Background
Thomas Bonney, an Indigenous man, began working for Services Australia in November 2023. He made several complaints alleging derogatory remarks about his sexuality and race, but an internal investigation found no evidence substantiating them. On 5 December 2023, Bonney punched another employee twice in the head during a training session. Services Australia suspended him the next day and dismissed him for serious misconduct on 15 December 2023.
Bonney alleged that his suspension and dismissal contravened the general protections provisions of the Fair Work Act 2009 (Cth). The Federal Circuit and Family Court of Australia (Division 2) found Services Australia liable under ss 340 and 351, reasoning that it had not discharged the reverse onus under s 361 because a person identified as relevant to the decisions, Ms McKay, did not give evidence. Relief had not yet been determined, so Services Australia required leave to appeal the interlocutory liability decision.
The Court’s Holding
Justice McElwaine granted leave to appeal. Although interlocutory appeals ordinarily should not fragment unfinished proceedings, the Court found sufficient doubt about the correctness of the liability decision. In particular, there were real questions about the basis for treating Ms McKay as a central participant in the suspension and dismissal decisions, the rejection of Services Australia’s evidence that each decision had a single decision-maker, and whether the primary judge’s ultimate findings were supported by the preceding factual findings.
The Court also found that refusing leave could cause substantial injustice if the liability ruling were erroneous. Services Australia could otherwise incur civil penalties and significant additional expense in the remedies phase, remain subject to serious findings concerning racial and sexual discrimination, and suffer further prejudice from delay. The Court did not decide the merits of the proposed appeal; it permitted the appeal to proceed before a single judge and adjourned it for case management.
Key Takeaways
- The decision grants permission to appeal; it does not overturn or affirm the underlying findings that Services Australia contravened ss 340 and 351 of the Fair Work Act.
- Sufficient doubt arose from questions about who participated in the adverse-action decisions, why Ms McKay’s state of mind was considered necessary, and whether the liability conclusions followed from the factual findings.
- Fragmentation concerns may yield where an arguably erroneous liability ruling would expose a party to penalties, substantial remedy-stage costs, serious reputational findings, and further delay.
Why It Matters
The ruling illustrates when the Federal Court may allow an interlocutory appeal from a liability-only determination in general protections litigation. Although courts generally resist appeals that interrupt proceedings before relief is determined, leave may be justified where the liability reasoning is genuinely doubtful and continuing to remedies could produce substantial injustice.
For employers and practitioners, the case also highlights the significance of identifying every person materially involved in an adverse-action decision and presenting evidence capable of discharging the reverse onus under s 361. Whether Services Australia ultimately succeeds on those issues remains for the appeal.