Serpanos v Commonwealth of Australia

• Jurisdiction: Australia Federal only
• Judgment Date: 18 October 2022
• Neutral Citation: [2022] FCA 1226
• Date: 18 October 2022
• Court: Federal Court

Federal Court of Australia

Serpanos v Commonwealth of Australia [2022] FCA 1226

File number:	VID 224 of 2020
Judgment of:	SNADEN J
Date of judgment:	18 October 2022
Catchwords:	INDUSTRIAL LAW – employment – adverse action –whether the applicant was subjected to adverse action in contravention of s 340 of the Fair Work Act 2009 (Cth) (FW Act) – applicant dismissed from his employment, purportedly for having contravened standards expected of him – whether applicant made complaints or inquiries amounting to the exercise of “workplace rights” pursuant to s 341 of the FW Act – whether adverse action was taken because the applicant had exercised workplace rights – operation of statutory presumption in s 361 of the FW Act – identification of the person or people who decided to take adverse action – whether corporate state of mind resided (or partly resided) in a person who did not make the relevant decision – relevant actors were not actuated by the applicant’s exercise of workplace rights – application dismissed
Legislation:	Defamation Act 2005 (Vic) s 14(2) Fair Work Act 2009 (Cth) pt 3-1 - ss 340, 341, 342, 346, 347, 360, 361, 539, 570, 793 Public Service Act 1999 (Cth) ss 10, 13, 29 ; Australian Public Service Commissioner’s Directions 2016 (Cth)
Cases cited:	Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347 Australian Red Cross Society v Queensland Nurses’ Union of Employees (2019) 273 FCR 332 Australian Workers’ Union v John Holland Pty Ltd (2001) 103 IR 205 Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2010) 193 IR 251 Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 2) (2012) 248 CLR 549 Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd (2015) 253 IR 166 Construction, Forestry, Mining and Energy Union v Endeavour Coal (2015) 231 FCR 150 Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251 Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 Fountain v Alexander (1982) 150 CLR 615 General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union (2001) 112 FCR 232 Khiani v Australian Bureau of Statistics [2011] FCAFC 109 Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677 National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139 O’Grady v The Northern Queensland Co Ltd (1990) 169 CLR 356 Pascoe v Federal Commissioner of Taxation (1956) 30 ALJR 402 PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225 Qantas Airways Ltd v Transport Workers’ Union of Australia (2022) 402 ALR 1 Smith v Federal Commissioner of Taxation (1987) 164 CLR 513 Tattsbet Ltd v Morrow (2015) 233 FCR 46 The Environment Group Ltd v Bowd (2019) 137 ACSR 352 Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 Voigtsberger v Council of the Shire of Pine Rivers (No 2) (1981) 58 FLR 239 Wong v National Australia Bank Limited [2021] FCA 671 Wong v National Australia Bank Limited [2022] FCAFC 155 Wood v City of Melbourne Corporation (1979) 26 ALR 430
Division:	Fair Work Division
Registry:	Victoria
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	311
Date of last submissions:	17 August 2021 (applicant)
Date of hearing:	17-22 June 2021
Counsel for the Applicant:	Mr J Fetter
Solicitor for the Applicant:	Jewell Hancock Employment Lawyers
Counsel for the Respondent:	Mr J Tracey
Solicitor for the Respondent:	Minter Ellison

ORDERS

		VID 224 of 2020
BETWEEN:	HARILAOS SERPANOS Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent

order made by:	SNADEN J
DATE OF ORDER:	18 October 2022

THE COURT ORDERS THAT:

1. The application be dismissed.

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

REASONS FOR JUDGMENT

Part 1. Introduction	[1]
Part 2. The proceeding and trial	[6]
Part 3. The factual background	[12]
Part 4. Summary of Mr Serpanos’s adverse action case	[64]
Part 5. The legislative framework	[70]
Part 6. Applicable Legal principles	[81]
6.1 Employment-related complaints	[84]
6.2 What does it mean to be “able to” complain or inquire?	[90]
6.3 Proof of proscribed purpose	[92]
Part 7. Did Mr Serpanos possess and exercise workplace rights?	[128]
7.1 Were the communications made?	[134]
7.2 Did each assume the form of a complaint?	[138]
7.3 The 18 July Email	[151]
7.3.1 Was the complaint related to Mr Serpanos’s employment?	[152]
7.3.2 Was the complaint one that Mr Serpanos was “able to” make?	[157]
7.3.3 Did the 18 July Email amount to the exercise of a workplace right?	[161]
7.4 The 22 July Email	[162]
7.4.1 Was the complaint related to Mr Serpanos’s employment?	[163]
7.4.2 Was the complaint one that Mr Serpanos was “able to” make?	[164]
7.4.3 Did the 22 July Email amount to the exercise of a workplace right?	[165]
7.5 The First Concerns Notices	[166]
7.5.1 Was the complaint related to Mr Serpanos’s employment?	[167]
7.5.2 Was the complaint one that Mr Serpanos was “able to” make?	[174]
7.5.3 Did the First Concerns Notices amount to the exercise of a workplace right?	[175]
7.6 The 8 August Email	[176]
7.6.1 Was the complaint related to Mr Serpanos’s employment?	[177]
7.6.2 Was the complaint one that Mr Serpanos was “able to” make?	[178]
7.6.3 Did the 8 August Email amount to the exercise of a workplace right?	[182]
7.7 The Second Concerns Notices	[183]
7.8 The 20 August Letter	[185]
7.8.1 Was the complaint related to Mr Serpanos’s employment?	[188]
7.8.2 Was the complaint one that Mr Serpanos...