ms Han has put forward evidence to do the best she can to enable an assessment of damages for past economic loss to be made. However, the quantification of those damages has not been presented in a way that has made it easy for me to determine the amount of compensation to be awarded. A degree of guesswork and evaluation is required here, but within some parameters.

135    As will be apparent from [131] above, the quantification of Ms Han’s past economic loss ranges between $68,907.06 and $440,463.59 depending upon the method of calculation of that loss. Doing the best I can, I consider an amount of $175,000 would be appropriate compensation for Ms Han’s past economic loss. This amount reflects the fact that I am not satisfied that Ms Han’s approach of using the wages she earned in 2018/2019 is an appropriate comparison point from which to ascertain the relevant differential in loss. It also reflects the fact that I have to take into account that Ms Han’s earnings in 2019/2020 were on track to be lower than those in the previous financial year. It also takes into account that Ms Han may not have continued to work the same hours as she had done in the past because of the symptoms and conditions she was suffering from prior to the termination of her employment. And, finally, it recognises that Ms Han may have worked overtime and earned other penalties and allowances for the work she would have continued to perform, but takes into account that ultimately it is too difficult to ascertain the quantum of these penalties and allowances with any degree of certainty. As a result, the approach that I have taken balances the swings and roundabouts involved in the quantification of loss suffered in view of the evidentiary circumstances with which I have been confronted. It also reflects, as Mortimer J stated in Dafallah at [157], that less than full compensation may be appropriate and that is especially so when regard must be had to the evidence as to the multiplicity of causes for the loss that was said to have been occasioned.

4.4.2    The claim for future economic loss

136    Ms Han’s claim for future economic loss was identified as follows in the damages schedule:

Future economic loss (at the rate of $1883.02 gpw week until age 65 (11 years - Date of Birth: 20 August 1968) Multiplier 490.0 (3% tables) less 15% for vicissitudes)

137    The total amount claimed was $784,277.83.

138    The assumption underlying Ms Han’s claim is that she would be unable to return to work full-time hours until her intended retirement at the age of 65 and would have continued in employment with St Basil’s until that time.

139    I accept that Ms Han has suffered loss in that she has been deprived of the opportunity to continue in employment with St Basil’s into the future. However, I do not accept the quantification of Ms Han’s claims.

140    I am satisfied on the evidence that Ms Han will be able to return to work within 12 to 24 months of the finalisation of these proceedings and will proceed on the mid-point of 18 months. For the reasons stated above, I am further satisfied that Ms Han presently has capacity to work up to 30 hours per week. I am also satisfied that Ms Han has been able to obtain alternative employment, which at times has seen her work on average up to 38 hours per week.

141    The calculation of future loss can only be a rough estimate and cannot be undertaken with mathematical precision, but the object is to arrive at an estimate which is “most likely to provide fair and reasonable compensation”: see Todorovic v Waller [1981] HCA 72; 150 CLR 402 at 413 (Gibbs CJ and Wilson J); Gill v Australian Wheat Board [1980] 2 NSWLR 795 at 807 (Rogers J).

142    As noted above, I am prepared to accept that it will take Ms Han 18 months to return to full time work. In that period, based on the evidence, I accept that Ms Han will be unable to work her full 44.5 hours per week that she was working before her dismissal, but I propose to use the average hours she was working at the time of the hearing before me (being an average of 15.8 hours per week over a 6 month period which converts to 821.6 hours per year) and at the most recent average hourly rate of $52.58. This would result in an amount of $43,199.73 for 12 months and $64,799.60 for 18 months. However, I consider that the amount should be adjusted for vicissitudes by 5%. The amount I consider appropriate is $61,559.62.

4.4.3    The claim for out of pocket expenses

143    Ms Han made a claim made for past out of pocket expenses as follows:

Past out of pocket expenses - the applicant has been under the care of her general practitioner and psychologist. Out of pocket expenses, including Medicare and pharmaceutical expenses, are claimed as - $19,117.00

144    Ms Han’s written submissions in support of her claim for past out of pocket expenses was limited. The extent of her written submissions was as follows:

The Applicant has been under the care of (insert details) of GP and psychologist, psychiatrist. Her out-of-pocket expenses in relation to her medial/psychological treatment for the past are approximately $19,200.00.

145    As immediately apparent, Ms Han’s submission neglected to provide any explanation or breakdown of the amount claimed. It also failed to identify any evidentiary basis for the compensation claimed. In oral submissions, I was not taken to any evidence in support of the claim. The position is highly unsatisfactory.

146    Although I have received no guidance in relation to the evidence, I have been able to identify several documents that bear some relationship to the claim for out of pocket expenses. Of these documents, Ms Han tendered a document which summarised all of her consultations between August 2004 and October 2023 with her general practitioner, Dr Leo Agagiotis: CB 37. To similar effect, Ms Han tendered a document which compiled a suite of medical certificates dated between September 2019 and July 2023: CB 39. Although I can infer from these documents that Ms Han received medical treatment, I was not supplied with any receipts or other evidence by which I could satisfy myself as to the amount actually incurred at personal expense by Ms Han for such treatment. Nor was I provided with any guidance in discerning which of the consultations were attended because of a need for treatment that arose by reason of the relevant contraventions, consistent with s 545(2)(b) of the FW Act.

147    Ms Han also tendered a “Patient History Report” with Chemist Warehouse: CB 45. This document chronicled the dispensation of various medication throughout the period of 7 January 2021 to 29 March 2022: CB 45. Facially, this document indicates that approximately $500 was paid in connection with medications dispensed by this pharmacy. However, Ms Han again failed to establish the evidentiary foundation necessary for me to conclude that some or all of the medicine was prescribed to treat an injury caused by the contraventions, as opposed to a prescription for some extraneous reason.

148    The difficulty I have encountered in identifying the expenses Ms Han incurred is heightened by the fact that Ms Han appears to have received financial assistance with provisional treatment expenses for her injury in connection with her claim for Workers Compensation. In this regard, Ms Han tendered (but did not refer to) her Workers Compensation file with Allianz: CB 43. On the state of the evidence, it is unclear whether and to what extent Ms Han was provided with financial assistance, which would necessarily bear upon the appropriate quantum of compensation in respect of out of pocket medical expenses. This uncertainty was not dispelled by any submission made on Ms Han’s behalf.

149    Having regard to these matters, I can infer that Ms Han has obtained care in the past. However, I have been unable to identify or quantify what costs, if any, were borne by Ms Han because of the contravention. Accordingly, the claim for past out of pocket expenses fails.

150    Ms Han also made a claim made for future out of pocket expenses as follows:

Future out of pocket expenses - the applicant requires attendance upon a psychiatrist on a monthly basis and a psychologist on a fortnightly basis for approximately the next two years at the rate of $500.00 per hour in respect to a psychiatrist and $250.00 per hour in     respect to the psychologist. Based upon the actuarial tables (multiplier 101.3 x $230.77 per week less 15% for vicissitudes) the applicant claims - $19,870.45

In addition, the applicant claims attendance upon her GP - 6 visits per year over two (2) years with specialist review at 24 months at the rate of $100 per visit. Based upon the actuarial tables (multiplier 101.3 x $12.50 per week less 15% for vicissitudes) the applicant claims – $1,076.31

151    I am satisfied that Ms Han will incur expenses into the future in receiving care from a psychologist and psychiatrist. Dr Sherman recommended a period of 12 months and I preferred his evidence. I will order the amount claimed for a period of 12 months, which is half the total claimed by Ms Han, being approximately $10,000.

4.4.4    The claim for general damages

152    Ms Han made a claim for general damages in the amount of $300,000. Ms Han’s submissions provided me with no assistance as to the basis upon which I should make an award for general damages at this level.

153    It is accepted that “loss” as referred to in s 545(2)(b) of the FW Act includes loss other than economic loss. Section 545(2)(b) includes the power to award compensation in respect of non-economic loss including loss in respect of “non‑economic loss, including for distress, hurt or humiliation”: International Aviation Service at 595 [447] (Barker J); Fair Work Ombudsman v Maritime Union of Australia (No 2) [2015] FCA 814; 252 IR 101 at [65] (Siopis J).

154    The assessment of compensation in this context is an “inherently imprecise” process: Construction, Forestry, Maritime, Mining and Energy Union v Melbourne Precast Concrete Nominees Pty Ltd (No 3) [2020] FCA 1309 at [9] citing Fair Work Ombudsman v Maritime Union of Australia (No 2) [2015] FCA 814; 252 IR 101 at 113 [68] (Siopsis J). And, whilst some guidance can be taken from past cases, general damages are not to be assessed by performing arithmetic adjustments to prior determinations: Hughes t/as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126; 277 FCR 511 at 521 [48] (Perram J, Collier and Reeves JJ agreeing) citing Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; 223 FCR 334 at [82], [102] (Kenny J, Besanko and Perram JJ agreeing) and Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; 119 CLR 118 at 124 (Barwick CJ, Kitto and Menzies JJ per curiam).

155    In the present case, I am comfortably satisfied that St Basil’s contraventions have caused Ms Han to suffer real harm of an emotional nature, which has caused her hurt and humiliation and to suffer from mental harm. This is confirmed in the expert evidence of Drs Nagesh and Sherman, who both expressed the view that Ms Han has suffered recognisable mental harm including by reason of the unlawful termination of her employment. I accept that this harm was also caused by factors that pre-dated the contraventions, but there is no doubt that the particular contraventions that involved the dismissal of Ms Han have caused her to feel hurt, shame and humiliation.

156    In assessing the appropriate order to make, it is necessary to take into account not only the statutory norms that Part 3-1 of the FW Act seeks to promote but also prevailing community standards: see eg Hughes Lawyers at [49]–[51]. In this regard, the stripped back and bare facts of the contraventions found by Rares J were that St Basil’s had failed to rebut the presumption that it had terminated Ms Han’s employment because of her race and because she had exercised her workplace rights to complain about matters relating to her employment. The pain, hurt and humiliation that Ms Han has suffered needs to be viewed in the context that she sought to exercise her legal rights in a bona fide way. As Rares J found, instead of investigating Ms Han’s complaints, St Basil’s “turned the tables” and levelled “trumped up” allegations against her.

157    None of the above is to say that the purpose of general damages is to punish St Basil’s for its contravening conduct, but to say that I accept without equivocation that Ms Han has genuinely felt distress, hurt and humiliation that is causally connected to the contraventions engaged in by St Basil’s. I accept that Ms Han has suffered such pain, hurt and humiliation because she was deprived of the rights promoted by Part 3-1 of the FW Act, including the fundamental right that she was entitled to participate in and enjoy a workplace free from discrimination and free of retaliatory action taken because she had exercised lawful rights to complain about matters arising in her workplace. I accept the profound loss that Ms Han has felt and suffered as a result of the deprivation of these rights including by reason of her deep sense of loss of personal and professional worth.

158    On balance and taking all these matters into account, I consider a sum of $75,000 to be appropriate award by way of general damages.

4.4.5    The claim for past and future gratuitous care

159    Ms Han made a claim for past gratuitous care as follows:

Past gratuitous care - the applicant claims gratuitous care for the past. The applicant cannot cook, clean or shop. She relies upon her son and niece to perform the activities of daily living. She cannot wash dishes or iron her clothes and requires prompting to have a shower.

The applicant's injuries have significantly impacted on her ability to participate in her routine personal care, domestic duties and property maintenance tasks. The claimant seeks 16.22 hours of gratuitous care from 23 January 2020 to 14 October 2024 (250.6 weeks) at the rate of $45.00 gross per hour -

160    The total amount claimed for past care was $182,912.94.

161    Ms Han also made a claim for future gratuitous care as follows:

Future care - the applicant's future requirements for care are assessed at 13 hours per week, at the rate of $45.00 gross per hour, particularised on the Life Tables for the remainder of her life expectancy of 32 years (multiplier 1059.2) less 15% for vicissitudes

162    The total amount claimed for future care was $526,687.20.

163    These claims, which were a significant component of the total amount of damages claimed, were barely addressed in the submissions and the evidence. I was taken to no single authority where an order in respect of such a head of damage had been made under s 545(2)(b) of the FW Act, let alone any more general authorities on the subject matter.

164    The legal basis for the claim is the decision in Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161, where it was held that a claim for damages for personal injuries could include a component with respect to care or services provided gratuitously to the injured person in the past and into the future. Subsequently, in Van Gervan v Fenton [1992] HCA 54; 175 CLR 327, it was held that the true basis of such a claim is the need of the injured person for the services, not the actual financial loss suffered as the result of the provision of those services. Mason CJ, Toohey and McHugh JJ (with whom Brennan J generally agreed) held in Van Gervan at 338 that two questions must be determined before damages can be recovered:

(a) What are the services required to satisfy the plaintiff's need resulting from the defendant's wrong? (b)What is the value of those services?

165    In relation to the first of these questions, the majority in Van Gervan held that a defendant is not entitled to have a reduction in damages because the plaintiff elected to pay for services or chose to receive them gratuitously before the relevant injury: at 338 (Mason CJ, Toohey and McHugh JJ) and 350 (Gaudron J); see also Gill v Ethicon Sàrl (No 5) [2019] FCA 1905 at 1250 [4884] (Katzmann J). The reasoning underlying this is that, by the defendant’s act, a plaintiff’s choice to receive assistance is transformed into a need for that assistance: Van Gervan at 338. Accordingly, a defendant cannot rely on the “give-and-take usually involved in domestic arrangements” to reduce damages, except to the extent that there was a pre-existing need: Van Gervan at 350 (Gaurdon J). Relatedly, “the benefit to other members of the household may be disregarded” if a service is “reasonably required by the injured person”: Morgan v Gibson [1997] NSWCA 212 at 3 (Meagher JA, Mason P agreeing); White v Benjamin [2015] NSWCA 76 at [70] (Basten JA, Meagher JA agreeing); Ethicon Sàrl at 1251 [4886]–[4888].

166    As for the second question, damages are usually determined not by reference to the actual cost to the injured person of having the care or services provided, but by reference to the market cost of acquiring them, as that “is ordinarily the reasonable and objective value of the need for those services”: Kerkemeyer at 193 (Mason CJ); Van Gervan at 333-334 (Mason CJ, Toohey and McHugh JJ) and 348-349 (Gaudron J); Grincelis v House (2000) 201 CLR 321 at 327 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); Ethicon Sàrl at [4884] (Katzmann J).

167    In support of the claim, Ms Han relied upon a combination of evidence, including the expert report of Ms Engelsman in conjunction with her own lay evidence and the evidence of three of her lay witnesses—Mr Cosgrove, Ms Han and Mr Hu. As noted earlier, Ms Han’s own evidence is that prior to the termination of her employment with St Basil’s she undertook all domestic and maintenance tasks. Amongst other things, this included activities such as vacuuming, mopping, laundry, grocery shopping, cooking and gardening. While Ms Han did not identify how much time she dedicated to these tasks, she provided a general overview of the frequency with which such tasks were performed in her outline of evidence.

168    Ms Han’s further evidence was that, since her termination, she has ceased performing most of these tasks entirely and her son, niece and partner have together performed them on a gratuitous basis, instead. In support of this, Ms Han’s niece, Ms Macy Han, stated in her outline of evidence that while it was difficult to calculate how many hours of assistance she provides each week, she undertakes the majority of domestic duties together with Ms Han’s son, Mr Hu. This was corroborated in Mr Hu’s own outline of evidence. In addition to this, Ms Han’s partner, Mr Cosgrove, also gave evidence that he provided regular care, involving “approximately three hours assistance per week with shopping and light domestic duties”.

169    Beyond this lay evidence, Ms Han placed reliance upon the expert report of Ms Engelsman. Ms Engelsman’s qualifications are as a Registered Occupational Therapist. Her work experience outlined in her CV as follows:

I am a skilled Occupational Therapist with over 16 years’ clinical experience in adults and paediatrics.

I have worked in acute, outpatients and community settings in South Africa, England and Australia.

My specialty is in the field of Burns and Plastic Surgery. Key areas of practice during this time include assessment and rehabilitation for people with catastrophic burn injuries, equipment prescription, environmental modifications, discharge planning, outpatient assessment and treatment and complex case management. I have had extensive experience in working within Workers Compensation, Medicare, and Private Health Insurance.

I also have experience in the provision of Occupational Therapy to clients with needs ranging from neurological conditions, spinal cord injuries, hand injuries, amputees, ageing, dementia, pain management and palliative care. In these positions I have conducted numerous activities of daily living, home environment and community assessments and made subsequent recommendations for care, equipment, home modifications and rehabilitation needs.

…

More recently I have three years’ experience in the medico-legal field, where I have prepared over 100 Activities of Daily Living Assessments in NSW, QLD, VIC and TAS for the purpose of providing independent expert Occupational Therapy opinion for the benefit of the court.

170    With a significant degree of hesitation, and because her evidence was not challenged or objected to, I am prepared to accept that Ms Engelsman has some experience in making an assessment as to the living assessment needs of people in the community. Based on this experience, Ms Engelsman’s report disclosed that she conducted an assessment of Ms Han’s needs based on a consultation she conducted with Ms Han at her home.

171    Ms Engelsman’s opinion as to past gratuitous care was as follows:

172    Ms Engelsman then calculated Ms Han’s past care as having involved the following:

173    As can be seen, Ms Engelsman’s assessment as to Ms Han’s care needs in performing domestic duties in some ways generally accords, in scope and extent, with the high-level evidence provided by Ms Han’s lay witnesses. However, Ms Engelsman’s assessment in relation to “Personal Care” and “Property maintenance” goes beyond the evidence of Ms Han’s lay witnesses and, in fact, was in several respects related to matters that were not addressed in the lay evidence at all.

174    As to future needs, Ms Engelsman expressed the following opinion:

Based on my observations of Ms Han on 9 October 2023, it is my opinion that she will require ongoing direct and indirect assistance with personal care tasks, domestic tasks, property maintenance duties, recreational activities and community access, that she is no longer able to perform independently, as a direct result of her injuries.

The use of commercial services, as opposed to gratuitous assistance, is recommended to reduce the burden on her family. This will also ensure that all domestic tasks and property maintenance tasks are performed and not neglected.

Future care should be provided by care workers experienced in working with clients with mental health disorders.

175    Ms Engelsman then assessed Ms Han’s future needs as follows:

176    Ms Engelsman did not take into account either of the other expert reports that had been filed in Ms Han’s case prior to the completion of her report, which included the separate assessments of two psychiatrists as to Ms Han’s functional capacities, her present fitness for duty and prognosis for future recovery. Whilst I accept that Ms Han’s fitness for duty might entail entirely different considerations to her past, present and future needs for domestic care, none of the matters appear to have been considered.

177    I have serious reservations about the content and quality of Ms Engelsman’s evidence. However, putting my concerns in this regard to one side, the more fundamental difficulty with Ms Han’s claim was that there was no evidence to support the claim that the commercial value of domestic assistance was, or is, $45 per hour. The claim amounted to no more than an assertion. In oral submissions, Counsel for Ms Han suggested that the figures specified in the Damages Schedule going to life span and the commercial value of domestic assistance were based variously upon the “actuarial table” of “Furzer Crestani” and the “Life Tables”. The submission assumed that the Court would somehow have working knowledge of these materials or that they were so notorious that they were matters that could be taken upon judicial notice. I was not prepared during oral submissions to accept submissions at this level of generality. Nor am I prepared to accept them now. It was a matter for those acting on Ms Han’s behalf to prove her alleged loss on the basis of admissible evidence. This was not done, and, as I have repeatedly stated, I received little to no assistance in these respects. As it stood by the close of the hearing before me, there was simply no evidence to support Ms Han’s claim for domestic assistance to be valued at $45 per hour.

178    Further, it will be clear from Ms Engelsman’s evidence that she proceeded on the basis that the need for Ms Han’s care arose from the fact of her personal injury. That evidence was largely consistent with the applicable authorities that establish that the damages for past and future gratuitous care are connected with such a need arising from the relevant person suffering a personal injury. However, as I have pointed out, s 545(2)(b) of the FW Act requires attention to be focussed upon the loss suffered by a person because of the contravention. As I have also pointed out, the personal injury suffered by Ms Han was not solely caused by the contraventions and pre-dated them. The claim made in respect of this head of damage did not address itself to how this loss was caused by the actual contravention or the extent to which it had been so caused. As I have set out above, Ms Han had suffered symptoms from June 2019, which pre-dated her dismissal and therefore pre-dated the contraventions as found by Rares J.

179    I am not satisfied the claim has been established and I reject it.

4.4.6    Mitigation

180    St Basil’s contended that Ms Han had failed to mitigate her loss. I do not agree. A defendant bears the onus of showing that an otherwise successful plaintiff has failed to mitigate his or her loss, and to demonstrate the extent of such failure: Watts v Rake [1960] HCA 58; 108 CLR 158 at 159 (Dixon CJ); TCN Channel Nine Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 at 158 (Hope JA, Meagher JJA agreeing); Netline Pty Ltd v QAV Pty Ltd [2022] WASCA 131 at [40] (Buss P, Allanson and Smith JJ); Goldburg v Shell Oil Co of Australia Ltd [1990] FCA 494; 95 ALR 711 at 714 (Sweeney and Ryan JJ).

181    Ms Han’s unchallenged evidence (as vague as it was) was that she had made attempts to find alternative employment and eventually succeeded in doing so. She had explanations for why she had not earlier obtained such employment, including that she was suffering from the symptoms of the medical condition sustained in relation to the matters the subject of her claims. In view of those unchallenged facts, I am not satisfied that St Basil’s has established that Ms Han failed to mitigate her loss.

4.4.7    The appropriate order

182    In my view the appropriate order as to compensation is as follows:

(a)    $175,000.00 for past economic loss;

(b)    $61,559.62 for future economic loss;

(c)    $10,000.00 for future out of pocket expenses; and

(d)    $75,000.00 for general damages.

183    The total amount payable to Ms Han for compensation is $346,559.62.

5.    PENALTY

184    Ms Han made a claim for the imposition of penalties pursuant to s 546(1) of the FW Act and sought an order pursuant to s 546(3)(c) that any such penalties be payable to her.

185    It was common ground between the parties that there were two contraventions that had been established. It was also common ground that, at the relevant time of the contraventions, the maximum penalty for each contravention was $63,000.

5.1    Applicable principles

186    The primary purpose served by the imposition of civil penalties is to serve the objects of specific and general deterrence such that “they are protective of the public interest and they aim to secure compliance by deterring repeat contraventions”: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 274 CLR 450 at 457 [9], 468 [42]–[43] and 475 [66] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ); cf 477 [75] – 478 [80] (Edelman J).

187    The application of the principles to the imposition of penalties under the FW Act were recently summarised by the Full Court (Raper, Dowling and Shariff JJ) in Fair Work Ombudsman v Ho [2024] FCAFC 111 and, as explained at [65], the following organising principles apply to the discretionary power to impose penalties:

(a)    Section 546 confers a discretion that is to be exercised judicially, that is, fairly and reasonably having regard to the subject matter, scope and purpose of the legislation: see Australian Building and Construction Cmr v Pattinson [2022] HCA 13; 274 CLR 450 at [40] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ).

(b)    Civil penalties are imposed primarily, if not solely, for the purpose of deterrence: see Pattinson at [15] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). That is, the purpose of the penalty is to promote the public interest in compliance and to attempt to put a price on a contravention that is sufficiently high to deter repetition by the contravenor and by others who are in a position to contravene legislation: see Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 (the Agreed Penalties Case) at [55]).

(c)    A penalty is appropriate if it is no more than might be considered to be reasonably necessary to deter further contraventions of a like kind by the contravenor and others: Pattinson at [9].

(d)    Whilst the imposition of the penalty is at large, there should be some “reasonable relationship between the theoretical maximum and the final penalty imposed”: Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 at [156]. The reasonable relationship should be considered by reference to the need for deterrence: Pattinson at [55].

(e)    Whilst the Court’s task is to determine what is an appropriate penalty, the authorities have identified several factors which inform the assessment of a penalty of appropriate deterrent value. However, such factors should not be approached as a rigid catalogue or checklist: Pattinson at [18]–[19], citing French J in Trade Practices Commission v CSR Ltd [1990] FCA 521; [1991] ATPR ¶41–076 at 52, 152–53. The factors set out by French J were: the nature and extent of the contravening conduct; the amount of loss or damage caused; the circumstances in which the conduct took place; the size and power of the contravening company; the deliberateness of the contravention and the period over which it extended; whether the contravention arose out of the conduct of senior management; whether the company has a corporate culture conducive to compliance; and, whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement in relation to the contravention.

188    As adverted to by the majority in Pattinson (at 460 [18]), by reference to the decision of French J in Trade Practices Commission v CSR Ltd [1991] ATPR ¶41–076 at ¶52,152–52,153, there are a range of factors that may be taken into account in determining an appropriate penalty: see also Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14 at 18 [14] (Tracey J); Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560 at 573 [60] (Graham J) and 579 [88]–[89] (Buchanan J); Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union [2008] FCAFC 170 at [57] (Branson and Lander JJ); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68 at 89 [102]–[104] (Dowsett, Greenwood and Wigney JJ). As further adverted to in Pattinson, such considerations are not a rigid catalogue of matters for attention as if it were a legal checklist: at 461 [19].

189    The Court’s task remains to determine what is an “appropriate” penalty in the circumstances of the particular case: Pattinson at [19]. The process of fixing a pecuniary penalty calls for a discretionary value judgment based on all relevant factors—a process of “intuitive or instinctive synthesis”: TPG Internet Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 190; 210 FCR 277 at 294 [145] (Jacobson, Bennett and Gilmour JJ); Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited [2015] FCA 330; 327 ALR 540 at 543 [6] (Allsop CJ); Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 at 37 [44] (Jagot, Yates and Bromwich JJ).

190    The penalty must be at a level such that a potentially-offending corporation will see it as eliminating any prospect of gain, so that the statutory object of ensuring the contravention is not regarded as a mere cost of doing business is achieved: NW Frozen Foods at 294-5 (Burchett and Kiefel JJ); Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; 250 CLR 640 at 659 [66] (French CJ, Crennan, Bell and Keane JJ); Pattinson at [17]. In considering the extent to which a penalty achieves deterrence, it is relevant for the Court to have regard to a contravener’s size and financial position: Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd [2001] FCA 383; ATPR ¶41-815 at ¶42-938 [13] (Finkelstein J). As Goldberg J observed in Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265; 215 ALR 301 at 309 [39], the sum required to achieve the object of deterrence will be larger where the Court is setting a penalty for a company with vast resources.

191    Separate contraventions arising from separate acts should ordinarily attract the imposition of a separate penalty appropriate for each contravention: Registrar of Aboriginal and Torres Strait Islander Corporations v Matcham (No 2) [2014] FCA 27; 97 ACSR 412 at 436 [197] (per Jacobson J); Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73 at [227] (Allsop CJ, Middleton and Robertson JJ). However, case by case, where there are multiple contraventions, with multiple acts and omissions, occurring over a particular period, the Court may group the contraventions together as a single course or courses of conduct, in order to avoid double punishment. The course of conduct principle is a discretionary tool of analysis that the Court is not compelled to use, and which does not have paramountcy in the process of assessing an appropriate penalty: Yazaki at [227]; Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd (t/as Bet365) (No 2) [2016] FCA 698 at [24]–[25] (Beach J).

192    A form of a statutory “course of conduct” principle is provided for in s 557 of the FW Act. However, it does not apply to the contraventions in question here. Nevertheless, it is open to the Court to apply the common law course of conduct principle where the contraventions contain common elements or overlap with each other or involve the potential punishment of the respondent for the same or substantially similar conduct: see Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39 at [39], [41]–[44] (Middleton and Gordon JJ).

5.2    Determination of the appropriate penalty

5.2.1    The nature and extent of the contravening conduct and the circumstances in which it took place

193    St Basil’s engaged in two relevant contraventions. Both contraventions occurred on 23 January 2020 when St Basil’s terminated Ms Han’s employment.

194    The contravention of s 340 of the FW Act related to St Basil’s termination of Ms Han’s employment because Ms Han had exercised her workplace right to make complaints about conduct that had occurred in the workplace. Those complaints included the 1 December and 24 December complaints. As Rares J found, St Basil’s failed to properly investigate those complaints, and, to the extent that there was an investigation, it appeared that Ms Darwich did little more than accept the version of events provided to her by other employees whom she preferred: LJ [152]. More significantly, instead of properly investigating those complaints, St Basil’s, through primarily Ms Mota, turned Ms Han’s complaints on their head and instead levelled serious allegations against Ms Han.

195    In my view, St Basil’s contravention was objectively serious. It deprived Ms Han of the statutory protection she was entitled to be afforded in exercising her lawful right to make a complaint about matters pertaining to her employment. The statutory protection was no slight matter. The object of the statutory protection is to ensure that employees such as Ms Han who exercise lawful rights to make complaints are not subjected to adverse action because of the fact that they have exercised those lawful rights. It is antithetical to this purpose that an employee such as Ms Han was to be subjected to the most serious form of adverse action that could be taken against her, being dismissal from employment, because of the exercise of her lawful rights.

196    St Basil’s contravention of s 351 of the FW Act was even more objectively serious. Rares J found that St Basil’s had not rebutted the presumption that it had taken the adverse action constituted by the termination of Ms Han’s employment by reason of Ms Han’s race. Although in substance the contravention of s 351 was constituted by the same act of adverse action that gave rise to the contravention of s 340 (being the act of dismissing Ms Han), the nature and content of the rights protected by s 351 are of a different character. The statutory norm promoted by s 351 is to ensure workplaces free from discrimination on particular grounds. The essence of such rights serves to promote the right to the respect and dignity of workers to participating in workplaces free from discrimination on proscribed grounds and the right to be protected from adverse action. Section 351 gives effect to Australia’s international law obligations, including, in particular, the obligation contained in Art 2 of the International Convention on the Elimination of all Forms of Racial Discrimination (1965), which compels Australia to pursue all appropriate means of eliminating racial discrimination, and the obligation in Art 5, which requires Australia to ensure workers can enjoy the right to work on just conditions of work. These are undoubtedly inalienable economic, social and cultural rights that the Commonwealth legislature has sought to both promote and protect under domestic law.

197    Rares J’s findings in the Liability Judgment were in substance that St Basil’s had dismissed Ms Han because of her race because it in essence (through Ms Mota) preferred workers of a different race. That is matter of considerable gravity.

198    St Basil’s case in defence of the contravening conduct before Rares J sought to explain why the actions were taken. In essence, St Basil’s appears to have accepted that the processes it took to investigate Ms Han’s concerns and in terminating her employment were unfair, but nevertheless not taken for any proscribed reason because the relevant protagonists (Ms Mota and Ms Darwich) genuinely believed that Ms Han had failed to deliver an appropriate standard of clinical care to the resident in question. However, as Rares J’s reasons in the Liability Judgment resoundingly demonstrate, the allegations as to Ms Han’s failure to deliver adequate clinical care were based on flimsy foundations that were ultimately unsound.

5.2.2    The nature and extent of loss or damage

199    For the reasons I have set out earlier, I am satisfied St Basil’s conduct caused Ms Han to suffer loss and damage. The contraventions contributed to her suffering mental harm. They have also led to her suffering economic loss. These too are factors that point towards the objectively serious nature of the contraventions.

5.2.3    Whether the conduct was deliberate

200    St Basil’s submitted that its conduct was not deliberate. In this regard, reliance was placed on the fact that in the Liability Judgment at [240], ultimately, Rares J was not persuaded that St Basil’s discharged its onus to displace the statutory presumption in s 361(1) of the FW Act. St Basil’s contended that this finding demonstrated that it did not deliberately take adverse action for a proscribed reason, but that St Basil’s had not rebutted the presumption that it was taken to have engaged in the action or those proscribed reasons.

201    St Basil’s further submitted that the findings made by Rares J were most critical of one relevant decision-maker, Ms Mota. It is pointed out that Rares J found in the Liability Judgment at [239] that it was Ms Mota’s reporting of matters to others, including Father Nicholas, Mr Rooke and Ms Darwich, which affected their attitudes of Ms Han as opposed to each of the others acting in a way that was deliberately adverse to Ms Han.

202    There is some force in the submissions advanced by St Basil’s. At [239] of the Liability Judgment, Rares J found that:

Ms Mota’s adverse reporting to Father Nicholas, Mr Rooke and Ms Darwich affected their attitudes to Ms Han, including the false creation of “serious concerns”, for at least Ms Darwich, by the time Ms Mota sent the 13 January letter to Ms Han. Ms Mota’s pejorative reporting about Ms Han to Ms Darwich and Mr Rooke created a different assessment process than should have obtained when St Basil’s took the adverse action of terminating Ms Han.

203    I accept that in assessing the deliberateness of the contravening conduct it is to be borne in mind that one particular decision-maker, Ms Mota, was the primary protagonist and influenced others involved in the management of Ms Han’s employment and its termination. Nevertheless, it also needs to be borne in mind that Ms Mota was a senior manager at the Lakemba Facility with responsibility for about 160 staff and carried significant authority in relation to Ms Han’s employment: LJ [27].

5.2.4    The period over which the conduct extended

204    There was no dispute that the contravening conduct was confined to the singular act of termination that occurred on 23 January 2020.

205    Ms Han submitted that despite the contravening conduct being confined, the wider context had to be considered. In particular, it was submitted that the Court should properly view the act of termination as the final act of a period of intense bullying and harassment of Ms Han. I do not accept this submission. At least one difficulty with the submission is that Rares J rejected the other part of Ms Han’s case relating to the First and Final Warning. In relation to that claimed adverse action, Rares J was not satisfied that it was taken for any of the proscribed reasons alleged by Ms Han.

206    However, I do accept that, contextually, in determining the appropriate penalty to be imposed regard must be had to the particular rights sought to be protected by Part 3-1 of the FW Act. Here, those rights included Ms Han’s exercise of a workplace right to make complaints about her employment and she was entitled to protection from discrimination on the ground of her race. Ms Han had exercised her workplace rights to complain about matters relating to her employment from at least early December 2019, if not earlier. These are matters I have borne in mind in determining the appropriate penalty.

5.2.5    Whether senior management was involved

207    St Basil’s accepted that Ms Mota, Mr Rooke, Ms Darwich and Father Nicholas were each involved in the management of Ms Han’s employment, but submitted that Ms Mota was the primary decision-maker. As noted above, I accept that Ms Mota was the primary decision-maker. She was a senior manager and I have taken that into account in determining the appropriate penalty to be imposed.

5.2.6    The size of the contravening company

208    Based on the unchallenged evidence of Mr Jordan, St Basil’s submitted that it is a not-for-profit charity that provides aged care services.

209    As at the date of the hearing before me, St Basil’s employed 725 employees in its four residential aged care facilities. It is an entity that is largely reliant on federal funding and is said to be in financial peril. It has operated at a deficit for the last two financial years, including an operating deficit of $29.86 million for the year ending 30 June 2023. St Basil’s has sought to reduce overheads and close two of its facilities which could not economically be refurbished to meet regulatory requirements. Mr Jordan gave unchallenged evidence that, if a penalty were to be imposed, St Basil’s “may have to cut back [its] operations, which could result in employees being made redundant, and a constriction of St Basil’s services to consumers. It would further delay St Basil’s financial recovery plan”.

210    St Basil’s submissions have to be weighed against the fact it remains a large employer and it was found to have contravened two important provisions of the FW Act. The provisions of the FW Act apply equally to large and small employers, and to those that are financially secure and those that are not. Nevertheless, I have taken into account St Basil’s size and its presently parlous financial position in determining an appropriate penalty.

5.2.7    The existence and extent of any contrition and corrective action, and whether the company has a corporate culture conducive to compliance

211    St Basil’s submitted that since the events relating to Ms Han, it has taken active endeavours to improve its workplace culture and systems, including:

(a)    introducing various policies to better identify expectations and duties for employees;

(b)    introducing a new executive team, which has focussed on clinical governance and workforce improvements, including recruiting a Chief Executive Officer who has a regulatory and compliance background;

(c)    updating policies and procedures to provide greater clarity and support for staff, guidance on how to perform clinical and non-clinical duties and the introduction of external audit reviews (which encourage staff feedback and participation);

(d)    facilitating methods to promote the socialisation of policies and procedures to ensure staff understand policies and are provided with opportunities to ask questions and clarify understanding;

(e)    introducing competency reviews for clinical responsibilities, as well as compulsory education modules and training based on employees’ self-identified needs;

(f)    recruiting a “People Engagement” and “Culture Team” which is responsible for promoting work health and safety within the enterprise;

(g)    encouraging staff to increase the use of its “Employee Assistance Program”; and

(h)    introducing a “voice of the workplace” staff engagement survey which targets work health and safety culture and participation.

212    St Basil’s further observed that it has never otherwise been the subject of any prosecution or adverse judgment or fine in respect of its employment activities. It also pointed out that Mr Rooke, Ms Darwich, Ms Mota and Father Nicholas are no longer employed.

213    I accept that St Basil’s has taken commendable steps to ensure that there are better systems in place to guard against the risk of repeated contraventions. In that sense, it has now taken steps to better ensure compliance with the legislative regime. However, it should also be observed that the contraventions that arose in the present case could have been readily avoided by better management of Ms Han to begin with.

5.2.8    Whether the contraventions are truly distinct or arose out of the one course of conduct

214    It was not in dispute that the contraventions arose out of one singular act, being the termination of Ms Han’s employment on 23 January 2020. However, as noted above, Ms Han submitted that act was merely the culmination of a long period of adverse treatment to which she was subjected.

215    As I have stated (at [205]), I do not accept Ms Han’s submissions as to the termination being the final act of a long period of adverse treatment to which she was subjected. As with other submissions advanced on Ms Han’s behalf, this submission did not address the particular contraventions actually found by Rares J.

216    However, I do not consider that the application of the course of conduct principle to the two contraventions in question here is as simple as St Basil’s contended it to be. Whilst I accept that both contraventions arose from the singular act of terminating Ms Han’s employment, regard must also be had to the fact that this one singular act resulted in contraventions of two distinct protections provided for under the FW Act. There were two relevant rights in respect of which Ms Han was entitled to protection. The first was the protection of her right to make a workplace complaint. The second was the protection of her right to a workplace free of discrimination because of her race. Whilst there are common acts that are essential elements to both contraventions, it must be steadily borne in mind that the one act on St Basil’s part infringed two different rights.

217    As earlier noted, the course of conduct principle is no more than a discretionary tool of analysis to ensure that penalties are imposed that are appropriate, and to guard against the risk of disproportionate “punishment” in respect of the same or substantially similar conduct. I have taken this principle into account in ensuring a penalty is imposed for each contravention that guards against this risk, whilst also taking into account the different rights that were infringed.

5.2.9    The appropriate penalties

218    I have considered all of the above matters in my assessment as to the appropriate penalties to be imposed.

219    I do not accept that the present case is one in which no penalty should be imposed. The contraventions are objectively serious and I am not satisfied that the primary purpose of promoting the public interest in compliance with the provisions of the FW Act by deterrence will be secured unless a penalty is imposed: Pattinson at [9] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ).

220    Taking into account all of the above matters, it is my view that the contravention of s 351 of the FW Act was objectively serious and of sufficient gravity that a penalty of $45,000 should be imposed. The contravention of s 340 of the FW Act was also objectively serious, but taking into account all of the above factors including the course of conduct principle, I consider that a penalty of $15,000 should be imposed.

221    In arriving at these amounts, I have also applied the principle of totality as a final check to ensure that the penalties imposed for the two contraventions are, in an overall sense, appropriate and just in the circumstances.

222    I am also satisfied that I should exercise my discretion to make an order that these penalties be payable to Ms Han under s 546(3)(c) of the FW Act. The claim for such an order was not objected to by St Basil’s. The circumstances in which such orders are appropriate to be made was discussed by Tracey, Barker and Katzmann JJ in Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4; 239 FCR 336. Their Honours relevantly said at 354 [101] that “the power conveyed by s 546(3) is ordinarily to be exercised by awarding any penalty to the successful applicant”, observing at 354 [107] that this provision “enables, amongst others, a person affected by a contravention to initiate an enforcement proceeding and to receive the penalty, where one is imposed”. Numerous considerations underpin this provision. One such reason is that it recognises that if an applicant had not pursued the action, at the applicant’s cost, it is unlikely that it would have been pursued: at 356 [116]. Another such reason is that the prospect of receiving the penalty proceeds acts as incentive which has the effect of ensuring the enforcement of the legislative scheme: at 356 [121], citing with approval the observations of Wilcox J in Finance Sector Union of Australia v Australia & New Zealand Banking Group Ltd [2002] FCA 1035. In this sense, making an order under s 546(3)(c) can be seen to promote the public interest in compliance with the FW Act. Having regard to the authorities, and in light of my conclusions above, I consider that it is appropriate in the circumstances that St Basil’s should pay the penalty to Ms Han. I will make orders accordingly.

6.    DISPOSITION

223    I will make orders in accordance with these reasons.

224    Ms Han made an application for interest and costs. The evidence and submissions made in support of these claims were sparse to non-existent. Unless these claims are pressed, the proceedings should be otherwise dismissed. If they are to be pressed, I have proposed a short timetable to enable the parties to be heard about these matters on the papers. I will list the matter for case management immediately upon the delivery of these reasons to raise this timetable with the parties and to convey the Court’s expectations that, if the matters are pressed, they are to be done with expedition.

Associate:

Dated:    6 May 2025