2024 WAIRC 00473
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION : 2024 WAIRC 00473

CORAM : INDUSTRIAL MAGISTRATE T. KUCERA

HEARD : ON THE PAPERS

DELIVERED : TUESDAY, 16 JULY 2024

FILE NO. : M 141 OF 2022

BETWEEN : BETH BRADY
CLAIMANT

AND

DEPARTMENT OF PRIMARY INDUSTRIES AND REGIONAL DEVELOPMENT (ACN: 951 343 745)
RESPONDENT

CatchWords : INDUSTRIAL LAW – strike-out application – damaging action for a prohibited reason – proceedings have no reasonable prospects of success – summary judgement applications – s 97A(1) of the Industrial Relations Act 1979 (WA) – damaging action provisions – employment related complaint or inquiry – reverse onus under s 97A(2) – injuring the employee in relation to the employee’s employment – expiry of fixedterm contract not dismissal within the meaning of s 97(a)(i)
Legislation : Industrial Relations Act 1979 (WA)
Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA)
Fair Work Act 2009 (Cth)
Industrial Relations Amendment Act 2021 (WA)
Case(s) referred
to in reasons: : Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 261 FCR 347
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500
Casella v Hewitt [2008] WASCA 13; 36 WAR 1
Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; 231 FCR 150
Construction, Forestry and Mining Employees Union v QUBE Ports Pty Ltd [2024] WAIRC 00083
Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16; 268 FCR 46
Fancourt v Mercantile Credits Ltd [1983] HCA 25; 154 CLR 87
Gallotti v Argyle Diamond Mines Pty Ltd [2003] WASCA 166
Mary v Schon [2015] WADC 92
Monash Health v Singh [2023] FCAFC 166; 327 IR 196
Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; 242 IR 1
Theseus Exploration NL v Foyster [1972] HCA 41; 126 CLR 507 Construction Forestry Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243
Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14; 191 FCR 212; 274 ALR 570
Result : Application granted in part
Representation:


Claimant : Ms B. Brady (in person)
Respondent : Mr J. Carroll (of counsel) as instructed by the State Solicitor’s Office


REASONS FOR DECISION
1 This decision deals with a summary dismissal application (strikeout application) the Department of Primary Industries and Regional Development (the respondent) made on 8 March 2024 under regulations 5 and 7 of the Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA) (IMC Regs).
2 The strike-out application was made to dismiss proceedings that Beth Brady (the claimant) commenced, alleging the respondent, in breach of s 97A(1) Industrial Relations Act 1979 (WA) (IR Act) has taken damaging action against her for a prohibited reason (claim). Originating Claim dated 23 November 2024 (Originating Claim).

3 The respondent contends the claimant’s evidence, taken at its highest, does not establish the respondent has taken any damaging action against the claimant, meaning the proceedings have no reasonable prospects of success.
4 When providing my reasons, it is necessary to provide the context in which the respondent made the strikeout application. This requires me to provide a summary of the proceedings to date and the evidence that has been filed in this matter.
Claimant’s employment
5 The claimant was employed by the respondent under a sixmonth fixedterm contract in the period 31 January 2022  30 June 2022 as a Level 6  Senior Regional Development Officer (first fixed-term contract).
6 Clause 1 of the claimant’s first fixed-term contract was in the following terms: Witness Statement of Beth Brady dated 18 September 2023 (claimant’s first statement), annexure A.

1. Term of Employment
Employment will commence on 31 January 2022 and expire on 30 June 2022.
In signing this contract, you understand that you have been contracted to the position for the above period only and following the expiration of this fixed term contract there is no obligation on either party to enter into any further employment arrangement. Nothing in this contract shall confer upon you ‘permanent’ officer status within the meaning of the Public Sector Management Act 1994.
7 While the contract does not contain an express term that it would be extended or renewed, the claimant says the respondent made a commitment to extend her employment at least until 31 December 2022.
8 The claimant was employed by the respondent to work on an economic development project for the Mid West Development Commission (MWDC). The project involved establishing a Mid West Regional Alliance (MWRA), with the purpose of identifying and facilitating the implementation of strategies to address skills and labour shortages in the Mid-West / Geraldton Region of Western Australia (project).
9 In her role, the claimant was required to report to Michael Bowley, who works for the respondent as the Director for Regional Development (Mr Bowley).
Alleged damaging action
10 After commencing work in this role, the claimant says she made a series of complaints and inquiries in relation to her employment, each of which arose from the claimant’s interaction with Mr Bowley (complaints and inquiries).
11 The claimant says that after she made the complaints and inquiries, the respondent took damaging action against her, in two ways. The first was by not extending her employment to 31 December 2022 (first damaging action).
12 The claimant says that because of the first damaging action, she was only given a two-month fixedterm contract for the period 1 July 2022  31 August 2022 (second fixed-term contract).
13 The second was in a decision Nils Hay, CEO of the MWDC (Mr Hay) made on 12 August 2022 upon the expiry of the second fixed-term contract, to bring her employment to an end. By this decision, the claimant alleges the respondent took damaging action by either dismissing her or not extending her contract for a further four months to 31 December 2022 (second damaging action).
14 The claimant alleges the respondent took the damaging action because she had made the complaints and inquiries, one of which included a complaint the claimant made to Mr Hay about Mr Bowley in July 2022 (prohibited reason).
Originating Claim
15 After the claimant’s employment with the respondent came to an end, the claimant engaged solicitors, who on 24 November 2022, filed an originating claim on the claimant’s behalf, alleging the respondent, had taken damaging action against her for a prohibited reason (claim).
16 The allegations the claimant has made against the respondent in this matter are contained in two documents. The first of these is the Originating Claim, which was filed on 24 November 2022 (Originating Claim).
17 In paragraph 6 of the Originating Claim, the claimant alleges that in or around March 2022, Mr Bowley subjected her to bullying and unreasonable behaviour that included the following:
(a) Mr Bowley would persistently taunt the claimant by referencing that the claimant was on a fixedterm contract and implying that the claimant’s employment would soon be coming to an end.
(b) Mr Bowley would unreasonably refuse the requests of the claimant to work from home, despite other colleagues having their requests approved in the same or substantially similar circumstances as the claimant.
(c) Mr Bowley undermined the claimant’s work for the respondent by expressing that the MWDC should not be supporting the applicant’s role and responsibilities that the claimant was employed to undertake.
(d) Mr Bowley made condescending comments to the claimant, including comments implying that the claimant was not able to drive a work vehicle.
18 In paragraph 7 of the Originating Claim, the claimant says she made verbal complaints to Anne Finlay, who was the Acting CEO of the MWDC (Ms Finlay). The claimant says she made verbal complaints to Ms Finlay on several occasions. The claimant says this happened in the period of March to June 2022.
Particulars of claim
19 It is useful to set out the allegations against the respondent as they are particularised in paragraphs 8  24 of the Originating Claim. This is because they describe the case which the respondent was initially required to respond to. These paragraphs are extracted as follows:
8 On or around March 2022, the claimant made an inquiry to Mr Bowley related to the acknowledgement by the respondent of the claimant’s accumulated personal leave hours that carried on from her employment with WA Country Health Service (WACHS). Mr Bowley in response refused to acknowledge the claimant’s accrued personal leave hours and stated words to the effect, ‘I don’t see us being responsible for paying you out on that personal leave’.
9 On 14 April 2022, the claimant made an inquiry to the respondent related to her pay. The claimant was directed to speak to Mr Bowley in relation to her pay inquiry. The claimant then directed her pay inquiry to Mr Bowley and requested that her salary be increased in line with level 6, Step 3 in the next 6-month term contract the claimant would be offered as that was the level the claimant was paid pursuant to her employment with the WACHS.
10 Mr Bowley responded to the claimant’s pay inquiry by rejecting the claimant’s request in a reply email sent on 1 June 2022. In Mr Bowley’s email, Mr Bowley expressed to the claimant that:
(a) the respondent was to offer the claimant a further 6-month employment term following the expiry of her contract on 30 June 2022, under the same terms of the claimant’s previous contract of employment; and
(b) the claimant’s project management skills would be assessed in the next period for further evaluation of the claimant’s pay inquiry.
(c) A copy of this email and the related correspondence is attached and marked ‘A’.
11 In or around the middle of June 2022, Ms Finlay approached the claimant and informed the claimant that Mr Bowley was planning to terminate the claimant’s engagement with the respondent. Ms Finlay said words to the effect of ‘Mike wants you out’ as a reference to Mr Bowley’s intention to bring about the end of the claimant’s employment with the respondent.
12 On 21 June 2022, Mr Bowley advised the claimant that that the claimant would only be offered a two-month extension to her contract of employment instead of the 6-month term previously promised to the claimant.
13 Mr Bowley further expressed in an email sent on 21 June 2022 that the claimant’s contract would be extended for a further period of four months at the expiry of the two-month term subject to the claimant completing and submitting a certain project plan. A copy of this email is attached and marked ‘B’.
14 In response to Mr Bowley’s decision to change the contract term conditions from a six-month contract to a two-month contract, the claimant made a complaint to Mr Bowley. The claimant expressed that Mr Bowley’s decision was unfair and unreasonable given the previous offer and given that the claimant had already produced the project plan that Mr Bowley had requested.
15 On 22 June 2022, Ms Finlay sent an email to the incoming CEO of the respondent, Mr Hay and Mr Bowley regarding MWDCs role in the Mid-West Regional Coordinating Committee (MWRCC). In this email, Ms Finlay recommended that the claimant retain the role in the MWRCC to maintain the effective working relationships that the claimant established and to continue the important work that the claimant had done.
16 In response to Ms Finlay’s email, Mr Bowley sent an email to remind Mr Hay and Ms Finlay that the claimant was on a two-month contract that may be extended for four months that was ‘subject to the review of the CEO and performance measures’. A copy of this email correspondence is attached and marked ‘C’.
17 On 22 June 2022, the claimant made a complaint to the respondent’s HR department regarding the actions of Mr Bowley and the contract extension issue. The applicant was advised that because the contract had not been formally offered by the respondent and signed by the claimant, the claimant was not able to reply on the email referencing the six-month extension.
18 On 28 June 2022, the claimant sent a complaint email to Ms Finlay regarding the contract extension. Ms Finlay advised the claimant in response that Mr Hay was updated regarding the claimant’s contract extension issue and that Mr Hay will review the decision when he commences work for the respondent.
19 On or around early July 2022, Ms Finlay transferred from her employment with the respondent and was replaced by Mr Hay as the newly appointed permanent CEO.
20 The claimant complained about the conduct of Mr Bowley to Mr Hay shortly after Mr Hay had commenced in his role for the respondent. The claimant detailed the issues she was facing with Mr Bowley and requested that Mr Hay attends to the unreasonable actions of Mr Bowley.
21 On or around early August 2022, the claimant submitted the necessary project plan to Mr Hay. In response, Mr Hay suggested minor amendments and the claimant amended the project plan accordingly.
22 On 12 August 2022, Mr Hay advised the claimant in person and by email that the claimant would not have her contract of employment extended beyond the end date of 31 August 2022.
23 On 29 August 2022, the claimant sent a detailed email complaint to the respondent’s HR department, regarding the unreasonable actions of Mr Bowley leading to the termination of the claimant’s employment.
24 On 31 August 2022, the claimant’s two-month extension had come to an end and the claimant’s employment was consequently terminated.
20 After setting out the matters that I referred to above, paragraph 32 of the Originating Claim states:
As a result of the claimant making inquiries and complaints in relation to her employment, the respondent took a prejudicial stance to the claimant’s ongoing employment with the respondent which ultimately led to the termination of the claimant’s employment or engagement with the respondent.
21 Paragraph 33 of the Originating Claim then says:
The claimant suffered the following damaging action by the respondent:
(a) Altering the claimant’s position to her disadvantage by withdrawing the six-month contract offer and replacing it with a two-month extension; and
(b) Dismissing or otherwise injuring the claimant by failing to provide the claimant with continued employment for a further four months following the expiry of the claimant’s two-month extension period which caused the claimant’s employment to be terminated prematurely.
Response to the Originating Claim
22 On 23 December 2022, the State Solicitor’s Office (SSO), who represents the respondent, filed a detailed Form 2 Response to the Originating Claim (response). In the response, the respondent denies taking damaging action against the claimant.
23 The respondent contends that even if the claimant could prove it took damaging action, the action was not taken for a prohibited reason.
24 In relation to paragraph 32 of the Originating Claim, the respondent said:
The respondent is unable to plead to paragraph 32 of the [Originating Claim] because it is embarrassing in that it does not specify which complaint(s) and/or inquiry is said to have led to the alleged damaging action, noting that some of the complaints/inquiries raised in the [Originating Claim] occurred after the alleged damaging action occurred.
25 By this response, the claimant was put on notice that she would be required to provide clear particulars of the complaint(s) and/or inquiries which she alleged were the reasons for the alleged damaging action.
Further particulars
26 After the response was filed, the claim was, in the usual course, referred to a pretrial conference that was held on 10 March 2023.
27 When the claim was not able to be resolved at this stage, the Clerk of the Court directed the claimant to provide further particulars of her claim. These were provided by way of Form 8.1 Further and Better Particulars of Case Outline, which the claimant’s solicitors prepared and filed on her behalf on 11 April 2023 (further particulars).
28 In the further particulars, the complaints and inquiries which the claimant says were the reasons the respondent took damaging action against her, were set out as follows: Claimant’s further and better particulars dated 11 April 2024 [2].

(a) The verbal complaint the Complainant made to Ms Finlay on in or around the middle of March 2022 regarding the Claimant’s perceived unreasonable conduct of Mr Bowley.
(b) The verbal complaints the Complainant made to Ms Finlay on in or around the middle of April 2022 regarding the Claimant’s perceived unreasonable conduct of Mr Bowley.
(c) The verbal complaints the Complainant made to Ms Finlay on in or around the middle of May 2022 regarding the Claimant’s perceived unreasonable conduct of Mr Bowley.
(d) The verbal inquiry the Complainant made to Mr Bowley in or around early March 2022 related to the acknowledgement by the Respondent of the Claimant’s accumulated personal leave hours that carried on from the Claimant’s employment with the WA Country Health Service.
(e) The written email inquiry the Complainant made to Mr Bowley on or around 14 April 2022 related to the Claimant’s pay.
(f) The verbal complaint the Complainant made to Mr Bowley on 21 June 2022 regarding Mr Bowley’s decision to change the contract term condition from a 6month to a 2month term.
(g) The verbal complaint the Complainant made to the Respondent’s HR Department on 22 June 2022 regarding Mr Bowley’s decision on the contract extension issue.
(h) The written email complaint the Complainant made to Ms Finlay on 28 June 2022 regarding Mr Bowley’s decision on the contract extension issue.
(i) The verbal complaint the Complainant made to Mr Hay in or around the beginning of July 2022 regarding the Claimant’s perceived unreasonable behaviours of Mr Bowley.
Programming orders
29 After the further particulars and an amended response was filed, on 11 August 2023, the parties agreed to programming orders that were issued by consent (programming orders).
30 The programming orders include a requirement for the parties to file and serve witness statements. The parties were respectively directed to do the following:
By consent, it is hereby ordered:
1. THAT the matter is listed for a two-day trial on a date not before 2 February 2024.
2. THAT the claimant lodge with the Court and then provide a stamped copy upon the respondent any signed witness statements and bundle of any documents upon which she intends to rely upon by no later than 5:00 pm on 25 September 2023.
3. THAT the respondent lodge with the Court and then provide a stamped copy upon the claimant any signed witness statements and bundle of any documents upon which it intends to rely upon by no later than 5:00 pm on 6 November 2023.
4. THAT the claimant lodge with the Court and then provide a stamped copy upon the respondent any signed witness statements and bundle of documents which she intends to rely upon in reply to the respondent by no later than 5:00 pm 4 December 2023.
5. THAT the claimant lodge with the Court and then provide a stamped copy upon the respondent an outline of written submission in support of her claim by no later than 5:00 pm on 22 December 2023.
6. THAT the respondent lodge with the Court and then provide a stamped copy upon the claimant an outline of written submission in opposition to the claim by no later than 5:00 pm on 25 January 2024.
7. THAT if a party intends to rely upon documents as evidence at the trial, that party must lodge those documents with the Court, together with Form 29 – Multipurpose Form under the heading ‘Copies of Records’, and then provide a stamped copy of the documents to the other party in accordance with the dates set out in orders 2, 3 and 4 above.
8. THAT each witness statement shall –
a. Be written and attached to a Form 29 – Multipurpose Form under the heading ‘witness statement’;
b. Be written in numbered paragraphs;
c. Identify at the beginning of the statement the identity of the person making the statement and the nature of that person’s relationship to the parties to the claim;
d. Detail the evidence to be given by the person at trial; and
e. Have attached copies of any documents referred to in the witness statement that are in the possession or control of the person making the statement.
9. THAT evidence in chief in this matter be adduced by way of witness statements which will stand as the evidence in chief of the maker. Evidence in chief other than that contained in the witness statement may only be adduced by leave of the Industrial Magistrate.
10. THAT if liability is established at trial, then a further hearing will be listed to deal with the issue of penalties.
11. THAT the parties have liberty to apply at short notice.
31 On 14 September 2023, the claimant’s solicitors filed a Form 27 Notice of Cessation of Representation by Lawyer, following which the claimant was no longer legally represented in the proceedings.
Evidence filed and directions hearing
32 Both parties complied with the requirements to file witness statements and outlines of submissions.
33 On 19 September 2023 the claimant filed two witness statements. One statement was from the claimant herself (claimant’s first statement); the other was a witness statement from Ms Finlay (Finlay Statement).
34 On 6 November 2023, the respondent filed two witness statements; one was from Mr Bowley, (Bowley statement) while the other was from Mr Hay (Hay statement).
35 On 4 December 2023, the claimant filed a second witness statement in reply to the Hay and Bowley statements (claimant’s second statement).
36 Following the filing of the parties’ evidence and submissions, the claim was listed for a twoday hearing to be held on 25 and 26 March 2024 (March hearing).
37 In the lead up to the March hearing, the claim was listed for a directions hearing on 29 January 2024 (directions hearing). During the directions hearing, the claimant advised that Ms Finlay would not be available to appear in Court to be crossexamined. Transcript, 29 January 2024, 9.

38 The claimant also advised that she had recorded two conversations with Mr Bowley that she wanted admitted into evidence, both of which she had not previously disclosed to the respondent and were made without Mr Bowley’s consent (Bowley recordings). Transcript, 29 January 2024, 10.

39 After hearing briefly from the parties on these matters, the directions hearing was adjourned so the parties could take part in a second pretrial conference, at which the parties were to discuss the potential resolution of the claim; the admission of the Bowley recordings into evidence; and whether the Finlay statement could be tendered by consent.
Claimant’s application
40 On 9 February 2024, the claimant filed a Form 6 Application under the IMC Regs for orders that would allow the Bowley recordings to be admitted into evidence and the Finlay statement to be tendered without requiring her to appear in Court (claimant’s application).
41 The grounds on which the claimant made her application were set out in an accompanying Form 7 Affidavit, which the claimant filed on 9 February 2024 (claimant’s affidavit).
42 The claimant’s affidavit relevantly stated the following: Affidavit of Beth Brady affirmed on 8 February 2024.

5. Prior to making the recordings I attended two meetings with Mr Bowley where Mr Bowley had made bullying and intimidating comments to me.
6. Mr Bowley had also stated in previous unrecorded meetings, and the recorded meeting, that he was refusing my lawful right to the personal leave that I had accumulated and that I was lawfully entitled to.
7. I was fearful that Mr Bowley’s behaviour and bullying comments would be repeated, in these meetings, which they were.
…
10. My case relies upon whether Mr Bowley offered me a 6month contract and whether or not I accepted the contract. The recordings will unequivocally prove that Mr Bowley offered me a 6month contract and that I did accept that contract.
43 On 26 February 2024, the second pre-trial conference was held in relation to the claim. When the matter was not able to be resolved at this conference, the claimant’s application was listed for an interlocutory hearing on the same day (interlocutory hearing).
Interlocutory hearing
44 During the interlocutory hearing, the claimant withdrew her application for the Finlay statement to be tendered without requiring Ms Finlay to appear in Court. Transcript 26 February 2024, 2.
This, in effect, means there will be no evidence from Ms Finlay about the complaints the claimant says she raised with her and what she did about those matters.
45 I then briefly heard from the parties regarding the claimant’s request to admit the Bowley recordings into evidence.
46 By way of an outline of submissions the SSO filed on 22 February 2024, the respondent raised its objections to admitting the Bowley recordings into evidence. At that stage, no one, other than the claimant, had heard the Bowley recordings and the Court had not issued any orders that required the claimant to disclose them.
47 To give the respondent an opportunity to hear the Bowley recordings and for the parties to make any further submissions on the claimant’s application, the interlocutory hearing was adjourned on the following basis: Orders issued on 26 February 2024.

It is hereby ordered that:
1. The claimant is to lodge and serve a copy of the two recordings of her conversations with Mr Bowley referred to in her Form 6 – Application dated 9 February 2024 (the recordings), together with a Form 29 – Multipurpose Form, by Friday, 1 March 2024.
2. The respondent is to lodge and serve any further outline of submissions in opposition to the claimant’s application to admit the recordings into evidence, together with a Form 29 – Multipurpose Form, by Friday 8 March 2024.
3. The claimant is to lodge and serve an outline of submissions in reply to the respondent’s submissions, together with a Form 29 – Multipurpose Form, by Friday 15 March 2024.
4. The claimant’s application to admit the recordings into evidence is adjourned to a hearing to be held on Monday 25 March 2024.
5. The dates for the substantive hearing of the claim on Monday 25 and Tuesday 26 March 2024 are vacated.
48 As the programming orders indicate, the March hearing was vacated. This was so the claimant’s application could be the subject of further argument. To this end, the interlocutory hearing was adjourned to 25 March 2024.
Strikeout application
49 On 8 March 2024 the SSO filed the strike-out application, together with an accompanying Form 7 Affidavit. As a result, the need to further hear the claimant’s application did not arise as the respondent changed course with the filing of the strikeout application.
50 The respondent relies upon three evidentiary sources in support of the strike-out application:
i. the Bowley recordings;
ii. the claimant’s first statement;
iii. the attachments to Mr Bowley’s witness statement.
51 When making the strikeout application, the respondent withdrew its earlier objection to the Bowley recordings. As was the claimant’s wish, the Bowley recordings were accepted into evidence.
52 In addition to the strikeout application, the respondent also made an application for costs against the claimant under s 83C of the IR Act, on the grounds the proceedings have been instituted frivolously or vexatiously (costs application).
Interlocutory hearing & further submissions
53 On 25 March 2024, the interlocutory hearing was reconvened. During this hearing, the parties made oral submissions on the strikeout application.
54 At the conclusion of the interlocutory hearing, I adjourned the strikeout application so that I could listen to the Bowley recordings, review the evidence relied upon for the strikeout application and to reach a view on whether the claim should be dismissed.
55 To this end the interlocutory hearing was adjourned on the following basis: Orders issued 25 March 2024.

It is hereby ordered that:
1. The claimant file and serve an outline of submissions in response to the respondent’s application to strike out the claim and to make an order for costs against the claimant, together with a Form 29 – Multipurpose Form, by 5 April 2024.
2. The respondent file and serve any submissions in reply, together with a Form 29 – Multipurpose Form, by 12 April 2024.
3. The respondent’s application to strike out the claim and an order for costs against the claimant, be decided on the papers.
56 On 4 April 2024, the claimant filed an outline of submissions opposing the strike-out application. Following this, the SSO on 8 April 2024 filed a further brief outline of submissions.
Principles relevant to summary judgment applications
57 The principles to be applied when considering summary judgement applications in matters before the Industrial Magistrates Court were recently summarised in a decision from Industrial Magistrate Scaddan in Construction, Forestry and Maritime Employees Union v QUBE Ports Pty Ltd [2024] WAIRC 00083.
58 Relevantly, the power to summarily dispose of a claim on the basis that there is no reasonable prospect of success, arises under regulations 5 and 6 of the IMC Regs. An application for a summary judgement should be determined on the material that is before the court, not based on the prospect that, given the opportunity, the other party might be able to remedy a deficiency. Construction, Forestry and Maritime Employees Union v QUBE Ports Pty Ltd [2024] WAIRC 00083 (CFMEU v Qube Ports) [45] citing Mary v Schon [2015] WADC 92 [43]  [44].

59 The power to order a summary judgement or wholly strike-out a claim is one that should be exercised with great care. Ibid citing Fancourt v Mercantile Credits Ltd [1983] HCA 25; 154 CLR 87 (Fancourt).
While the court may determine a difficult question of law on a summary judgement application, usually it is appropriate to leave the determination of such a question for trial. Ibid [47] citing Theseus Exploration NL v Foyster [1972] HCA 41; 126 CLR 507, 514  515.

60 While noting the court has the power to summarily dismiss a case if it concludes the claim is so clearly untenable that it could not possibly succeed, Industrial Magistrate Scaddan observed, citing the reasons of McClure J in Casella v Hewitt [2008] WASCA 13; 36 WAR 1 at [36], that in general:
… an application for summary judgment is not the occasion to dispose of difficult or substantial questions of law which cannot be determined without full argument.
Statutory context
61 Before dealing with the strike-out application, it is necessary to describe the statutory context in which the claim is made. In relation to this, s 97A(1) appears in Part 6B of the IR Act (damaging action provisions).
62 The damaging action provisions were inserted into the IR Act by way of the Industrial Relations Amendment Act 2021 (2021 Amendments), which came into force on 20 June 2022.
63 In order, the first of the damaging action provisions in Division 1 Part 6B is s 97. It defines key terms, including ‘damaging action’. In full, s 97 relevantly states:
97. Terms used
In this Part —
damaging action, against an employee, means —
(a) in the case of an employee —
(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);
and
(b) in the case of a prospective employee —
(i) refusing to employ the prospective employee; or
(ii) discriminating against the prospective employee in the terms or conditions on which the employer offers to employ the prospective employee; or
(iii) threatening to do anything referred to in subparagraphs (i) and (ii);
employee includes a prospective employee;
employer includes a former employer or prospective employer.
64 The second is s 97A(1), which imposes the prohibition against an employer taking damaging action against an employee or prospective employee for a prohibited reason. Section 97A(1) of the IR Act is a civil penalty provision, for which pecuniary penalties may be imposed. The section relevantly states:
97A. Damaging action because of inquiry or complaint
(1) An employer must not take damaging action against an employee for the reason, or for reasons that include, that the employee is able to make an employment-related inquiry or complaint to the employer or another person.
65 The third is s 97A(2), which shifts the onus of proof to an employer to show that it did not take damaging action for a prohibited reason (reverse onus).
66 In full, s 97A(2) relevantly states:
(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.
Purpose of the damaging action provisions
67 The Explanatory Memorandum and the Second Reading Speech for the 2021 Amendments give some insight into the purpose and object of the damaging action provisions and how they should be applied.
68 On this, it is clear the damaging action provisions are intended to protect employees from being victimised for making, or proposing to make, a complaint or an inquiry about their wages; entitlements; or working conditions to their employer; a union; a regulator; or other body. Explanatory Memorandum, Industrial Relations Amendment Act 2021 (WA) 88  87; Western Australia, Parliamentary Debates, Legislative Assembly, 20 October 2021, 4610  4611 (Mr WJ Johnston, Minister for Mines and Petroleum).

69 The damaging action provisions are cast in quite similar terms to and were introduced for the same purpose as the General Protections provisions that appear under Chapter 3, Part 31 of the Fair Work Act 2009 (FW Act).
70 To enhance their effectiveness, a reverse onus in s 97A(2) was, like its counterpart in s 361 of the FW Act, included in the damaging action provisions. The practical effect of a reverse onus is to make it easier for claimants to succeed in a damaging action claim. Andrew Stewart et al, Creighton and Stewart’s Labour Law (The Federation Press, 6th ed, 2016) referring to Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [21], [60]; CFMEU v Endeavour Coal Pty Ltd (2015) 231 FCR 150 at [20].

71 It follows that where similarity arises in the text of the damaging action provisions and the equivalent sections from the FW Act, the case law from the federal jurisdiction on how these provisions are to be interpreted and applied may be of relevance.
Damaging action claims
72 Like claims under Chapter 3, Part 31 – Division 3 of the FW Act, the focus of a damaging action claim will be on the reason or reasons for taking the action. This involves the court searching for a decisionmaker’s actual reasoning. It is not a question of determining the decision-maker’s ‘objective reasons’ for a decision but what were the ‘true reasons’. Construction Forestry Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243 [9] (French CJ and Kiefel J).

73 In Monash Health v Singh [2023] FCAFC 166; 327 IR 196 [80] a Full Court of the Federal Court observed:
As Bromberg J explained … the central statutory provisions (ss 340, 341 and 342) require the Court to determine first, why the adverse action was taken and specifically whether it was taken for a prohibited reason, which the Court referred to as the “actuating circumstance”; and second, whether the alleged reason was a “substantial and operative” reason. The question whether the decision-maker took the adverse action for a prohibited reason is a question of fact to be determined having regard to all the facts and circumstances of the case and any available inferences. If it is alleged in an application that a person took action for a particular reason and taking that action for that reason would constitute such a contravention, then it is presumed that the action was taken for that reason (at [82]). While direct testimony of the decision-maker, if given, will need to be considered and may be a weighty consideration, whether or not the statutory presumption is rebutted will depend upon a consideration of all the relevant facts and circumstances that shed light upon why the adverse action was taken.
The matters to be proved by the claimant
74 There are two elements a claimant must establish to succeed in a damaging action claim. First, a claimant must prove the respondent has taken damaging action. Second, a claimant must show they made or proposed to make, an employmentrelated complaint or inquiry.
75 Regarding this first element and the definition of damaging action under s 97(A), it is appropriate to construe the term broadly. This is because the damaging action provisions are intended to be beneficial and should therefore be given the widest possible meaning. Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14; 191 FCR 212; 274 ALR 570 at [17] (Gray and Bromberg JJ).

76 The second element that a claimant must be able to prove is that they made or proposed to make an employment-related inquiry or complaint. This second element is in two parts.
(a) Employment-related complaint or inquiry
77 The first part goes to whether the complaint or inquiry is one that is ‘employment-related’. This term is qualified with the inclusion of the words ‘is able to make’.
78 While the IR Act does not define what an employment-related complaint or inquiry an employee is able to make is, in the context of beneficial legislation for the protection of employee rights it is appropriate to interpret the term broadly.
79 There are however some parameters in which the meaning of a complaint that an employee is ‘able to make’ in relation to their employment is to be construed. In Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; 242 IR 1 (Shea), Dodds-Streeton J [at 625], held:
… the requirement that the complaint be one that the employee “is able to make’” in relation to his or her employment suggests that there are complaints which the employee is not able to make in relation to his or her employment. The ability to make a complaint does not arise simply because the complainant is an employee of the employer. Rather, it must be underpinned by an entitlement or right. The source of such entitlement would include, even if it is not limited to, an instrument, such as a contract of employment, award or legislation.
80 In Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16; 268 FCR 46 [28], a Full Court of the Federal Court referred to this statement of principle from Shea with approval.
81 The damaging action provisions were drafted on the basis the approach outlined in Shea is correct. Paragraph [474] of the Explanatory Memorandum for the Industrial Relations Legislation Amendment Bill 2021 (WA) provides:
The employmentrelated inquiry or complaint must be one that the employee “is able to make”. The ability to make a complaint does not arise simply because the complaint is an employee of the employer. The inquiry or complaint must be underpinned by an entitlement or right. The source of such an entitlement includes a contract of employment, award or legislation.
82 I therefore accept the approach in Shea regarding the essential features of an employmentrelated inquiry or complaint, is relevant for the interpretation of the damaging action provisions of the IR Act and I intend to follow it.
83 In line with the approach in Shea, proving the second element inevitably requires a claimant to provide details of the employmentrelated inquiry or complaint at issue in the proceedings, including details of how it relates to the claimant’s employment and the right or entitlement to which it relates.
(b) The employee made or proposed to make the employment-related inquiry or complaint(s)
84 The second part is the requirement for a claimant to establish that they made or proposed to make the employmentrelated inquiry or complaint. Proving this is also necessary for the purposes of engaging the reverse onus.
The Reverse Onus
85 Where the reverse onus in s 97A(2) is properly engaged, it falls to the employer to prove (on the balance of probabilities) that the damaging action was taken for a reason or reasons that are not proscribed.
86 The respondent in its submissions, correctly described pre-conditions for the reverse onus to be engaged. These are: Respondent’s Written Submissions filed on 17 January 2024 [20].

(a) the employee proves (on the balance of probabilities) that the employer took the damaging action against the employee. The reference to “the” before the words “damaging action” in s 97A(2) must be a reference to the specific damaging action alleged in the claim and not some other damaging action that is not alleged in the claim. If that were not the case, the definite article “the” which appears before the words “damaging action” would have no work to do;
(b) the employee establishes (on the balance of probabilities) he or she made a complaint(s) or inquiry(ies) of the type referred to in s 97A(1) (that is, an “employment-related inquiry or complaint to the employer or other person” that he or she was “able to” make); and
(c) any such complaints or inquiries which the employee establishes he or she made are the complaints or inquiries alleged in the claim. The reference to "the” before the words “inquiry or complaint” in s 97A(2) must be a reference to the specific inquiry or complaint alleged in the claim to be the reason for which the damaging action was taken and not some other inquiry or complaint that is not alleged. If that were not the case, the definite article “the” which appears before the words “inquiry or complaint” would have no work to do. (original emphasis)
87 I accept that such an approach is consistent with the federal case law relating to adverse action and the operation of the reverse onus that applies under s 361 of the FW Act.
88 In Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 261 FCR 347 [13] - [14] a Full Court of the Federal Court held:
Stated compendiously, s 361(1) places an onus or burden on a person involved in a proceeding relating to a contravention of Pt 3-1 of the FWA to “prove otherwise” than that he or she took the contravening action for the particular reason, or with the particular intent, alleged in the applicant’s application. The consequence of a failure to discharge this burden is that it is presumed against the person concerned that the contravening action was taken for that particular reason or with that particular intent. Before this presumption operates, however, two pre-conditions must be met. First, under s 361(1)(a) the particular reason or the particular intent for the contravening action must be alleged in the application. It is with respect to that alleged reason or that alleged intent that the person concerned must prove otherwise. The word “particular” in s 361(1)(a) must be given its ordinary and natural meaning. …
It follows that an allegation under s 361(1)(a) must precisely and distinctly identify the alleged reason, or the alleged intent, for the contravening conduct. This need for care and precision in making the allegations in connection with which the presumption may operate is similar to that required with respect to the analogous situation of averments in criminal prosecution. (original emphasis)
89 Establishing this second part; that an employee made or proposed to make the employmentrelated inquiry or complaint, will inevitably require an employee to show the form the inquiry took, who it was made to and importantly, that it preceded the damaging action.
90 It follows that it only falls to the respondent to prove that it did not take the damaging action for a prohibited reason, once a claimant has established these two elements.
Evidence relevant to the strikeout application
91 To determine the strikeout application, it is necessary to reach some findings about the evidence that has been filed which the respondent relies upon in support of the strikeout application.
92 The first evidentiary source which the respondent relies on is the claimant’s first statement. In summarising the contents of this statement, I have paid particular attention to those parts that are pertinent to both the first and the second damaging action allegations.
Summary of the claimant’s first statement
93 The claimant’s first statement states that on 31 January 2022, the claimant commenced employment under the first fixedterm contract as Senior Regional Development Officer located in Geraldton.
94 The claimant says that during the recruitment interview for the position, she asked if there was a likelihood the contract would be extended. The claimant says one of the members of the selection panel told her it was likely the contract would be extended for at least another six months until the end of 2022.
95 The claimant’s first statement confirms that she reported to Mr Bowley and the Acting CEO of the MWDC, Ms Finlay. The claimant also restated the allegations that I set out in the preceding paragraph [28].
96 The claimant says that on or around March 2022, she made an enquiry to Mr Bowley regarding accumulated personal leave that had carried over from her previous employment with WACHS. The claimant said that Mr Bowley had refused to acknowledge her accrued personal leave hours and had said words to the effect of: Claimant’s first statement, [12].

I don’t see us (MWDC) as being responsible for paying you out on that personal leave.
97 The claimant’s first statement also says that the claimant on another occasion, made a request to reduce her working hours for one week, so that she could look after a friend’s children. This was so the claimant’s friend could go to Perth to visit a ‘dying friend’. The claimant said she had intended to utilise her ‘WACHS personal leave’ for this purpose but Mr Bowley had instead suggested she should take leave without pay.
98 The claimant said that on or about 14 April 2022, she made an inquiry to Brad Williams who works for the respondent in human resources (Mr Williams), in relation to her salary. The claimant said that she was aware that transfers to similar roles within the public sector would often attract a like-for-like salary. The claimant had made an inquiry as to whether she could be paid at a level equivalent to what she was paid at WACHS.
99 The claimant says that on 20 April 2022, she received information from Mr Williams about payment at the same level. The claimant said Mr Willams told her that she would need to speak with Mr Bowley about increasing her salary.
100 The claimant’s first statement says that on 31 May 2022, she had a meeting with Mr Bowley (31 May meeting) where he offered a six-month extension to her fixed-term contract. This meeting was held at the offices of the MWDC.
101 The claimant said the dates for the new contract that Mr Bowley offered were from 1 July 2022 to 31 December 2022. The claimant said she accepted the offer of a six-month contract but requested the salary in her next contract be increased to a Level 6.3. The claimant says this was equivalent to the level she was paid in her employment at WACHS.
102 Following the 31 May meeting, the claimant says she sent an email to Mr Bowley regarding her request to increase her salary. The claimant says on 1 June 2022, Mr Bowley sent her an email in reply in which he rejected the claimant’s request to increase her salary.
103 The claimant says that in the middle of June 2022, Ms Finlay informed her that Mr Bowley was planning to terminate her employment. The claimant says Ms Finlay told her words to the effect of: Claimant’s first statement, [23].

Mike wants you out.
104 Following this, the claimant says that during a meeting she had with Mr Bowley on 21 June 2022 by [Microsoft] Teams (21 June meeting), he offered a twomonth extension to her employment. The claimant says that she responded by telling Mr Bowley that he had already offered her a sixmonth contract extension, which the claimant says he denied.
105 The claimant says that, at Mr Bowley’s request, she sent him the email which she says confirms Mr Bowley had offered her a sixmonth contract extension. The contents of the email, the claimant relies on I will return to.
106 The claimant says she told Mr Bowley that she thought his offer of a twomonth extension was unfair. In the claimant’s first statement, she also says she had produced the project plan that Mr Bowley had asked for.
107 Following the 21 June meeting, the claimant says, Ms Finlay sent an email to Mr Hay. A copy of this email was also sent to Mr Bowley. The claimant says that in this email, Ms Finlay recommended that she be retained in her employment.
108 The claimant says that in response to Ms Finlay’s email, Mr Bowley sent an email that confirmed the claimant was on a twomonth contract that may be extended for four months subject to a review by the CEO and ‘performance measures’.
109 The claimant says that in or around early July 2022 after Mr Hay commenced work at the MWDC as its CEO, she held a meeting with Mr Hay. During this meeting, the claimant says she provided details of the issues that she was facing with Mr Bowley and his ‘bullying behaviour’. The claimant says she told Mr Hay about the offer of a sixmonth contract extension. The claimant attached a copy of the notes from her meeting with Mr Hay to her witness statement. Claimant’s first statement, Attachment H, ‘Notes for Nils on 6th July.’ p 28  29.

110 The claimant says on 12 August 2022, Mr Hay told her, both in person and by email, that she would not have her employment extended beyond 31 August 2022. The claimant says on 31 August 2022, her twomonth fixedterm contract came to an end and her employment was terminated.
The first Bowley recording
111 The first Bowley recording captures the entire conversation between the claimant and Mr Bowley during the 31 May meeting. The recording lasts for approximately sixtyone minutes.
112 It is evident from the first Bowley recording that the 31 May meeting was arranged so he could speak with the claimant about her progress on the project. Much of the discussion centres on the work that she had been performing. A discussion regarding a continuation of the claimant’s employment does not happen until the later part of the meeting.
113 During the 31 May meeting, Mr Bowley makes suggestions to the claimant about the matters that she should be concentrating on to prepare a project plan, which the claimant seems to accept.
114 Mr Bowley’s tone and demeanour during the meeting does not sound aggressive or intimidating. The claimant for her part does not sound intimidated, with the conversation between the parties both amicable and accommodating.
115 As the meeting progresses, Mr Bowley indicates that he is intending to extend the claimant’s employment. In response to this, the claimant asks if she can negotiate some changes. The claimant makes two requests: a reduction in working hours to 0.8 and an increase in salary to level 6.3.
116 The claimant’s entitlement to take leave is discussed during the meeting, but not from the perspective of denying the claimant an entitlement to take personal leave as alleged. Rather, Mr Bowley raises the claimant’s entitlement to take annual leave so that it can be scheduled within the term of the claimant’s employment.
117 The claimant advises Mr Bowley that she intends going on a twoweek ‘health retreat’ in September 2022. It appears from the recording that Mr Bowley was not aware of how much annual leave the claimant had accrued.
118 The claimant advises that she has up to 200 hours accrued personal leave and appears to suggest that she can use this entitlement for her health retreat. She also asks if she can apply to take this leave. In response, Mr Bowley acknowledges the claimant will be making this request.
119 While Mr Bowley casts doubt about whether the respondent is responsible for paying the claimant out for personal leave during the fixedterm contract, what he says needs to be viewed in the context of a discussion about when the claimant intends to take her annual leave, having regard to her work commitments under the fixedterm contract.
120 I do not accept the first Bowley recording establishes that Mr Bowley made statements about refusing the claimant’s lawful rights to take accumulated personal leave either.
121 At its highest, the discussion between Mr Bowley and the claimant regarding her leave entitlements was about whether the claimant had an entitlement she was entitled to take and when she intended on taking it, a matter which was not conclusively addressed during the 31 May meeting.
122 The 31 May meeting ends with the claimant agreeing to provide Mr Bowley with a project plan within two weeks. Mr Bowley invites the claimant to email him the information regarding the increase in salary. I accept Mr Bowley agreed to consider the claimant’s request to increase her salary and to reduce her hours.
123 It is clear from the first Bowley recording that Mr Bowley offers to extend the claimant’s employment for a further six months. However, this recording does not establish the claimant accepted this offer and a contract was formed.
124 Rather, the first Bowley recording shows the meeting was concluded on the basis that there were still essential terms that had to be worked out. The first of these was the claimant’s request to increase her salary to a level 6.3. The second was the claimant’s request to reduce the number of hours she would be required to work.
The emails following the first Bowley recording.
125 My summary of the first Bowley recording is corroborated by the emails the claimant and Mr Bowley exchanged following the 31 May meeting. Copies of these emails were attached to both the claimant’s first statement and the Bowley statement. The complete email chain is attached to the Bowley statement and is marked MB8.
126 In order, the first in the chain was the email the claimant sent to Mr Bowley on 31 May 2022, which attached the information the claimant received from Mr Willams about the proposed increase in salary she was seeking. In this email the claimant says: Bowley Statement filed 6 November 2023, Annexure MB8

Ні Міkе,
Further to our conversation about a salary increment increase, please see below email from Brad Williams.
I am requesting that my salary increment be increased to Level 6 Step 3, in my next 6 month fixed term contract (1 July to 31 December 2022), as this is the most directly comparable salary that I was being paid at WACHS.
Forwarded for your consideration please.
127 The next email in the chain is from Mr Bowley and is dated 1 June 2022 (1 June email), This email was in the following terms: Bowley Statement, Annexure MB8.

Hi Beth
I have given your request some consideration. I cannot support your request for the following reasons:
· In framing the current contract, it was understood you had not worked in a Regional Development role previously.
· Whilst transferable skills from your former role were considered, the nature of our work is very different to WACHS.
· Normal progression from L6.1 to L6.2 is subject to assessment of satisfactory performance after 1 year.
· You have undertaken the required research and engagement to date to deliver to the requirements of the project, however Project Management skills have not yet been effectively demonstrated. This can be addressed within the next period.
· We are prepared to offer you an extension (6 months) to your existing contract under the same terms.
As per our discussion yesterday, I am prepared to consider a reduction of your hours from 37.5 per week. Noting I will require an outcome focused project plan for Improved Mid West Workforce Participation that reflects your delivery of the required outputs within the 6 month period.
Happy to discuss further.
128 It is not in dispute the claimant did not respond to the 1 June email. This is significant because when considered alongside the first Bowley recording, it cannot be said the parties had reached a binding agreement on the terms of a new contract that would apply beyond 30 June 2022, the expiry date of the first fixed-term contract.
129 For the avoidance of doubt, it is my conclusion that the emails that followed the first Bowley recording do not prove that a binding contract was reached between the claimant and the respondent. Rather they are evidence that negotiations between the parties to replace the first fixedterm contract were not finalised.
The second Bowley recording
130 The second Bowley recording captures the 21 June meeting. While it is not clear who initiated the 21 June meeting, it was held by [Microsoft] Teams and lasted for 48.55 minutes. Much like the 31 May meeting, the second Bowley recording starts with a conversation about the claimant’s work on the project.
131 During the discussion, the claimant acknowledges that she had not submitted a project plan. She also says that she has been off work with COVID19, which Mr Bowley accepts.
132 As the meeting progresses, Mr Bowley advises the claimant that he will be offering the claimant a further twomonth fixedterm contract on the same terms as her current contract until 31 August 2022. Mr Bowley advises that any decision to extend her employment beyond that date will be made by Mr Hay.
133 While I find that Mr Bowley’s tone during the 21 June meeting does not sound aggressive or intimidating, the exchange between the parties becomes strained. This, I accept, is a function of the claimant’s shock at the news that Mr Bowley delivered. In reply, the claimant strongly expresses her view that she has been treated unfairly.
134 During the 21 June meeting there is an exchange between Mr Bowley and the claimant about whether Mr Bowley had offered the claimant a further six-month contract. They also disagree on the contents of the 1 June email.
135 The difference between Mr Bowley and the claimant over what Mr Bowley offers in the 1 June email is caught by the second Bowley recording. It is best illustrated in the following exchange:
Claimant: I’ve got an email from you stating that you’re offering me a contract extension until December. 6 months. You said 6 months.
Bowley: No I think you need to read whatever email you’re looking at. I said to you, and this was the purpose of our meeting a few weeks ago, was that I wanted to be able to know what the period of time is going to be for this project and until you provided me with a project plan, which I have asked for you for on three occasions, until you provided me with a project plan, I don’t know how long that contract period is going to be. I have the ability to extend your contract up to 6 months but what I’m saying to you right now is that I’m prepared to do that until the end of August, and we can re-assess that by you know, after we’ve seen a project plan, and also we’ve given Nils the opportunity, the new CEO, to review the projects that we want to prioritise as the organisation.
136 Despite the claimant’s objection, Mr Bowley maintains that he is only prepared to extend the claimant’s contract for two months. The basis upon which Mr Bowley is prepared to do this is reflected in the following exchange:
Bowley: No what it means Beth is I’ve just said to you, I can, I will extend your contract until the end of August, I’m looking for a project plan to be developed by you, to be submitted for my review, but with Nils to give him the opportunity and to look at if this is a priority project for the Commission, and if it is, your contract will be extended.
Claimant: So you’re giving me a 2 month contract, is that right?
Bowley: Yep. An extension at the moment on the basis that we’re looking for those things to be completed and that um it is determined that this is a priority project for the organisation going forward.
Claimant: If this is a priority project going forward then why is this only a 2 month contract?
Bowley: I just said it’ll be up to the CEO to make his decision about whether it’s a priority project going forward, and he hasn’t had the opportunity to look at this project at all.
Claimant: Okay.
137 The 21 June meeting concludes with the claimant insisting upon, and Mr Bowley agreeing to send her, the paperwork for the second fixedterm contract.
Emails following the 21 June meeting
138 Following the 21 June meeting, Mr Bowley sent a further two emails that form part of the evidentiary matrix relevant to deciding the strikeout application.
139 The first of these is the email Mr Bowley promised he would send to the claimant, at the end of the 21 June meeting (21 June email). It was attached to the Bowley statement as attachment ‘MB8’ and was in the following terms: Bowley Statement, Annexure MB8.

Hi Beth
Following our discussion today I confirm MWDC is now prepared to extend your contract until 31st August, and will extend for a further 4 months subject to the following:
· A project plan (as requested) being submitted and approved by the MWDC CEO by end of July. Inclusive of completed key tasks.
· Perth Market Research Report (due midAugust)
· Business Case supporting the establishment of a NFP to manage migrant services (due end July). You are approved to work with Steve Baker on the development of this project plan. As previously discussed, myself and other staff are able to assist.
I have had no response to my email below, regarding your acceptance of normal progression increments, or a reduction in working hours.
I will now submit the paperwork to [the respondent] for this extension.
140 The second of these, is the email Mr Bowley sent on 22 June 2022 to a number of recipients including the claimant, Ms Finlay and Mr Hay, prior to Mr Hay starting work as the CEO at the MWDC (22 June email).
141 Mr Bowley sent the 22 June email in response to an email of the same date in which Ms Finlay had recommended the claimant be retained in her employment. The 22 June email was attached to the claimant’s first statement and states: Claimant’s first statement, Annexure F, p 23.

Hi all – FYI
Beth Brady is on a fixed term contract until 30 June 2022. This has been extended until 31 August 2022 with notation that the contract may be extended for a further 4 months. This is subject to review by the incoming CEO, and performance measures including delivery a project plan and receipt of the commissioned reports.
The A/CEO recommendation is noted.
142 It is not disputed that after the claimant received the 22 June email that she signed the second fixedterm contract, the terms of which are the same as the first fixedterm contract, except for the twomonth term.
The respondent’s submissions on the strike-out application
143 The respondent submitted the question on the strikeout application is whether, taking the evidence at its most favourable to the claimant, she can establish that the damaging action (as alleged in the claim) occurred.
144 The respondent contended the claimant’s evidence, taken at its highest, does not establish, and cannot establish, that any of the alleged damaging action occurred, meaning the claim has no reasonable prospects of success.
145 The respondent denies that the first and second Bowley recordings establish the offer and acceptance of a contract of employment. Rather, the recordings establish that any offer which was made by Mr Bowley was not accepted by the claimant.
146 The respondent’s case is that based on the recordings and contemporaneous email correspondence, the claimant cannot establish that any of the alleged damaging action occurred and as such there is no triable issue and the claim should be dismissed.
147 In relation to the first damaging action allegation, the respondent submitted the evidence, taken at its most favourable to the claimant, does not and cannot, establish that a sixmonth contract was entered into on 1 June 2022 (or on 31 May 2022, or on any date after 1 June 2022).
148 To establish the first damaging action, the respondent submitted it is necessary to consider, in light of what happened factually during the 31 May meeting and in the email correspondence that followed:
(i) if there was an offer to enter into a contract of employment on or around 1 June 2022, and if so, what were the terms of the offer and was the offer accepted such that a binding contract was formed; and
(ii) what was the legal effect of the offer of a 2-month contract on 21 June 2022. Respondent’s Written Submissions filed on 17 January 2024, [43].

149 The respondent submitted the first Bowley recording establishes that while Mr Bowley stated he was happy to extend the claimant’s contract for six months, the claimant’s response was not to accept any offer, but to ask if she could negotiate the terms. The respondent submitted the claimant then asked for a higher increment and decreased hours.
150 The respondent also contended the first Bowley recording proves that Mr Bowley did not agree to the claimant’s proposed terms but instead agreed to consider them once the claimant sent him some further information.
151 It was submitted the 1 June email is evidence Mr Bowley considered the claimant’s proposed terms and decided that a contract would not be offered above Level 6, Step 1 but that he was willing to consider a reduction from 37.5 hours per week.
152 The respondent submitted the email correspondence that followed the 31 May meeting demonstrates that no contract was formed. As a sixmonth contract was not entered into on or around 1 June 2022, the later offer of a twomonth contract did not amount to a dismissal or otherwise injure the claimant in her employment.
153 The respondent submitted that the language used in the 1 June email and the fact that there were essential terms to be determined was such that Mr Bowley’s email could not be construed as constituting an offer which could have been accepted to create a binding contract of employment.
154 The respondent submitted that the 21 June email does not give rise to binding obligations on the respondent to provide a further fourmonth contract. The respondent made this submission on two grounds.
155 First the respondent submitted that the second fixed-term contract (which provides there is no obligation on either party, to enter into any further employment arrangements) is directly inconsistent with the 21 June email. As a matter of law, there was no obligation on the respondent to offer any further contract of employment. Respondent’s Written Submissions filed on 17 January 2024, [62]  [63].

156 Second, the 21 June email offered a further fourmonth contract provided particular conditions were met. The respondent submitted one ‘condition’ that needed to be met for the claimant to be offered a further contract was for her to submit a project plan to be approved by the CEO of the MWDC by the end of July 2022. Respondent’s Written Submissions filed on 17 January 2024, [64].

157 The respondent submitted the claimant’s statement discloses she did not meet the stated condition. The respondent submitted the claimant did not submit a draft project plan until 2 August 2022 and submitted a further updated project plan on 9 August 2022.
158 The respondent also said the project plan was never approved by Mr Hay. This was because he decided the project would not go ahead. The respondent submitted that it would seek leave to lead such evidence from Mr Hay at a substantive hearing of the claim.
159 The respondent submitted that even if there was an enforceable obligation to offer a further fourmonth contract once the conditions were met, the claimant did not meet those conditions. On this basis the failure to issue a further fourmonth contract did not amount to damaging action.
The claimant’s submissions on the strike-out application
160 The claimant in her submissions, contended the first Bowley recording proves that while she endeavoured to negotiate a change in working conditions, she was offered a second six-month fixed-term contract and that she had accepted this offer.
161 The claimant says the emails that passed between herself and Mr Bowley following the first Bowley recording provide further proof that Mr Bowley offered to extend her contract and that she accepted that offer.
162 The claimant submitted the first and second Bowley recordings when taken together provide evidence of Mr Bowley’s breach of her lawful entitlements. She says the two recordings together provide proof that damaging action did occur.
163 On this basis, the claimant says that her claim should not be dismissed and that she should be allowed to have her claim decided on its merits.
Consideration – First damaging action allegation
164 As I previously outlined, to succeed in her claim the claimant must establish the respondent took damaging action against her. In relation to this, I do not consider the claimant can prove the first damaging action allegation. There are several reasons for reaching this conclusion that I will set out in order.
165 Firstly, the first fixed-term contract does not contain a term with a commitment to extend the claimant’s employment beyond 30 June 2022. Even if I accept that a panel member during the interview that preceded the claimant’s employment had said the contract might be extended for a further six months, at its highest, this was a pre-contractual representation that is not reflected in, and is contradicted by, the express terms of the first fixedterm contract.
166 Secondly, the first Bowley recording and the emails immediately following the 31 May meeting reveal there was no agreement reached to extend the first fixedterm contract for six months.
167 While I accept Mr Bowley offered the claimant a sixmonth extension, there were other terms that were still to be negotiated; specifically, the salary the claimant would be paid and the hours she would be required to work. Agreement on these terms was essential before a further fixedterm contract could be finalised.
168 Contractually, the first fixedterm contract contained no guarantee or a right to future employment beyond 30 June 2022. The respondent, notwithstanding the discussion that occurred during the 31 May meeting, was within its rights to only extend the claimant’s contract for two months. In other words, I accept the contract allowed the respondent to change its mind when the claimant did not respond to the 1 June email.
169 Thirdly, Mr Bowley’s decision to extend the applicant’s contract for two months with the second fixed-term contract, cannot be said to be damaging action because contractually, it did not, having regard to the terms of the first fixedterm contract, injure the claimant in her employment with the respondent.
170 Noting the first fixedterm contract did not guarantee ongoing employment beyond 30 June 2022, the claimant was able to continue in her employment on terms that were no less favourable for a further two months.
171 Put another way, because the claimant was offered two months more work on the same terms, than what was guaranteed by the first fixed-term contract, contractually, she did not suffer a detriment, proof of which is critical to succeeding in a damaging action claim.
172 It is my view, therefore, that there is no reasonable prospect the claimant will succeed in proving the first damaging action allegation. Accordingly for the reasons outlined in the preceding paragraphs [164]  [171], I would dismiss the claim in so far as it relates to the first damaging action allegation.
Complaints and inquires not without difficulty
173 Having concluded the respondent did not take the first damaging action as alleged, I do not need to go into whether the claimant had made an employment-related complaint or inquiry.
174 Despite this, the claimant should not assume that I have accepted she had made employmentrelated complaints and/or inquiries of the type that would ground the claim in respect of the first damaging action allegation.
175 There are difficulties with the complaints and inquiries the claimant says she made prior to the 21 June meeting. They include, but are not limited to, there being no evidence that Mr Bowley was aware the claimant had made complaints to Ms Finlay. The evidence also does not establish the claimant made a written email inquiry to Mr Bowley on or around 14 April 2022 in relation to her pay.
176 As I have indicated though, the need for me to drill down further into this issue does not arise because the claimant cannot establish the first damaging action allegation.
Consideration – the second damaging action allegation
177 The second damaging action allegation relates to the decision Mr Hay made that the claimant’s employment would cease upon the expiry of the second fixed-term contract. This allegation is made in two ways.
178 First that the respondent took damaging action by dismissing the claimant. In the alternative, the claimant alleges she was otherwise injured in her employment.
179 In relation to the claimant’s allegation that she was dismissed, it is well established that the cessation of an employee’s employment upon the expiry of a fixedterm contract (due to the effluxion of time) is not a dismissal but rather a function of the contract. Gallotti v Argyle Diamond Mines Pty Ltd [2003] WASCA 166 [4] (EM Heenan J, with whom Anderson and McKechnie JJ agreed).

180 Noting this, it is not open for me to find that Mr Hay’s decision not to extend the claimant’s fixedterm contract for a further four months was a damaging action in the form of a ‘dismissal’ within the meaning of s 97(a)(i) of the IR Act.
181 Regarding the second part of the allegation, I accept the second fixed-term contract was in much the same terms as the first fixed-term contract. Like the first fixed-term contract, it does not contain any terms that guarantee or provide rights to future employment beyond its expiry date of 31 August 2022.
182 However, unlike the situation with the first fixed-term contact, the respondent made a commitment that was evidenced in writing, that it would review the claimant’s performance during the second fixed-term contract and would consider offering her a four-month extension.
183 This commitment is evidenced in the 21 and 22 June emails that I have referred to in the preceding paragraphs [139] to [141]. The provision of this commitment is significant. Firstly, I do not consider that it is inconsistent with the terms of the second fixedterm contract. This is because it does not provide the claimant with a guarantee of ongoing employment. It is, however, a commitment to review that could result in a benefit in the form of ongoing work.
184 Secondly, upon giving a commitment that could result in the extension of an employee’s employment (provided the employee meets relevant preconditions and there are no genuine operational reasons why that employment should not be extended), a decision motivated by a prohibited reason[s] that results in an extension being refused, is something that could give rise to damaging action.
185 Applying the s 97 definition of damaging action broadly, a decision that results in the loss of an opportunity for a further four months’ employment beyond the expiry date of a fixed-term contract, particularly where a promise is made to review ongoing employment, is conduct within the meaning of s 97(a)(iv) that could injure an employee in relation to their employment.
186 I therefore find it is open to conclude that Mr Hay’s decision to not extend the claimant’s second fixed-term contract, is conduct that could constitute damaging action. Having reached this finding, I now turn to whether the claimant made an employment-related complaint.
The complaint to Mr Hay
187 In her witness statement, the claimant says she complained to Mr Hay about a number of matters relating to her employment, during a meeting with him in early July 2022. I summarised this evidence in the preceding paragraph [109].
188 There is little doubt the matters the claimant says she raised with Mr Hay, could constitute an employment-related complaint of the type contemplated in Shea. While the claimant’s evidence of what happened in her meeting with Mr Hay is still to be tested, there are reasonable prospects the claimant could prove that she made an employmentrelated complaint to Mr Hay.
189 In terms of the timing of the claimant’s complaint, it is my view the respondent has a case to answer. The claimant’s complaint preceded the decision not to extend her employment beyond the expiry of the second fixed-term contract, which I have concluded could constitute damaging action.
Matter to proceed on a limited basis
190 Noting my finding that the decision not to extend the claimant’s employment for a further four months could constitute damaging action and there is a triable issue the claimant made an employment-related complaint to Mr Hay, it is my view the second damaging action allegation should proceed to a full hearing on the merits.
191 As the authorities confirm, the power to order a summary judgement or wholly strike-out a claim is one that should be exercised with great care, CFMEU v Qube Ports citing Fancourt.
which I regard as applicable in this case, but only in respect of the second damaging action allegation.
192 I consider there is sufficient evidence to warrant a substantive hearing on the second damaging action allegation. I have concluded that this is a matter that cannot be properly determined without a substantive hearing.
193 Referring this matter to a substantive hearing will give the parties an opportunity to make further argument on the second damaging action allegation, which will include allowing the respondent to test the claimant’s evidence and to make further submissions on whether she made an employment related complaint to Mr Hay.
194 Proceeding to a substantive hearing on the second damaging action allegation will also afford the claimant an opportunity to test the reasons Mr Hay gave for not extending her contract.
195 While I am prepared for this matter to proceed to a substantive hearing on the merits, it will only be on a limited basis. By a limited basis, I mean the hearing will be confined to the second damaging action allegation and the matter is to proceed on the evidence that has been filed to date.
196 It also follows, the parties’ submissions and the examination of the witnesses are to be confined to the following:
(i) what happened in the claimant’s meeting with Mr Hay in July 2022;
(ii) whether the claimant made an employmentrelated complaint or inquiry to Mr Hay;
(iii) the details of the claimant’s complaint to Mr Hay;
(iv) the reasons for Mr Hay’s decision not to extend the claimant’s contract;
(v) the information Mr Hay relied upon to make his decision, including any conversations he may have had with Mr Bowley prior to his decision.
197 Having concluded there is sufficient material before the Court for the matter to proceed, albeit on a limited basis, there is a real and obvious danger to the claimant in going further.
198 After hearing all the evidence, I may, on the balance of probabilities, accept there were genuine operational reasons the respondent decided not to extend the claimant’s contract; specifically, that the project the claimant was working on did not go ahead and so there was no need to retain her beyond 31 August 2022.
199 While the question of whether the respondent can rebut the reverse onus will depend upon a consideration of all the relevant facts and circumstances that shed light upon why the respondent decided not to extend the claimant’s employment, the claimant should not assume the respondent cannot perform this task.
Application for costs
200 As I have not completely determined the claim, it would at this point, be premature to deal with the costs application. It should not be assumed that by allowing the claim to proceed on a limited basis that I have already decided the respondent should not be entitled to an order requiring the claimant pay all or a part of its legal costs.
201 Section 83E(12)(b) of the IR Act relevantly provides that I am not permitted to make an order for costs for the services of a party’s legal practitioner unless I am satisfied the proceedings have been frivolously or vexatiously instituted.
202 Noting that I have determined there was no reasonable prospect the claimant could succeed in proving the first damaging action allegation, her potential exposure to an adverse costs order is something the claimant should weigh up when deciding whether to proceed with the balance of the claim.
Conclusion & further directions
203 For all the reasons outlined in the preceding paragraphs, I have determined the strike-out application should, in part, be decided in favour of the respondent. Accordingly, the allegations in the claim in so far as they relate to the first damaging action allegation will be struck out and/or dismissed.
204 The balance of claim, dealing only with the second damaging action allegation, will be allowed to proceed. I will otherwise hear from the parties on any further directions that should issue so that I can decide the claim in relation to the second damaging action allegation.




T. KUCERA
INDUSTRIAL MAGISTRATE