RPS AAP Consulting Pty Ltd v Lamb [2023] FCA 1310

Federal Court of Australia

RPS AAP Consulting Pty Ltd v Lamb [2023] FCA 1310 Appeal from: Lamb v RPS AAP Consulting Pty Ltd [2022] FedCFamC2G 255

File number: NSD 335 of 2022

Judgment of: RAPER J

Date of judgment: 31 October 2023

Catchwords: INDUSTRIAL LAW – appeal from orders of the Federal Circuit and Family Court of Australia – general protections application – where the primary judge found that the employer's reasons for taking adverse action included the fact that the employee had made a complaint – whether the primary judge erred in relying on the subjective views of the employee as to whether she had been the subject of adverse action – whether the reasons were inadequate and/or involved an erroneous factual finding regarding the issue of demotion and being forcibly removed – whether the primary judge erred in finding that the decision-makers' real reasons for the impugned decision included a prohibited reason and failed to give adequate reasons – whether the primary judge erred by applying a test of reasonable apprehension of bias – whether the primary judge erred by creating and relying on a nexus between Ms Lamb's complaint and RPS's response to the proposed study commitments – appeal dismissed

Legislation: Fair Work Act 2009 (Cth) ss 340(1), 342, 342(1) items 1(b) and 1(c), 361, 361(1), 386(1)(b)

Cases cited: AK v Western Australia [2008] HCA 8; 232 CLR 438 Alam v National Australia Bank [2021] FCAFC 178; 288 FCR 301 Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; 193 FCR 526 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500 Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39 Clark Boyce v Mouat [1994] 1 AC 428 Cook v CFP Management Pty Ltd [2006] QCA 215; 152 IR 358 Dearman v Dearman (1908) 7 CLR 549 DL v The Queen [2018] HCA 26; 266 CLR 1 Ermel v DuluxGroup (Australia) Pty Ltd (No 2) [2015] FCA 17 Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189; 6 VR 1 Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75 Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399; 186 FCR 22 Lennon v South Australia [2010] SASC 272 Lopez v Gold Titan [2022] FCAFC 117 Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; 93 FCR 34 Mifsud v Campbell (1991) 21 NSWLR 725 Nocton v Lord Ashburton [1914] AC 932 at 945 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 3; 195 CLR 1 Police Federation of Australia v Nixon [2011] FCAFC 161; 198 FCR 267 Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99; 248 FCR 18 Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association [2012] FCAFC 63; 202 FCR 244 Rigby v Ferodo Ltd [1988] ICR 29 Roberts v General Motors-Holden's Employees' Canteen Society Inc (1975) 25 FLR 415; 172 CAR 1073 Sabapathy v Jetstar Airways [2021] FCAFC 25; 283 FCR 348 Sargent v ASL Developments Ltd (1974) 131 CLR 634 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 73 ALJR 306 Tattsbet Ltd v Morrow [2015] FCAFC 62; 233 FCR 46 Transport Workers Union of Australia v Premier Motor Service Pty Ltd [2015] FCA 650 Wong v National Australia Bank Ltd [2022] FCAFC 155; 318 IR 148 Neil I, Chin D, Parkin C, The Modern Contract of Employment (3rd ed, Thomson Reuters, 2023)