Costly complaints - lessons from Saggers v AAT on dismissals and costs

In the case of Saggers v Registrar, Administrative Appeals Tribunal [2024] FedCFamC2G 298, we successfully acted for the Commonwealth in defending unmeritorious proceedings and having them dismissed with costs.

Background

Jason Saggers was employed to work at the Administrative Appeals Tribunal (AAT) as an Associate in the Migration and Refugee Division.  

Conflicts of interest are taken seriously in the public service, with requirements to be met under the Public Service Act 1999.  

Several issues arose during Mr Saggers’ employment regarding conflicts of interests, including:

• his public associations with a migration firm;

• a former employer publicising him as their immigration agent;

• him remaining registered as a migration agent; and

• remarkably, him remaining the agent on record for matters currently before the AAT.

Training was offered to Mr Saggers and a number of meetings were held with him where he was given the opportunity to correct these conflicts. However, the concerns were not adequately dealt with – with Mr Saggers even remaining the recorded representative on the two cases before the AAT! 

Mr Saggers was in his probationary period, so what did the AAT do?

A probationary period’s purpose

It’s important to keep in mind what probation is there for – to make sure the employee is the right fit for the employer and the employer is the right fit for the employee. By its nature, employment on probation is provisional and involves the employee undergoing a period of testing or trial.

Obviously then, a probationary employee does not enjoy all the benefits of a permanent employee. As such, they are not entitled to the same rights of procedural fairness and review in relation to termination of employment as that of permanent employees.

This is consistent with the approach under the FW Act where employees earning under the high-income threshold who are dismissed within their first 6 months of employment (or 12 months for small businesses) are not entitled to make an unfair dismissal application.

For more information and commentary in relation to dismissals during probationary periods, please see our related article.

What happened to Mr Saggers and what did he do?

Mr Saggers evidently did not get it, and understandably, the AAT assessed that he was not the right fit for the role. 

Mr Saggers was subject to a show cause process, and his employment was terminated just over a month after it had commenced. 

As Mr Saggers was in his probationary period, he could not bring an unfair dismissal claim. However, he was still clearly unhappy with his dismissal and said it was unfair.

Mr Saggers said that his dismissal stemmed from his complaints about the conditions of his employment, with a focus on the requirement to relinquish his migration agent registration.

The primary issues raised by Mr Saggers in this matter revolved around:

• Termination of employment: Mr Saggers said his dismissal was due to him making complaints about inconsistent treatment and requirements regarding his role; and

• Breach of contract: Mr Saggers also claimed that his dismissal breached his employment contract, arguing he was not given proper notice or opportunity to remedy the alleged deficiencies. 

He said the AAT had acted in breach of the general protections jurisdiction of the FW Act.

One such protection is that an employer cannot take adverse action (e.g. dismissal) because an employee has exercised a workplace right, such as making complaints or inquiries about their employment. 

The jurisdiction

As a gateway question, Mr Saggers was required to establish the alleged adverse action and that the alleged protected grounds exist.

Once those threshold matters have been established, then under s 361 of the FW Act, it is presumed that the employer took the adverse action against the employee for the alleged reason or with the alleged intent unless the employer proves otherwise.

Adverse action is taken ‘because’ of a prohibited reason if that reason is at least one reason for the adverse action, being a substantial and operative factor in deciding to take that action. 

Overcoming the reverse onus of proof requires reliable evidence of the mental processes of those who were involved in making the decision to take adverse action and demonstration that the reasons did not include the alleged prohibited reasons.

The reverse onus of proof can pose a difficult burden, particularly where insufficient documentary evidence exists or decision makers are no longer employed.  

Trial and the Court’s decision

Mr Saggers did not even get off the starting block.

As outlined above, there are gateway questions for him to have access to the jurisdiction. 

The fact that adverse action has been taken is often not contested, particularly where the claim involves dismissal. 

However, Mr Saggers could not demonstrate any workplace right within the meaning of the FW Act. To be a valid complaint for the purposes of this jurisdiction, it must relate to a subject matter for which provision is made under an instrument, award or legislation. It cannot just be any gripe or expression of dissatisfaction.

Therefore, in answer to Mr Saggers’ claim, we:

• demonstrated to the Court that there were no valid complaints;

• there was a legitimate reason for dismissal, which was required to discharge the reverse onus of proof in s 361 of the FW Act; and

• there was no deficiency in the manner in which the dismissal was carried out, and therefore the breach of contract claim must fail.

Judge Vasta agreed, finding no evidence of any valid complaints or breach of contract, and dismissed the application.

Despite the difficulty of obtaining costs orders in this jurisdiction, we sought costs on behalf of the Commonwealth given the circumstances of this case. 

We were successful in persuading the Court that costs should be awarded, with Judge Vasta stating:

[78] To launch a proceeding identifying a workplace right and then giving no evidence of the exercise of that workplace right, or even identifying that workplace right in the evidence that was then filed to prove the claim, can only be described as an action without reasonable cause.

[77] This was a matter that was, therefore, always doomed to fail.

The Court ordered Mr Saggers to pay the AAT's costs fixed at $12,000, recognising the unnecessary burden placed on the AAT to defend the unmeritorious claims.

This claim serves as a reminder to applicants that, even though they may feel aggrieved by a process, instituting unmeritorious claims can cost them.

We are pleased to have successfully represented the AAT and defended these proceedings.

Learnings

This case demonstrates the complexity of this jurisdiction and serves as a cautionary tale for the querulous employee who is dissatisfied with every decision of their employer. 

While the AAT acted properly and appropriately in this case, this decision gives some takeaways for employers in setting themselves up to best defend proceedings, including:

• be conscious of this jurisdiction and what prohibited reasons exist, and make sure everyone who has a material involvement in the decision-making chain is as well; 

• maintain sound objective documentation to demonstrate the real reasons for a decision; and

• making complaints does not make an employee a protected species, so don’t shy away from making the decisions that are right for your organisation just because an employee makes complaints. However, make sure to carefully dissect any complaints, workplace rights or other protected bases from the lawful reasons for dismissal, before making the right decision.