2024 WAIRC 00982
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2024 WAIRC 00982



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
WEDNESDAY, 25 SEPTEMBER 2024 & THURSDAY, 26 SEPTEMBER 2024



DELIVERED
:
THURSDAY, 21 NOVEMBER 2024



FILE NO.
:
M 142 OF 2023



BETWEEN
:
MR BARRY HUGHES


CLAIMANT





AND





EAST METROPOLITAN HEALTH SERVICE


RESPONDENT

CatchWords : INDUSTRIAL LAW – Industrial Relations Act 1979 – Allegation of damaging action taken by employer – Meaning of damaging action – Meaning of threatening to take damaging action – Elements of s 97A to be proven by each party – Meaning of loss or injury – Whether the employer took damaging action against the employee – The reasons taken by the employer – Whether the employee suffered loss or injury
Legislation : Industrial Relations Act 1979 (WA)
Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA)
Fair Work Act 2009 (Cth)
Industrial Relations Amendment Act 2021 (WA)
Instrument : WA Health – Health Services Union – PACTS – Industrial Agreement 2011
WA Health – HSUWA – PACTS Industrial Agreement 2014
Case(s) referred
to in reasons: : Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2024] WAIRC 139; (2024) 104 WAIG 322
Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17
Fair Work Ombudsman v Australian Workers’ Union [2017] FCA 528; (2017) 271 IR 139
Australian Federation of Air Pilots v Regional Express Holdings Limited [2021] FCAFC 226; (2021) 290 FCR 239
Australian Building and Construction Commissioner v Molina [2020] FCAFC 97; (2020) 277 FCR 223
Avard v Australian Capital Territory [2024] FCA 690
Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441; (2006) 160 IR 1
Short v Ambulance Victoria [2015] FCAFC 55; (2015) 249 IR 217
Monash Health v Singh [2023] FCAFC 166; (2023) 327 IR 196
Serpanos v Commonwealth [2022] FCA 1226
Bogunovich v Bayside Western Australia Pty Ltd (1999) 79 WAIG 8
Garbett v Midland Brick Company Pty Ltd [2003] WASCA 36; (2003) 129 IR 270
Capewell v Cadbury Schweppes Australia Ltd (1997) 78 WAIG 299
AWI Administration Services Pty Ltd v Birnie [2001] WAIRC 4015; (2001) 81 WAIG 2849
Lynam v Lataga Pty Ltd [2001] WAIRC 2420; (2001) 81 WAIG 986
Gilmore v Cecil Bros & Anor (1996) 76 WAIG 4434
Miller v Minister of Pensions [1947] 2 All ER 372
Sammut v AVM Holdings Pty Ltd (No 2) [2012] WASC 27
Mohammadi v Bethune [2018] WASCA 98
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Result : Claim dismissed
Representation:
Claimant : Ms C. Lewin (of counsel)
Respondent : Mr J. Carroll (of counsel)



REASONS FOR DECISION
Introduction
1 Mr Barry Hughes (the claimant) commenced employment in the Department of Health in 2013 when he was employed on a fixed term contract of employment by the South Metropolitan Health Service as a Senior Social Worker. In January 2014, he was permanently appointed as a Senior Social Worker at classification P2 Step 3 under the WA Health – Health Services Union – PACTS – Industrial Agreement 2011.
2 In August 2016, the claimant commenced as Acting Team Leader of Mental Health at East Metropolitan Health Service (the respondent or EMHS) in classification G8 Step 1 under the WA Health – HSUWA – PACTS Industrial Agreement 2014.
3 In April 2018, the claimant was the subject of an anonymous complaint, following which the Executive Director of EMHS suggested, and the claimant agreed, to a transfer to Midland Community Mental Health. Thereafter, in June 2018, the claimant was permanently appointed to the position of Team Leader at Midland Community Mental Health Service at classification G8 Step 2 (Team Leader Midland).
4 The Team Leader Midland position remained the claimant’s substantive permanent position during the events giving rise to this claim filed in the Industrial Magistrates Court (IMC or Court) by the claimant on 1 December 2023 arising from 10 complaints or employment-related inquiries made by him from 2018 to September 2023.
5 On 25 August 2023, Mr Ben Noteboom (Mr Noteboom), Acting Executive Director – Royal Perth Bentley Group, wrote a letter to the claimant informing him, amongst other things, that he was ‘authorised to transfer [the claimant] to [a] new role’, being a substantive role within the Department of Social Work from Health Services Union of Western Australia (Union of Workers) (HSUWA) Level G8 to a HSUWA P3 role (the Noteboom Letter). This new role was said to be ‘at the equivalent level of classification and requires a similar qualification and function as [the claimant’s] current Team Leader role’ (the P3 Role). However, it was also said ‘[w]hilst the P3 Social Worker role will be like the Social Work Manager role it will not be the same, in that [the claimant] will not have line management responsibility for staff.’
6 In this last sentence the claimant says the respondent threatened to strip him of managerial responsibility, altering his position to his disadvantage or injuring him in relation to his employment, and the respondent did so because of the multiple workplace complaints or inquiries he made.
The Claim
7 The claim filed on 1 December 2023 has been amended twice in which the claimant alleges the respondent has taken damaging action against him contrary to s 97A(1) of the Industrial Relations Act 1979 (WA) (the IR Act) being a civil penalty provision for the purposes of s 83E of the IR Act.
8 The basis for the alleged damaging action, as set out in the third and final iteration of the statement of claim, is that in proposing to remove line management responsibility in the P3 Role, as described in the Noteboom Letter, the respondent threatened to alter the claimant’s position to his disadvantage contrary to s 97(a)(v) when read with s 97(a)(ii) of the IR Act. And the respondent did so for the alleged reason, or reasons that include, that the claimant was able to, and did, make multiple employmentrelated complaints or inquiries (the Alleged Damaging Action).
9 The claimant seeks the following relief under s 97B(2)(c) and s 97B(4) of the IR Act:
(a) general damages for the breach of s 97A; and
(b) the payment of a civil pecuniary penalty.
10 It is important to note that at no time did the claimant seek an order of the Court for a third party to refrain from taking any damaging action against him (if the Court determined the respondent contravened s 97A(1)) or an interim order under s 83E(5) when read with s 83E(2) of the IR Act (leaving aside any argument as to the application of those sections).
11 It is also important to note that, as I understand it, the claimant was transferred to the P3 Role later in 2024. However, in filing the originating claim in December 2023 it was, arguably, not open to the claimant to argue that the actual transfer constituted the Alleged Damaging Action where this possible cause of action accrued after the commencement of proceedings and went beyond the contravention initially alleged. Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2024] WAIRC 139; (2024) 104 WAIG 322 at [18] and [19].
However, even if the claimant could have done so, there was no application by the claimant to further amend the statement of claim to include the actual transfer.
Issues for Determination
12 The principal issues for determination are:
· Did the Alleged Damaging Action taken by respondent constitute ‘damaging action’ as that term is defined under s 97(a) of the IR Act (the first issue)?
· If the Alleged Damaging Action was damaging action, did the respondent do so for the alleged reason, or reasons that include, that the claimant made employment-related inquiries or complaints? That is, the causal link between the Alleged Damaging Action and the series of complaints made by the claimant (the second issue).
13 Relevant to determination of the first issue, the following requires determination:
· Whether the Noteboom Letter or its contents are properly described as a threat?
· Whether the claimant’s position would be altered by the P3 Role or removing the line management responsibility component of the P3 Role?
· What, if any, disadvantage would result from the P3 Role or removing the line management responsibility component of the P3 Role (if it was, in fact, altered)?
14 Relevant to determination of the second issue, the following requires determination:
· The reasons (or reasons that include) alleged by the claimant giving rise to the taking of the Alleged Damaging Action.
· Who is the decision maker or decision makers taking the Alleged Damaging Action?
· What the reasons (or reasons that include) demonstrate?
· Has the respondent discharged its onus under s 97A(2) of the IR Act?
15 Both principal issues require discussion at a general level where this is the first substantive reasons for decision in respect of the application of s 97A of the IR Act.
16 Schedule II of the reasons for decision outline the practice and procedure in the IMC.
17 Resolution of the principal issues also, in part, requires discussion and interpretation of s 97 and s 97A of the IR Act. Schedule II of the reasons for decision outline the principles of statutory construction.
Legislative Framework
18 Section 97A of the IR Act provides:
97A. Damaging action because of inquiry or complaint
(1) An employer must not take damaging action against an employee for the reason, or for reasons that include, that the employee is able to make an employment-related inquiry or complaint to the employer or another person.
(2) In any proceedings for a contravention of subsection (1), if it is proved that an employer took the damaging action against the employee, it is for the employer to prove that the employer did not do so because the employee made the inquiry or complaint or proposed to make the inquiry or complaint.
(3) A contravention of subsection (1) is not an offence but that subsection is a civil penalty provision for the purposes of section 83E.
19 Section 97 of the IR Act defines certain terms, and, relevant to the Alleged Damaging Action, damaging action against an employee in (a) means:
(i) dismissing the employee; or
(ii) altering the employee’s position to the employee’s disadvantage; or
(iii) refusing to promote or transfer the employee; or
(iv) otherwise injuring the employee in relation to the employee’s employment with the employer or another person; or
(v) threatening to do anything referred to in subparagraphs (i) to (iv).
20 Relevant to the controversy between the parties, the claimant bears the onus of proving on the balance of probabilities that the Alleged Damaging Action taken by the respondent was damaging action within the meaning of s 97 of the IR Act.
21 This means, consequentially, the claimant bears the onus of proving the preliminary issues identified in paragraph [13] above.
22 If the claimant proves the Alleged Damaging Action was damaging action taken by the respondent against him, it is for the respondent to prove on the balance of probabilities that it did not do so for the reason, or for reasons that include, the claimant made employment-related inquiries or complaints.
23 It is not in dispute that the complaints made by the claimant during his employment were employmentrelated inquiries or complaints the claimant could make.
Evidence
24 The claimant’s evidence included a witness statement signed on 17 July 2024 with annexures BH1 to BH18 (Hughes Statement) Exhibit 1, Witness Statement of Barry Hughes signed on 17 July 2024.
, a reply statement signed on 28 August 2024 (as amended) (Hughes Reply Statement) Exhibit 2, Witness Statement of Barry Hughes signed on 28 August 2024.
and his oral evidence.
25 The respondent’s evidence included:
· Witness statement of Ms Jessica Lyons signed on 8 August 2024 with annexures JL1 to JL6 (Lyons Statement) and her oral evidence Exhibit 23.
;
· Witness statement of Mr Noteboom signed on 14 August 2024 with annexure BN1 (Noteboom Statement) Exhibit 24.
and his oral evidence;
· Witness statement of Ms Carla Francis signed on 14 August 2024 with annexure CF1 (Francis Statement) Exhibit 25.
and her oral evidence;
· Witness statement of Dr Lesley Bennett signed on 12 August 2024 with annexures LB1 to LB8 (Bennett Statement) Exhibit 26.
and her oral evidence; and
· various documents relied upon and tendered by the respondent (the Respondent’s Bundle referred to in the hearing as the ‘R’ Bundle). Exhibits 3 to 22.

Facts not in Dispute
26 There are facts germane to both parties which were either uncontroverted or not in dispute, and which the IMC can accept as reliably consistent with documents annexed to the various witness statements or tendered into evidence by the parties.
27 The claimant commenced employment with the Department of Health on 17 June 2013 as a Senior Social Worker on a fixed term contract at South Metropolitan Health Services with classification HSU Level 2 Increment 3. The expiry date of the contract was 7 March 2017. Exhibit 3 – Contract of Employment dated 19 June 2013.

28 On or around 20 January 2014, the claimant was appointed to a permanent position as a Senior Social Worker located at Armadale Health Service with classification Level P2 Increment 3. Exhibit 4 – Contract of Employment for permanent Senior Social Worker position.

29 On 13 September 2017, the claimant was offered a Team Leader position at EMHS (within the Royal Perth Bentley Group (RPBG)). Exhibit 5 – Letter of Offer as a Team Leader.

30 Leading up to the offer of the Team Leader position at EMHS, from around 29 August 2016 the claimant was Acting Team Leader at City East within the Mental Health Service (Royal Perth) with classification G8 Step 1.
31 While at City East, the claimant submitted a Combined Hazard or Incident Report (CHOIR) on 23 February 2018 alleging, amongst other things, a toxic environment at City East, cultural bullying by staff, personal complaints of bullying against him, and advising of physical and mental health issues suffered by him as a result. Exhibit 8 – CHOIR dated 23 February 2018

32 In April 2018, an anonymous complaint about the claimant was made and addressed to the Office of the Chief Psychiatrist, copied to the Premier, Minister for Health and Dr Aresh Anwar (Dr Anwar), then Executive Director, RPBG (the Anonymous Complaint). Exhibit 1 at [10] and BH2 and referred to in the respondent’s amended response.

33 At a meeting with Dr Anwar and Mr Steve Seeds, Director Human Resources, in or around April 2018, about the Anonymous Complaint, Dr Anwar suggested a permanent placement as Team Leader Midland, where the claimant had been acting as a temporary placement since 19 March 2018. The claimant agreed to the transfer. In part, Exhibit 1 at [17] and [18].

34 On 1 May 2018, the claimant submitted a CHOIR alleging that he had been subjected to workplace bullying at City East since 2016. Exhibit 9 – CHOIR dated 1 May 2018.

35 On or around 11 June 2018, the claimant commenced employment as Team Leader Midland with classification G8 Increment 2. Exhibit 6 – Contract of Employment Team Leader position.

36 On 12 April 2019, the claimant submitted a CHOIR alleging staff made homophobic comments about and to him and he was subject to workplace harassment and bullying (the First Complaint). Exhibit 11 – CHOIR dated 12 April 2019.

37 In June or July 2019, the claimant met with Ms Michelle Dillon (Ms Dillon), then Interim Director Corporate and Nursing Services, to discuss, in part, the First Complaint. Following this meeting, the claimant was temporarily transferred at the same classification level to Bentley Community Mental Health Service.
38 On or around 6 August 2019, the claimant was given a letter authored by Mr Wade Emmeluth (Mr Emmeluth), Service CoDirector, RPBG, concerning an alleged suspected breach of discipline by the claimant as Team Leader Midland at Midland Mental Health Services. Exhibit 1 at BH4.
This complaint was raised during the meeting with Ms Dillon, but no detail was provided to the claimant until he received the letter from Mr Emmeluth.
39 By letter dated 9 August 2019, the claimant responded to the alleged breach of discipline while at Midland Mental Health Services denying the allegations and counter-claimed the allegations were personally motivated (the Second Complaint). Exhibit 1 at BH5.

40 In September 2019, the claimant filed an application with the Equal Opportunity Commission, which the respondent says resolved issues identified by the claimant as it related to his sexuality where the person(s) involved was disciplined. The claimant was notified of the outcome of the disciplinary process.
41 On or around 16 December 2019, the claimant was temporarily transferred to Wungen Kartup Specialist Mental Health Services (Wungen Kartup) as Team Leader at the same substantive classification level of HSU G8 to provide long service leave relief cover. In part, Exhibit 1 at [56]

42 On 21 April 2020, the claimant sent an email to Mr Steve Gregory (Mr Gregory), Area Director Workforce, and Mr Alan Pennington, Manager – Integrity & Ethics Unit, and copied to others outlining his concerns about issues at Wungen Kartup (the Third Complaint). Exhibit 1 at BH6.

43 Mr Gregory acknowledged receipt of the Third Complaint on the same day. Exhibit 1 at BH6.
Thereafter, there was a series of communications between the claimant and Mr Gregory. Exhibit 1 at BH6.

44 In one of the emails between the claimant and Mr Gregory dated 3 July 2020, the claimant referred to being ‘mobbed’ by two members of staff and subject to racially motivated comments, and he advised Mr Gregory he had submitted a CHOIR form. Exhibit 1 at BH6 and Exhibit 12 - CHOIR dated 14 April 2020.

45 The CHOIR form records that this issue was investigated, and the staff member dealt with. Exhibit 12 – Part B dated 7 July 2020.

46 In February 2021, the claimant attended a meeting with Mr Emmeluth. It was suggested the claimant attend the meeting with a support person, but he attended alone. Ashley Chapple, Senior IR Officer, also attended the meeting. During the meeting Mr Emmeluth informed the claimant he had received an allegation of misconduct by the claimant while at Wungen Kartup. Exhibit 1 at [65] to [67].

47 On or around 15 February 2021 to 5 April 2021, the claimant was on special leave with pay.
48 Upon his return to the workplace, the claimant commenced a temporary position at Bentley Health Services before commencing a temporary position at Social Work, Language Services and Aboriginal Health Liaison (Language Services) around 15 June 2021. Exhibit 1 at [92].

49 On or around 15 March 2021, Dr Lesley Bennett (Dr Bennett), Chief Executive, EMHS, informed the claimant by letter of the allegations referred to by Mr Emmeluth during the meeting in February 2021 (Wungen Kartup Allegations). Exhibit 26 at LB1 and obliquely referred to by the claimant in Exhibit 1 at [78] and [79].
At the time of writing the letter, Dr Bennett was the Executive Director, RPBG and held delegated authority to be a decision maker in respect of disciplinary processes conducted under the Health Services Act 2016 (WA) for EMHS employees. Exhibit 26 at [6] and [11].

50 On or around 26 March 2021, the claimant made a written complaint under the Public Interest Disclosure Act 2003 (WA) detailing concerns and issues at Wungen Kartup (the Fourth Complaint). Exhibit 1 at BH7.

51 On or around 13 April 2021, Dr Bennett informed the claimant of her proposed course of action regarding the Wungen Kartup Allegations. Exhibit 26 at [14] and Exhibit 1 at BH8.

52 On an unspecified date, but after 13 April 2021, the claimant authored a further letter to Dr Bennett regarding the Wungen Kartup Allegations providing additional information and requesting a review of her ‘decision’(the Fifth Complaint). Exhibit 1 at BH9.

53 On or around 30 April 2021, the claimant received a letter from Dr Bennett confirming the findings and action from the Wungen Kartup Allegations. Exhibit 26 at LB2.
In that letter Dr Bennett determined that it was appropriate to deal with certain allegations through improvement action by meeting with her for counselling and undertaking a leadership development course.
54 On 14 May 2021, the claimant attended the counselling meeting with Dr Bennett and Laura Buck, Senior Human Resources Business Partner. Dr Bennett provided the claimant with a summary of the meeting on or around 24 May 2021. During this meeting, Dr Bennett also discussed the claimant’s interests to facilitate finding him another position in EMHS. Exhibit 26 at [16] and [17] and LB3.

55 As part of the improvement action, Dr Bennett authorised funding for the claimant to attend a three-month career directions program to provide him with career support, leadership coaching and training to assist finding a new position within EMHS. Exhibit 26 at [18] and Exhibit 18.

56 On 22 June 2021, the claimant emailed Grant Waterer (Professor Waterer), Area Director of Clinical Services, EMHS, about the Wungen Kartup Allegations and the findings and action taken by Dr Bennett (the Sixth Complaint). Exhibit 1 at BH10.

57 Professor Waterer replied the same day informing the claimant that he had requested Amanda Stewart (Ms Stewart), Director of Human Resources, to investigate the Sixth Complaint and the Wungen Kartup Allegations further. The claimant and Ms Stewart communicated via email thereafter. Exhibit 1 at BH10.

58 On 30 July 2021, Professor Waterer informed the claimant that following an independent investigation carried out in relation to the Sixth Complaint, there was insufficient evidence of inappropriate behaviour against him in the workplace to pursue disciplinary action against identified staff and the matter was now concluded. Exhibit 1 at BH11.

59 The claimant remained at Language Services from approximately 15 June 2021.
60 On 1 December 2022, the claimant emailed Dr Bennett requesting a meeting, which she arranged on the same day and followed up the meeting with a summary of the meeting. Dr Bennett informed the claimant that she ‘had not appreciated [the claimant] felt so undervalued in [his] current role. In the absence of any vacant positions, [Dr Bennett planned to] pull together a list of area/initiatives where [the respondent] would have work that might be more fulfilling for [the claimant]’. Exhibit 26 at LB4.

61 Prior to the meeting with the claimant, Dr Bennett met with Mr Noteboom to discuss whether there were any P3 positions available. A P3 classification was the equivalent in work value and remuneration to the G8 classification but was referrable to ‘Health Professionals’. The claimant could be considered for a P3 role as he had a Social Work degree. Dr Bennett also consulted with Human Resources and was informed there were no available G8 positions in EMHS. Exhibit 26 at [23].

62 On 9 December 2022, Dr Bennett emailed the claimant informing him there were no current G8 vacancies but provided him with a list of potential opportunities with the contact names for him to consider. The claimant responded on 21 December 2022. Exhibit 26 at LB5.

63 A further meeting between Dr Bennett and the claimant was arranged for the week beginning 23 January 2023 where they discussed potential positions, and these discussions continued via email. Exhibit 26 at [27] to [29] and LB6.
In one of the emails, the claimant expressed an interest in a position within Voluntary Assisted Dying (VAD).
64 On 6 April 2023, the claimant emailed Dr Bennett expressing his frustration over the delay in obtaining a permanent position, the uncertainty and the lack of value and respect in EMHS (6 April Email). Exhibit 26 at [30] and LB7.
I will refer to parts of this email further.
65 Following the receipt of the 6 April Email, Dr Bennett decided it was best to create a new P3 position which did not sit within the Mental Health Division. Exhibit 26 at [31].
She sets out her reasons for this decision in the Bennett Statement at [31].
66 Dr Bennett emailed the claimant on 19 April 2023 and invited him to attend a meeting with her on 27 April 2023. Exhibit 26 at [32] and LB7.
Discussions at the meeting concerned the creation of a P3 role for him within the Social Work department but the details and specific duties were not discussed, as this was expected to be decided by the Director of Allied Health and Head of Social Work. Exhibit 26 at [34] and LB8.

67 Dr Bennett outlined her understanding of the P3 Role and her concerns in the Bennett Statement at [35].
68 Ms Carla Francis (Ms Francis), Head of Department of Social Work and Language Services, met with the claimant to discuss his interests and the types of positions and duties he would be interested in undertaking. Ms Francis did not recall the date of the meeting, but it was likely after April 2023 and she made notes of the meeting. Exhibit 25 at [29] and CF1.

69 Ms Francis had discussions with Mr Noteboom [leading up to the P3 Role] about some of the complaints raised by staff about the claimant’s behaviour in the workplace. Exhibit 25 at [24] to [25] and [27].

70 On 14 August 2023, the claimant instructed lawyers to write to EMHS requesting copies of documents of the Wungen Kartup Allegations, investigation reports and findings related to complaints made against him and investigation reports and findings relating to the Fourth Complaint (the Seventh Complaint). Exhibit 1 at [105].

71 As Acting Executive Director RPBG, Mr Noteboom supported the decision by Dr Bennett to create the P3 Role for the reasons he explains in the Noteboom Statement at [18].
72 On 24 August 2023, Mr Noteboom met with the claimant to discuss the creation of the P3 Role and informed the claimant the role would not include line management responsibilities. Mr Noteboom explains his reasons for the decision in the Noteboom Statement at [20] and [21].
73 Mr Noteboom informed the claimant that the detail of the P3 Role would be discussed with him in a future meeting with the Acting Head of Social Work and Language Services Department and Ms Francis, as Acting Director of Allied Health. Exhibit 24 at [22].

74 On 25 August 2023, Mr Noteboom emailed the claimant a copy of the Noteboom Letter. Exhibit 24 at [23] and Exhibit 1 at BH 14.
As Acting Executive Director, RPBG, Mr Noteboom had delegated power to transfer an employee to another position. Exhibit 24 at [14].

75 On 25 August 2023, the claimant emailed Stacey Lynn (Ms Lynn), Acting Human Resources Director, requesting a copy of Ms Lynn’s ‘independent report’ of a review undertaken by her or others (the Eighth Complaint). Ms Lynn responded to this email. Exhibit 1 at BH15.

76 On 28 August 2023, the claimant emailed Mr Noteboom, responding to the Noteboom Letter and requesting more time to consider ‘the proposal’ (the Nineth Complaint). Exhibit 1 at BH16.

77 On 31 August 2023, Mr Noteboom emailed the claimant, responding to the claimant’s queries and granting extra time for the claimant to respond to ‘the plan’ to transfer the claimant to the P3 Role. Exhibit 1 at BH16.

78 On 5 September 2023, Michael Lee (Mr Lee), Industrial Officer at HSUWA, on behalf of the claimant, emailed Mr Noteboom requesting further information about the reasons that led to the decision for the P3 Role not to include line management responsibilities (the Tenth Complaint). Exhibit 1 at BH16.

79 On 12 September 2023, Mr Noteboom emailed Mr Lee providing further explanation for the decision to create the P3 Role and transfer the claimant to that role. Exhibit 1 at BH16.

Evidence Additional to the Undisputed Facts
80 There are facts in dispute. However, the resolution of disputed facts is mainly relevant to determination of the issues identified. Therefore, where necessary, I will also resolve disputed facts as part of those determinations.
81 The following is a summary of additional evidence given by the witnesses. Not all the witness evidence was, in my view, relevant to determining the matters in issue and relevant to the Alleged Damaging Action.
82 This applies more to the claimant’s evidence. My impression of the claimant’s evidence is that, in reality, he wanted to relitigate the complaints he made, and the complaints made against him, particularly where he felt aggrieved because of an outcome against him or because there was no outcome at all or there was an outcome he did not agree with. Comments made by Bromberg J in Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 at [48] in respect of analogous general protection proceedings under the Fair Work Act 2009 (Cth) (FWA) are apposite to the claimant’s claim:
A general protections proceeding is not a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome. As Gray, Cowdroy and Reeves JJ said in Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31]:
A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts.
83 The claimant may have strong views about what he says occurred during his employment at EMHS prior to the Alleged Damaging Action. However, the Court’s role in this case is not to determine whether there was substance to the complaints made by him, or made about him, or to determine whether a different outcome ought to have flowed from those complaints. To that end, much of the content of the Hughes Statement will not be summarised in this decision. This is not intended to cause offence to the claimant, simply much of the content does not go to the making of any finding of fact relevant to the matters in issue or to the determinations the Court is required to make, leaving aside it is not the case the respondent is required to answer to.
84 This extends to the claimant stating he is an ‘openly gay man’ and referring in the Hughes Statement to homophobic behaviour towards him by other employees and the complaints he made about this behaviour. Of course, this type of behaviour is deplorable. However, the claimant’s claim was not litigated on the basis that the Alleged Damaging Action was taken by the respondent for the ‘real’ reason or reasons that include he is homosexual or even that he made complaints about homophobia in EMHS (that is, for example the alleged reason was a ‘sham’ or disingenuous). As will be discussed further, the alleged reason is that he made a series of workplace complaints, where the subject matter of one or more of those complaints happened to include inappropriate and homophobic workplace behaviours, amongst other behaviours.
The claimant
85 As Team Leader Midland, the claimant states that he managed four teams and as a line manager his duties included: Exhibit 1 at [29].

· being accountable for the standard of care and for the coordination of nursing and multidisciplinary services provided to clients;
· managing human, financial and material resources within the treatment teams in accordance with policies, philosophies, objectives, and the goals of the organisation;
· ensuring that there was collaboration and engagement with key stakeholders to ensure patient-centred care and evidence-based service delivery;
· providing advice and consultancy to the Program Manager and Service Co-Directors; and
· coordinating and directing daily operations of the teams in consultation with the relevant Program Manager.
86 While working at Bentley Community Mental Health, the claimant states his duties were ‘broadly’ the same as those described above. Exhibit 1 at [45].

87 The claimant states he had line management duties at Wungen Kartup similar to Team Leader Midland. Exhibit 1 at [61].

88 While at Language Services from July 2021 to April 2023, the claimant says he was working as a Team Leader and his daily tasks included: Exhibit 1 at [94] and [95]

· line managing the Acting Co-ordinator of Language Services. The Acting Co-ordinator managed the casual interpreters;
· extracting data about video calls once a day to provide a telehealth report. This process took approximately five to ten minutes;
· arrange staff education, provided by the Co-ordinator and an interpreter. These were rare, one-off occasions;
· create the annual Language Services Report, which took one to two hours. He did this once a year; and
· prepare briefing notes, provide consultancy services to the WA Police, act on a recruitment panel and be in charge of safety evacuation drills. These are duties he would be required to perform perhaps once every three months.
89 The claimant states that while he was not busy at Language Services, he still had line management duties, including providing supervision to the Co-ordinator. He again states that his line management duties were broadly in line with the duties he had done in previous roles, but the team was smaller, and he had less to do. Exhibit 1 at [96] and [97].

90 While at Language Services he regularly asked Ms Francis when he would be placed in a permanent position and was feeling anxious. He met with various people to discuss suitable positions although one of the positions was not suitable where Dr Bennett had previously told him during a meeting that a position in Mental Health would be unsafe for him. Exhibit 1 at [98].

91 He was told that the respondent would create or find him a permanent position which was equivalent to his position at Wungen Kartup, a team manager role and suitable for his qualifications and experience. Exhibit 1 at [99].

92 The claimant stated he was ‘shocked’ when he read the Noteboom Letter, because it said he would not have line management responsibility for staff. He further stated that in all the discussions he had with Human Resources about any new role, he had been vocal about how much he enjoyed the management side of his roles. He also understood that to be an equivalent role, he would have to continue to have management responsibilities. Exhibit 1 at [108].

93 In the Hughes Reply Statement, the claimant contests aspect of the Francis Statement, Noteboom Statement and Bennett Statement. The claimant disputes aspects of each of these statements, particularly as it relates to the content of conversations, the character of work undertaken by him at Language Services, or he clarifies other content.
94 In cross-examination, the claimant confirmed his understanding that a G8 classification is an equivalent classification to a P3. He agreed that his substantive position was still in Midland. He moved to Bentley Mental Health Service in June 2019 to do project work and this was not a substantive position. Similarly, the placements at Wungen Kartup and Language Services were temporary positions.
95 The claimant agreed that his views (as reflected on CHOIR forms) were that he was ostracised while as Team Leader Midland and he did not want to return to that position. In reference to Exhibit 11.
He agreed that he requested to ‘get out until it was sorted’ in reference to Wungen Kartup. Exhibit 13 and Exhibit 1 at BH 6 and BH 7 in reference to the toxic culture and being verbally mobbed while at Wungen Kartup.
The claimant also agreed that he had said that his mental health suffered while at Wungen Kartup.
96 The claimant agreed that he did not want to work within the Mental Health Division (with City East, Midland and Wungen Kartup all being located within this division) and he refused a position within the Safety and Quality Team because it was co-located with the Wungen Kartup team. Exhibit 2 at [31a] and oral evidence.

97 He agreed a return to the Mental Health Division was unsafe and his emails to Leanne McNamee, Senior Human Resources Business Partner, RPBG in May 2022 refer to this. Exhibit 14 – Emails to and from the claimant to Leanne McNamee.

98 He agreed that the line management responsibility in Language Services involved one person. He agreed that he was bored at Language Services, felt devalued, had no goals, no work satisfaction and felt constantly displaced at work. Exhibit 15 – Email to Leanne McNamee dated 22 June 2022 and Exhibit 16 – Email to Grant Waterer dated 9 September 2022.

99 He agreed, consistent with his email to Professor Waterer dated 9 September 2022, that he was interested in the Coordinator – End of Life Choices position and asked to be ‘slotted’ into this position. Exhibit 16.

100 He agreed the Coordinator – End of Life Choices position was a G8 classification and did not have any direct reporting to this position (meaning it had no line management role). Exhibit 23 at JL6 – Job Description for Coordinator - End of Life Choices.
He said it was an ‘interesting‘ position and he was aware that other G8 positions have no direct reports to the positions.
101 He acknowledged there were other positions he was not interested in and did not apply for [for one reason or other].
Mr Noteboom
102 Mr Noteboom was Area Director, Allied Health from 31 January 2022 to about 29 May 2023. In that role, Mr Noteboom agreed to meet with the claimant where the claimant explained the circumstances leading to his placement at Language Services. Mr Noteboom’s understanding was that given the historical issues the claimant experienced in the workplace; it was not appropriate for him to return to the Mental Health Division at RPBG. He understood the placement at Language Services was temporary, and Human Resources and Dr Bennett, as Executive Director, RPBG, were looking for permanent positions. Exhibit 24 at [11].

103 In cross-examination, Mr Noteboom said he supported the creation of the P3 Role, albeit the decision to create any substantive position sits with the Chief Executive Officer of the day. Further, he agreed with the decision for the P3 Role not to have line management responsibilities. His role, at the time Dr Bennett decided to create the P3 Role, was to detail the P3 duties in conjunction with others in the department.
104 He maintained there was no additional or new information to review Dr Bennett’s decision when he took over the position of Acting Executive Director, RPBG. He agreed he could have reviewed the decision not to include line management responsibilities in the P3 Role.
105 In respect of the Noteboom Letter, he agreed the reference to ‘[g]iven your employment history with EMHS...’, meant the history of the claimant making complaints and having complaints made against him.
106 Mr Noteboom said the first time he saw the Second Complaint was in Court [that is, while giving his evidence].
107 In reference to the ‘source’ of the information included in subsequent emails to the claimant and Mr Lee, Exhibit 1 at BH16.
Mr Noteboom said that he had not seen the CHOIR reports before sending these emails and the information came from Human Resources and was relied upon by him. He used this information to inform himself.
108 He maintained that the decision not to include line management responsibilities in the P3 Role was to ensure a safe workplace for all employees.
109 In respect of line management responsibilities more generally, Mr Noteboom said this could include approving leave for staff, day to day management, directing others, direct managerial responsibilities and was a broad arrangement.
110 He disagreed that it was not necessarily senioritybased and said it was more a marker of capability but agreed it was a marker of responsibility.
111 He agreed he had spoken to Ms Francis, and she expressed concerns about the claimant’s ability to manage or line manage other employees.
112 He maintained he said he spoke with Ms Francis about whether the claimant had line management responsibilities at Language Services and there was no formal job description for the position as it was a temporary position, and he understood the claimant had no authority to direct staff or to line manage resources.
113 He described the claimant’s circumstances as unusual because he held a substantive position in Midland at a G8 classification. He was aware this position involved line management responsibilities.
114 Mr Noteboom considered the complaints made by the claimant which he understood in nature, not in detail, and also considered complaints made against the claimant by other staff.
115 However, he said he and EMHS had an obligation to provide a safe working environment against a background of complaints relevant to a safe working environment.
Ms Francis
116 Ms Francis’s substantive position is Head of Department of Social Work and Language Services. From 29 May 2023 to 2 August 2024, she was Acting Area Director of Allied Health, EMHS and Director of Allied Health, RPBG.
117 Language Services is a small service based in one room within Royal Perth Hospital (RPH) and is responsible for the provision and coordination of interpreter bookings at RPH. There are four full time equivalent positions at Language Services. Exhibit 25 at [6] to [8].

118 Ms Francis agreed for the claimant to be temporarily placed at Language Services for about three to six months as she understood that EMHS were seeking to find him a suitable position outside of mental health whilst workplace grievances were being resolved. She thought there was work the claimant could do in Language Services and that he might be able to complete other duties such as social work team leader leave relief. Exhibit 25 at [13].

119 Because the claimant’s position was temporary, no formal job description was developed. When a permanent position was not located for the claimant, his temporary position at Language Services continued. While she tried to keep the claimant engaged with meaningful work, she did not sit down and document the role or identify deliverables. Exhibit 25 at [15] and [17].

120 The claimant informed her that he did not have enough work to do, and she attempted to give him additional duties, but she found it challenging due to the claimant’s attitude and capability to do the work. Initially she thought the claimant may potentially manage staff when, for example, he backfilled social worker team leader leave and she hoped that he would take on more managerial responsibilities within Language Services. This would allow her to have less managerial responsibilities for Language Services. Exhibit 25 at [20] to [22].

121 When the claimant commenced at Language Services, he was assigned supervisory responsibility for the Acting Coordinator of Language Services, Emmanuel Diamanti (Mr Diamanti). However, leave approvals for Mr Diamanti continued to be approved by the Deputy Head of Department, and the role she envisaged for the claimant did not evolve in the way she had hoped. Exhibit 25 at [22].

122 The claimant backfilled certain team leader positions for about a month in late 2021/early 2022 and late 2022.
123 While in the Social Work Department, she and the Acting Deputy Head of Department received complaints about the claimant’s interactions with other staff. The nature of the complaints and her own observations caused her concern about the claimant’s line management capabilities, and when these observations were raised with him, he became defensive, emotional and angry. The claimant expressed to her he felt vulnerable due to what ‘he perceived he experienced from Mental Health and he started being unwilling to put himself at further risk of the same thing happening again’. Exhibit 25 at [25].

124 She discussed these concerns with Mr Noteboom, when he was her direct line manager. Exhibit 25 at [27].

125 Ms Francis had no role in deciding where the claimant would be permanently placed, however, she worked with Human Resources to develop the job description and duties for the P3 Role to ensure it matched the claimant’s qualifications and experience and to ensure that the duties aligned with the position being classified as a P3 position. Exhibit 25 at [28].

126 In cross-examination, Ms Francis agreed when the claimant commenced in Language Services that she sent an email to the Language Services staff where she referred to the claimant’s title of ‘Manager’ in Language Services, which she said was as close to a description of the role as she could get.
127 She said the complaints about the claimant while he was at Language Services were made by social work staff and also came from outside the Social Work Department, and the complaints were in relation to social work business. She agreed she did not ‘take away managerial responsibility’ when the claimant further acted in team leader roles [on relief].
128 She agreed that Mr Noteboom was aware of the claimant’s managerial responsibilities while he was at Language Services, although she could not recall the details of any conversation she had with Mr Noteboom only that she discussed her overall concerns about the claimant’s ability to manage staff.
129 Her discussions with Mr Noteboom about her concerns over the claimant’s ability to manage other staff was based on the complaints she details in the Francis Statement at [24], and her reference to the claimant spending a lot of time discussing his situation and historical grievances with many staff members was in relation to his previous time in the Mental Health Division.
130 Her notes Exhibit 25 at CF1.
of the meeting she had with the claimant to discuss what he might be interested in and the types of duties he would be interested in undertaking were not a promise of what would occur.
131 The reference to ‘Team Leader’ was not a reflection of any position but that it was at the same level. It might incorporate some management duties, but this was not in respect of managing people and was in reference to managing an aspect of something. She did not see him being able to manage social work staff. She was focused on trying to think of things that would be meaningful and were needed to be done.
Dr Bennett
132 From 2 February 2019 to 22 November 2023, Dr Bennett’s substantive position was Executive Director, RPBG. She was Acting Chief Executive of EMHS from 6 May 2023 until she was appointed to the substantive Chief Executive position.
133 Dr Bennett considered it necessary that any alternative new position for the claimant be at the same level as his substantive position and was suitable for his qualifications, knowledge and experience. Exhibit 26 at [19].

134 After receiving the 6 April Email, and her discussions with Ms Lynn, she made the decision to create the P3 Role because of the period of time that had elapsed, no suitable alternate level G8 position, her efforts to find temporary meaningful work was unsuccessful, and concerns about the impact of feeling of ‘not belonging’ expressed by the claimant. Exhibit 26 at [31].

135 She did not expect the P3 Role to have line management responsibility because of the issues that occurred at City East, Midland and Wungen Kartup when the claimant held managerial positions. Her concern was that a managerial position would expose the claimant and any subordinates to potential health and safety risks. Exhibit 26 at [35].

136 In cross-examination, Dr Bennett assumed the claimant had a line management role as Team Leader Midland, which included having managerial responsibility for others.
137 She disagreed that line management responsibility is necessarily a marker of status but a responsibility of a particular job.
138 She explained that a P3 role is equivalent to a G8 role in terms of classification and level and ‘work value’ but not in terms of the detail of what the work entails. She disagreed that a P3 role is not a senior role, and she said other P3 and P4 roles do not involve managing people.
139 She assumed the claimant’s position at Language Services was ‘Manager’, but she did not know the details of his work duties. She may have assumed he had line management duties.
140 She agreed that in the 6 April Email, the claimant expressed being lost and unhappy at Language Services and that it was an emotional email, which precipitated her creating the P3 Role. However, she acknowledged his difficulties in her response to this email and she was concerned by the feelings expressed in the email.
141 Dr Bennett accepted that she may have had a conversation with Mr Noteboom that included the claimant having line management duties (or not), but she did not get into the level of detail to direct the P3 Role not having line management responsibilities.
142 She did not consider the inclusion or exclusion of line management responsibilities to be an issue where she was creating a position for someone who could not go back to their substantive position.
143 In respect of the 6 April Email, she did not pick out the claimant’s three lines about line management and think to herself, he should have a leadership role. The email mentioned other projects (and was emotional) and so she considered that everything was on the table.
144 She understood there were issues with respect to the claimant’s managerial capabilities, but she did not know the details.
Ms Lyons
145 Jessica Lyons (Ms Lyons) is Acting Senior Human Resources Business Partner, EMHS. Her substantive position is Human Resources Consultant.
146 Ms Lyons attaches four expressions of interest and two job descriptions Exhibit 23 at JL1 to JL6.
to the Lyons Statement, of which the claimant expressed interest in Coordinator – End of Life Choices. Exhibit 23 at JL6.

147 Not all expressions of interest will have a formal position description registered, and the job duties and selection criteria may be contained in the expression of interest. Exhibit 23 at [9].

Noteboom Letter
148 The Noteboom Letter is attached to these reasons at Schedule III.
149 The relevant parts of the Noteboom Letter include:
· I am authorised to transfer you to this new role. The transfer is from HSUWA Level G8 to a HSUWA P3 role and it is at the equivalent level of classification and requires a similar qualification and function as your current Team Leader role.
· Whilst the P3 Social Worker role will be like the Social Work Manager role it will not be the same, in that you will not have line management responsibility for staff. Given your employment history with EMHS, I understand that Lesley Bennett, in her role as Executive Director RPBG, previously assessed it is not safe for you to have the formal line management responsibility for staff in this position. As such the role you will be transferred to is a P3 Senior Social Worker.
· In a collegiate environment I would see that you can “oversee and supervise the practice of other health professionals, staff and students” but not have line manager responsibility to do so. You could offer advice, offer guidance but not direct and not have the authority to direct those persons.
· As discussed in our meeting yesterday, before I finalise your transfer into this newly created role I would like to give you the opportunity to let me know your views on this plan, noting the limitations of our mutual obligations - that is EMHS has a duty to keep you safe and you have a duty to keep yourself safe.
Assessment of the evidence
150 As already identified, the claimant has strong views about his work and the workplaces at EMHS. In my view, this affected the quality of his evidence because he was prone to omitting information that might have adversely impacted on his claim. In addition, his evidence tended to flourish the real state of things where it might positively impact on his claim.
151 For example:
· when asked in examination in chief to clarify what he meant by not being busy in Language Services, the claimant’s response was to speak about the things he took it upon himself to change, that he was responsible for mandatory reporting and managing risk before suggesting it was not the level of work he wanted;
· his reference to ‘line management duties’ was not specific but appeared to include approving leave and projects and having ownership of a team, yet he was ‘interested’ in positions that had no line management duties because they were ‘interesting’ to him;
· he placed significant emphasis on purported line management duties at Language Services and the nomenclature of the position as ‘Manager’. However, the reality was that he had limited managerial responsibilities, limited to the supervision of one person in a team of four;
· in various documents, he referred to toxic workplaces, work cultures or feelings expressing a lack of safety, which in oral evidence he attributed to Dr Bennett’s assessment;
· in the Hughes Statement, the claimant made limited mention of the requirement to attend at a leadership development course as part of improvement action initiated by Dr Bennett in May 2021. It was only after the Bennett Statement, in the Hughes Reply Statement, the claimant referred to being excited about attending this course. The original limited statement, of itself, is not fatal but it contrasts with the preceding 85 paragraphs many of which go into detail about what is alleged to have occurred in the various workplaces;
· similarly, in the Hughes Statement, at [99], the claimant’s evidence is in a sense limited; that being, he was told by various people [named] that they would create or find him a permanent position equivalent to a team leader role. This creates an impression of disinterest on the part of those people. However, when regard is had to other evidence contained in the Respondent’s Bundle it is apparent that these same people were working to find a suitable position for the claimant, and the claimant must have been aware of this as he was copied into the various communications; and
· again, in the Hughes Statement, the claimant makes no mention of the meeting with Mr Noteboom on 24 August 2023, which preceded him being given the Noteboom Letter. The significance of this omission is relevant because in the Hughes Statement, at [108], the claimant refers to being ‘shocked’ by being told that he would not have line management duties where all the discussions he had with Human Resources he was ‘vocal’ about the management side of his role. This contrasts with Mr Noteboom’s evidence that on 24 August 2023 he discussed with the claimant the P3 Role and that it would not have line management duties, and the claimant had expressed an interest in at least one role with no managerial responsibilities. The omission of at least the meeting, if not its content, creates the impression that the Noteboom Letter came out of the blue after the meeting with Dr Bennett in April 2023, which it did not. Further, the P3 Role was in its infancy in April 2023 and, according to Dr Bennett, there was no detail surrounding its duties and responsibilities. The Hughes Reply Statement then remedies the omission but denies being told that he would no longer have line management responsibilities.
152 The consequence of this is that parts of the claimant’s evidence are treated cautiously, particularly where those parts conflict with other evidence that I consider more objective whether it is oral evidence or documentary evidence. In that sense, I do not consider the claimant to be a wholly reliable witness, although I do not consider him to be necessarily an untruthful witness.
153 I consider the other [respondent’s] witnesses to have been considerably more objective relaying their involvement in a factual and dispassionate manner. They did not omit evidence, nor did they embellish their evidence. Their evidence was supported by other [documentary] evidence. I consider the respondent’s witnesses to be truthful and credible, giving reliable evidence.
154 To that end, where there is conflict between the claimant’s and the respondent’s evidence, I prefer the respondent’s evidence.
Findings of Facts in Dispute
155 Having regard to the credible and reliable evidence in relation to facts in dispute, I find on the balance of probabilities the following:
(a) while at Language Services, the claimant had limited managerial responsibilities;
(b) there was no permanent and vacant position with a G8 or P3 classification available and suitable for the claimant, which necessitated the creation of an alternative position at P3 classification;
(c) the claimant was prepared to accept an alternative position without line management responsibilities provided he was interested in the position; and
(d) any discussions with the claimant about the creation of the P3 Role were general in nature. It is highly unlikely Dr Bennett, Ms Francis, Mr Noteboom or Human Resources made any representation to the claimant what the role would or would not include, as the details of the role had not been decided and was very much a ‘work in progress’. The contemporaneous documents do not persuade me otherwise, whatever might have been the claimant’s perception or subjective view.
Damaging Action
156 Section 97A was introduced into the IR Act as part of a suite of inclusions to increase the protection of employee rights with the provisions coming into force on 20 June 2022. Industrial Relations Amendment Act 2021 (WA).

157 The protections were based on certain general protections in Part 3-1 of the FWA Explanatory Memorandum to the Industrial Relations Legislation Amendment Bill 2021.
, including, relevantly, s 340, s 341 and s 342 of the FWA (referred to as ‘adverse action’ under the FWA). The meaning of ‘adverse action’ in the table in s 342(1) of the FWA at item 1 is almost identical to the definition of ‘damaging action’ in s 97(a) of the IR Act. In s 342(2)(a) of the FWA, the meaning is extended to also include ‘threatening to take action covered by the table in subsection (1)’.
158 Therefore, given the paucity of State jurisprudence, federal case law is helpful for the purposes of construction and application of s 97 and s 97A of the IR Act.
Was the action taken damaging action as that term is defined under s 97(a) of the IR Act?
159 To answer this question, relevant to the Claim, there are sub issues for consideration.
Was there a ‘threat’ to alter the claimant’s position?
160 The claimant primarily relies upon the content of the Noteboom Letter to say the respondent ‘threatened’ to remove any line management of staff from the P3 Role. That is, without more, the proposal to transfer the claimant to the newly created P3 Role where he would have no line management of staff constituted a ‘threat’ to alter his position to his disadvantage.
161 The respondent says that the content of the Noteboom Letter cannot be properly characterised as a ‘threat’. At most it is a proposal or plan put to the claimant to which the claimant was given an opportunity to respond.
162 As in s 342(2) of the FWA, there is no definition of the meaning of ‘threatening’ in s 97 of the IR Act (or the IR Act more generally). The respondent relied upon an ordinary dictionary meaning of ‘threat’ in support of its contention that the Noteboom Letter is not a ‘threat’ to alter the claimant’s position to his disadvantage.
163 Numerous federal cases have considered the meaning of ‘threatening’ or ‘threatening to take action’ in s 342(2)(a) of the FWA. In Fair Work Ombudsman v Australian Workers’ Union [2017] FCA 528; (2017) 271 IR 139 (FWO v AWU), Bromberg J, at [54], distilled applicable principles from the authorities reviewed:
First, ‘threatening to take action’ must involve the communication of a threat directed at an ascertainable person which is received or is likely to be received by that person. That a particular outcome is threatened by existing or prospective circumstances is not a threat of the requisite kind. Second, to threaten means to communicate an intent to inflict harm or, in other words, a warning of an intention to inflict harm. Third, the essence of a threat is that it is made for the purpose of intimidating a person. Accordingly, ‘threatening to take action’ must involve an expression of an intimidatory purpose. Fourth, it is not necessary that a subjective intent to carry out the threat be established. Fifth, the notion of a threat is not confined to an intent to inflict harm which was unlawful or unjustified. Sixth, the presence of malice or some other injurious motive is not a prerequisite. Lastly, a threat to take action may be conditional (in the sense that X will occur if Y does not). (original emphasis)
164 The above passage was cited with approval in subsequent cases: Australian Federation of Air Pilots v Regional Express Holdings Limited [2021] FCAFC 226; (2021) 290 FCR 239 (Rex), at [149] and [150], and the cases referred to therein.
165 Further, in Rex, at [155] to [156], the Full Court referred to Australian Building and Construction Commissioner v Molina [2020] FCAFC 97; (2020) 277 FCR 223 (Molina) where, at [24] and [25], a slightly differently constituted Full Court discussed the ordinary meaning of the word ‘threat’ and the proposition that a ‘threat, is conduct which, viewed objectively, will induce a belief that it will be carried into effect’.
166 At [157], the Full Court concludes that in determining whether a threat was made, purpose is relevant at two levels, first, and relevant to whether a communication constitutes a threat:
the communication itself must communicate an intent to take adverse action or, in other words, a warning of an intention to take adverse action for the purpose of intimidating a person which, viewed objectively, will induce a belief that it will be carried into effect. As Bromberg J stated in FWU v AWU at [54], threatening to take action ‘must involve an expression of an intimidatory purpose’. This expression of purpose goes to the content of the communication, and not to the subjective purpose of the person responsible for the communication. (emphasis added)
167 Given s 97A of the IR Act is modelled on analogous FWA provisions and the words used in s 97(a)(v) of the IR Act are similar (if not the same) to s 342(2)(a) of the FWA, the meaning of ‘threat’ or ‘threatening’, and the principles expressed, in FWO v AWU, Rex and Molina, are directly applicable to and are appropriate to adopt for the purpose of determining:
(a) the meaning of ‘threatening’ and ‘threatening to do anything referred to in subparagraphs (i) to (iv)’; and
(b) whether the Noteboom Letter and its contents constitute a threat.
168 Adopting those principles, for the following reasons I am not satisfied that the Noteboom Letter or its contents constitute or communicate a ‘threat’ or constitute or communicate ‘threatening’ to alter the claimant’s position to his disadvantage:
· the impugned sentence, being ‘[w]hilst the P3 Social Worker role will be like the Social Worker Manager role it will not be the same, in that you will not have line management responsibility for staff”, does not convey an intention to inflict harm or is a warning of intention to inflict harm. It conveys some information about the newly created P3 Role in that it will not include a particular role, but will likely include other supervisory roles, and otherwise the details of the P3 Role were to be discussed with the relevant heads of department;
· the content of sentences, including the sentence referring to the claimant’s employment history and limitations resulting from the ‘mutual obligations’ on the claimant and EMHS, do not objectively convey an intimidatory purpose or convey an intention to intimidate the claimant. To the contrary, the purpose is to inform the claimant of the creation of a substantive role based on three dots points in paragraph 2 of the Noteboom Letter; and
· while not determinative, nothing in the Noteboom Letter communicates any consequence if the claimant refuses to accept the transfer to the P3 Role. That is, and by way of example, the claimant is not informed he will be demoted to a role with a lesser classification or that he will be terminated from EMHS if he does not accept or proceed with the transfer. Rather, the claimant’s views are invited on ‘this plan’.
169 I have considered the surrounding circumstances, including the 6 April Email, Exhibit 26 at LB7.
the claimant’s email to Mr Noteboom dated 28 August 2023, Exhibit 1 at BH16.
Mr Noteboom’s email to the claimant dated 31 August 2023 Exhibit 1 at BH16.
and Mr Noteboom’s email to Mr Lee dated 12 September 2023. Exhibit 1 at BH16.
These communications do not in any way imbue the Noteboom Letter with the requisite intimidatory purpose or intention to intimidate the claimant.
170 The 6 April Email explains the claimant’s position over the past two to three years and his overall dissatisfaction with his current position. He requests to meet with Dr Bennett to discuss, in essence, future options. Dr Bennett replies expressing her sorrow at his position and invites him to meet with her.
171 The claimant’s email dated 28 August 2023 to Mr Noteboom is in response to an invitation by Mr Noteboom to provide him with direct feedback regarding the plan to transfer the claimant to the P3 Role (to be found in the content of the letter and in the email attaching the letter). Ultimately, the claimant disagrees with the proposal and requests extra time to consider ‘this proposal’.
172 Mr Noteboom’s email response to the claimant dated 31 August 2023 further explains Mr Noteboom’s concerns regarding the claimant’s safety at EMHS (referred to in the Noteboom Letter). Mr Noteboom acknowledges the claimant’s dissatisfaction with the decision and extends time for the claimant to provide feedback on the proposal. Mr Noteboom encourages the claimant to focus his feedback on the proposed duties and responsibilities, other than line management responsibilities, however, there is no demand to do so, or consequence if he does not.
173 Mr Noteboom’s email to Mr Lee dated 12 September 2023 is in response to Mr Lee’s request for further information about the reasons ‘that led to the decision to provide the P3 Role which does not involve line management responsibilities’ and details of workplace complaints. Mr Noteboom confirms the basis for the decision to create the P3 Role and in dot points, outlines the complaints made by the claimant and the complaints made against him. Mr Noteboom further extends the date for feedback on the P3 Role.
174 Simply put, while the tenor of the Noteboom Letter suggests an inevitability to the transfer to the P3 Role, albeit the claimant is invited to give his views on the plan, it lacks any expression of intimidatory purpose or an intention to inflict harm.
175 On that basis alone, and where I find that the Noteboom Letter and its contents do not constitute a ‘threat’ to alter the claimant’s position, the Alleged Damaging Action is not made out.
176 The second level relevant to purpose referred to in Rex at [157] will be discussed below in relation to the taking of damaging action for the reason or reasons that include the claimant made employment-related inquiries or complaints.
Was the claimant’s position altered?
177 The claimant’s substantive position was Team Leader Midland. True enough he had been working in a series of temporary positions for a number of years before receiving the Noteboom Letter.
178 The P3 Role, while at the equivalent pay and classification as Team Leader Midland, was not the same position, such that I find that proposal to transfer the claimant to the P3 Role may have altered his position.
179 I say may because ‘a mere announcement of intended action, not acted upon, did not ‘injure an employee’ or ‘alter the position of an employee to the employee’s detriment’ within the meaning of a predecessor provision to s 340 [of the FWA]’. Avard v Australian Capital Territory [2024] FCA 690 at [137] referring to Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441; (2006) 160 IR 1 at [26]  [27].

180 The Noteboom Letter evinces an intention to transfer the claimant to the P3 Role, but before that is intended to occur the claimant is given an opportunity to respond to ‘the plan’ (being the transfer).
181 At the time the claim was commenced, ‘the plan’ had not been carried out, thus the claimant’s position was not altered. However, the Alleged Damaging Action is the ‘threat’ to alter the claimant’s position, which suggests that this may apply to something that occurs in the future.
182 However, given the other issues with respect to the claim, I do not intend to comment further on this point.
Was the claimant disadvantaged?
183 The difficulty with how the Alleged Damaging Action was litigated is that it was not entirely clear the basis upon which the claimant asserts he was disadvantaged by the proposed transfer to the P3 Role.
184 At paragraph [45] of the amended statement of claim filed 7 June 2024 (Amended Statement of Claim), it is asserted the P3 Role ‘is, in practical terms, a demotion’.
185 At paragraph [52] of the Amended Statement of Claim, it is asserted the claimant ‘lost all confidence and pride in his abilities at work’.
186 In paragraph [108] of the Hughes Statement, the claimant states he was ‘shocked’ when he received the Noteboom Letter and that he ‘enjoyed the management side of [his] roles’, and, at [110], he states he expressed his concerns to Mr Noteboom. In the email dated 28 August 2023 at exhibit 1 BH 16.

187 The closest the claimant comes to identifying a ‘disadvantage’ in the P3 Role is in the email to Mr Noteboom dated 28 August 2023, where the claimant says ‘[t]o be transferred into what you are proposing means that I would no longer be able to undertake [a line management] role, which I enjoy and would be another significant tarnish against me professionally which is just unfair, and it would be very awkward to stay in the department’.
188 However, no evidence was lead which elevated these statements above the claimant’s subjective opinions. That is, there was no evidence:
· how the P3 Role was in ‘practical’ terms a demotion? Was it because the position was in and of itself a demotion or was it because the lack of line management component in some way reduced the ‘real’ classification of the role or was it a combination of both or was it something else entirely? The Court is left to guess or speculate; or
· how the P3 Role would be another ‘significant tarnish’ against the claimant in a ‘professional’ sense? Was it because the P3 Role was a ruse designed to highlight the claimant’s ‘failings’ or because the creation of such roles were management tools for ‘difficult’ employees and the ‘real’ intention was to create a position to stifle the claimant or was it a combination of all of these or was it something else entirely? Again, the Court is left to guess or speculate; or
· how would the P3 Role make it awkward in [what] department? Was it because the P3 Role required the claimant to be managed by someone involved in making complaints against the claimant or that he had made complaints about or was it because other employees in the [same?] department would likely make it awkward for the claimant or was it something else? Again, the Court is left to guess or speculate; or
· the P3 Role would in some way prevent the claimant from seeking other opportunities or being considered for future promotion; or
· the P3 Role somehow faired unfavourably against contemporaries.
189 The claimant submitted the lack of a line management component in the P3 Role reduced its status or rank. While a reduction of status or rank may result in a disadvantage to an employee, again, there was no evidence supporting this submission in relation to the P3 Role. To the contrary, Dr Bennett’s evidence was that other P3 positions do not have a line management component, and there was no suggestion this reduced the positions’ status or rank or deprived the position holders' future opportunities or promotions.
190 Dr Bennett and Mr Noteboom disagreed that the lack of line management duties in a role necessarily reduced the status of a position and referred to other equivalent positions which did not have line management duties. The inclusion of line management duties may be a marker of responsibility and capability but not necessarily status or rank.
191 To the extent the claimant’s submission of a reduction of rank and status applied to him personally, I consider this to be somewhat disingenuous where he was prepared to apply for positions that did not contain a line management role provided the role was of ‘interest’ to him (by way of example, a VAD position), and there was no suggestion working in this position reduced his rank or status.
192 In relation to the claimant’s views about how he felt ‘shocked’ and ‘lost confidence and pride in his work’, leaving aside I am sceptical that this is the type of ‘disadvantage’ contemplated by s 97(a)(ii) of the IR Act, his views also need to be seen in the context of the communications leading up to the Noteboom Letter, particularly the 6 April Email. Exhibit 1 at BH16.

193 In this email, the claimant outlines his frustrations and despair associated with the uncertainty of his position over the last two years. He makes the point that, amongst other things:
· he would not be returning to Mental Health as it was ‘psychologically unsafe’, and he would be based at the same work site as ‘the perpetrators’;
· he has been deprived of any career development or chance of promotion;
· he has the right to feel valued and respected while at work;
· he has remained loyal although he is ‘bored’ and has hardly anything to do daily;
· Bentley Mental Health continues to be a toxic and poisonous culture;
· he comes to work feeling like he does not belong, and it is depressing;
· he believes he has developed good leadership and management skills over his working career; and
· he has discussed numerous other positions but for one reason or another they are not suitable.
194 In response to this email, Dr Bennett responds on 19 April 2023 stating, amongst other things, that she had a long conversation with Ms Lynn, Acting Director, Human Resources, and they are determined to provide a ‘permanent solution’ as soon as possible. Exhibit 26 at LB7.

195 The content of the claimant’s email to Dr Bennett, along with difficulties in finding a suitable alternative permanent position at the G8 classification and the period which had elapsed during which the claimant worked in temporary positions, lead to her creating the P3 Role which did not come within the Mental Health Division. Exhibit 26 at [31].

196 As previously stated, Dr Bennett scheduled a meeting with the claimant, and he was informed that the P3 Role would be created for him. According to Dr Bennett, the purpose of the P3 Role was to address the concerns raised by the claimant in his email to her, particularly the feelings of being lost.
197 Thereafter, after meeting with the claimant, Ms Francis worked with Human Resources to develop a job description for the P3 Role to ensure it matched the claimant’s qualifications and experience and aligned with a P3 classification. Exhibit 25 at [28].

198 The P3 Role was then proposed to the claimant in the Noteboom Letter where Mr Noteboom informs the claimant that an authorised transfer of this type obviates the claimant going through the Expression of Interest process or to advertise the P3 Role to place the claimant in that role.
199 Further to the lack of identification of disadvantage with the proposed P3 Role, and associated evidence, by the claimant, I am satisfied, and I find that the evidence overwhelmingly demonstrates the proposed P3 Role was to the claimant’s advantage rather than to his disadvantage.
200 That is, the P3 Role was created specifically for the claimant to remedy feelings of being undervalued and not belonging at work where there was limited alternative permanent positions of an equivalent classification and work value available at a suitable location.
201 Additionally, the claimant was not required to apply for the P3 Role and was given an opportunity to discuss the details of the position and provide feedback on the proposed transfer before it was implemented.
202 In the absence of any evidence to the contrary, and when regard is had to the whole of the circumstances leading up to the creation of the P3 Role, that the P3 Role did not comprise a singular component part desired, or even expected, by the claimant did not render the whole of the P3 Role to the claimant’s disadvantage.
203 Therefore, even if the Noteboom Letter or its contents constituted a threat, which it did not, I am not satisfied nor do I find that the removal of line management responsibility of staff from the proposed P3 Role was to the claimant’s disadvantage.
204 Accordingly, for this additional reason, the Alleged Damaging Action does not constitute damaging action under s 97(a)(v), when read with s 97(a)(ii), of the IR Act.
If the action taken was damaging action, was it taken because the claimant made an employment-related inquiry of complaint?
205 However, if I am wrong about the Alleged Damaging Action not constituting damaging action within the meaning of s 97(a)(v), I will also consider whether the Alleged Damaging Action was taken because the claimant made the employment-related inquiries or complaints (the respondent refers to ‘prohibited reason’, but this is consistent with the FWA not the IR Act).
206 Unlike the analogous sections of the FWA, s 97A(1) of the IR Act rolls up the concept of damaging action with the reasons or for reasons that include making an employment-related inquiry or complaint. Thereafter, s 97A(2) of the IR Act reverses the onus of proof as to whether the damaging action was taken because the employee made the employment-related inquiry or complaint.
207 There is an inconsistency in the language used in s 97A(1) and (2) of the IR Act as it relates to what the employer is to prove (or even if it is to prove) – does the employer prove the damaging action was not ‘because of’ the complaint or not for ‘the reasons or for reasons that include’ the making of the complaint or a bit of both? Alternatively, is the employee also required to prove the reasons for the damaging action, as part of the allegation of damaging action?
208 In contrast, s 340 of the FWA provides the contravention lies in the taking of the adverse action because of the exercise of a workplace right and, thereafter, s 361 of the FWA establishes a rebuttable presumption that the reason for the action was that which is alleged as the adverse action involving proof that the relevant conduct was not motivated by reasons that included the prohibited reason.
209 Leaving aside the elements to be proven by the parties, the reason this also becomes important is the word ‘because’ in s 97A(2) suggests a straightforward causal link between the damaging action and the making of an inquiry or complaint. Whereas the case law concerning what constitutes ‘the reasons or reasons that include’, as stated in s 97A(1), provide that the prohibited reason (or reasons that include) is the ‘substantial and operative reason’ for the decision: Short v Ambulance Victoria [2015] FCAFC 55; (2015) 249 IR 217 (Short) at [54]  [55] and Avard at [101].
210 Ultimately, the intention of the section is to prohibit employers from discriminating against an employee where an employee makes, or proposes to make, a complaint about their employment conditions. Explanatory Memorandum, Industrial Relations Legislation Amendment Bill 2021 (WA).
Certainly, the explanation for s 97A of the IR Act aligns with the FWA provisions (along with the cases referred to therein):
Section 97A(2) provides for a reverse onus of proof in damaging action proceedings. If it is proved that an employer took damaging action, it is for the employer to prove that they did not take the action because the employee made (or proposed to make) an inquiry or complaint. The purpose of the reverse onus is to cast upon the employer the onus of proving that which lies peculiarly within their own knowledge. The reverse onus does not relieve an employee from proving, on the balance of probabilities, each ingredient of the alleged contravention. It simply enables the employee’s allegation to stand as sufficient proof of the fact unless the employer proves otherwise. Explanatory Memorandum, Industrial Relations Legislation Amendment Bill 2021 (WA).

211 It is unfortunate that s 97A(1) and (2) of the IR Act did not make clearer precisely what is expected from each party, as it is the Court’s experience the operation of the section causes confusion for parties. Further, some of the language in the explanation above is consistent with the FWA and is not reflective in the words used in s 97A of the IR Act.
212 It is useful to set out relevant paragraphs of Short, at [54] to [56], where that decision appears to have underpinned the above explanation for s 97A of the IR Act and how it is intended to operate:
When an employee alleges that an employer has taken action against him or her because the employee exercised a workplace right s 361 casts the onus on the employer to ‘prove otherwise’. Under s 360, while there may be multiple reasons for an employer to have taken the adverse action, the employer takes action for a prohibited reason if the reasons for the action include that reason. The rationale for the presumption was explained by Mason J in General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 617 per Mason J as being to throw on to the employer the onus of proving that which lies peculiarly within its own knowledge (cited with approval in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 at [50] (French CJ and Crennan J)).
Where adverse action is taken by one person against another, the task of a court in a proceeding alleging contravention of s 340 or s 351 is to determine why the person took the adverse action and to ask whether it was for a prohibited reason or reasons which included a prohibited reason (Barclay at [5], [44] per French CJ and Crennan J). The question is whether a prohibited reason was a ‘substantial and operative’ reason for the respondent’s action (Barclay at [104] per Gummow and Hayne JJ, see also [59] per French CJ and Crennan J). The relevant inquiry is therefore into the ‘particular reason’ of the decision-maker for taking action (Barclay at [42] per French CJ and Crennan J, [102] per Gummow and Hayne JJ), which is a determination of fact to be made by the court taking account of all the facts and circumstances of the case and available inferences (Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 88 ALJR 980 at [7] per French CJ and Kiefel J, Barclay at [45] per French CJ and Crennan J, [79] per Gummow and Hayne JJ).
To displace the presumption created by s 361 in light of the effect of s 360, the respondent must prove that its conduct was not motivated in whole or in part by the prohibited reason alleged. A failure to displace the presumption enables the allegation by an applicant of adverse action for a prohibited reason to stand as sufficient proof of that fact: Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1991) 91 FCR 463 at [109] per Wilcox and Cooper JJ.
213 Therefore, in my view, s 97A is intended to operate as follows (consistent with the above):
· where an employee alleges an employer has taken or has threatened to take action against them, the employee is required to prove the action taken or threatened to be taken by the employer constitutes damaging action within the meaning of s 97(a) or (b) of the IR Act;
· the employee is also required to establish that they made an employmentrelated inquiry or complaint which they were able to make [which precipitated the damaging action];
· if the employee proves the action was damaging action and the employee alleges that the damaging action was taken for the reason or reasons that include the employee made or was able to make an employment-related inquiry or complaint, the onus shifts to the employer to prove that the employer was not motivated by the reason alleged; and
· if the employer does not discharge the onus, the reason alleged by the employee stands as proof of the fact that the employer has taken damaging action for that reason alleged (or reasons that include).
214 There is importance in the employee specifying with a degree of precision the reason alleged for the damaging action, notwithstanding the Court is not a court of pleadings where parties often represent themselves. In Monash Health v Singh [2023] FCAFC 166; (2023) 327 IR 196, the Federal Court, at [57], summarised principles about the degree of precision by an employee to identify the ‘action’ taken for a ‘particular reason’ to invoke the reversal of the onus under s 361 of the FWA. In my view, the following principles are apposite to s 97A of the IR Act (there may be others):
· the informality of the Court does not alter the fact that the proceedings are penal in nature where, in part, an employee seeks the imposition of a pecuniary penalty;
· allegations of contravention of s 97A are inherently serious and, as a matter of fairness, such a claim should be ‘pleaded’ with sufficient precision for an employer to know the case against it. Section 97A does not involve a ‘broad inquiry as to whether the [employee] has been subjected to a procedurally or substantively unfair outcome’ Ermel v at [48].
where the ‘crucial issue’ is the causal relationship between the alleged damaging action and the reasons or reasons that include why the alleged damaging action was taken;
· this means the reason or the reasons (relevant to the employment-related inquiry or complaint) for the alleged damaging action must be specified in the claim by the employee;
· however, what comprises the reason or reasons alleged may be identified from the filed originating claim and/or supporting statement of claim supplemented by, for example, further and better particulars, written submissions, or witness statement by the employee.
215 In considering whether the employer has discharged its onus, the Court is to determine why the employer took the damaging action and ask if it was wholly or in part because the employee made or was able to make an employment-related inquiry or complaint.
216 In determining why the employer took the damaging action, the Court’s inquiry is into ‘the reason’ by the decision-maker (or decision-makers) for taking the action and to determine if the ‘substantial or operative reason’ (or reasons that included) was because the employee made or was able to make an employment-related inquiry or complaint.
217 This is a determination of fact to be made by the court taking account of all the facts and circumstances of the case and available inferences. Short at [55] and the cases referred to therein.

The reason or reasons alleged by the claimant for the taking of damaging action
218 As alleged by the claimant, the reason, or reasons that include, for the respondent taking the Alleged Damaging Action was that the claimant was able to, and did, make a series of employment-related complaints or inquiries as specified in paragraph [41] of the amended statement of claim, being the First Complaint to the Tenth Complaint.
219 The Alleged Damaging Action was not that each individual complaint resulted in an incident of damaging action but the cumulative effect of the series of complaints resulted in the Alleged Damaging Action.
Who was the decision-maker?
220 The first issue is who is the decision maker in taking the Alleged Damaging Action?
221 The respondent suggested this was Mr Noteboom as author of the Noteboom Letter.
222 A person involved in the process leading to the decision may be a decision maker for the purpose of the reasons to take alleged damaging action. The federal authorities suggest that this may include contributors to the decision provided their conduct rises above ‘some threshold level’. Serpanos v Commonwealth [2022] FCA 1226 at [123].
In determining who was the decision maker or decision makers (if there are multiple), the relevant ‘threshold level’ may be relatively high and is or are the ‘people actually or metaphorically “in the room”, whose opinions carry real weight, that are relevant.’ Avard at [104].

223 Having regard to the evidence and the findings of fact, the person who set in motion the creation of the P3 Role was Dr Bennett albeit by the time the Noteboom Letter was written and given to the claimant, she was then the Acting Chief Executive, EMHS and Mr Noteboom was the Acting Executive Director, RPBG.
224 Mr Noteboom saw no reason to change course from Dr Bennett’s decision to create the P3 Role for the claimant and then authored the Noteboom Letter.
225 I do not accept that Ms Francis was a decision maker in taking the Alleged Damaging Action. It was apparent that her role was limited to working with the claimant and the relevant decision makers to provide detail on possible roles amenable to the claimant’s experience, qualifications and skill set.
226 Therefore, it is appropriate to consider ‘the reasons’ expressed by both Dr Bennett and Mr Noteboom for taking the Alleged Damaging Action and determine if the substantial or operative reason or reasons included the claimant making the complaints identified.
The reasons relevant to Dr Bennett
227 The claimant had been working in temporary positions for approximately three years, and on 1 December 2022 was in a temporary position in Language Services when he emailed Dr Bennett requesting a meeting with her. Dr Bennett and the claimant met on the same day following which Dr Bennett emailed the claimant stating ‘I am sorry for the amount of time this is taking to secure you a substantive role. I had not appreciated you felt so undervalued in your current role. In the absence of any vacant positions, I will pull together a list of areas/initiatives where we would have work that might be more fulfilling for you’.
228 Thereafter, on 9 December 2022, Dr Bennett emailed the claimant informing him that there were no current vacancies at level 8, but she provided him with a list of work roles and the relevant areas that may be of interest to him.
229 Further email correspondence was sent between Dr Bennett and the claimant after they met again in January 2023. Then on 6 April 2023, the claimant emailed Dr Bennett effectively pleading his case for a suitable position to be found with Dr Bennett responding that she and the Acting Director, Human Resources were determined to provide a ‘permanent solution as soon as possible’. Dr Bennett and the claimant met again on 27 April 2023 where Dr Bennett informed the claimant that the P3 Role would be created for him.
230 Dr Bennett in the Bennett Statement explains the requirements of the P3 Role for the claimant and the reasons for why it would be preferrable for the P3 Role not to be in the Mental Health Division. She also explains the reason for why she did not expect the P3 Role would not have line management responsibility [initially] because of previous issues at City East, Midland and Wungen Kartup. She expresses her concern that a managerial position would expose the claimant and others to ‘potential health and safety risks’. Exhibit 26 at [35].

231 In cross-examination, Dr Bennett stated that she created the P3 Role for the claimant where he could not go back to his substantive position as Team Leader Midland. Dr Bennett accepted the 6 April Email was emotional but did not agree that the claimant’s three-line reference to previous managerial experience, in the context of the other issues raised by him, was such that she considered he should have a future leadership role. Her emphasis was to address the claimant’s expressed feelings of loss and uncertainty and to devise a permanent position of worth with the same classification as a G8 position. Her reference to ‘previous issues at City East, Midland and Wungen Kartup’ was a reference to the complaints made about and by the claimant and the issues not being resolved. She had some awareness of the complaints and that they raised issues about the claimant’s managerial capabilities, but she was not aware of the details of the complaints.
232 Dr Bennett could not recall the detail of conversations she had with Mr Noteboom regarding the creation of the P3 Role, but it may have included the exclusion of line management responsibilities (bearing in mind she was running a health service and handing over a hospital to Mr Noteboom). However, she did not get into the specific details of what the P3 Role would entail and did not give any direction for it to exclude line management responsibilities.
233 The content of the Bennett Statement was consistent with Dr Bennett’s oral evidence in cross-examination and documents tendered by both parties. Dr Bennett presented as truthful and genuine in her evidence, and I am satisfied her evidence in respect of her reasons was reliable.
234 For the following reasons I am satisfied that if the respondent took the Alleged Damaging Action, that the reason or reasons that included for doing so, as it relates to Dr Bennett, was not because the claimant made the series of complaints from the First Complaint to the Tenth Complaint:
· Dr Bennett had direct involvement with the claimant in March 2021 because of a complaint made about the claimant’s conduct. In April 2021, she resolved the complaint and determined improvement action was the appropriate resolution for the complaint. In May 2021, the complaint was resolved during a counselling meeting with the claimant which also included the claimant’s attendance at a leadership development program. During the counselling meeting, Dr Bennett discussed other positions that might be available to the claimant; Exhibit 26 at [12] to [18] and LB1, LB2 and LB3.

· Dr Bennett had an awareness of other complaints made about and by the claimant, but not their detail;
· thereafter, approximately 18 months later, the email correspondence between Dr Bennett and the claimant was directed to finding the claimant a suitable and commensurate permanent position. In this correspondence there was no further reference to what had occurred in the past, only attempts by Dr Bennett to respond to the claimant’s pleas;
· there were no suitable and available permanent G8 positions within EMHS, so Dr Bennett created the P3 Role;
· in doing so, her expectation was the P3 Role would not include line management responsibility where her concern was for the claimant’s welfare and the welfare of other staff because she was aware there had been managerial issues at other work locations; and
· her concern for the claimant’s and other staff’s welfare was consistent with the content of the claimant’s correspondence to her where he referred to a return to Mental Health being psychologically unsafe for him and the sense of desperation, he conveyed about continuing to be in a kind of ‘employment limbo’. It was also consistent with her historical knowledge of a complaint made about the claimant’s conduct in March 2021.
235 There is no evidence that Dr Bennett’s decision to create the P3 Role without the inclusion of line management responsibilities was a ‘sham’ or designed to ‘sideline’ the claimant because he was a serial complainer or being difficult or had made a series of complaints. To the contrary, Dr Bennett’s communication demonstrated she was empathetic and sorry for the position the claimant was in and was doing her best to find a suitable and meaningful permanent position for the claimant.
236 In doing so, she considered that such a role should not expose the claimant or others to ‘potential health and safety risks’, and she identified these ‘potential health and safety risks’ were associated with the claimant being in a ‘managerial position’.
237 Based on the information she had; it was open to Dr Bennett to come to this view. To the extent that the claimant’s series of complaints had any role to play in Dr Bennett’s decision making, I am satisfied that it was limited to her only responding to what she may have deduced from those complaints, not because the claimant made the complaints. See Avard at [122].

238 Furthermore, the Seventh, Eighth, Nineth and Tenth Complaints were made from August 2023 when Dr Bennett was no longer Executive Director, RPBG, and well after she made the decision to create the P3 Role. These complaints could have had no bearing on her decision to create the P3 Role.
239 I am satisfied, and I find that, as it relates to Dr Bennett’s reasons for creating the P3 Role without line management responsibilities, if the Alleged Damaging Action was taken, the respondent has discharged its onus set out in s 97A(2) of the IR Act, and I am satisfied that the series of complaints made by the claimant was not a substantive and operative reason or included as a substantive or operative reason for the decision.
The reasons relevant to Mr Noteboom
240 At the time Mr Noteboom authored the Noteboom Letter, he was the Acting Executive Director, RPBG, which was the substantive position occupied by Dr Bennett when she made the decision to create the P3 Role and for not including line management responsibility in the role.
241 Mr Noteboom took over the responsibility to find a suitable permanent position for the claimant from Dr Bennett and there were no suitable available positions. Like Dr Bennett, Mr Noteboom was concerned about the ongoing impact the uncertainty was having on the claimant and supported the creation of the P3 Role for the claimant and he worked on suitable duties for the role. Exhibit 24 at [18].

242 Mr Noteboom explains his reason for not including line management duties in the P3 Role in the Noteboom Statement at [20], where he was concerned about a ‘health and safety risk’ for the claimant based on ‘a number of allegations made against him in the past when working in different positions when he had line management responsibilities as well as his counter allegations of bullying and discrimination by direct reports when working in those positions’.
243 His concerns reflected those of Dr Bennett who had previously determined it was not ‘safe’ to have a line management role, and he saw no reason to depart from that decision. Exhibit 24 at [21].

244 In cross-examination, Mr Noteboom reiterated that there was no additional or new evidence that would cause him to depart from Dr Bennett’s decision. The reference in the Noteboom Letter to the claimant’s ‘employment history with EMHS’ was a reference to the claimant’s history of filing complaints and having complaints made against him.
245 Mr Noteboom explained that he had not seen the CHOIR reports and he obtained information from Human Resources about the history of the complaints made about the claimant and the complaints the claimant made and from Ms Francis about her concerns of the claimant’s ability to manage others. Mr Noteboom reiterated his obligation to provide a safe working environment for staff and the background of the complaints about the claimant and the complaints he made were relevant to providing a safe working environment.
246 The content of the Noteboom Statement was consistent with his oral evidence in cross-examination and documents tendered by both parties. Mr Noteboom presented as truthful and genuine in his evidence, and I am satisfied his evidence regarding his reasons was reliable.
247 For the following reasons I am satisfied that if the respondent took the Alleged Damaging Action, that the reason or reasons that included for doing so, as it relates to Mr Noteboom, was not because the claimant made the series of complaints from the First Complaint to the Tenth Complaint:
· in the Noteboom Letter, Mr Noteboom dot points three considerations in formulating the P3 Role, namely a safe working environment, remedying the uncertainty expressed by the claimant and the provision of meaningful work;
· Mr Noteboom then refers to Dr Bennett’s assessment of safety, and he determined that the P3 Role will not include line management responsibility;
· Mr Noteboom’s explanation to the claimant in the email dated 31 August 2023 confirms the obligation for a safe working environment for all employees, and refers to historical complaints made against the claimant and by the claimant while in a line management position;
· Mr Noteboom summarises these historical complaints to Mr Lee in an email on 12 September 2023 where he has specifically been requested to do so by Mr Lee. That is, in response to a direct request from the claimant’s union representative, Mr Noteboom provides a dot point summary of those complaints (both by and against). However, Mr Noteboom reinforces the need to provide a safe work environment and that to do so, line management responsibilities will not be a component part of the P3 Role; and
· Mr Noteboom did not have detailed knowledge of the complaints (in fact he had no knowledge of the Second Complaint) and relied upon information from Human Resources, Dr Bennett and Ms Francis to make his decision (which was a continuation of the decision made by Dr Bennett).
248 Again, there is no evidence Mr Noteboom’s proposal to transfer the claimant to the P3 Role without the inclusion of line management responsibilities was a ‘sham’ or made for some other nefarious or inappropriate purpose.
249 Mr Noteboom took over the responsibility of either finding an alternative commensurate position for the claimant and/or building on the creation of the P3 Role. In doing so, he determined, for similar reasons to Dr Bennett, the P3 Role would not include line management responsibilities because of the obligation on EMHS to provide a safe working environment for the claimant and other employees, where there had been a history of workplace complaints against the claimant, and he had made workplace complaints. For the same reason relevant to Dr Bennett, based on the information he had; it was also open to Mr Noteboom to come to this view.
250 To the extent that the claimant’s series of complaints had any role to play in Mr Noteboom’s decision making, I am also satisfied that it was limited to him only responding to what he may have deduced from those complaints, not because the claimant made the complaints.
251 Furthermore, the first time Mr Noteboom saw the Second Complaint was during the hearing. This complaint could have had no bearing on Mr Noteboom’s decision.
252 I am satisfied, and I find that, as it relates to Mr Noteboom’s reasons for proposing to transfer the claimant to the P3 Role without line management responsibilities, if the Alleged Damaging Action was taken, the respondent has discharged its onus set out in s 97A(2) of the IR Act, and I am satisfied that the series of complaints made by the claimant was not a substantive and operative reason or included as a substantive or operative reason for the decision.
Injury and Loss
253 Again, notwithstanding the substantive findings I have made with respect to the Claim, I will also consider the relief sought by the claimant if he was successful.
254 Pursuant to s 97B(1) of the IR Act, if the Court determines that an employer has contravened s 97A(1), the Court may, relevant to the Claim, order the employer to pay to the employee compensation for any loss of injury suffered as a result of the contravention: s 97B(2)(c) of the IR Act.
255 The Court may make this order in addition to imposing a penalty under s 83E of the IR Act.
256 Pursuant to s 97B(5) of the IR Act, the Court must not make the order if the employee has applied under another provision of this Act or any other written law for relief in relation to the same damaging action unless the proceedings for that relief have been withdrawn or failed for want of jurisdiction. Additionally, an employee is not entitled to compensation for the same damaging action under both s 97B(2)(c) and another provision of the IR Act or any other written law. That is, if an employee seeks compensation under s 23A(6) of the IR Act for unfair dismissal, the Court cannot make an order for compensation for damaging action dismissing the employee.
257 The claimant seeks ‘general damages’ for the Alleged Damaging Action.
258 The terms ‘loss’ and ‘injury’ are not defined in s 7 or Part 6B of the IR Act. Further, unlike s 23A(8) of the IR Act, the amount of compensation the Court may order is uncapped. However, s 23A(6) of the IR Act expresses the order for payment of compensation in similar terms to that expressed in s 97B(2)(c) of the IR Act.
259 Bogunovich v Bayside Western Australia Pty Ltd (1999) 79 WAIG 8, Sharkey P outlines principles applicable to assessing compensation for loss or injury caused by an unfair dismissal. Where the definition of damaging action includes dismissing an employee and s 97A is within the same legislation as s 23A, it is, in my view, rational, sensible and consistent to apply similar principles to assessing compensation for loss or injury (including the meaning thereof) under s 97B(2)(c) of the IR Act.
260 Adapting some of the principles in Bogunovich:
· the Court is required to make a finding as to the loss or the injury which the employee suffered as a result of the damaging action taken (or contravention);
· the employee is required to establish their loss or injury on the balance of probabilities. If there is no loss or injury established, then no compensation will be ordered;
· the Court is then required to compensate the employee to the fullest extent in respect of the loss or injury;
· there must be a causal link between the loss or injury claimed and the particular damaging action; and
· the decision and amount of compensation is not arbitrary and must occur having regard to applicable legal principles.
261 Other applicable principles as adapted include: the purpose of compensation [under s 23A but also referrable to s 97B(2)(c)] is to compensate an employee for losses caused, not to punish the employer or to confer a windfall on the employee. This means compensation ‘must be in respect of a lawful entitlement and/or as compensation for a demonstrated loss or injury’ as a result of the contravention: Garbett v Midland Brick Company Pty Ltd [2003] WASCA 36; (2003) 129 IR 270 at [85]; and compensation is not compensation if it does not, as much as possible, put the person who suffered the loss or injury back into the position which, but for the loss or injury, the person would have been in: Bogunovich at 8.
262 ‘Loss’ is a wide concept that includes but is not limited to ‘actual loss of salary or wage, loss of benefits or other amounts which would have been earned, paid to or received by’ the affected employee but for the contravention: Capewell v Cadbury Schweppes Australia Ltd (1997) 78 WAIG 299 at 303. ‘Loss’ may also include future loss. ‘Injury’ is also a wide concept, incorporating ‘all manner of wrongs’ and includes, for example, humiliation, injury to feelings, loss of reputation, nervous shock and ‘being treated with callousness’: Capewell at 303. For compensation to be awarded for injury, the injury must ‘fall outside the limits which can be taken to have normally been associated with’ damaging action. This requires evidence that the employee has suffered ‘loss of dignity, anxiety, humiliation, stress or nervous shock’: AWI Administration Services Pty Ltd v Birnie [2001] WAIRC 4015; (2001) 81 WAIG 2849 at 2862. There will be an element of distress in most ‘dismissal cases’ (and by extension to cases involving allegations of damaging action): Lynam v Lataga Pty Ltd [2001] WAIRC 2420; (2001) 81 WAIG 986 at [56].
Loss
263 The claimant acknowledges that he remains a level 8 employee with EMHS on the same salary that he would have been paid if he was G8 classification rather than P3 classification. In that regard, the claimant has suffered no loss in salary or award entitlements at the date of the hearing as a result of the Alleged Damaging Action.
264 The claimant does not detail what, if any, future loss he suffered or might have suffered.
Injury
265 The claimant’s evidence is that he was ‘shocked’ when he read the contents of the Noteboom Letter because it said he would not have line management duties as part of the P3 Role. However, the mere fact that the claimant says he experienced ‘shock’ when reading the Noteboom Letter, without more, does not satisfy me on the balance of probabilities that the claimant suffered an ‘injury’ as a result of Alleged Damaging Action.
266 That is, it may be expected that some degree of ‘shock’ may be associated with receiving unexpected or unwanted information. However, in the claimant’s case, he was aware that a new role was created for him, but as stated, the P3 Role did not have a singular component part, being line management duties. Thus, to the extent that the claimant expresses being ‘shocked’ by this, I am not satisfied that it is outside the limits which would normally be associated with feelings of disappointment that circumstances are not what he expected or wanted or thought he deserved.
267 In addition, the claimant’s evidence is that he lost all confidence and pride in his ability at work. I note that ‘injury’ may include injury to pride: Gilmore v Cecil Bros & Anor (1996) 76 WAIG 4434 at 4447. However, evidence of the injury is still required. For similar reasons to that stated in respect of the claimant’s evidence of the ‘shock’ he says he experienced when reading the contents of the Noteboom Letter, I am not satisfied, without more, that his subjective expression of loss of confidence and pride in his abilities is an injury that falls outside the limits which would normally be associated with feelings of disappointment. Further, I am not satisfied that the claimant’s expression of lost confidence and pride necessarily amounts to an injury, notwithstanding the wide application to the term ‘injury’, however, this is not determinative on the issue where the evidence does not rise above an assertion by the claimant in any event.
268 Otherwise, there is no evidence, beyond the claimant’s assertions, of any effect that the Alleged Damaging Action may have had on him.
269 Therefore, on the basis of the evidence before the Court, I am not satisfied to the requisite standard the claimant has suffered any loss or injury as a result of the Alleged Damaging Action and there is no order for compensation.
270 I note the respondent took issue with the Court’s jurisdiction to award compensation by way of ‘general damages’ (as sought by the claimant) due to the effect of ss 418 and 421(4) of the Workers Compensation and Injury Management Act 2023 (WA).
271 I do not intend to discuss this issue where in adapting the principles in Bogunovich, and consistent with s 97B(2)(c) of the IR Act, the Court must first be satisfied that the claimant has suffered any loss or injury as a result of the Alleged Damaging Action. However, if the claimant had proven loss or injury suffered, thereafter, the section clearly contemplates compensation being paid for any loss or injury suffered. The claimant’s reference to the payment of ‘general damages’ was likely a catch-all reference to compensation generally, and I am reluctant to express a view where the issue was not fully litigated and was a limited issue before the Court.
Conclusion
272 I am not satisfied the claimant has proven to the requisite standard the respondent took damaging action against him.
273 Alternatively, if the Alleged Damaging Action amounted to damaging action taken by the respondent, I am satisfied the respondent did not do so for the reason or a reason that included, or because the claimant made employment-related inquiries or complaints.
274 Further, if the claimant proved the Alleged Damaging Action, I am not satisfied the claimant has proven to the requisite standard any loss or injury as a result of the Alleged Damaging Action and no order for compensation would apply under s 97B(2)(c) of the IR Act.
Orders
275 The claimant’s claim is dismissed.




D. SCADDAN
INDUSTRIAL MAGISTRATE
SCHEDULE I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court of Western Australia Under the Industrial Relations Act 1979 (WA)
Jurisdiction
[1] The IMC has jurisdiction to hear and determine an allegation that an employer has taken damaging action against an employee having regard to the combined reading of s 97A(3), s 97B(1), s 83E and s 81A of the IR Act.
[2] While s 81A of the IR Act does not make express reference to the Court’s jurisdiction to hear and determine an allegation that an employer has taken damaging action against an employee, the clear intent of Part 6B of the IR Act is that the IMC hear and determine these claims.
[3] That is, s 97A(3) of the IR Act provides that a contravention of s 97A(1) is a civil penalty provision for the purposes of s 83E of the IR Act. Section 83E of the IR Act outlines the pecuniary penalties that may be imposed by the IMC if a person contravenes a civil penalty provision. Section 97B of the IR Act provides the orders the IMC may make if the IMC determines that an employer has contravened s 97A(1), including making the orders in addition to imposing a penalty under s 83E of the IR Act.
Burden and Standard of Proof
[4] Where an employee alleges an employer has taken damaging action against them, the employee carries the burden of proving the action taken was damaging action (as that term is defined in s 97 of the IR Act). The standard of proof required to discharge the burden is proof ‘on the balance of probabilities’: s 83E(8) of the IR Act. In Miller v Minister of Pensions [1947] 2 All ER 372, 374, Lord Denning explained the standard in the following terms:
It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not,’ the burden is discharged, but, if the probabilities are equal, it is not.
[5] Where in this decision it is stated that a finding has been made, the finding is made on the balance of probabilities. Where it is stated that a finding has not been made or cannot be made, then no finding can be made on the balance of probabilities.
Practice and Procedure of the Industrial Magistrates Court of Western Australia
[6] Subject to the provisions of the IR Act, the procedure of the IMC relevant to claims under s 97A is contained in the Industrial Magistrate's Court (General Jurisdiction) Regulations 2005 (WA) (IMC Regulations): s 113(3) of the IR Act. Notably, reg 35(4) of the IMC Regulations provides the court is not bound by the rules of evidence and may inform itself on any matter and in any manner as it thinks fit.
[7] In Sammut v AVM Holdings Pty Ltd (No 2) [2012] WASC 27, Commissioner Sleight examined a similarly worded provision regulating the conduct of proceedings in the State Administrative Tribunal and made the following observation:
The tribunal is not bound by the rules of evidence and may inform itself in such a manner as it thinks appropriate. This does not mean that the rules of evidence are to be ignored. The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force. The drawing of an inference without evidence is an error of law. Similarly such error is shown when the tribunal bases its conclusion on its own view of a matter which requires evidence [40]. (citations omitted)


SCHEDULE II: Principles Applicable to the Construction of Statutes
[1] This case involves construing a statute. The relevant principles to be applied when interpreting statutory provisions are well known and are set out in the Court of Appeal decision Mohammadi v Bethune [2018] WASCA 98 [31]  [36].
[2] The Court of Appeal stated:
(a) statutory construction requires attention to the text, context and purpose of the Act;
(b) while the task of construction begins and ends with the statutory text, throughout the process the text is construed in its context.
(c) statutory construction, like any process of construction of an instrument, has regard to context. As Kiefel CJ, Nettle and Gordon JJ explained in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14]:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. (citations omitted)
(d) the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute;
(e) the objective discernment of the statutory purpose is integral to contextual construction. The statutory purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions;
(f) discernment of statutory purpose is particularly significant in cases, commonly encountered, where the constructional choice presented is from ‘a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural’. In such a case, the choice ‘turns less on linguistic fit than on evaluation of the relevant coherence of the alternatives with identified statutory objects or policies’;
(g) thus, the material provisions of the Act must be understood, if possible, as parts of a coherent whole; and
(h) statutory texts enacted by the same legislature are to be construed, so far as possible, to operate in harmony and not in conflict. Where two or more statutory enactments comprise the overlapping legislative scheme, the enactments should be construed accordingly, and the court should endeavour to produce a rational, sensible, efficient and just operation in preference to an inefficient, conflicting or unjust operation.

SCHEDULE III: The Noteboom Letter