A contravention of s97A of the IRA is a civil penalty provision for the purposes of s83E of the IRA; the respondent may be liable for a civil penalty of up to $650,000 if a serious contravention or up to $65,000 if it is not a serious contravention; if it is proved that an employer took damaging action against the employee, it is for the employer to prove that the employer did not do so because the employee made the inquiry or complaint or proposed to make the inquiry or complaint.

Where a party has never been put on notice of what a claim might be, it is not for the court to identify a possible claim.

A claimant must clearly set out: (1) what damaging action (as defined in s97(a)) was taken by the employer or how conduct can be imputed to the employer; (2) the reason or reasons the damaging action was taken; and (3) if the damaging action was in response to an employment-related inquiry or complaint, what inquiry or complaint was made and to whom and about what.

While s97A contains a reverse onus provision (once damaging action is proved, the respondent must prove it was not because of the inquiry or complaint), this does not relieve the claimant of the obligation to clearly plead the four elements of the claim.

Section 41(3) of the WWC Act extends to include claims brought by a union on behalf of an employee as well as claims made by employees themselves, assuming sub-paragraphs (a), (b) and (c) are met. The 'person' whose right to seek a remedy is preserved extends to claims brought in a representative capacity by organisations.

Under s41(3) of the WWC Act, a remedy is prohibited only if it operates on or seeks to modify the actual decision to dismiss itself. Remedies incidental or consequential to dismissal (such as enforcing denied contractual benefits or entitlements) are not precluded. A claim of refusal to re-employ, based on unfairness arising after the dismissal and the legal prohibition has ceased, is not a remedy 'for the dismissal' within s41(3)(a).

Under s41(3)(c) of the WWC Act, the grounds on which relief is sought must have a real and substantial connection not just with dismissal, but with dismissal to comply with the WWC Act. If the grounds place no reliance on the fact that the employee was dismissed for this reason, then s41(3)(c) is not satisfied.

Proceedings are vexatiously instituted if they are instituted with the intention of annoying or embarrassing the person against whom they are brought, brought for collateral purposes not for adjudication on the issues, or if irrespective of motive, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

Something substantially more than either a lack of success or the prospect of lack of success must be established before an unsuccessful party can be held to have frivolously or vexatiously instituted proceedings.

An employer takes damaging action in contravention of s97A(1) only if a proscribed reason (the employment-related complaint) is a substantial and operative reason for the action or if the reasons for the action include the proscribed reason.

A damaging action claim does not entitle the applicant to a broad inquiry as to whether they have been subjected to a procedurally or substantively unfair outcome; the crucial issue is the causal relationship between the damaging action and the employment-related complaint.

Missing out on a job opportunity for which there was merely an expression of interest, without a firm offer or promise of employment, does not necessarily constitute damaging action within s97(a)(ii), as the employee's position has not been altered.