2026 WAIRC 00170
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00170



CORAM
:
INDUSTRIAL MAGISTRATE R. COSENTINO



HEARD
:
MONDAY, 16 FEBRUARY 2026, TUESDAY, 17 FEBRUARY 2026



DELIVERED
:
WEDNESDAY, 25 MARCH 2026



FILE NO.
:
M 71 OF 2025



BETWEEN
:
NATALIA SUZANNE EGGETT


CLAIMANT





AND





WESTERN AUSTRALIAN FAMILY VIOLENCE PREVENTION LEGAL SERVICE ABORIGINAL CORPORATION (ICN 7333) T/AS ABORIGINAL FAMILY LEGAL SERVICES


RESPONDENT

CatchWords : INDUSTRIAL LAW (WA) – damaging action under s 97A of the Industrial Relations Act 1979 (WA) – claimant stood down pending investigation – whether stand down is damaging action – whether claimant made an employment related inquiry – whether employment related inquiry was a reason for stand down – whether s 97B(2) precludes orders being made where claimant had made workers’ compensation claim – whether s 418 of the Workers Compensation and Injury Management Act 2023 (WA) precludes compensation being awarded by the Industrial Magistrates Court – damaging action proven – contravention of s 97A proven – compensation awarded
Legislation : Industrial Relations Act 1979 (WA)
Fair Work Act 2009 (Cth)
Legal Profession Uniform Law Application Act 2022 (WA)
Workers Compensation and Injury Management Act 2023 (WA)
Cases referred
to in reasons: : Alam v National Australia Bank Ltd [2021] FCAFC 178; (2021) 288 FCR 301
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525; (2013) 216 FCR 70
Batista v Wells Fargo International Finance (Australia) Pty Ltd (No 2) [2020] FCCA 829
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500
Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16; (2019) 268 FCR 46
Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697
Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 281 FCR 421
Elisha v Vision Australia Ltd [2024] HCA 50; (2024) ALJR 171
Ermel v Dulux Group (Australia) Pty Ltd (No 2) [2015] FCA 17
Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 8) [2024] FedCFamC2G 779
Hughes v East Metropolitan Health Service [2024] WAIRC 982; (2024) 104 WAIG 2560
James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR 566
Khiani v Australian Bureau of Statistics [2011] FCAFC 109
Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402
Lattouf v Australian Broadcasting Corporation (No 2) [2025] FCA 669; (2025) 341 IR 105
Leggett v Hawkesbury Race Club Limited (No 4) [2022] FCA 622; (2022) 293 FCR 608
Lewis v Australian Capital Territory [2020] HCA 26; (2020) 271 CLR 192
Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120
Murray v The Peninsula School [2015] FCA 447
Paras v Public Service Body Head of the Department of Infrastructure [2006] FCA 622
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1
PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15, (2020) 274 FCR 225
Police Federation of Australia v Nixon [2008] FCA 467; (2008) 168 FCR 340
Qantas Airways Ltd v Australian Licensed Aircraft Engineers’ Association [2012] FCAFC 63; (2012) 202 FCR 244
Richards v GB & G Nicoletti [2016] WAIRC 00941; (2016) 97 WAIG 117
SBP Employment Solutions Pty Ltd v Smith [2021] FCA 601
Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, (2014) 242 IR 1
Transport Workers’ Union of Australia v Qantas Airways Ltd [2024] FCA 1216; (2024) 334 IR 187
Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534; (2017) 275 IR 285
Wong v National Australia Bank Limited [2021] FCA 671
Result : Claim upheld
Proceedings adjourned for determination of penalty
Representation:
Claimant : In person
Respondent : Mr T. Ledger (of counsel)



REASONS FOR DECISION
1 The Western Australian Family Violence Prevention Legal Service Aboriginal Corporation is a notforprofit Aboriginal Community-Controlled Organisation that provides legal assistance and social support to Aboriginal and Torres Strait Islander people experiencing or at risk of family and domestic violence. It has locations in Perth and several regional Westen Australian locations. It trades as Aboriginal Family Legal Services (AFLS).
2 The claimant, Ms Natalia Eggett, was employed by AFLS. She commenced working with AFLS in the full-time position of Restricted Solicitor in September 2023.
3 On 4 April 2025, Ms Eggett was stood down from her role on full pay pending an investigation into her alleged conduct. The stand down ended on 28 April 2025 with no findings of misconduct made against Ms Eggett.
4 Ms Eggett’s claim in these proceedings alleges that the stand down was due to her having made an employment-related inquiry during an AFLS lawyers’ meeting on 3 April 2024 and/or because she was able to make an employment-related inquiry to the Legal Practice Board. She says that the stand down constituted damaging action under s 97 of the Industrial Relations Act 1979 (WA) (IR Act), in contravention of s 97A of the IR Act.
5 Ms Eggett seeks compensation for loss and injury and for a penalty to be imposed on AFLS.
6 AFLS denies that Ms Eggett made an employment-related inquiry within the meaning of that term in s 97A of the IR Act, and that even if she did, such inquiry was not a reason for the stand down. AFLS also denies that the stand down constituted damaging action.
7 To succeed in this case, Ms Eggett must demonstrate that AFLS subjected her to ‘damaging action’ and did so because, or for reasons that included, that she had the ability to, or had the ability to and did make, an employment-related inquiry. There is a statutory presumption in s 97A(2) which means that it is for AFLS to prove that any proven damaging action was not taken because the employee made the employment-related inquiry.
Uncontested Evidence at Trial
8 The Court heard evidence from Ms Eggett and Ms Pritika Naini as part of Ms Eggett’s case and from Ms Gail Dodd, Ms Vanessa Barlow and Ms Corina Martin in AFLS’s case.
9 Much of the relevant factual context is uncontroversial.
10 Ms Dodd is and was AFLS’s Principal Legal Officer.
11 Ms Dodd reported to the AFLS’s Chief Executive Officer, Ms Martin.
12 Ms Barlow is and was AFLS’s Human Resources Manager.
13 Ms Eggett was employed under a written contract dated 30 August 2023. Its relevant terms include:
D. It is a condition of your employment that upon admission you are entitled to practice law in Western Australia at all times during your employment. A failure to maintain a practising certificate will result In your Inability to perform any inherent requirements of your position.
…
4.2 In the performance of your duties you must:
(a) Strictly comply with the Legal Profession Uniform Law Application Act 2022 and any of the applicable Rules and Regulations made under this Act, including, but not limited to, the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 and the Legal Profession Uniform General Rules 2015.
(b) Substantially devote all of your time, attention and skill to the performance of your duties both during normal business hours and at other times as reasonably necessary;
(c) Perform the role honestly, faithfully, diligently and in a competent and ethical manner;
(d) Promote the interests of the Organisation and its Business favourably;
(e) Use your best endeavours to protect and promote the Organisation's reputation;
(f) Refrain from acting in conflict with the interests of the Organisation;
(g) Follow lawful and reasonable directions given by the Organisation;
(h) Not use any Confidential Information gained In the course of employment except for the performance of duties or the promotion of the Organisation's Business;
(i) Provide any confidential Information that the Organisation requests;
(j) Comply with the fiduciary obligations in clause 15;
(k) To the best of your knowledge and abilities, perform the duties assigned to you; and
(l) Perform your duties in compliance with the standards required by the Organisation as set out In Organisation policies and procedures (as amended from time to time).
…
22. Disciplinary Action
22.1 The Organisation may initiate disciplinary action against you for unsatisfactory performance or misconduct. The outcome of the disciplinary action may include redeployment, demotion or termination of your employment. The Organisation may reduce or change your duties as a result of disciplinary action taken to demote or redeploy you. The Organisation may also reduce your remuneration to reflect the level to which you are redeployed or demoted.
22.2 Disciplinary action undertaken by the Organisation to redeploy or demote you does not terminate the employment or this Agreement.
22.3 The Organisation has the right to suspend you from duties, with or without pay, where the Organisation considers It necessary to adequately investigate allegations of misconduct or impropriety against you.
…
24. Practicing Certificate
24.1 You are required to hold and maintain a practising certificate entitling you to work as a lawyer in Western Australia during your employment with the Organisation.
24.2 The Organisation may require you to provide evidence that you hold the above practising certificate.
24.3 This is considered an essential requirement of your role. The Organisation reserves the right to terminate your employment without notice in the event that you fail to maintain a legal practising certificate and you are unable to perform the requirements of your role.
24.4 You must notify the Organisation in the event that you no longer hold, or are no longer eligible to hold, a practising certificate.
24.5 The Organisation will pay your annual practicing certificate fees (paid one (1) year in advance) upon admission.
24.6 Compliance with the Continuing Professional Development Rules (CPD) is a condition on practicing certificates. It is your responsibility to ensure that you comply with your CPD obligations. Failure to comply with the requirements may result in your application for renewal of a practising certificate being delayed or refused.
24.7 Should you leave the Organisation, prior to the expiration period of the practising certificate, you will be required to reimburse the Organisation for the remaining amount paid for in advance (i.e. an amount to be calculated on a pro rata basis). You authorise the Organisation to deduct any such amount from any money to be paid to you by the Organisation, upon your termination and departure from the Organisation.
14 Ms Eggett took a period of parental leave for eight months, returning to work at AFLS on 3 February 2025.
15 On her return from parental leave, Ms Eggett shared an office on the first floor with Ms Naini, who was a restricted practitioner. Ms Eggett and Ms Naini both reported to Ms Dodd, whose office was located on the second floor.
Events of 3 April 2024
16 On the morning of 3 April 2024, Ms Eggett had a distressing and difficult dilemma in relation to one of her clients. She had a conversation with one of her co-workers, Ms Dianne Welsh, about this situation. Ms Welsh was not a lawyer, but a social worker employed by AFLS. Ms Eggett said she spoke with Ms Welsh because she was seeking her support. During the conversation she told Ms Welsh that she needed to speak with Ms Dodd about the situation. She also said something to Ms Welsh along the lines that she did not want to end up before the Legal Practice Board. ts 34.

17 This exchange between Ms Eggett and Ms Welsh is referred to in a medical report that Ms Eggett introduced into evidence through her witness statement, Exhibit C1.
where Ms Eggett describes expressing to Ms Welsh ‘that she had been unable to access legal guidance from her line manager.’ Exhibit C1, annexure 12.

18 Commencing from around 1.30 pm on 3 April 2024, Ms Eggett participated in a monthly lawyers’ meeting which was held in person and via Teams. A group of lawyers including Ms Eggett, Ms Dodd, Ms Naini and Ms Kim Axford, attended from AFLS’s Perth boardroom and five lawyers, including Managing Solicitor Amy Bowlay, participated remotely.
19 The lawyers’ meeting was described by Ms Eggett as a forum to allow for discussion about legal concerns and matters within the organisation. Ms Dodd described the meeting’s purpose as to get all the regions together, discuss developments, keep in contact and share information. She said it is intended to be an educational experience for the lawyers.
20 What happened in the course of the lawyers’ meeting is uncontroversial because it was audio-visually recorded. The recording was tendered into evidence. Exhibit C2.

21 The lawyers’ meeting lasted for about one and a half hours. Ms Dodd chaired it. There was a set agenda, including the introduction of new staff, discussions about law reform, and legal practice issues.
22 About an hour into the lawyers’ meeting, Ms Dodd invited contributions from participants on ‘Metro Updates’. After a few moments of silence, Ms Eggett spoke. She raised an issue about Ms Naini’s ability to provide advice to clients and the supervision that was required. A discussion of about 10 minutes’ duration followed, between Ms Dodd, Ms Eggett and Ms Bowlay.
23 It is unnecessary to reproduce the discussion in full. The critical parts are Ms Eggett’s contributions to the lawyers’ meeting, as the key issue is whether what she said constitutes an employmentrelated inquiry. Ms Dodd’s response is relevant only to the extent that it reveals how she regarded Ms Eggett’s conduct. The following is part of the discussion, but includes all of what Ms Eggett said during the discussion:
Ms Eggett: One update, I think, not training for staff that aren’t legal, but I think we need to consider we’ve got [a restricted practitioner] working in our office. A big thing I’ve noticed is that the [Legal] Practice Board here are extremely vigilant. Pritika technically should not be giving clients advice or meeting a client without running any advice by an unrestricted practitioner. That’s a big no-no. So I know where we’ve got an issue with the way community legal works. The client comes in, they tell you their issue, we speak to them there and then. I know that private practice is a bit different. You might know what the facts are if it’s criminal even before, but I think we need to be mindful of reception coming in and Pritika is the only one sitting there. You need to talk to this client and I know she won’t stand and she’s felt pressured if [human resources] come past, like ‘are you working?’ It’s not about that, we need to know, someone, what’s the advice she’s going to give? She’s [a restricted practitioner]. She can’t actually give advice without an unrestricted solicitor. Just so you’re not put in that position giving it in areas you’ve not worked in.
Ms Dodd: Yeah. I’ll take it outside of the meeting because I don’t think that’s [indecipherable]. I’m Pritika’s direct supervisor. We’ve had some discussions around it, so if there are some concerns, just come up and speak with me.
You can, actually, I’m aware of the legal practitioners thing, I’m aware – I’ve got those copies. You can speak with clients and get instructions. You can then walk away, come and speak with somebody, confirm what you’re going to do and go back in.
Ms Eggett: I just noticed when we’re really busy, she’s under the pump, you’re a lawyer, technical –
Ms Dodd: [interrupting Ms Eggett] Well yeah. And look, that’s probably something that Metro needs to deal with … we’re aware there’s some teething but as I said we’ll take it out of this meeting. That’s more specific to Metro….got to be aware of it, to change it, but yeah.
Ms Bowlay: … This is not about Pritika specifically, but for any [restricted practitioner] – anyone who’s practicing in the new, in this new space, just to feel comfortable to go to your managing or next senior lawyer, because everything should be getting signed off if you’re new, but giving this advice, nothing should go out that hasn’t been signed off by your senior. So, just a reminder and not to be afraid because I know were sometimes have, you know, more junior lawyers who are operating by themselves sometimes or not junior, but you know, in the area. So, just making sure that’s happening so that advice is across the board and upskilled to the same level.
Ms Eggett: And correct me if I’m wrong, so that Gail’s not bothered, it is my understanding the board’s provision is just another solicitor that’s not restricted anymore can technically sign off and the onus is then on their practice certificate. It’s just someone has to be aware.
Ms Dodd: As long as the advice is sound and it comes from somebody with an unrestricted to confirm it. But no, because of our CRC and the way it works, [indecipherable] has to sign every bit of document … But yes, absolutely right, we are a team…. But when it comes down to signing off that’s got to be the PLO that signs off, whether it’s me or Ted. You can also have Responsible Persons who can do some of that. But we’ve also, not only do we have the Legal Practitioners Board, we also have our responsibilities under our CLC risk management guide and our cross-checking and our accreditation as well. So it’s across a whole lot of things. …
Ms Eggett: It is just to protect Pritika. There was a situation where [a human resources] person said ‘what’s the problem?’ It’s not actually a problem. I have no question, Pritika is amazing. But you’ve got [a restricted practitioner] who is required to check advice before seeing a client. You know what advice is given in a practice area she’s never practiced in. For her own development she wants to check that advice is correct. It wasn’t a case she was refusing to see a client. You can’t give advice…
Ms Dodd: It’s not – it’s not going on with what’s being sent out, so I don’t know why…
Ms Eggett: Yeah, because like I said we’re busy, no one wants to turn a client away. Exhibit C2, 1:00:23 – 1:06:12.

24 Ms Eggett’s tone when speaking at the meeting was firm and forthright, but it was not aggressive or hostile. She did not challenge Ms Dodd in any way. She did not contradict or criticise Ms Dodd. Ms Dodd’s tone and demeanour was not hostile either, although she does appear to have been taken by surprise, and to be unprepared for the discussion. She and Ms Eggett speak over each other to a minor extent.
25 Ms Naini’s evidence was that she got more clarity about supervision arrangements from the discussion during the lawyers’ meeting. ts 21.

26 As foreshadowed by Ms Dodd during the lawyers’ meeting, immediately after the lawyers’ meeting, Ms Dodd met with Ms Eggett and Ms Naini, to discuss this topic further (the second meeting). Ms Naini gave evidence about what was said during the second meeting. She and Ms Eggett asked Ms Dodd more questions about supervision, and Ms Naini told Ms Dodd that their discussion had given her a bit more clarity. ts 22.

27 Sometime after the second meeting, Ms Axford and Ms Welsh came to Ms Dodd’s office. According to Ms Dodd, they told her that Ms Eggett had been ‘making derogatory comments’ about Ms Dodd in the office to other staff members. Ms Dodd refers to three statements that Ms Axford and Ms Welsh attributed to Ms Eggett:
(a) That Ms Dodd was incompetent.
(b) That Ms Dodd had thrown Ms Eggett under the bus regarding a court matter; and
(c) Mention of the Legal Practice Board.
28 Ms Dodd asked Ms Axford and Ms Welsh if they would be happy to speak to Human Resources (HR) about any concerns they wished to raise.
Events of 4 April 2025
29 The next day, on 4 April 2025, Ms Axford and Ms Welsh told Ms Dodd that they would make a complaint to HR. Ms Dodd invited Ms Barlow to her office, and Ms Axford and Ms Welsh then informed Ms Barlow that they had concerns about things Ms Eggett was saying. According to Ms Barlow, Ms Axford and Ms Welsh told Ms Barlow that ‘there was some gossip and derogatory comments being spread from Ms Eggett regarding Ms Dodd.’ Ms Barlow describes the ‘details’ given to her at that point as outlines of conversations Ms Axford and Ms Welsh had separately had with Ms Eggett on 3 April 2025 where Ms Eggett ‘expressed concerns’ around Ms Dodd’s competency and her decision making. According to Ms Barlow, Ms Dodd also mentioned to her that Ms Eggett ‘had raised a query about staff supervision’ at the lawyers’ meeting.
30 Ms Axford, Ms Welsh and Ms Barlow then moved to another room to discuss the matter in Ms Dodd’s absence.
31 At this point, Ms Barlow had also received information from a third employee about something Ms Eggett has said to that employee, concerning Ms Dodd.
32 Ms Dodd rang her manager, Ms Martin, because she was, in Ms Dodd’s words, ‘overcome with emotion’.
33 Although Ms Barlow was, in the meantime, meeting with Ms Axford and Ms Welsh about their complaints, she does not give any greater content to the substance of their complaints than what has previously been outlined.
34 Ms Barlow then received a call from Ms Martin, who relayed her call from Ms Dodd. Ms Martin asked Ms Barlow to conduct an investigation. She and Ms Martin jointly decided to stand down Ms Eggett on full pay until the investigation was concluded.
35 Ms Eggett was working from home at the time.
36 At around 12.30 pm on 4 April 2025 Ms Eggett received a phone call from Ms Barlow advising her that she was stood down effective immediately. I deal with this conversation further at [72] to [74] below.
37 Ms Barlow asked Ms Eggett if she could attend Ms Eggett’s home to retrieve her work laptop, mobile phone and client files.
38 Following the phone call, at about 1.00 pm, Ms Barlow sent Ms Eggett an email attaching a letter which said:
04 April 2025
…
Dear Natalia
Stand Down
I have been made aware of your conduct towards the Principal Legal Officer, Ms Gail Dodd during the meeting held on 03 April 2025 (and other instances preceding this meeting) and the decision has been made to stand you down effective immediately with pay, until further notice, whilst we conduct an investigation into the concerns raised.
Whiles you are stood down, you will continue to accrue annual leave, personal leave and long service leave.
I instruct that you are not to attend the 2025 Family Law Intensive Conference on Saturday 05 April 2025.
I will be in contact with you in due course.
39 The letter was signed by Ms Barlow for Ms Martin.
40 Ms Barlow then attended Ms Eggett’s home to collect her work items.
The Stand Down Period
41 On Saturday, 5 April 2025 Ms Eggett sent an email to Ms Barlow expressing her concerns about the stand down, her distress, ‘about the procedural fairness involved in this matter,’ requesting a copy of the Disciplinary Procedure and requesting details of the allegations against her. Exhibit C1, annexure 4.

42 Ms Eggett had no further correspondence or contact directly from AFLS between 5 April 2025 and Monday, 28 April 2025.
43 Ms Eggett proceeded on pre-planned annual leave on 14 April 2025.
44 The Easter public holidays occurred between 18 April 2025 and 21 April 2025.
45 The Anzac Day public holiday was on Friday 25 April 2025.
46 Ms Eggett engaged solicitors to act for her. On 10 April 2025 her solicitors wrote to AFLS seeking details of the allegations made against Ms Eggett and the basis for her being stood down. In a letter in response dated 28 April 2025, AFLS repeated that the stand down came about because of the lawyers’ meeting:
AFLS was made aware of Natalia’s concerns towards the Principal Legal Officer, Ms Gail Dodd during the meeting held on 03 April 2025 and concur this was not the only factor taken Into account with the decision to stand Natalia down.
On 4 April 2025 AFLS, Human Resources became aware other employees had raised concerns with alleged disparaging comments made by Natalia to other employees regarding Ms Gail Dodd, including a comment about reporting her to the Legal Practitioners Board (which Is not a decision that should be made by Natalia) and other professional decisions made by Ms Dodd as well as advising another employee that Ms Dodd deems this employee ‘incompetent’.
Due to the seriousness of the allegations concerns raised a decision was made to stand Natalia down effective immediately with pay, until further notice, whilst we conducted an investigation into the concerns raised to ensure proper processes and policies were followed. Exhibit C1, annexure 7; see also exhibit R3, CM-1.

47 By that same letter, the stand down was revoked although the letter also implicitly accepts that there was a valid basis for the employees to have raised concerns, despite the fact that no allegations had been put to Ms Eggett for her response:
During this period, we have consulted with other employees regarding those concerns raised, of which staff have stood by what they have alleged. We note at no time has Natalia raised any concerns with Ms Dodd the [Chief Executive Officer] and/or Human Resources, which would have been the correct process for Natalia to raise any concerns she had. Exhibit C1, annexure 7.

48 AFLS proposed that there be a mediation and/or informal discussions for Ms Eggett to return to work and ensure a ‘professional working relationship’ going forward. Exhibit C1, annexure 7.
It did not exonerate Ms Eggett.
Workers Compensation Claim and End of Employment with AFLS
49 On 2 May 2025 Ms Barlow sent Ms Eggett’s lawyer an email confirming that the stand down direction had been revoked, but stating:
The investigation conducted highlights that there are some areas of communication between Ms Eggett and Mrs Gail Dodd that need to be resolved and Mrs Dodd is Ms Eggett’s Line Manager. We felt the best way to do this would be with the assistance of a third party mediator. Exhibit R1, VB-6.

50 I note that at no time prior to this point was any allegation put to Ms Eggett that AFLS had concerns about her communications with Ms Dodd. None of the evidence, including Ms Dodd’s own evidence, indicates there was any basis for concerns about Ms Eggett’s communications with Ms Dodd.
51 Ms Eggett had not been invited to participate in any investigation. No allegations had been put to her, and her input had not been sought. In cross-examination, Ms Barlow confirmed that she formed the view expressed in this letter from her discussions with other employees (without naming Ms Dodd) and without having sought any response or explanation from Ms Eggett.
52 Ms Eggett did not return to the workplace. On 2 May 2025, she lodged a claim for workers compensation benefits, in respect of the events that occurred on 4 April 2025. The claim was accepted and weekly incapacity payments were made to her until about July 2025.
53 On 3 June 2025 AFLS wrote to Ms Eggett ‘to respond to various questions you have raised and clarify any confusion our prior correspondence may have caused.’ The 3 June 2025 letter states that:
(a) During the investigation into reports received to the effect that Ms Eggett had made disparaging comments to AFLS employees about Ms Dodd, it became apparent that the ‘concerns raised’ likely stemmed from ‘possible misunderstandings between you and Ms Dodd’;
(b) AFLS therefore decided not to continue the stand down and not to proceed with a formal investigation;
(c) There have been no findings of misconduct against Ms Eggett;
(d) It was identified that the conduct complained of related to communication between Ms Dodd and Ms Eggett including, but not limited to, conversations and differing views about the supervision of restricted practitioners;
(e) AFLS proposed mediation between Ms Dodd and Ms Eggett; and
(f) Ms Eggett was asked to confirm she would meet with an external mediator together with Ms Dodd. Exhibit R1, VB-8.

54 In the meantime, Ms Eggett was referred by the workers’ compensation insurer to be reviewed by Dr Andrew Jackson, Consultant Psychiatrist. He reported on 24 June 2025 that Ms Eggett:
(a) suffered a sudden and acute anxiety response to the stand down on 4 April 2025;
(b) had no previous psychiatric history;
(c) was diagnosed as suffering Adjustment Disorder with Anxiety; and
(d) had been engaging in treatment with a psychologist and had commenced medication prescribed by her general practitioner. Exhibit C1, annexure 12.

55 Dr Jackson opined that Ms Eggett’s employment with AFLS had contributed to a significant degree to the diagnosis; that she would not have suffered her current symptoms if not for the events of 4 April 2025; that Ms Eggett would continue to require treatment for six months, and that although her condition had improved over the last two weeks, she was not fit to return to work at the AFLS, although she had regained capacity to return to work as a lawyer on a full-time basis in other workplaces.
56 On 27 June 2025, Ms Eggett resigned from her employment with the AFLS.
57 Ms Eggett quickly obtained alternative employment as a lawyer in the private sector.
58 On 30 August 2025 Ms Eggett’s Clinical Psychologist, Christian Hetebry reported to the workers’ compensation insurer that:
(a) Ms Eggett had been receiving psychological therapy in response to mental health concerns that arose out of conflict with the AFLS;
(b) Ms Eggett’s primary symptoms were worry, physical tension, sleeping difficulty, reduced motivation, feeling distant from her family and generally low mood;
(c) As at 22 August 2025 Ms Eggett was still experiencing significant distress. Her anxiety and depression had been exacerbated by ‘her legal process with her former employer’;
(d) The severity of her symptoms had not changed from May 2025;
(e) Her level of depression and anxiety was in the moderate range, but her level of stress was in the severe range; and
(f) Six further sessions of therapy were recommended. Exhibit C1, annexure 19.

59 Ms Eggett described her symptoms including that stress factors at home and at work are heightened; she has emotional reactions to simple tasks; she wakes up irritable most days; finds herself in a state of fight or flight; wanting to avoid social interactions, and generally feeling fatigued. She has chosen not to work full-time because she is exhausted by lunch time due to a lack of sleep. She is also concerned by the reputational damage the stand down caused her.
Contested Evidence: Reasons for the Stand Down
60 The reasons why AFLS suspended Ms Eggett and initiated the investigation are contested. Ms Eggett says I should find that her actions in raising the supervision topic during the lawyers’ meeting was a reason for the stand down. AFLS denies this was the reason, as it says the relevant decision-makers had no knowledge of any complaint being raised against Ms Eggett concerning her conduct at the lawyers’ meeting. It says that the reason for the stand down was because it had become aware of complaints about Ms Eggett disparaging Ms Dodd to other employees outside the lawyers’ meeting.
61 Ms Dodd’s evidence was that while she was surprised that Ms Eggett raised the restricted practitioner issue in the monthly meeting, she was not concerned by it, although she did want to get to the bottom of what concerns were held. She said that she thought the matter had been addressed and put to bed after she had discussed it privately with Ms Eggett and Ms Naini during the second meeting.
62 Ms Dodd did not refer to having mentioned anything to Ms Barlow about the lawyers’ meeting. She did not herself suggest that the matters raised by Ms Eggett in the lawyers’ meeting, or the way she raised them, was inappropriate in any way.
63 Ms Dodd was not subsequently involved in the matter, which was then handled by Ms Martin and Ms Barlow. Ms Dodd was not a relevant decision-maker in respect to the stand down.
64 Ms Barlow says the decision to stand down Ms Eggett was made by her and Ms Martin, despite the fact that she had limited knowledge of the specific allegations against Ms Eggett at that time. She considered suspension was warranted because of the potential impact of the conduct on other staff, and the possibility of it sewing further disharmony in the workplace.
65 Ms Martin’s evidence was that during the phone call Ms Dodd made to her on 4 April 2025, Ms Dodd was ‘highly emotional’ and was in tears. Exhibit R3 [8].
Ms Dodd told her that two employees had complained that Ms Eggett was publicly disparaging her.
66 Ms Martin then contacted Ms Barlow for further details. What she gleaned from Ms Barlow was that ‘there had been some complaints about Ms Eggett’ from two employees, which were affecting other staff and making staff members uncomfortable. Exhibit R3 [12]  [13].

67 Ms Martin makes no reference in her evidence to the lawyers’ meeting.
68 At the time that she decided it was appropriate to suspend Ms Eggett, Ms Martin was not aware that Ms Eggett was in fact working from home. ts 98.

69 Ms Martin said in her evidence that at the time of the stand down, her knowledge of the allegations that were to be investigated was limited to Ms Axford and Ms Walsh’s complaints that Ms Eggett had been making disparaging comments about Ms Dodd to other staff after the lawyers’ meeting. ts 101  102.

70 Ms Martin said her concern was not the substance of what Ms Eggett was saying, but rather the public nature of the comments and their potential to disrupt team cohesion. She mentions in her evidence that comments about the ‘Legal Practice Board’ was not an actual complaint, so she appears to have been aware that at least part of the complaints concerned Ms Eggett making reference to the Legal Practice Board. She also described Ms Eggett’s comments as ‘loud’ and that they made other staff members uncomfortable. Exhibit R3 [13].
Her evidence-in-chief is piece-meal and cannot be the whole truth. She could not have formed views she did form, without receiving more detail about the allegations than what she conveyed in her evidence.
71 Further, Ms Martin’s evidence as to her knowledge of the allegations is inconsistent with what she said in the stand down letter of 4 April 2025 which refers to being made aware of conduct toward Ms Dodd ‘during the meeting held on 03 April 2025 (and other instances preceding this meeting)’. It is also inconsistent with Ms Martin’s letter to Ms Eggett’s lawyers dated 28 April 2025:
AFLS was made aware of Natalia’s concerns towards the Principal Legal Officer, Ms Gail Dodd during the meeting held on 03 April 2025 and concur this was not the only factor taken into account with the decision to stand Natalia down. Exhibit R3, CM-1.

72 I expected that the evidence about Ms Barlow’s telephone call made to Ms Eggett on 4 April 2025 would be revealing as to what the reasons for the stand down were, given its proximity to the actual decision, and the fact that it involved a conversation between two witnesses. However, the quality of the evidence about this event is lacking. There was little cross-examination on it.
73 Ms Barlow’s evidence-in-chief is that she told Ms Eggett an investigation would take place into allegations regarding comments Ms Eggett was alleged to have made about Ms Dodd the previous day. Exhibit R1 [22].
Ms Eggett’s evidence-in-chief was that Ms Barlow referred to ‘an allegation of misconduct’ towards Ms Dodd ‘during a meeting on the afternoon of 3 April 2025.’ Exhibit C1 [15].
However, during cross-examination, Ms Eggett resiled from this account, suggesting that Ms Barlow did not specify what the stand down was about, saying only that it would become clear when she receives a foreshadowed letter from AFLS. ts 36.

74 I make no findings as to what was said during this telephone call as an explanation for the stand down.
75 Ms Barlow watched the recording of the lawyers’ meeting as part of her investigation into the allegations. She says it was only following her review of the recording that ‘it was apparent that the alleged conduct’ raised by the other employees happened outside of the meeting. Exhibit R1 [31].

76 The fact that Ms Barlow thought it was necessary to watch the recording of the lawyers’ meeting can only mean that, at the time she commenced the investigation, she thought that the complaints related to Ms Eggett’s conduct at the meeting. Had she not had that understanding, there would be no reason for her to view the recording.
77 I therefore find that at the time Ms Barlow and Ms Martin were involved in the joint decision to suspend Ms Eggett, both believed that the relevant comments which were being complained about, or at least some of them, were made during the lawyers’ meeting. Their evidence to the effect that Ms Eggett’s conduct at the lawyers’ meeting was not a reason for the stand down decision is unreliable. It is both incomplete and inconsistent with their subsequent conduct and the content of their subsequent correspondence.
78 The beliefs that I have found Ms Barlow and Ms Martin had were mistaken ones.
79 The critical point, though, is that Ms Martin and Ms Barlow jointly decided to stand Ms Eggett down because they had received complaints which they believed involved Ms Eggett raising concerns about Ms Dodd or disparaging Ms Dodd during the lawyers’ meeting.
The Legislative Framework
80 Section 97A is found in Part 6B of the IR Act, headed ‘Protection of Employee Rights’. It is designed to safeguard employees’ ability to make an employment-related inquiry or complaint in these terms:
(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.
81 Section 97 defines ‘damaging action.’ Relevantly, an employer subjects an employee to damaging action if the employer does one of the following:
(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).
82 In Hughes v East Metropolitan Health Service [2024] WAIRC 982; (2024) 104 WAIG 2560 (Hughes v EMHS), 2574  2575 [157]  [158], Industrial Magistrate Scaddan observed that these provisions are based on the general protections against adverse action contained in s 340, s 341 and s 342 of the Fair Work Act (Cth) (FWA) to the extent that those sections deal with the workplace right in s 341(1)(c)(ii). The federal caselaw is therefore helpful in determining the approach to, and applying, s 97A.
83 The correct approach to the protection against damaging action was summarised by her Honour at [213]:
(a) 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;
(b) the employee is also required to establish that they made an employment-related inquiry or complaint which they were able to make (which precipitated the damaging action);
(c) 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
(d) 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).
(original emphasis)
84 Her Honour observed that there is a lack of complete alignment between the relevant provisions of the FWA and the IR Act, because of how the rebuttable presumption is expressed in s 97A(2). I would add that s 97A(1) only expressly refers to the employee being ‘able to make’ an employment-related complaint or inquiry, whereas the concept of a workplace right in s 340 and s 341 of the FWA involves not only having the workplace right, but also, exercising or not exercising the workplace right, and proposing or proposing not to, exercise the workplace right.
85 There is a further inconsistency between s 97A(1) which refers only to being ‘able to make’ an employment-related complaint or inquiry, and s 97A(2) in which the rebuttable presumption is said to apply to disproving damaging action was taken because the employee made the inquiry or complaint, or proposed to make the inquiry or complaint. Section 97A may therefore have a narrower scope of application than s 340(1)(a) as it concerns the workplace right in s 341(1)(c).
86 The parties did not address the correct construction of s 97A(1) in their submissions. Both proceeded on the understanding that s 97A(1) prohibited damaging action for a reason, or reasons that include, that an employee has the ability to make an employment-related inquiry or complaint, but also prohibits damaging action for a reason, or reasons that include, that an employee exercised that right, provided it was also an employment-related inquiry or complaint that the employee was able to make.
87 This must be correct, given the terms of s 97A(2).
88 Accordingly, I will apply the Full Federal Court’s summary of the settled principles in Alam v National Australia Bank Ltd [2021] FCAFC 178; (2021) 288 FCR 301 (Alam), 306  308 [14], as follows:
(a) in order to attract the application of s 361, an applicant should allege with sufficient particularity both the action said to constitute ‘adverse action’ and the particular reason or particular intent with which it is said the action was taken;
(b) the party making the allegation that adverse action was taken ‘because’ of a particular circumstance must establish the existence of that circumstance as an objective fact. That is, it is for the applicant to establish all the elements of the alleged contravention other than the reasons of the respondent for taking the adverse action.
(c) an employer takes adverse action in contravention of s 340 if a proscribed reason is a ‘substantial and operative’ reason for the action or if the reasons for the action include the proscribed reason.
(d) the discharge of the s 361 onus requires proof on the balance of probabilities and usually requires decision-makers to give direct evidence of their reasons for taking the adverse action.
(e) the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding.
(f) while the evidence of the decision-maker as to the reasons for the taking of the adverse action may, if accepted by the Court, satisfy the s 361 onus, such evidence is not a necessary pre-condition.
(g) the Court’s rejection of the evidence of the decision-maker as to the reasons for the adverse action will ordinarily be ‘a weighty consideration and often a determinative consideration’ in the determination of whether the reason alleged by the applicant was a substantial and operative reason for the action, but such a rejection does not relieve the Court from considering all the evidence probative of whether the reason asserted by the applicant has been negated. When there is evidence of a broad range of facts and circumstances, which are not dependent on acceptance of the decision-maker’s evidence about his or her asserted reason for the dismissal, such evidence must be taken into account in assessing whether the reasons asserted by an applicant were a substantial and operative reason for the action.
(h) even if the reasons advanced by a respondent as the actual reasons for the decision are accepted, the absence of evidence that there were no additional reasons or that the actual reasons did not include the alleged proscribed reasons, may result in a failure to rebut the presumption.
(i) the decision-maker’s knowledge of the circumstance asserted by an applicant to be the reason for the adverse action, and even its consideration, does not require a finding that the action was taken because of that circumstance. Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason; and
(j) adverse action taken against a person because of conduct resulting from the exercise of workplace rights may not offend the s 340(1) prohibition.
(citations omitted)
89 Section 97A is a civil penalty provision for the purpose of s 83E of the IR Act. IR Act, s 97A(3).
Under s 83E, the Industrial Magistrates Court (IMC) may make an order imposing a pecuniary penalty on a person if the person contravenes a civil penalty provision.
Was Ms Eggett Subject to Damaging Action?
90 To succeed in her claim, Ms Eggett must first establish that a form of damaging action took place. Hughes v EMHS, 2574  2575 [213].

91 The damaging action Ms Eggett relies on is being stood down on 4 April 2025.
92 AFLS says that the stand down was not damaging action because Ms Eggett’s position was not altered to her disadvantage.
93 For the purposes of s 342 of the FWA it has been held that an employer:
(1) ‘[injures an] employee in his or her employment’ if it subjects him or her to legally compensable injury; and
(2) ‘alters the position of [an] employee to the employee’s prejudice’ if, by its conduct, it visits any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question. Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1, 17  18 [4] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ).

94 An alteration to the position of an employee will be relevantly prejudicial if it visits adverse consequences that are real and substantial, rather than merely possible or hypothetical. Qantas Airways Ltd v Australian Licensed Aircraft Engineers’ Association [2012] FCAFC 63; (2012) 202 FCR 244, 250 [32] (Gray, North and Besanko JJ); Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 [48] (Katzmann J); Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402 [84] (Gordon J).

95 In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525; (2013) 216 FCR 70 (Visy), an employee who was also a union delegate and a health and safety representative, was suspended by the employer in order for the employer to conduct an investigation concerning the employee’s conduct. The relevant conduct occurred in the course of a dispute between the employee and the employer after the employee tagged out-of-service forklifts in the factory which he considered were unsafe as their reversing beepers were defective. In the proceedings, the Union alleged that each investigation itself, the suspension, and a resulting written warning constituted adverse action. The employer denied any of this conduct amounted to adverse action.
96 Murphy J found that in Visy at [110], the employee’s suspension was adverse action, referring to the observations of Ryan J in Police Federation of Australia v Nixon [2008] FCA 467; (2008) 168 FCR 340 that the term ‘alteration’ required ‘substantive change,’ and that ‘suspension from duties’ constituted such substantive change.
97 At [114]  [115] Murphy J said:
In my view the removal of an employee from their employment against his or her will, even temporarily, will usually be adverse to their interests. To say otherwise would be to deny the benefit one gains from the successful pursuit of activity in a field of expertise. The observation that active employment is a source of more than simply financial benefit is neither new, nor should it be considered controversial.
I consider that the suspension resulted in a deterioration in the advantages otherwise enjoyed by [the applicant] in [their] employment and constitutes adverse action.
(citations omitted)
98 This reasoning was applied by Kendall J in Batista v Wells Fargo International Finance (Australia) Pty Ltd (No 2) [2020] FCCA 829 [102]  [104] notwithstanding that the employer had a right to suspend the employee and that the employee continued on full pay and by Murphy J in Murray v The Peninsula School [2015] FCA 447 [19].
99 AFLS argues that this case is distinguishable from Visy because:
(a) there was no written warning issued against the Claimant (as there was in Visy);
(b) in Visy, the employee was acting in their capacity as a member and a delegate of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, and also the elected health and safety representative under the Occupational Health and Safety Act 2004 (Vic);
(c) in Visy, the employee was exercising a workplace right when they tagged the relevant equipment for a safety issue; and
(d) in Visy, there was no separate misconduct as the primary reason for the suspension.
100 None of these points are pertinent to the reason why suspension from employment has been held to be adverse action, namely, the widespread acceptance of the social reality that employment is associated with benefits to employees other than remuneration, including identity and self-esteem. See for example, Elisha v Vision Australia Ltd [2024] HCA 50; (2024) ALJR 171, 188 [67] (Gageler CJ, Gordon, Edelman, Gleeson and BeechJones JJ).

101 I accept AFLS’s submission that a stand down or suspension will not in every case amount to damaging action. However, in Ms Eggett’s case the stand down is damaging action. Ms Eggett was deprived of the ability to fulfil her role and duties, was denied the opportunity to participate in the Family Law Intensive Conference which she had previously been approved to attend and was subject to the embarrassment of her unexplained absence from the workplace.
When Does an Employee Possess an Ability to Make an Employment-Related Inquiry?
102 In PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15, (2020) 274 FCR 225 (PIA), 252  253 [134]  [139] Snaden J made the following relevant observations about s 341(1)(c)(ii) of the FWA:
In order that the making of a complaint or inquiry might amount to the exercise of a workplace right of the sort to which s 341(1)(c)(ii) of the [FWA] refers, it must pertain, as a matter of substance, to its maker's employment. That being so, it is necessary to consider whether either or both of the [complaints that were made in that case] were of that nature: that is, were they complaints or inquiries that pertained to Mr King's employment?
That requires analysis at two levels: first, did each of the [relevant complaints] qualify as a ‘complaint or inquiry’; and, second, did each arise ‘in relation to [Mr King’s] employment’?
The Macquarie Dictionary relevantly defines ‘complaint’ and ‘inquiry’ respectively as follows:
complaint
…
1. an expression of grief, regret, pain, censure, resentment, or discontent; lament; fault-finding.
2. a cause of grief, discontent, lamentation, etc
…
inquiry
…
2. the act of inquiring, or seeking information by questioning; interrogation.
3. a question; query.
…
Whether a complaint or inquiry qualifies as a complaint or inquiry made ‘in relation to... employment’ depends upon the subject matter that is sought to be agitated. It is not necessary that a complaint be directly related to its maker’s employment: Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697, [64] (Katzmann J); Shea, [631] (DoddsStreeton J). In Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; (2014) 243 IR 468, 476 [42] (Bromberg J), this court determined that the connection between a complaint and employment would likely exist in circumstances ‘[w]here the subject matter of the complaint raises an issue with potential implications for the complainant’s employment’.
That reasoning has been followed (see, for example, Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19, [68]-[69] (Mortimer J)) although not universally without qualification (see, for example, The Environmental Group Ltd v Bowd [2019] FCA 951, [126] (Steward J)).
103 In Wong v National Australia Bank Limited [2021] FCA 671 [66], Snaden J also said:
Although I dissented in the outcome in [PIA], [the above] observations were not obviously controversial. The majority (Rangiah and Charlesworth JJ) did not address the conceptual boundaries of ‘complaints’ or ‘inquiries’; their Honours instead focused upon the primary issue in that case, namely whether the complaints that had been made were complaints that the former employee was ‘able to make’.
104 It is only if the complaint or inquiry is one the employee is ‘able to make’ that the employee is afforded protection under s 97A. This means that not all inquiries that an employee makes in connection with employment are protected.
105 Exactly how the words ‘is able to’ limits the operation of the relevant protection is a matter of some controversy. The leading authorities are Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16; (2019) 268 FCR 46 (Whelan), 55  56 and PIA.
106 In Whelan, at [28], a unanimous Full Federal Court (Greenwood, Logan and Derrington JJ) endorsed as ‘unremarkable and correct’ the approach of Collier J at first instance. Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534; (2017) 275 IR 285.
There, her Honour stated the principles as follows at [33]  [34]:
Section [341(1)(c)(ii)] defines a workplace right in an employee as being the entitlement of the employee to make a complaint or inquiry in relation to his employment. In such cases as Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; (2014) 242 IR 1 (Shea), Murrihy v Belezy.com.au Pty Ltd [2013] FCA 908; (2013) 238 IR 307 and Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; (2014) 243 IR 468 (Walsh), [s 341(1)(c)(ii)] was interpreted broadly. In Walsh [41], Bromberg J observed that the requirement in [s 341(1)(c)(ii)] that a complaint or inquiry by the employee be ‘in relation to’ his employment means that there must be a relationship between the subject matter of the complaint and the complainant’s employment. As Dodds-Streeton J further observed in Shea, a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise.
As a general proposition, a complaint or inquiry to the employer by an employee in relation to his or her entitlement to an incentive bonus, or the failure of the employer to prepare an incentive bonus plan, where the terms of employment of that employee make provision for payment of such bonuses or the preparation of such plans, would fall within the scope of [s 341(1)(c)(iii)] of the [FWA]. (emphasis added)
107 The Full Federal Court in Alam at [75] observed that in so reasoning, Collier J treated a complaint or inquiry to an employer about an entitlement for which the contract of employment makes provision as within the scope of s 341(1)(c). It is not a requirement that the right or entitlement to make a complaint or inquiry be itself found in the employment contract. The Full Federal Court also noted that her Honour ‘did not purport to state exhaustively the kinds of complaints or inquiries which would be within, and without, s 341(1)(c).’
108 In PIA, the majority said at [26]  [27]:
An employee is ‘able to complain’ to his or her employer within s 341(1)(c)(ii) of the [FWA] concerning the employer’s alleged breach of the contract of employment. The source of that ability is the general law governing contracts of employment. Further, an employee is ‘able to complain’ to the employer or to a relevant authority of their employer’s alleged contravention of a statutory provision relating to the employment. That ability derives from at least the statutory provision alleged to have been contravened. The statute need not expressly or directly confer a right to bring proceedings or to complain to an authority. As Dodds-Streeton J held in Shea at [29], the complaint must be made genuinely, in good faith and for a proper purpose.
The variety of circumstances arising in employment law cases is notoriously wide. Nothing we have said is intended to foreclose argument as to other circumstances that may give rise to an ability to make a complaint. Nor is it intended to foreclose argument about any limitation as to whom a complaint may be made for the purposes of s 341(1)(c)(ii) of the [FWA].
109 There are some differences in the statements of the principles as between Whelan and the majority in PIA, but, as the Full Federal Court noted in Alam, at [94] and [98], any difference in the application of the two approaches is unlikely to be significant.
110 In Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 281 FCR 421 (Cummins), 435  441 [45]  [67], Bromberg J, with whom Mortimer J agreed, described the reasoning in PIA, Whelan and Shea as ‘plainly wrong’. His Honour expressed the view that any employment-related complaint, whether or not made as an exercise of some right or entitlement, would suffice for the purpose of s 341(1)(c)(ii) of the FWA, as long as the employee is able to make the complaint, in the sense of being capable of communicating it. His Honour’s observations were obiter.
111 In SBP Employment Solutions Pty Ltd v Smith [2021] FCA 601 [134]  [142], Rangiah J contended with the uncertainty as to the true construction of the words ‘is able to’ in s 341(1)(c)(ii) of the FWA and Bromberg J’s reasoning. His Honour’s persuasive analysis concluded against the view of the majority in Cummins.
112 The above authorities were predominantly concerned with when a complaint falls within the scope of s 341(1)(c)(ii) of the FWA, rather than when an inquiry is within its scope. Nevertheless, the principles apply equally to inquiries and complaints. Alam [95].

Did Ms Eggett Possess an Ability to Make an Employment-Related Inquiry?
113 Ms Eggett submits that she had an ability to make inquiries about supervised legal practice sourced in her employment contract. She notes that her employment contract requires that she maintain her practice certificate (Recital D) and strictly comply with the Legal Profession Uniform Law Application Act 2022 (WA) and any Rules and Regulations made under it (Uniform Law) (clause 4.2(a)).
114 I agree. While it was not articulated precisely in this way by Ms Eggett, her contractual obligations must mean that there is a reciprocal implied obligation on AFLS not to require Ms Eggett to perform her role in a manner which would contravene the Uniform Law, or, alternatively, that Ms Eggett had an entitlement, sourced in the implied terms of her employment contract, to refuse unlawful directions which might compromise her ability to maintain a practice certificate or cause her to contravene the Uniform Law: see, for example, Riley J, O'Grady P and Sappideen C, Macken’s Law of Employment (9th ed, 2022) 5.410.
115 Accordingly, Ms Eggett had an ability to make an inquiry of AFLS about matters which would impact on her ability to comply with her obligations under her contract of employment, specifically, her ability to comply with the Uniform Law. A genuine inquiry about that matter, and an inquiry to clarify what AFLS could, and could not, lawfully direct her to perform is an inquiry that is within the scope of s 97A(1).
Did Ms Eggett Exercise Her Ability to Make an Employment-Related Inquiry?
116 AFLS did not disagree that there was ‘an inquiry of some sort’ by Ms Eggett at the lawyers’ meeting. ts 110.
Although at first blush Ms Eggett’s conduct would appear to involve the making of general statements, it is an appropriate concession to make, given the described purpose of the lawyers’ meeting as ‘educational’. While Ms Eggett was making general statements as to her understanding of the position, she was implicitly also inviting discussion, feedback or the expression of contrary views. At one point she expressly says ‘correct me if I’m wrong’. Exhibit C2, 1:03:37.

117 Ms Dodd appears to have understood that the discussion involved Ms Eggett making an inquiry, as she described it as involving ‘concerns’. Exhibit R1 [15].
According to Ms Barlow, Ms Dodd described the exchange as ‘a query about staff supervision’. Exhibit R1 [9].

118 However, AFLS says the inquiry was not employment-related in the limited sense described by the authorities because it was not about matters which would impact on Ms Eggett’s obligations or entitlements under her contract of employment. That is because the matters Ms Eggett raised concerned another employee, and the organisation more generally. Ms Eggett had no relevant responsibility or duties with respect to supervising staff.
119 Ms Eggett submitted that the matter she raised in the lawyers’ meeting directly related to her role as a solicitor with AFLS and her obligation under her employment contract to comply with the Uniform Law. She pointed in particular to the part of the exchange during the lawyers’ meeting when she referred to her understanding that any unrestricted practitioner could supervise the work of a restricted practitioner, and Ms Dodd’s comments to the effect that only she could sign off on Ms Naini’s advice. ts 116, 118.

120 Nowhere in the exchange between Ms Eggett and Ms Dodd during the lawyers’ meeting is there any instance where Ms Eggett expressly touches on her contractual obligations or her professional ethical obligations when supervising other employees. Indeed, Ms Eggett appeared to be at pains to say that the issue was not about her and instead that she was raising the issue to protect and assist Ms Naini: ‘It is just to protect Pritika’. Exhibit C2, 1:05:34.

121 However, at one point, Ms Eggett referred to her understanding that any unrestricted practitioner could sign off on a restricted practitioner’s advice, and ‘the onus is then on their practice certificate.’ Exhibit C2, 1:03:42.
Her view, on which she was seeking input, was that if an unrestricted practitioner authorised a restricted practitioner’s advice to a client, the unrestricted practitioner was accountable for that advice and exposed to regulatory sanctions if the advice was in breach of the Uniform Law.
122 In the context known to Ms Dodd and most of the other participants in the lawyers’ meeting that Ms Eggett was a relatively inexperienced practitioner, that she had only recently returned from parental leave, shared an office with the only restricted practitioner at AFLS, and that the administration staff had placed pressure on Ms Naini to see new clients, this comment could reasonably be understood to be referring to Ms Eggett’s own position with respect to Ms Naini.
123 This snippet of the discussion can therefore be characterised as an employment-related inquiry.
124 Accordingly, I am satisfied that Ms Eggett did make an employment-related inquiry in the course of the lawyers’ meeting. Her words were conduct that amounted to seeking information about her role in supervising Ms Naini in the context of her having obligations under her employment contract to follow directions and to do so in a way that preserved her maintenance of her practice certificate.
Was Damaging Action Taken Because of Ms Eggett’s Inquiries and Complaints?
125 The reason or reasons for the damaging action, as matters of fact, must be proved. In this regard, the presumption in s 97A(2) comes into play, so that if it is alleged the employer engaged in the damaging action for the prohibited reason, then it is presumed to have acted for that reason unless or until the employer establishes otherwise.
126 How an employer might rebut the presumption was considered in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 at 517 [44]  [45]:
There is no warrant to be derived from the text of the relevant provisions of the [FWA] for treating the statutory expression ‘because’ in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains ‘why was the adverse action taken?’.
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity. (citations omitted)
127 See also Khiani v Australian Bureau of Statistics [2011] FCAFC 109 [31].
128 The relevant inquiry is whether the decision-maker formed an opinion and, if yes, whether the decision-maker was moved to act as they did as a consequence of the opinion. The Court is not to engage in ‘a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome’. Ermel v Dulux Group (Australia) Pty Ltd (No 2) [2015] FCA 17 [48].

129 At the time they decided to stand down Ms Eggett, neither Ms Barlow nor Ms Martin knew precisely what Ms Eggett said during the lawyers’ meeting. However, as found at [77], they believed the complaints related to Ms Eggett’s conduct during the lawyers’ meeting. Ms Barlow became aware of what Ms Eggett actually said only after she commenced the investigation. When she watched or heard the recording of the lawyers’ meeting, she realised that the complaints about Ms Eggett’s conduct could not have related to what was said in the lawyers’ meeting. Simply, Ms Eggett said nothing in the lawyers’ meeting which disparaged or criticised Ms Dodd in any way.
130 Ms Barlow believed, based on what she was told by Ms Axford and Ms Welsh, that Ms Eggett had disparaged Ms Dodd to other employees on 3 April 2025. She believed, mistakenly, that this included remarks during the lawyers’ meeting.
131 This begs the question of how Ms Barlow arrived at the mistaken view that the complaints related to the lawyers’ meeting.
132 Ms Dodd, Ms Barlow and Ms Martin all refer in their evidence-in-chief to the complaints being about the ‘public’ nature of the comments attributed to Ms Eggett, although there has never been any suggestion that the comments were made to anyone outside of the AFLS. It was the ‘public’ nature of the conduct that Ms Martin was concerned about.
133 The description of the allegations as having a ‘public’ element reveals that Ms Barlow and Ms Martin understood the alleged conduct to have occurred in a forum with a wider audience, such as the lawyers’ meeting, as opposed to private conversations between co-workers.
134 Further, Ms Barlow said that Ms Dodd ‘mentioned that Ms Eggett had raised a query about staff supervision’ at the lawyers’ meeting. Exhibit R1, [9].
It may be that Ms Dodd’s mention of the lawyers’ meeting to Ms Barlow triggered the assumption that the lawyers’ meeting and the complaints were linked.
135 Had Ms Eggett made disparaging comments about Ms Dodd during the lawyers’ meeting, it could naturally be expected that Ms Dodd would have told Ms Barlow this when referring to the lawyers’ meeting. But what Ms Dodd raised was Ms Eggett’s query about supervision, not any disparagement or disrespect.
136 In a context where other employees are complaining about Ms Eggett’s conduct towards Ms Dodd, it is predictable that Ms Barlow would conclude that the complaints related to Ms Eggett’s conduct at the lawyers’ meeting. Additionally, it must be inferred that Ms Barlow understood Ms Eggett’s relevant conduct was related to her query about supervision. There is simply nothing else for Ms Barlow to have hung her hat on, as concerns the lawyers’ meeting, to form a view that the complaint warranted Ms Eggett’s stand down.
137 Ms Barlow offered no plausible alternative explanation for her to have formed the view that Ms Eggett’s conduct warranted her being stood down.
138 Ms Martin relied on Ms Barlow’s judgment as the Human Resources Manager and the person who had spoken directly to the complainants, in forming her decision. In effect, Ms Martin has adopted Ms Barlow’s reasons for the stand down decision. Simply, if Ms Eggett had not made her employmentrelated inquiry, Ms Barlow and Ms Martin would have had no reason to stand Ms Eggett down.
139 The AFLS has not discharged the onus on it of establishing that Ms Eggett’s employment-related inquiry made during the lawyers’ meeting was not a reason for the stand down decision.
140 Ms Eggett has therefore established that the stand down was a contravention of s 97A.
What Remedies are Available for a Proven Contravention of s 97A?
141 If the Court determines that AFLS has contravened s 97A in respect of Ms Eggett, then it may order AFLS to pay Ms Eggett compensation for any ‘loss or injury’ suffered ‘as a result of the contravention.’: s 97B(2).
142 Section 97B(5) contains an exception to the Court’s power to make the orders in s 97B(2):
The industrial magistrate’s 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.
143 Because the suspension was with pay, Ms Eggett did not suffer any loss of wages for the period of the suspension, and, accordingly, she does not claim compensation for loss of wages for that period. Ms Eggett was in receipt of workers compensation benefits including payments for total and partial incapacity, from the time she was certified unfit for work, until she was certified fit for full-time employment. She therefore does not claim compensation for economic loss in the form of loss of wages for this period either.
144 In her Originating Claim, Ms Eggett claims a sum for legal fees incurred by her in relation to the misconduct investigation. However, she did not produce any evidence to establish she incurred this expense or suffered loss in the specified amount.
145 Ms Eggett seeks compensation for:
(a) Pain and suffering, humiliation, reputational damage and bullying; and
(b) The significant impact of the damaging action on her mental health and her family.
146 Ms Eggett submits that her workers compensation claim does not fall within the ambit of the exception in s 97B(5) because ‘I have not initiated legal proceedings in another jurisdiction, under any other written law, seeking relief in relation to the same damaging action’ and ‘I have not accepted any financial offer to settle my workers’ compensation claim.’ Claimant’s additional submissions dated 20 November 2025, [5]  [6].

147 AFLS conceded during the hearing that s 97D(5) is not intended to preclude the recovery of compensation for injury, as that would not amount to any double-dipping with workers’ compensation benefits. However, it maintains that the effect of s 418 of the Workers Compensation and Injury Management Act 2023 (WA) (WCIMA) is to preclude the award of compensation for psychological injury in these proceedings.
Does s 97B(5) Apply?
148 I have not had the benefit of fulsome submissions in relation to the correct construction of s 97B(5).
149 The section refers to ‘relief in relation to the same damaging action.’ It does not preclude relief for the same ‘loss or injury.’ In other words, the particular categories of ‘relief’ need not be identical to be the subject of the exception, but rather, any relief.
150 Further, it is not only relief in the form of compensation that is precluded by s 97B(5). If the conditions of the subsection are met, no order under s 97B(2) can be made, including orders for reinstatement or employment. Further, the exception itself contains express exclusions, of which there are only two very specific circumstances: the proceedings ‘for that relief’ being withdrawn or failing for want of jurisdiction.
151 The Explanatory Memorandum to the Industrial Relations Legislation Amendment Bill 2021 says at [479]  [480]:
However, s 97B(5) prevents the IMC from making an order under s 97B(2) if the employee has applied for relief in relation to the same damaging action (e.g. the same dismissal, or the same refusal to promote or transfer the employee etc.) under another provision of the IR Act or any other written law. The only exception is if the alternative proceedings have been withdrawn or failed for want of jurisdiction, in which case the employee would not have obtained relief or had their application dealt with on the merits. The intent is to prevent an employee from obtaining redress under s 97B(2) if they have already sought relief via another legislative avenue, to avoid ‘double dipping’ or ‘forum shopping’.
For example, an employee could not obtain an order under s 97B(2) if:
a) the damaging action was dismissal, and the employee had referred an unfair dismissal claim to the Commission under s 29(1)(c) of the IR Act; or
b) the damaging action was a refusal to appoint the employee to a position, and the employee had lodged a breach of Standard claim with the Public Sector Commission pursuant to the PSM (Breaches of Public Sector Standards) Regulations.
152 The exclusions from the exception in s 97B(5) reflect the section’s purpose of discouraging ‘forum shopping.’
153 Most of the textual indications of the section therefore suggest that the exception is intended to have a broad application. The Explanatory Memorandum also supports a broad construction.
154 On a broad construction, it is not to the point to attempt to distinguish the type of relief claimed in these proceedings, from the relief sought in a workers compensation claim, in order to avoid the operation of s 97B(5). But I do not wish to express a concluded view about the correct construction, given the issue was not fully ventilated before me.
155 Ultimately, I do not consider that Ms Eggett’s worker’s compensation claim meets the criteria of being an application for ‘relief in relation to the same damaging action.’ The WCIMA provides a scheme for employers to compensate workers who suffer injury from their employment. Under s 17 of the WCIMA, an employer is liable for compensation if a worker suffers an injury from employment with the employer. The trigger for an entitlement to claim compensation under s 18 is an ‘injury.’ Injury is defined in s 6:
(1) In this Act —
injury means an injury from employment that is —
(a) a personal injury by accident; or
(b) a disease, or the recurrence, aggravation or acceleration of a pre-existing disease.
(2) A personal injury by accident is an injury from employment if the injury arises out of or in the course of the employment or while the worker is acting under the employer’s instructions.
(3) Unless otherwise provided in this Act, a disease, or the recurrence, aggravation or acceleration of a pre-existing disease, is an injury from employment if —
(a) the disease is contracted, or the recurrence, aggravation or acceleration is suffered, in the course of the employment, whether at or away from the place of employment; and
(b) the employment contributed to a significant degree to the contraction of the disease, or the recurrence, aggravation or acceleration of the pre-existing disease.
156 Ms Eggett’s worker’s compensation claim is a claim for the specific kinds of compensation set out in s 18 of the WCIMA, for an injury from employment. The criteria for her entitlement to workers’ compensation are different to the elements of a damaging action claim under s 97A. Section 97A squarely concerns the actions of an employer in contravening the protection of employee rights to make employment-related inquiries and complaints to the employer or another person.
157 On this basis, section 97B(5) does not apply to preclude an order being made under s 97B(2) in these proceedings.
Does s 418 of the WCIMA Preclude the Award of Compensation to Ms Eggett?
158 Section 418 in Part 7, Division 2 of the WCIMA says:
A court must not award damages against a worker’s employer contrary to this Division.
159 ‘Damages’ is defined in s 411:
(1) In this Part —
damages —
(a) means damages due or payable to, or claimed by, a worker for an injury caused to that worker by the tort of another person; but
(b) does not include —
(i) any sum required or authorised to be paid under an award or industrial agreement as those terms are defined in the Industrial Relations Act 1979 section 7(1); or
(ii) any sum payable under a superannuation scheme or any life or other insurance policy; or
(iii) any amount paid in respect of costs incurred in connection with legal proceedings;
160 The same section defines ‘tort’ to mean negligence or other tort or breach of statutory duty.
161 Section 421, in Part 7, Division 2 sets out threshold requirements for the award of damages, including requirements for having a degree of permanent whole of person impairment of at least 15%, and making an election. It is uncontentious that Ms Eggett has not met the requirements of s 421.
162 The starting point for consideration of this issue is the nature of the compensation the IMC can order an employer to pay an employee under s 97B. The compensation must be ‘for any loss or injury suffered as a result of the contravention.’ IR Act, s 97B(2)(c).
I note that s 545(2)(b) of the FWA refers to compensation for ‘loss that a person has suffered because of the contravention.’ Section 545 does not refer expressly to injury, although it has been held that compensation under s 545(2)(b) of the FWA extends to damage to feelings and loss of enjoyment of life. See James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR 566, 598-599 [151]  [155]; Haley v Laing O’Rourke Australia Management Services Pty Ltd (No 8) [2024] FedCFamC2G 779 [154]  [156] and Lattouf v Australian Broadcasting Corporation (No 2) [2025] FCA 669; (2025) 341 IR 105 (Lattouf), 231 [662] in relation to what is compensable ‘loss’ for the purpose of s 545(2)(b) of the FWA; see also Leggett v Hawkesbury Race Club Limited (No 4) [2022] FCA 622; (2022) 293 FCR 608, (Leggett),622 [40].

163 ‘Injury’ is not defined in Part 6B nor in s 7 of the IR Act. However, it is used in other provisions of the IR Act, namely s 23A which deals with the Western Australian Industrial Relations Commission’s powers in unfair dismissal claims, and in s 36AL and 51BZ. ‘Injury’ is also referred to in s 51BZB, s 51BZC, s 51HA, s 97G and s 97YG in relation to remedies the IMC can impose for certain contraventions of the IR Act.
164 The meaning of ‘injury’ and the correct approach to assessing compensation for injury as it concerns unfair dismissal claims and s 23A was discussed in Richards v GB & G Nicoletti [2016] WAIRC 00941; (2016) 97 WAIG 117. It is worth reproducing her Honour Smith AP’s observations at [37]  [39] and [42]  [44]:
The leading statement of principles to be applied by the Commission when considering whether to make an award of compensation for injury is set out in the following passage of the joint judgment of Coleman CC and Smith C in [AWI Administration Services Pty Ltd v Birnie [2001] WAIRC 04015; (2001) 81 WAIG 2849] wherein it was said at [200]:
It is accepted that there is an element of distress associated with almost all employer initiated terminations of employment. For injury to be recognised by way of compensation and thereby fall outside the limits which can be taken to have normally been associated with a harsh, oppressive or unfair dismissal there needs to be evidence that loss of dignity, anxiety, humiliation, stress or nervous shock has been sustained. Injury embraces the actual harm done to an employee by the unfair dismissal. It comprehends 'all manner of wrongs' including being treated with callousness (Capewell v Cadbury Schweppes Australia Limited (1998) 78 WAIG 299). The injury may be manifested by the detrimental impact on the physical or emotional wellbeing of the person whose services were terminated. However dismissals will impact to varying degrees on individuals and while the need for professional care may be evidence of that impact, this will not necessarily always be the case in order to establish the causal link between the termination of employment and the injury. While it is necessary to exercise a degree of caution to ensure that compensation is confined to reasonable limits (Timms v Phillips Engineering Pty Ltd (1997) 70 WAIG 1318 and Burazin v Blacktown City Guardian Pty Ltd 142 ALR 144) that is not to say that every claim for injury necessarily involves expert evidence of emotional trauma.
1 The circumstances in which the dismissal from employment has been effected may be sufficient to demonstrate the injury which is experienced. Situations where an employee is locked out of the workplace or is escorted from the premises, or the termination has been conducted in full view of other staff are examples of callous treatment justifying recognition for compensation for injury (Lynham v Lataga Pty Ltd (2001) 81 WAIG 986).
2 However, the Commission is not able to adjust the measure of compensation according to the opinion of the employer or employee or of the conduct of the respective parties (Capewell v Cadbury Schweppes Australia Limited (op cit)).
From these principles emerges a requirement to assess the gravity or scale of the injury. In particular, when considering whether to make an award of compensation for injury, the following matters should be considered:
(a) Whether the behaviour by or on behalf of an employer by the termination of employment has caused injury to the employee.
(b) If the behaviour in question has caused an injury, the gravity of the behaviour of the employer.
(c) The level of effect or impact of the behaviour on the employee and whether the effect or impact goes beyond a level of distress that is caused by almost all employer initiated terminations of employment.
This approach was implicitly approved of by the Full Bench in Anthony & Sons Pty Ltd v Fowler [2005] WAIRC 01744; (2005) 85 WAIG 1899.
…
The approach of the Full Bench in Anthony & Sons Pty Ltd v Fowler was applied by the Full Bench in Bone Densitometry Australia Pty Ltd v Lenny [2005] WAIRC 02081; (2005) 85 WAIG 2981. In that matter, Sharkey P, with whom Scott and Mayman CC agreed, after applying the principles approved of in Birnie, said [124]-[126]:
‘Injury’, as the Commissioner found, embraces the actual harm done to an employee by an unfair dismissal and 'comprehends all manner of wrongs' including being treated with callousness. The Commissioner correctly observed, too, that whilst injury may be manifested by the detrimental impact on the physical or emotional wellbeing (or, for that matter, the reputation) of an employee unfairly dismissed, dismissals will affect individuals to varying degrees and, I might add, not at all.
The Commissioner observed, too, that, while the need for professional care may be evidence of this impact, this will not always be necessary to establish the causal link between the termination of employment and the injury. Not every claim for injury, as the Commissioner correctly observed, necessarily involves or should involve expert evidence of emotional trauma. (The Commissioner referred, too, to Timms v Phillips Engineering Pty Ltd (1998) 78 WAIG 4460 and Burazin v Blacktown City Guardian Pty Ltd (FC) (op cit).)
The Commissioner went on to observe, too, and correctly, that the circumstances in which the dismissal from employment had been effected may be sufficient to cause the injury experienced. Examples were given of locking an employee out of the workplace or escorting an employee from premises in full view of staff, particularly, I might add, if this were unjustifiably done by a police officer or uniformed security officer (see the discussion of these matters in Lynham v Lataga Pty Ltd (FB) (op cit).)
His Honour in Bone Densitometry Australia Pty Ltd also applied the principle that an employer is bound to take an employee's reaction to a dismissal as it found him or her. He said [133]:
Ms Lenny clearly did not suffer shock and humiliation because of her personality. She, first of all, suffered it as a result of, and caused by, the unfair dismissal and the surrounding treatment of her, effected by Professor Will. That was entirely clear. That she might have suffered greater injury than someone else would, or any injury, was not established at all. Even if it were, it is trite to observe that BDA, as the respondent, was bound to take Ms Lenny as it found her. There was also unshaken evidence and uncontradicted evidence of her being bullied and exploited by Professor Will in the past, which might reasonably be found, if it were necessary, which it was not, to have caused a greater susceptibility to hurt and humiliation when the dismissal did come.
Finally, his Honour found [136]:
In this case, and the authorities which I have cited above are clear, one must look at the nature of the unfair dismissal and other evidence to determine whether the unfair dismissal caused any injury alleged to have been caused by it. One has to look at the alleged injurious act and assess the conduct in that light when it has been alleged to be injurious. See also the observations of Kenner ASC (as he was then) at [186]  [188].

165 ‘Injury’, for the purpose of the IR Act, then, is not the same as ‘injury’ under s 6 of the WCIMA. ‘Injury’ under the WCIMA, for the purposes of this case, is limited to psychiatric injury. ‘Injury’ under the IR Act means the impact or actual harm done to an employee by the relevant act of the employer, over and above the ‘normal’ or inevitable distress associated with the employer’s act, and includes shock, distress, hurt and humiliation, and reputational harm.
166 Further, s 418 of the WCIMA is addressed to damages that might be awarded at common law. An order made under s 97B is not made at common law, but is rather a form of statutory compensation for loss and injury caused by a contravention of s 97A, or the statutory consequence of a contravention of s 97A causing loss. It does not turn on establishing a claim in negligence or another tort. While common law principles might be of assistance in evaluating the quantum of compensation under s 97B, that does not make the compensation common law damages. Leggett [52], [60].

167 The IMC is not precluded from awarding compensation to Ms Eggett by reason of her worker’s compensation claim and the effect of s 418 of the WCIMA.
Assessment of Compensation for Injury
168 My foregoing conclusions mean that I must decide whether to order AFLS to pay compensation for injury Ms Eggett has suffered as a result of its contravention of s 97A, and if so, in what amount.
169 Ms Eggett submits that the stand down caused her injury in the form of:
(a) Adjustment Disorder;
(b) Distress to her and her family; and
(c) Loss of enjoyment of life, pain and suffering, and angst.
170 The words of s 97B(2)(c) denote a causal connection between the injury a person claims to have suffered, and the conduct that constitutes the contravention of s 97A. In Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120 the Full Federal Court said of similar provisions in the FWA:
The task of the primary judge, having found the relevant contraventions, was to assess the compensation, if any, that was causally related to those contraventions. That involved not an examination of what did happen, but an assessment of what would or might have occurred, but which could no longer occur (because of the contraventions). Subject to any statutory requirement to the contrary, questions of the future or hypothetical effects of a wrong in determining compensation or damages are not to be decided on the balance of probability that they would or would not have happened. Rather, the assessment is by way of the degree of probability of the effects – the probabilities and the possibilities: Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 625 at 642-643; Sellars v Adelaide Petroleum NL [1994] HCA 4; 179 CLR 332 at 352-356. The above proposition must be qualified by the recognition that, where the fact of injury or loss is part of the cause of action or wrong, it must be proved on the balance of probability. Compensation is generally awarded for loss or damage actually caused or incurred, not potential or likely damage: Tabet v Gett [2010] HCA 12; 240 CLR 537; Sellars at 348; Wardley Australia Ltd v Western Australia [1992] HCA 55; 175 CLR 514 at 526; that is equally so here under ss 807(1)(b) and 545(2)(b).
171 In Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 8) [2024] FedCFamC2G 779 (Haley) [152], Manousaridis J said that the test for causation for the purpose of s 545(2)(a) of the FWA is to be determined, at least in most cases, by applying the ‘but for’ test or the ‘counterfactual test’ as explained by Edelman J in Lewis v Australian Capital Territory [2020] HCA 26; (2020) 271 CLR 192. The test requires that the contravening conduct be removed from the facts as found, to then ask whether the loss or injury would have occurred but for the contravening conduct.
172 Finally, I refer to the observations made by Lee J in Transport Workers' Union of Australia v Qantas Airways Ltd [2024] FCA 1216; (2024) 334 IR 187, 240 [208]:
As is well recognised, the assessment of compensation for emotional distress or the like is inherently imprecise and non-scientific ([Fair Work Ombudsman v Maritime Union of Australia (No 2) [2015] FCA 814; (2015) 252 IR 101] (at 113 [68])) due to the fact that the Court is required to place a monetary value on something that is not easily able to be financially quantified: Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; (2014) 223 FCR 334 (at 359 [94] per Kenny J). In this sense, it has been observed that it is impossible to precisely translate such non-economic loss into a monetary sum: O’Brien v Dunsdon (1965) 39 ALJR 78 (at 78 per Barwick CJ, Kitto and Taylor JJ). Nevertheless, the Court must, doing the best that it can, award an amount it considers to be reasonable compensation for the non-economic loss sustained, taking into account the individual facts of each case: O’Brien v Dunsdon (at 78 per Barwick CJ, Kitto and Taylor JJ).
173 I consider s 97B is intended to operate in a manner consistent with the above authorities. Ms Eggett bears the onus of proving that injury was suffered by her as a result of AFLS’s contravention of s 97A.
174 Ms Eggett says that while Ms Barlow’s attendance at her home to collect her work belongings was ‘extremely humiliating, intrusive and intimidating’, Ms Barlow was professional and courteous towards her. Exhibit C1 [29].
It is not suggested anyone else observed this event. There is no suggestion that the manner in which the stand down was effected was callous or cruel, even if it contained suggestions of predetermination, was premature, and misinformed.
175 Ms Eggett attended her general practitioner because of her health concerns and distressed state on the Monday immediately following the stand down. She attended her general practitioner again on 23 April 2025 as she was not sleeping and was ‘replaying every moment of the past few weeks in [her] head.’ Exhibit C1 [82].
She was provided with a referral for psychological assistance.
176 She describes significant impairment in her social and occupational functioning, and symptoms of sleep disruption, headaches, irritability and heightened emotion, stress and fatigue on a daily basis. Her level of distress was evident when giving evidence in the proceedings.
177 Understandably, the way the stand down was communicated to Ms Eggett, specifically by referring to her conduct at the lawyers’ meeting in circumstances where her conduct at that meeting was completely benign, would cause Ms Eggett to feel confused, betrayed, suspicious and distressed.
178 However, it is also apparent that from at least 19 May 2025, some of the distress Ms Eggett was experiencing and her concerns about career damage were due to the legal proceedings against the AFLS, and the AFLS’s response to it. For example, she refers to her prospects of working with the Women’s Legal Service (WLS) being jeopardised because Ms Martin had discussed Ms Eggett’s (subsequently withdrawn) claim to the Fair Work Commission or Federal Court with the WLS’s Managing Solicitor. Her psychologist, Christian Hetebry in his 30 August 2025 report also refers Ms Eggett’s anxiety and depression being exacerbated by ‘[h]er legal process with her former employer’. Exhibit C1, annexure 19.

179 Further, it is apparent from Ms Eggett’s submissions that some of her angst, grievance and distress relates to the fact that she was not afforded procedural fairness in the investigation of the allegations against her and was never ultimately exonerated. This is most evident in her resignation letter which refers to having to chase up a ‘cost of living payment’, a lack of procedural fairness and impartiality in dealing with concerns raised, and the lack of communication with her since 4 April 2025. Exhibit C1, annexure 16.
Any denial of procedural fairness is not a contravention in respect of which compensation is to be assessed.
180 Ms Eggett suggests that the effects of the stand down include her having to leave the job she loves, due to her diagnosis and treatment, which she says was ‘[arguably] not voluntary.’ Exhibit C1 [158].
She also vaguely suggests that she is unable to work full-time due to her diagnosis. While the medical evidence supports a conclusion that the stand down and its psychological sequalae meant Ms Eggett could not return to work at AFLS, it does not support a conclusion she cannot work full-time. For the purposes of assessing compensation, I consider that the contravention did result in the premature end to Ms Eggett’s employment with AFLS, but Ms Eggett has not established that it has resulted in her being unable to work in the community legal sector, or being unable to work full-time.
181 I accept that the stand down resulted in Ms Eggett being deprived of the opportunity to attend a scheduled continuing professional development session on 5 April 2025, and the associated CPD points it would have attracted. It also resulted in her being the subject of office gossip concerning her absence from work. In particular, she was informed by a co-worker that another had suggested she had been fired.
182 Ms Eggett says that the impact of the stand down was particularly distressing for her because she is a lawyer, and the stand down had the potential to impact on her professional reputation. She said that the stand down coincided with the period for renewing her practice certificate, and she was fearful that she would have to disclose to the Legal Practice Board that she was under investigation for alleged misconduct.
183 In Paras v Public Service Body Head of the Department of Infrastructure [2006] FCA 622 [29], Young J acknowledged the gravity of disciplinary action taken by an employer against an employed solicitor:
The summary dismissal without notice of an employee solicitor is a very grave matter. Necessarily, it will have a detrimental effect on [their] reputation, and may impose a stigma that adversely affects [the applicant’s] future career prospects.
184 This extract was referred to by Manousaridis J in Haley at [158], supporting the proposition that loss of reputation is compensable under s 545(2)(b) of the FWA. The nature of Ms Eggett’s profession is relevant to the seriousness of the reputational harm the contravening conduct has caused.
185 Having said that, I am mindful that the contravention does not involve the termination of Ms Eggett’s employment. There must be an appropriate causal connection between the contravention and the loss claimed. Lattouf [663].
The loss claimed must properly relate to the stand down, not Ms Eggett’s resignation from AFLS. A hypothetical possibility of detriment cannot be compensated either.
186 The stand down ended by 28 April 2025. It was in place for 24 days, including a period of preapproved leave from 14 to 22 April 2025. While AFLS did not ever completely exonerate Ms Eggett, it did inform her that there had been no findings of misconduct against her on 3 June 2025. She resigned on 27 June 2025. The saga played out for under three months. It did not involve particularly prolonged or serious bullying and harassment, or psychological impacts that have precluded Ms Eggett from working at all, such as would put this case in the high range of impact.
187 Ms Eggett is entitled to a sum that fairly compensates her for the hurt, humiliation and distress suffered because she was stood down in contravention of the IR Act and the associated infringements of her right to make an employment-related inquiry. In the circumstances of this case, I consider an appropriate order for compensation for injury resulting from AFLS’s contravention is $35,000.
Some Miscellaneous Matters
188 Ms Eggett’s written submissions allege AFLS failed to comply with the dispute resolution clause of the Social and Community Services (Western Australia) Interim Award 2011. This is not a claim that is made in the Originating Claim, which refers only to s 97A of the IR Act. In any event, Ms Eggett did not appear to press this issue, as I asked her to identify in the evidence where the dispute resolution procedure had been invoked, and by whom. She was unable to do so.
189 Ms Eggett’s written submissions also allege that ‘the Respondent’s damaging action against me’ is a contravention of rule 32 of the Legal Profession Uniform Law Australian Solicitor’s Conduct Rules 2015. That rule is one that relates to a solicitor’s conduct. The AFLS is not a solicitor. The rule does not apply to AFLS. Nor is there any evidence of an allegation of unsatisfactory professional conduct or professional misconduct being made against Ms Eggett. In any event, the IMC does not have jurisdiction to enforce the Solicitor’s Conduct Rules.
Orders and Disposition
190 For the above reasons, I propose to make the following orders:
1. AFLS is to pay to Ms Eggett $35,000 for loss or injury suffered as a result of its contravention of s 97A(1) of the IR Act.
2. The question of what, if any, penalty should be imposed be adjourned to a directions hearing for programming.




R. COSENTINO
INDUSTRIAL MAGISTRATE