Wong v National Australia Bank Limited [2022] FCAFC 155

Federal Court of Australia

Wong v National Australia Bank Limited [2022] FCAFC 155 Appeal from: Wong v National Australia Bank Limited [2021] FCA 671

File number: VID 393 of 2021

Judgment of: KATZMANN, CHARLESWORTH AND O'SULLIVAN JJ

Date of judgment: 8 September 2022

Catchwords: EMPLOYMENT LAW – appeal from orders dismissing an application alleging contravention of s 340 of the Fair Work Act 2009 (Cth) – where primary judge found that an employer's reasons for taking adverse actions against an employee did not include the fact that the employee had made complaints and inquiries about her employment – employer a corporation – where primary judge found that the employee's immediate supervisor made a significant contribution to the employer's decision – whether primary judge erred in concluding that it was unnecessary to interrogate the supervisor's state of mind in considering whether the employer had discharged its burden of proof under s 361 – where primary judge held that the supervisor genuinely held opinions about the employee's behaviour and performance – whether the primary judge erred in assessing the credit of the supervisor as a witness – whether the objective circumstances precluded a finding that the supervisor's opinions were genuinely held – role of the Court on an appeal by way of rehearing in respect of factual findings based in part on impressions the primary judge formed of the supervisor as a witness

Legislation: Fair Work Act 2009 (Cth) ss 340, 341, 342, 346, 360, 361, 550, 570, 793

Cases cited: Abalos v Australian Postal Commission (1990) 171 CLR 167 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 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] (2012) 248 CLR 500 Brennan v Comcare (1994) 50 FCR 555 Clark Boyce v Mouat [1994] 1 AC 428 Comcare v PVYW (2013) 250 CLR 246 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 Construction, Forestry, Mining and Energy Union v Claremont Coal Pty Ltd (2015) 253 IR 166 Devers v Kindilan Society [2010] FCAFC 72; 269 ALR 404 Devries v Australian National Railways Commission (1993) 177 CLR 472 Elliot v Kodak Australasia Pty Ltd (2001) 129 IR 251 Fox v Percy (2003) 214 CLR 118 General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 235 Jones v Hyde (1989) 63 ALJR 349 Lee v Lee (2019) 266 CLR 129 Liberty Mutual Insurance Company Australia Branch (t/as Liberty Speciality Markets) v Icon Co (NSW) Pty Ltd [2021] FCAFC 126; 396 ALR 193 National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139 Nocton v Lord Ashburton [1914] AC 932 Roberts v General Motors-Holden's Employees' Canteen Society Inc (1975) 172 CAR 1073 Sica v Brophy [2020] NSWCA 181 Voigtsberger v Pine Rivers Shire Council (1981) 1 IR 198 Wong v National Australia Bank Limited [2021] FCA 671 Wood v City of Melbourne Corporation [1979] FCA 42; 26 ALR 430