Leggett v Hawkesbury Race Club Limited (No 3) [2021] FCA 1658

Federal Court of Australia Leggett v Hawkesbury Race Club Limited (No 3) [2021] FCA 1658 File number(s): NSD 1554 of 2019

Judgment of: RARES J

Date of judgment: 24 December 2021

Catchwords: NEGLIGENCE – duty of care – employer's duty to protect employee from reasonably foreseeable risk of sustaining psychiatric injury – Workers Compensation Act 1987 (NSW) Pt 5 – where CEO bullied and micromanaged employee – where employee complained to CEO about employment conditions and failure to provide safe system of work – where CEO ignored complaints and persisted in conduct – where employee complained to several directors of employer's board about effect of CEO's conduct on her health – where board directors failed to act – whether employee displayed signs she was at risk of psychiatric injury to employer's "agents to know" – whether employee's descriptions of her state of mind to CEO and board directors would convey to reasonable employer that she was at risk of psychiatric injury – held: employer negligent – employee entitled to work injury damages pursuant to s 151E Workers Compensation Act. INDUSTRIAL LAW – adverse action – Fair Work Act 2009 (Cth) ss 87, 323, 340(1)(c)(ii) – Long Service Leave Act 1955 (NSW) s 4 – where CEO threatened to performance manage employee in response her complaints about his conduct and failure to provide safe system of work – whether employee's workplace right to make complaint under s 340(1)(c)(ii) of Fair Work Act needed only to be underpinned by an entitlement or right or also had to be based on an instrumental source – where CEO withheld payment of entitlements because employee had exercised workplace right to make a complaint and to take sick leave – where CEO failed to pay annual and long service leave to employee – whether employee could rely on presumption in s 361 of the Fair Work Act when it had not been pleaded – found not necessary to plead s 361 in order to rely on presumption. CONSTITUTIONAL LAW – whether Federal Court of Australia has jurisdiction to make orders under Long Service Leave Act 1995 (NSW) – whether Long Service Leave Act "picked up" by s 79 of the Judiciary Act 1903 (Cth) in matter involving termination of employment relationship and claims of contraventions of the Fair Work Act 2009 (Cth). CONTRACT – where employee paid by commission – where no express term of contract as to time for payment – where parties had dealt with each other over many years and employer always paid within 14 days of claim for commission – whether estoppel by convention based on course of dealing.