Serpanos v Commonwealth of Australia [2022] FCA 1226

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