Australian Municipal, Administrative, Clerical & Services Union v Ansett Australia Ltd

Introduction 1 On 8 December 1999 Ms Maria Gencarelli ("Gencarelli") was dismissed from her employment by her employer, Ansett Australia Ltd ("Ansett"), after Ansett had ascertained that she had distributed a bulletin of the applicant ("the ASU") to ASU members on Ansett's internal e-mail system. The bulletin related to the current state of enterprise bargaining that had been taking place between ASU and Ansett representatives on a Joint Work Group established to review workplace improvements. 2 The ASU claims that Gencarelli's dismissal contravened s 298K of the Workplace Relations Act 1996 (Cth) ("the Act"), as it was carried out for the reason that she was, at the time, a member and delegate of the ASU (see s 298L(1)(a)) and was dissatisfied with her industrial conditions (see s 298L(1)(l)). The ASU is claiming orders for the imposition of a penalty on Ansett and for compensation for the loss and damage suffered by Gencarelli as a result of the termination of her employment. The trial was limited to the issue of liability. 3 Ansett denies that it dismissed Gencarelli for either of the reasons claimed by the ASU. It claims that her dismissal was brought about because her distribution of the ASU bulletin on Ansett's internal e-mail system constituted misconduct in breach of the terms of her employment, which entitled Ansett to terminate that employment. Ansett claims that Gencarelli's role as a delegate of the ASU and its claim for better industrial conditions or any dissatisfaction she may have had with her current conditions played no role whatsoever in its decision to terminate her employment. 4 The issues arising include whether: · Gencarelli's use of her employer's e-mail system to inform employee members as to the current state of the enterprise bargaining constituted misconduct; · the reason for Gencarelli's dismissal was her distribution of a union bulletin in the course of discharging her duties as a union delegate; · Ansett has discharged the onus of proof cast upon it under the Act to establish, on the balance of probabilities, that the circumstance that Gencarelli was an ASU delegate was not a reason for her dismissal. 5 As the parties were in dispute on each of these issues it is appropriate, at the outset, to set out my findings in respect of the relevant events. The Factual Background 6 Gencarelli commenced employment with Ansett on 30 May 1988 and has been a member of the ASU since that time. In 1990 Gencarelli was elected as a union delegate for the ASU and, in about May 1999, was elected a member of the ASU Airlines Branch Council and to the position of Vice-President of the Executive Council of the Airlines Branch of the ASU. Although the Rules of the ASU provide for the election of stewards or workplace representatives they do not set out or provide for the functions of those persons as delegates at that workplace. 7 In about April 1999 the Ansett Australia Union Collective Bargaining Agreement 1999 was made between Ansett and a number of unions, including the ASU. One of the objectives of the agreement was to establish mechanisms for the negotiation and implementation of improved efficiencies in the workplace as part of a business recovery program for Ansett. In order to achieve that objective Ansett stated that it was committed to working together with the unions representing its employees and to implement the agreement through "co-operation and consultation with staff and unions" (cl 3). A key component of the program was the development of strategies by Joint Work Groups, which were to consist of appropriate representatives of management and of the relevant unions, with additional employee representatives as agreed (cl 6). Ansett agreed to "provide reasonable resources to the Joint Work Groups in order for them to perform their duties efficiently and effectively" (cl 6.3). On their part the unions agreed to facilitate, in a co-operative matter, the implementation of changes in the workplace to produce improved productivity and efficiencies as part of the business recovery program (cl 6.6). 8 The agreement was a mechanism by which Ansett, in conjunction with the unions, proposed to develop its business recovery program. The Joint Work Groups were important vehicles for procuring improvements in productivity and efficiencies as part of that program. 9 Under cl 15 of the agreement Ansett recognised union delegates, who were elected by employees, as the on-site representatives of the unions. The delegates were to be allowed reasonable paid time to conduct legitimate union business, subject to prior approval of the designated manager (cl 15(b)(ii)). Under cl 16 Ansett recognised the right of employees covered by the agreement to exercise their rights pertaining to union membership. As a union delegate elected to represent employees, Gencarelli was nominated by the ASU as a member of two Joint Work groups, one of which was the core Corporate Support Joint Work Group. 10 The core Group, which consisted of Ansett and ASU nominees, agreed that Ansett and the ASU were to be free to communicate with Ansett employees in relation to the Group's activities. Agreed communications were to be jointly determined by Ansett and the nominated ASU officer and were then to be communicated by Ansett, by e-mail or fax, to its employees. Where the communication was not to be a joint communication, each party was free to distribute its separate communications with employees, which were to be copied to the other party before general distribution. 11 The ASU bulletin of 3 December 1999 related to the outcome of the Corporate Support Joint Work Group meeting of 1 December 1999. One of the subjects of discussion at that meeting was Ansett's proposal to change its workforce mix by increasing its employment of permanent part-time staff. While Ansett saw the change as "core to its business", the ASU saw it as a threat to the security of the full time employment of its members. After a deadlock had been reached in respect of the part-time employment issue, the ASU advised that it wanted to move to the next issue. However, Ansett's response was that there was little point in continuing discussions on any other issues until the permanent part-time issue was resolved, as that issue "was fundamental to any agreement". 12 The meeting appeared to end acrimoniously. The ASU expressed the view that, as management could not be trusted and a number of its decisions were "less than sensible in the ASU's eyes", the ASU would not allow the removal of agreement and award restrictions that were inhibiting Ansett's engagement of part-time staff "as they were a protection mechanism for staff". Ansett responded by advising that there was little point in continuing the dialogue at this time, stating that if "there was a crisis of trust then each Ansett staff member would have a decision to make - to trust the company or the ASU". 13 After management representatives had left the meeting Ms Helga Svendsen, an ASU organiser, met with the Joint Work Group union delegates, including Gencarelli. They agreed that it was important that all ASU members be informed of the outcome of the meeting as quickly as possible. Svendsen agreed to prepare a summary of the ASU's view of what had occurred and to detail the ASU's concerns. There was brief discussion as to the most efficient way of distributing the proposed bulletin. One of the options discussed was the use of e-mail. As the ASU did not have the e-mail addresses of its members or the facility to e-mail members directly, the delegates agreed to distribute the bulletin. Svendsen said she was not aware of any Ansett policy that prohibited the use of its e-mail system for the distribution of the bulletin. 14 Ansett's "update" in respect of the meeting was distributed by e-mail to its staff on Friday, 3 December 1999. The update expressed Ansett management's version of the meeting and explained why Ansett viewed its proposals on workforce mix as fundamental to the productivity and efficiency savings it was seeking to achieve. The update concluded with the statement that Ansett had advised the ASU that, until that issue had been resolved, there was no point in continuing discussions at this time and that Ansett was reviewing its position regarding the workforce flexibilities it required. 15 The evidence is unclear as to whether Ansett complied with the agreed procedures in respect of the distribution of its update. Ms Svendsen gave evidence that she did not receive a copy of the update prior to its distribution. Ansett did not adduce any direct evidence that the 3 December 1999 update had been distributed to the ASU in accordance with the agreed procedures. There had been problems with the procedures in respect of an earlier newsletter. In view of the acrimony that appeared to exist at the meeting and the desire of each party to communicate its outcome as soon as possible, the probability, on the evidence, is that Ansett did not provide a copy of the update to the ASU prior to its general distribution to its employees. 16 By 3 December Svendsen had prepared ASU's bulletin based upon the Joint Work Group meeting. After she became aware that Ansett's update had been sent to its employees, she considered that it was important that the ASU's bulletin be sent out to ASU members by its delegates as soon as possible on the same day. Accordingly, the bulletin was e-mailed to one of the ASU delegates on the Joint Work Group to enable him to forward it to the other delegates (including Gencarelli) for distribution to all ASU members by those delegates. Svendsen requested that the bulletin be sent to all the delegates to be "spread as far and wide as possible". As Svendsen was concerned to respond to the Ansett update without delay and, as she regarded the prior communication procedures as having broken down and had not herself received a copy of the Ansett update prior to its distribution, she decided to distribute the ASU bulletin without sending an advance copy to Ansett in accordance with the agreed procedures. 17 The ASU Newsletter, which was authorised by ASU's Branch executive president, was as follows: "Management Walk Out of JWG Negotiations In yet another change of tack, Ansett management are now refusing to meet with ASU representatives to continue negotiations for our EBA part 2 Agreement. After reporting to you last time our frustration at not being able to get key Ansett decision makers to the meetings, we were successful in getting Ian McDonald, Ansett Industrial Relations Adviser to come to our Co-ordinating Group meeting. At that meeting, Delegates again expressed frustration at the lack of detail which management had provided in their proposals. With the involvement of Ian McDonald we actually seemed to be getting somewhere when he directed management representatives to hold another round of JWG meetings to provide the ASU with that 'further detail' we had been seeking for months. However, our optimism at finally getting somewhere was short lived. On Tuesday we had a JWG meeting for the Corporate Support area. With the first item on the agenda being 'workforce mix', your ASU representatives eagerly awaited the 'further details' which we had asked for about where they wanted to use part timers, how many they thought would meet the needs of the business and so on. If Ansett continues to harp on about 'meeting the needs of the business' we didn't think it too much to ask actually what the needs of the business were! How wrong we were. We were almost speechless when we discovered that the 'further detail' that Ansett would provide was a mere 2 lines: 'we want unlimited part timers to meet the business needs'; 'no full timer would be forced to go part time'. Here are the questions they couldn't answer: Where do they intend to use part timers? Don't know. How many part timers do they need? Don't know. What are the peaks and troughs that part timers could cover? Don't know. Here are the questions they didn't want to answer, but eventually did: Could full timers be made redundant and be replaced by part timers? Yes, possibly. Would full time positions be back filled with part timers (leaving full timers having to handle more and more work)? Yes, possibly. Doesn't provide much comfort or protection does it? The crux of the issue over part timers was this: Ansett want to be able to employ part timers any way they like and ask us to trust the company to 'make sensible business decisions'. The ASU says that there is currently a Part Time Heads of Agreement contained in the EBA which allows for part timers to be employed. We are more than happy to discuss the issue. Quite frankly, given the company's record on issues like this, we just don't trust them. Look at how many temps there are still in Finance. Yes, they are finally making some of those jobs permanent, but only after 3 years of hassling by the ASU. Do you trust the company to ensure that part timers are not used to undermine full time jobs? The sad irony of all of this is that quite often when we approach Ansett to have women returning from maternity leave work on a part time basis, we are rejected. The 'flexibility' that Ansett talks about seems to be a one way street. And what about the current EBA that says they must consult and reach agreement with the ASU over new temporary employees - the company have a different interpretation to ours- they say that the words 'consultation and agreement' mean that they don't even have to tell us when they employ temps. If they can't stick with the Agreement that has already been struck, can we trust them with even more of a free rein? The company has had the ability to employ part timers since 1993 when the Heads of Agreement was struck. Not once have they approached the ASU to set up a monitoring committee to talk about part timers. But now they say that this process is somehow 'too bureaucratic' - they haven't even tried! The ASU understands that Ansett needs to be competitive, particularly with possible new entrants to the industry (the gossip about Virgin airlines has everyone on their toes!). We are more than happy to talk about part timers in Head Office. But we do not believe that the company has [the] right to do anything they please without even bothering to consult your representatives. Your job security and conditions of employment are too important to be undermined. The company now says that because we insist on further detail that there is no point in continuing to meet. Our only question is this: if they are serious about meeting the competitive needs of the industry why won't they talk to us and reach a sensible agreement over these issues? Remember, all of this discussion is about trying to deliver your next round of wage increases - 6% over the next 2 years. 6% is not a huge amount, and Ansett needs to understand that the types of changes they are currently seeking are just not worth it. They say they will get back to us when they are ready to talk. We will give you updates as they occur - but in the meantime, make sure you talk to your ASU representatives to keep up to date. And don't believe everything you hear in AN Updates or from your managers - if you are unsure of anything talk to one of the ASU representatives who were actually at the meeting to get the real story on what's going on." 18 After receiving and reading her e-mail copy of the ASU bulletin Gencarelli e-mailed it to approximately 139 Ansett employees who were ASU members on her e-mail list for distribution of union material. In the past Gencarelli had used the Ansett internal e-mail system for communicating with ASU members. Gencarelli said she regarded the e-mail distribution of the bulletin as "an effective method of communicating to our members". Gencarelli had no particular qualms about using that system. She considered that the e-mailing of the bulletin was part of the Joint Work Group processes and that the Union was entitled to communicate it to its members using the same methods used by Ansett, to enable ASU members to have access to both versions of the relevant events. Gencarelli presumed that the communication of the bulletin accorded with the agreed procedures and distributed the bulletin to ASU members in discharge of her function as a delegate to make sure union information is distributed to members (see Our workplace - our union at 6). 19 The terms used in ASU's bulletin were certainly more strident and colourful than those used by Ansett in its update. Nevertheless, the bulletin set out the ASU's version of the discussion at the meeting and did, albeit in strong terms, express ASU's argument against Ansett's proposals for increasing permanent part-time employment in the Ansett workplace. 20 At the Joint Work Group meeting, and in its bulletin, the ASU questioned the trustworthiness of Ansett on the part-time employment issue. Indeed, the meeting concluded with a suggestion by Ansett representatives that employees would have to decide whether to trust Ansett or the ASU. In that context I do not regard the bulletin as going beyond the legitimate parameters of communication, argument and rhetoric that was an inherent aspect of the process of informing employees of the outcomes of Joint Work Group meetings and obtaining their support for any ultimate outcome. In that regard the enterprise bargaining outcomes sought by Ansett were required to be agreed to by Ansett employees under s 170MD of the Act. Communication of the kind that occurred on the part of Ansett and of the ASU was an integral aspect of that process. 21 The ASU bulletin, distributed by Gencarelli, was soon brought to the attention of Mr John Cann ("Cann"), an Ansett human resources manager whose section included the Superannuation section in which Gencarelli was employed. As Cann made the decision on behalf of Ansett to dismiss Gencarelli it is necessary to consider his evidence in some detail. In doing so I will refer to the various aspects of it that have led me to conclude that he was not a reliable witness and that, where his evidence conflicts with that of Gencarelli, her evidence is to be preferred. 22 In his affidavit Cann stated that "the bulletin" contained material that was "highly objectionable to Ansett" as, in his view, it: · sought to undermine the confidence Ansett employees had in the management of Ansett; · sought to encourage employees at Ansett not to trust management; · implied that management was not accurately reporting the outcomes of Joint Work Group negotiations; · misrepresented Ansett's position in relation to the Joint Work Group. 23 The above statements sit uncomfortably with Cann's evidence, in the course of cross-examination, that he didn't know whether or not the ASU bulletin was an accurate reflection of the Joint Work Group meeting (T 126). Although Cann later tended to understate the significance of the "highly objectionable" aspects of the bulletin, I am satisfied that those aspects played a significant role in the view that he formed that the ASU bulletin ought not to have been communicated by Gencarelli to Ansett employees. 24 Ansett management's view of the bulletin was clearly conveyed to Cann by his superior Mr Paul Birch, the Executive General Manager Human Resources. Birch telephoned Cann and said that he was concerned with the content of the bulletin and regarded the matter as serious. Birch requested that Cann investigate the situation and take appropriate action. Birch's concern related to the content of the bulletin rather than with the manner in which it had been transmitted to employees (T 92-93). 25 Also, Mr George Wood, the "project driver" of Ansett for the Joint Work Group, brought the bulletin to Cann's attention because he took offence to the wording of the last paragraph. Cann stated that, after holding discussions with Mr Wood and other senior executive officers of Ansett, he decided "that Gencarelli should be investigated for forwarding objectionable material by Ansett's e-mail system". Cann was informed by the other officers that he had the full support of management to make whatever decision he felt necessary after the investigation. 26 On 7 December 1999, Cann informed Gencarelli that he wanted to meet with her and her representative, if she wanted to bring one, at a meeting at 4.30 pm on that afternoon, at which he proposed to investigate her conduct in respect of the ASU bulletin. At the meeting Gencarelli, who was represented by Svendsen, told Cann that: · she made the decision to use the Ansett internal e-mail system to distribute the ASU bulletin; · she used the e-mail system because it was the most effective form of communication and had been used previously by her and other delegates to distribute information of a similar nature; · the bulletin related to the Joint Work Group meeting. 27 Svendsen said that the ASU had the right to distribute the bulletin to its members in the most effective way. The following day Mr Martin Foley, the Victorian Branch Executive President of the ASU, informed Cann that Gencarelli's distribution of the bulletin formed part of her functions as a delegate. When one considers Cann's recognition of the obvious industrial sensitivity of that issue, together with Gencarelli's assertion that she believed that she was entitled to use the e-mail to communicate Joint Work Group outcomes, it is surprising that Cann did not then investigate whether the ASU bulletin was distributed in accordance with the procedures agreed between the parties. 28 Cann asked Gencarelli whether she recalled a discussion approximately 12 months earlier where he had objected to her distribution of ASU information on the "Bulletin Board" (a site on Ansett's IT and Communications system "Lotus Notes") and had directed her not to do so in the future. Gencarelli confirmed that a direction had been given to her, but stated that it related to use of the Trading Post site on the Bulletin Board for that purpose and not to the use of e-mail. The Bulletin Board and e-mail were accessed through different icons on Ansett's Lotus Notes system. In her evidence Gencarelli said that she considered the posting of information on the "Trading Post" site, which was accessible to all Ansett employees, to be in a different category to e-mail directed to specific addressees. 29 The Minutes of the meeting state that Cann's response was a reiteration that it was his "intention" that the direction be a restriction on the use of e-mail and the Bulletin Board for the distribution of ASU information. At the conclusion of the meeting Cann advised Gencarelli that she was to remain at home on full pay pending a meeting to advise the outcome of the situation, which he scheduled for 10.00 am on the following morning at which time Cann said "Ansett would advise of its decision". 30 In the course of the meeting Svendsen requested a copy of Ansett's e-mail policy statement ("the IT Policy") but Cann responded that that was not the issue to be addressed. Rather, Cann said that the issue was "the distribution of an ASU Bulletin, the content of which is highly objectionable to Ansett". Notwithstanding those statements Cann relied on alleged breaches of the IT Policy by Gencarelli as one of his reasons for her dismissal. Cann's reliance on the IT Policy is difficult to reconcile with his evidence that he did not read the IT Policy at the time, nor did he raise it with Gencarelli because he said it "wasn't an issue in [his] mind" (T 113). Had Cann considered the IT Policy, which he agreed superseded his earlier directive (T 113-114), he would have been required to determine whether the e-mail distribution of the ASU bulletin was for "the purpose of performing authorised lawful business activities". 31 Cann's investigation was unusual. He had had no real experience in the conduct of an investigation and did not conduct it in accordance with Ansett's Employment Practices policy concerning counselling, discipline and summary dismissal of employees. A central tenet of that policy was that the individual was entitled to know the "specific" reasons for any proposed termination and was to be given the right to respond prior to any decision being made by the company. 32 It is unnecessary for present purposes to detail the nature and extent of Cann's non-compliance. As I later explain, alleged breaches of Ansett's IT Policy and of its Code of Ethics, including conflict of interest and the duty of good faith, were said to be reasons for Gencarelli's dismissal, but were not brought to her attention prior to the decision by Cann to dismiss her from Ansett's employment. 33 Cann never permitted the questions raised by the IT Policy to be raised by Gencarelli or her union representatives, as he appeared to regard Gencarelli's "misconduct" and the resulting dismissal to be an open and shut case. Had he considered his obligations to accord natural justice under Ansett's disciplinary policy he would have done well to have taken heed of the words of Megarry J in John v Rees (1970) 1 Ch 345 at 402: "It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. 'When something is obvious,' they may say, 'why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.' Those who take this view do not, I think, do themselves justice. As everybody who had anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events." 34 The circumstances of the present case amply demonstrate the wisdom of those observations. 35 In my view, Cann formed the opinion that Gencarelli ought to be dismissed prior to his meeting with her, but considered it was necessary to hear any explanation she had to offer before doing so. Cann said he asked whether the union had instructed Gencarelli to use the e-mail system for distribution of the bulletin, as that might be a mitigating factor. However, later in his evidence he conceded it would not have been a mitigating factor. He said he made that enquiry to ensure that the matter need not be dealt with as an Ansett corporate, rather than as an individual, issue (T 115). Cann explained that the existence of an ASU instruction or direction would have involved a significant number of other delegates who would have taken similar action and that although this was the "same issue", it would have involved the matter being dealt with from a broader perspective. 36 Cann said he was conscious that his action would result in a serious dispute with the ASU. Cann's awareness that the matter involved union issues and the ASU is significant. I infer that, among other things, this awareness led him to formulate the reasons he gave for Gencarelli's dismissal as broadly as possible. 37 In his affidavit Cann stated that the issue to him was not whether Gencarelli was a member, delegate or council member of the ASU but rather whether her actions were in breach of her employment obligations or in breach of Ansett policy. While I accept that Cann gave specific consideration to the objectionability of the content of the bulletin and its transmission by e-mail, allegedly in disobedience of his earlier directive, I do not accept that he gave any other serious or genuine consideration to whether Gencarelli's conduct was a breach of Ansett policy or of the terms of her employment. 38 After obtaining legal advice, Cann formulated his reasons for her dismissal in advance of the meeting on 8 December. At the meeting on 8 December, at which Gencarelli was represented by Foley, Cann handed Gencarelli what he described as a "Summary position", stating that the matter was not for discussion as the dismissal decision had been made. The "Summary position" stated: · Investigation concluded in relation to forwarding of ASU Bulletin. · Maria has agreed she sent the email. · Maria acknowledged that the email was sent at her own volition and not at the direction of ASU. · Maria has agreed she was previously warned about distribution of ASU Bulletins via Lotus Notes. · The content of the Bulletin is highly objectionable to Ansett. · Maria has a 'Duty of Good Faith' to Ansett implied under her contract of appointment. · This duty requires her to put Ansett's interests before other competing interests. · By forwarding this email, given its content, Maria has breached this duty. · The Ansett Code of Conduct requires that Maria avoid conflicts of interest · We consider that by forwarding this email the Code of Conduct has been breached. · Maria has failed to comply with a previous direction. · Maria has breached the policy on use of email. 39 In the course of cross-examination Cann said that the reasons "driving" him to dismiss Gencarelli were her use of the e-mail system to distribute the highly objectionable ASU bulletin, which was a "union activity" prohibited by his earlier direction (T 121, 122 and 125). In my view the other grounds stated by Cann for Gencarelli's dismissal, which were formulated after legal advice, were intended by Cann to proffer all of the possible legal bases for his decision to dismiss her. However, the operative factors that moved Cann to make his decision were not those legal factors but, rather, that Gencarelli had again distributed union material using Ansett's IT system. The "highly objectionable" nature of the material was regarded by Cann as an important factor in aggravation of Gencarelli's "misconduct" (T 121-122). 40 The above analysis may explain why the stated reasons for Gencarelli's dismissal were never put to her or her representative prior to the decision to dismiss her being made. The references made to breach of the duty of good faith, conflict of interest, breach of the IT Policy and of the Ansett Code of Conduct were legal grounds upon which Ansett and Cann relied at trial to support Cann's decision, but were not motivating factors as far as Cann was concerned. 41 Cann's use of and reliance upon these legal factors as factors that activated him to make his decision reflects adversely on his credit and reliability as a witness. Cann purported to rely upon Gencarelli's breach of IT Policy yet, for the purposes of his investigation, he never examined the IT Policy and had stated to Svendsen at the meeting of 7 December that it was not an issue. Also, although it was obvious that the ASU bulletin arose out of a contentious, but significant, Joint Work Group meeting, Cann did not seriously investigate whether the bulletin was accurate, whether it was distributed in accordance with the agreed procedure, or whether it might be a legitimate business communication in accordance with Ansett's IT Policy. Further, although Cann was told by Wood that the e-mail communication was not expressly authorised by the Joint Work Group, he was not really concerned with issues of authorisation. He said that he didn't really have a "good enough grasp of who needed to authorise it" to form a view on that issue (T 127). 42 It is also difficult to accept Cann's downplaying of Gencarelli's role as an ASU delegate. Cann had apparently been kept informed by management of her role in the Joint Work Group and was told that as things had "become a little more difficult for the group…her helpfulness had started to change" (T 96). Further, although Cann's discussions with other senior executives such as Birch and Wood were significant in influencing him to take strong action against Gencarelli as a result of her role in distributing "highly objectionable" union material at a critical point in the collective bargaining negotiations, Cann provided little information as to the content of those discussions. It is probable that those executives were conscious of Gencarelli's status as an ASU delegate, and of her distribution of the bulletin in that capacity, and discussed those matters with Cann. 43 In addition to stating grounds for dismissal that had not been genuinely considered by Cann his Summary position paper contained other deficiencies. For example, Cann's fourth bullet point states that Gencarelli had "agreed she was previously warned about distribution of ASU bulletins via Lotus Notes". Cann conceded that the statement was inaccurate and that the converse was the case, namely, that Gencarelli disagreed that she had been previously warned about the distribution of ASU bulletins via Lotus Notes. This issue is of importance because Lotus Notes, the IT system used by Ansett, contains separate icons for the Bulletin Board and for e-mail. Gencarelli has consistently maintained that the warning given by Cann to her related only to use of the Bulletin Board and, in particular, was specifically related to her use of the Trading Post site on the Bulletin Board. Cann's falsification of her account in the document is significant, as it was directly related to the disobedience alleged by Cann to be the main reason that moved him to dismiss her. 44 The precise warning given by Cann to Gencarelli on the earlier occasion was the subject of dispute. I am satisfied that Gencarelli's version of the warning is to be preferred to that of Cann. Briefly, my reasons for that conclusion are as follows. The earlier warning was given in the context of a specific use of a site on the Bulletin Board which made union material accessible to all Ansett employees. The issue at the time was not the use of the Lotus Notes IT system in general but, rather, Gencarelli's use of the Trading Post site for union material. The likelihood is that it was that, rather than any more general, use that was the subject of Cann's warning. I accept Gencarelli's evidence that she regarded e-mail, which was accessed via a different icon and was for specific addressees, as standing in quite a different category to use of the Trading Post, which was addressed to employees at large. In those circumstances Gencarelli's evidence that the warning related only to use of the Bulletin Board is the more probable version. 45 The conclusion at which I have arrived is supported by Cann's statements at the meeting of 7 December. The minutes of the meeting record that Cann stated that it was his "intention" to direct Gencarelli not to use e-mail and the Bulletin Board. Cann did not state that he warned Gencarelli not to use e-mail or the Lotus Notes system. Indeed, when pressed he was unable to remember what he had said, stating that it was his "intention" that Gencarelli not use Ansett's IT facilities for any union bulletin (T 103). A warning by him expressed in such general terms was unlikely as that was not the issue being addressed at the time and, in any event, there might well be some occasions where the Lotus Notes system, as such, might properly be used for the communication of union material. Additionally, if a warning in more general terms was issued, it is reasonable to expect that in that particular context, Gencarelli understood Cann to be referring to the Trading Post, rather then the e-mail. 46 Finally, I regard Cann as an unreliable witness who was prepared to state his version of the warning with a greater degree of confidence and certainty than the facts warranted. 47 These findings are important as they are consistent with the view I have formed that in his evidence Cann placed a greater emphasis on breach of his directive in an endeavour to play down the "union" aspects of Gencarelli's conduct. Misconduct 48 A primary contention of Ansett was that establishing that Gencarelli was guilty of misconduct, which entitled and caused Ansett to dismiss her, is inconsistent with any finding that the reason for her dismissal was a proscribed reason under the Act: see General Motors Holden v Bowling (1976) 12 ALR 605 at 612 per Gibbs J and at 617 per Mason J. While that factor would assist in discharging the onus imposed on Ansett to prove that the dismissal was not for a proscribed reason, the authorities establish that whether it does so in the final analysis is a question of fact, rather than of law. 49 The entitlement of Gencarelli, as an ASU delegate elected to represent employees as their on-site representative and as the ASU nominee on the core Joint Work Group, to communicate the outcome of meetings of the Group to Ansett employees through Ansett's internal e-mail system is not an easy question. The starting point must be Ansett's IT Policy which, in general, permits use "for the purpose of performing authorised lawful business activities". The Policy was intended to proffer guidance for employees rather than to directly impose legal or contractual obligations, as such, notwithstanding that breaches of the guidelines can lead to disciplinary action. It is necessary to consider the issue of what constitutes a lawful authorised business activity in that context. 50 The Joint Work Group structure was established by Ansett for its business purposes. An integral part of that structure was the communication, by management and unions, of meeting outcomes to Ansett employees from time to time. Once that conclusion is reached, it is a small step to take to consider that such communications are authorised lawful business activities. 51 While the precise procedures were not followed by either party on 3 December 1999 in his final submission counsel for Ansett did not contend that that ground alone would take the communication outside the IT Policy. In any event, Ansett's communication on 3 December did not follow the procedure. Therefore, in the circumstances, the ASU was entitled to presume that it need not do so, as it was entitled to exercise its right to communicate to its members in the workforce as soon as possible. Further, I do not regard the procedure as intended to restrict the separate right of the parties to communicate with employees. Rather, all that was required was prior notice of a communication to the other party. Put another way, the prior notice requirement was to regulate rather than restrict the right to communicate. 52 Notwithstanding Ansett's contentions to the contrary, the communication of a Joint Work Group outcome does not fall within any category of the Policy that would render an authorised lawful business activity to be an "unacceptable" use of the e-mail system. The critical question is whether the communication of the bulletin was an authorised business activity. 53 In my view Gencarelli's use of Ansett's e-mail system was impliedly authorised by Ansett, as it was an authorised business activity under the IT Policy. That conclusion is based upon: · Ansett's role in establishing Joint Work Groups to achieve a successful enterprise bargaining outcome; · Ansett's view that the bargaining process established by it was an important aspect of its business recovery program; · the fact that the ongoing communication of meeting outcomes to ASU members by their delegates was part of that process. 54 The objectives and terms of the 1999 agreement made it quite clear that Joint Work Group activities were for Ansett's business purposes. Gencarelli's use of the e-mail for the purpose of communicating Joint Work Group activities to ASU members is sufficiently associated with the activities of the Group and its objectives so as to regard the communication process itself as an incident of those activities, albeit that meeting outcomes might be jointly or separately communicated by the ASU and management representatives. Ansett relied upon the Award provision for a union notice board as the appropriate means of communication. However, that provision relates to union information generally and is discrete from, and additional to, communications in relation to Joint Work Group activities. 55 Ansett's reliance on the Code of Ethics is without substance. The Code does contain provisions that employees are to avoid conflicts of interest, are to use Ansett assets only for official purposes, and are to avoid situations in which their loyalties may be divided between their own interests and those of Ansett. However, Gencarelli's conduct did not constitute a breach of any of those provisions. The Joint Work Group structure was an Ansett mechanism which sought to reconcile the conflicting interests of Ansett and its employees through negotiation. As already explained it was an integral part of that process for information to be provided to employees as to the state of those negotiations. Plainly, until resolution of the conflict, the views of management and union representatives were likely to be conflicting. Accordingly, it is somewhat unrealistic for Ansett, as an employer, to contend that communication of such information by the elected union delegate to the employees which she was elected and nominated to represent was capable of constituting a breach of the Code of Ethics (see for example Bowling v General Motors Holden (1975) 8 ALR 197 at 210). In any event, my reasoning for concluding that the communication was an authorised business communication is inconsistent with it being a breach of the Code of Ethics. For similar reasons the argument of a breach of the duty of good faith cannot be sustained. 56 Thus, a major premise upon which Ansett relied to contend that it was entitled to dismiss Gencarelli on the ground of misconduct has not been made out. However, it does not follow that Gencarelli's dismissal was for a proscribed reason. The question of whether that conclusion can be reached on the basis of the findings I have made requires a careful consideration of the legislative scheme, the relevant authorities and whether Ansett has discharged its onus of proof. The legislative scheme 57 Section 298K(1)(a) provides: "An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following: (a) dismiss an employee; …" 58 Section 298L, relevantly, sets out the prohibited reasons as follows: "Conduct referred to in subsection 298K(1)…is for a prohibited reason if it is carried out because the employee…concerned: (a) is, has been, proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association; or … (h) is entitled to the benefit of an industrial instrument or an order of an industrial body; or … (j) in the case of an employee, or an independent contractor, who is a member of an industrial association that is seeking better industrial conditions - is dissatisfied with his or her conditions; or … (n) as an officer or member of an industrial association, has done, or proposes to do, an act or thing for the purpose of furthering or protecting the industrial interests of the industrial association, being an act or thing that is: (i) lawful; and (ii) within the limits of an authority expressly conferred on the employee, independent contractor or other person by the industrial association under its rules." 59 An officer is defined in s 298B as including a "delegate or other representative of the association". If a delegate or a shop steward is elected to represent employees under a union's rules that person may be an "officer" as defined and therefore fall within s 298K(1)(n): see Cuevas v Freeman Motors Pty Ltd (1975) 25 FLR 67 at 72-73. As the present case is only concerned with s 298K(1)(a) it is unnecessary to resolve that issue. 60 Section 298U confers jurisdiction on the Court, inter alia, to impose a penalty in respect of contravening conduct and also to order the payment of compensation. Section 298V provides that, where it is alleged that the conduct was carried out for a particular reason and that the conduct for that reason constitutes a contravention of, inter alia, s 298K, it is presumed that the conduct was carried out for that reason unless the person who has engaged in the conduct "proves otherwise". The reversal of the onus proceeds "on the basis that the real reason for a dismissal may well be locked up in the employer's breast and impossible, or nearly impossible, of demonstration through forensic processes": Bowling v GMH at 204 per Smithers and Evatt JJ. 61 Recently, in Maritime Union of Australia v Geraldton Port Authority (1999) 165 ALR 67 RD Nicholson J considered the reversal of the onus of proof under s 298V. His Honour (citing authority) concluded that: · if the applicant proves the conduct and alleges that it was carried out for a proscribed reason, it is for the respondent to prove, on the balance of probabilities, that it was not motivated for an impermissible reason (at 99); · a reason is an impermissible reason if it is one of the operative reasons for the conduct (at 100); · to be an operative reason there must be a causal connection between the conduct and the proscribed reason relied upon by the applicant (at 114); · whether the respondent was actuated by a prohibited reason or reasons which included a prohibited reason is a question of fact which will often involve questions of judgment and the characterisation of the employer's reasons (at 114). 62 Initially, the ASU relied upon Ansett's conduct as falling within ss 298L(1)(a), (h) and (j). Section 298L(1)(n) was not relied upon. At trial only ss 298L(1)(a) and (j) were relied upon by the ASU. However, the evidence does not establish any basis for a claim in reliance upon s 298L(1)(j), as I am satisfied that any dissatisfaction Gencarelli might have had with her industrial conditions was not a reason for her dismissal. Accordingly, the issue is whether the ASU's case in reliance upon ss 298K, 298L(1)(a) and 298V has been made out. Sections 298K, 298L(1)(a) and 298V 63 The object of ss 298K, 298L and 298V, as well as their statutory predecessors, has not been in doubt. It has been said to be to "remove fear of adverse action by an employer against an employee taking union office and performing the functions of that office" (Bowling v GMH at 210 per Smithers and Evatt JJ) and to "ensure the threat of dismissal or discriminatory treatment cannot be used by an employer to destroy or frustrate an employee's right to join an industrial association and to take an active role in that association to promote industrial interests of both the employee and the association" (Davids Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550 at 583 per Wilcox and Cooper JJ). 64 Section 298L(1)(a) is designed to prevent adverse action by an employer against an employee for being a union member or delegate, or for taking union office, and s 298L(1)(n) ensures that an employer does not take adverse action against an officer or member of a Union for performing lawfully authorised industrial activities. When the operation of those sub-sections has been considered a distinction has been drawn between a dismissal within par (a) by reason of status (union delegate, officer or member) or a dismissal within par (n) by reason of activity (discharging the functions and duties of a union officer). That distinction in the operation of the subsections in their earlier form (s 5(1) of the Conciliation and Arbitration Act 1904 (Cth)) was considered in Cuevas by Smithers and Evatt JJ at 78-79: "And a shop steward as such does not by virtue of being such, acquire any immunity from dismissal on any ground other than the fact that he is a shop steward. And if there is a dismissal effectuated on any such ground, the reasonableness or unreasonableness of the employer's action is irrelevant. However, where it is probable that an employer believes it would be in his interest to be without an employee because his position as a shop steward results in situations disturbing to him in the management of his business, the fact that the grounds of dismissal asserted by the employer in a particular case have puzzling or unreasonable aspects is of considerable importance. It is to be observed that s 5(1) of the Conciliation and Arbitration Act provides that the employer may not dismiss an employee by reason of the circumstance that he is a shop steward and, as such, an officer or delegate. It does not purport to prevent dismissal of a shop steward if he, being a shop steward, indulges in conduct in that capacity to which the employer objects, unless it is conduct specified in s 5(1)(f). With that exception the prohibition extends only to action taken by the employer by reference to the fact that the employee holds the position of a shop steward. There are, of course, active shop stewards and passive shop stewards. It is apparent that an active shop steward may be responsible for recurring incidents irritating to management and creating in the mind of the employer a desire to be rid of the employee because although otherwise he may be a satisfactory workman, nevertheless as a shop steward his capacity for stirring up what the employer regards as trouble is to the employer quite intolerable. If, in such a case, the employer dismisses the employee not because of any particular item of conduct but because of his propensity as such to stir up such trouble then, in our opinion, the dismissal must be characterized as a dismissal arising by reason of the circumstance that the employee is a shop steward. In a sense such a dismissal arises out of past conduct as a shop steward, but it is more than that. It is a dismissal to escape trouble arising from conduct and situations likely to arise in the future out of the circumstance that and because the particular employee holds the position of shop steward." 65 The significance of the distinction again arose for consideration in the Industrial Court in Bowling v GMH. In discussing the role of a shop steward, which for all intents and purposes is the same as that of the delegate, Smithers and Evatt JJ said at 206: "There are passive shop stewards and active shop stewards. It is clear that the informant was active. And he, along with other shop stewards, was active in encouraging and supporting a current disruptive work-to-rule campaign which was achieving the objective of materially reducing production. He was active also on behalf of the employees generally in ever recurring industrial issues. The work-to-rule campaign was causing considerable concern to management and no doubt at all levels of management. And it could hardly have been overlooked that the informant as the representative of a large body of the workers in the plant, and being in a position to represent them the views of the shop stewards committee and his own, was in a key or at least an important position to influence the course of that campaign and other campaigns and issues in the interests, real or supposed, of the employees. In our view it would be quite reasonable and well within probability that the employer in dismissing the informant might be actuated by the circumstance that this zealous and restless employee held the office of shop steward and was likely to use it in a way regarded by the employer as detrimental to its interests." and at 210: "It is basic…that active representatives of employees may well incur the displeasure of management with consequent risks and worries to those representatives. As the informant in this case said 'you are brought into the firing line'. Clearly the purposes of the Act will be frustrated unless employees are able to act as union representatives on the shop floor and elsewhere and negotiate with the representatives of employers without fear that on that account they will suffer in their employment." 66 The Industrial Court, by majority, found that the employer had failed to discharge the onus upon it to establish that the dismissal of the shop steward, who was generally regarded by his employer as a troublemaker, was not for the reason that he was a "delegate" for the purposes of s 5(1)(a). 67 An appeal to the High Court was dismissed: see GMH v Bowling. Mason J (with whom Gibbs, Stephen and Jacobs JJ agreed) observed (at 616) that the two sub-sections were "broadly speaking, designed to protect an officer, delegate or member of an organisation against discrimination by his employer". After accepting that the principal reason for the employee's dismissal was that he was considered by his employer to "be a troublemaker" by deliberately disrupting production and setting a bad example to others, Mason J stated (at 617-618): "It is to my mind a very considerable leap forward to say that this finding in itself is a comprehensive expression of the reasons for dismissal and that they were dissociated from the circumstance that the respondent was a shop steward. No doubt that is an advance which could be made if officers of the appellant had said in evidence: 'We dismissed him because he was a troublemaker, because he was deliberately disrupting production and setting a bad example and we did so without regard at all to his position as a shop steward', and that evidence had been accepted. Yet this evidence was not given and, even if it had been given, there may have been a question as to its reliability. Once it is said that the appellant dismissed him because he was deliberately disrupting production and was setting a bad example it is not easy to say without more that this had nothing to do with his being a shop steward." His Honour continued at 619-620: "We are left, then, with a reason for the dismissal which does not exclude the possibility that it was associated with the circumstance that the respondent was a shop steward. If this was no more than a slender possibility the circumstance might be discarded as one which was not a substantial and operative factor in the dismissal. However, I have already said enough to indicate why the possibility cannot be so regarded - the respondent's office as a shop steward endowed him with a special capacity to influence others and was therefore not easily dissociated from his ability to set an example to others. It was suggested that even if the appellant's management had regard to the respondent's position as a shop steward in dismissing him, that was not enough to bring the case within s 5(1)(a). The short answer to this suggestion is that s 5(1) does not proscribe the circumstances which it lists as the sole or predominant reasons for dismissal. It is sufficient if the circumstance is a substantial and operative factor. And it does not cease to be such a factor because it is coupled with other circumstances or because regard is had to it in association with other circumstances not mentioned in the section. The appellant sought to give emphasis to the distinction to be drawn between s 5(1)(a) and s 5(1)(f) and argued that the activities of a shop steward fall under par (f) and not par (a). So much may be conceded, but this does not avail the appellant in the present case because we are concerned not with activities undertaken by the respondent in his capacity as a shop steward but with activities otherwise undertaken and the example that he set to others in which his position as a shop steward was of particular significance." 68 Gibbs J (at 612) also observed that, had evidence been given by the relevant directors that the dismissal was because the employee was guilty of misconduct or of unsatisfactory work, and that in dismissing him "they were not influenced by the fact that he was a shop steward", then the onus would have been discharged. 69 Barwick CJ, who dissented, drew a clearer line of demarcation in the operation of the two sub-sections. His Honour stated at 609: "Granted that the activities of the employee, to which I have referred, formed part of the basis of the appellant's giving of the notice of termination of the employment and granted that the position of the employee as a shop steward gave him prominence in those activities, it does not follow in logic or in law that the notice of termination could be suspected of having been given by reason of the employee being a shop steward within the meaning of s 5(1), properly understood. The offending reason must be the holding of the office: that is to say, the reason that the employee had been appointed to the office. In my opinion, to establish a breach of s 5(1)(a), it must be shown that it was the fact that he held office in the organisation which formed a significant part of the reason for dismissal. Activities in that office are expressly dealt with in par (f) of s 5(1). The terms of that paragraph emphasize, in my opinion, that it is something done in the capacity of an officer of the organization and within the ambit of the authority of the office which is relevant to the purpose of that paragraph." and (at 609-610): "The purpose of s 5(1) is, to my mind, both limited and obvious, namely, to ensure that members of the organization are not discouraged from accepting office in the organization by the possibility of their employment being terminated because they have become officers of the organization or by reason of the lawful exercise of the authority of such an officer. Section 5(1) generally, but particularly sub-s (1)(a) and (f), is enacted for the protection of the organization. Section 5(1)(a) and (f) are designed to prevent the organization being denied the services of its officers. They are not designed to afford a protection to the employee for his activities which fall outside his authority as an officer of the organization. No doubt on this view the section is of very limited operation: in my opinion, it was so intended, as I think its language indicates." 70 The outcome in GMH v Bowling was primarily concerned with whether the employer discharged its onus of proof for the purposes of s 5(1) which, at the time, was held to require that the proscribed reason be a substantial and operative factor influencing the person to make the decision. Under s 298K it need only be an operative reason for the decision. Nevertheless, GMH v Bowling demonstrates that there is some potential for overlap in the operation of the two sub-sections, notwithstanding that Barwick CJ rejected that possibility. His Honour said that a dismissal based on the lawfully authorised activities of the union delegate either fell within the equivalent of par (n) (s 5(1)(f)), or fell outside the ambit of proscribed reasons. 71 The majority in GMH v Bowling did not accept the restrictive approach of Barwick CJ to the role of par (a). While Mason J conceded that, generally, activities of a delegate fall under par (f) (as it then was) and not par (a), it is plain that his Honour did not regard a dismissal on the basis of the past activities of the delegate as irrelevant to the operation of par (a). The critical question under par (a) related to the extent to which the employee's activities, that led to his dismissal, were associated with the circumstance that the employee was a delegate. The importance attached to that question by Mason J in the High Court in GMH v Bowling was similar to that expressed by Smithers and Evatt JJ in the Industrial Court in Cuevas and in Bowling v GMH. See also Hyde v Chrysler (Australia) Ltd (1977) 30 FLR 318 at 330 per Northrop J and Lewis v Qantas Airways Ltd (1981) 54 FLR 101 at 112-114 per Morling J. In the latter case, which was also concerned with par (a), Morling J dismissed the information on the basis that he was satisfied that the matters relied upon for dismissal of a union delegate had nothing to do with his union membership and activities. 72 Subject to one qualification, the authorities establish that a clear line exists between a dismissal for activities that fall within par (n) (previously par (f)) and a dismissal by reason of the holding of a union office which falls within par (a). The qualification is that a dismissal based on the activities of a union delegate or officer must fall within par (n), rather than par (a), if it is to be for a proscribed reason, unless the reasons proffered by the employer and accepted by the Court do not "exclude the possibility that [the dismissal] was associated with the circumstance that the [employee] was a [delegated officer]": see Mason J at 619 in GMH v Bowling. As noted above and relevantly, for present purposes, his Honour added that if the possibility was no more than "slender" the circumstance might be disregarded as one which was not a substantial and operative factor in the decision. I do not take his Honour as suggesting that the Court is to determine the matter on the balance of possibilities, rather than of probabilities. Rather, his Honour was stating that in a case in which the dismissal of a union official or delegate occurs in circumstances that are closely associated with the activities of the employee in that capacity, the employer carries the onus of rebutting the very real possibility that the dismissal was associated with the circumstance that the employee was an official or delegate. A failure to do so can result in the Court determining that, under the statutory scheme, the dismissal was for a proscribed reason. 73 In the present case there is no doubt that Gencarelli's dismissal was closely associated with her activities as a delegate; she was dismissed for those very activities. Thus, putting to one side the present requirement that the reason only be an operative factor, it follows from the foregoing discussion that the issue in the present case is whether Ansett has discharged its onus of excluding the possibility (in the sense discussed above) that Gencarelli's dismissal was not associated with the circumstance that she was a delegate. 74 Gencarelli was dismissed because, in her capacity as an ASU delegate, she distributed the ASU bulletin via Ansett's internal e-mail system to ASU members on 3 December. An important feature of her dismissal was that it was the second occasion in which she, in her capacity as an ASU delegate, was "caught" distributing union material to ASU members on Ansett's IT and Communications system. 75 Ansett employees, including union delegates, are only authorised to use its IT and Communications facilities and resources for "performing lawful business activities" in accordance with Ansett's IT Policy. If Gencarelli's use had constituted misconduct or was otherwise an unauthorised use, then her dismissal for those reasons may be sufficient to exclude the possibility that she was being dismissed for the reason that she was the ASU delegate. Further, in such circumstances it would not have been part of her duties or functions as a delegate to misuse Ansett's IT system. Any such use might, to that extent, be disassociated from the circumstance that she was an ASU delegate. However, the corollary also applies. If Gencarelli's use was an authorised use and in so using Ansett's e-mail system she was discharging her duties and functions as a delegate, it becomes commensurately more difficult to conclude that Ansett has excluded the possibility that her dismissal was associated with the circumstance that she was an ASU delegate. 76 There are a number of factors that have led me not to accept Cann's evidence that Gencarelli's role as a union delegate played no part in his decision to terminate her employment. I have already outlined why I regarded Cann as an unreliable witness and as tending to understate the significance of the "union" aspect of her activities and dismissal. In my view the "union" aspects of Gencarelli's activities were regarded by Cann as important and relevant circumstances. Cann was conscious of the fact that Gencarelli's use of the Ansett IT system on both occasions was in her capacity as a union delegate. His strong objection to the content of the ASU bulletin, without any inquiry as to its accuracy or whether it accorded with Joint Work Group procedure, suggests that he also regarded Gencarelli's activity as a delegate as overstepping the mark. 77 Although Gencarelli may not have yet become a union "troublemaker" in Cann's eyes, he had been told that her performance as a delegate on the Joint Work Group had become more unhelpful to management as the process became more difficult for the Group and he treated the 3 December 1999 distribution as a repeat "offence" of wrongly distributing union material. Further, at that particular time, relations between management and the ASU had become acrimonious, with the consequence that there appears to have been some overreaction by management to Gencarelli's distribution of the ASU bulletin. As a result of circumstances that were not of her making, Gencarelli had been "brought into the firing line" (see Bowling v GMH at 210). Also, as outlined in some detail earlier, the grounds asserted for Gencarelli's dismissal could fairly be described as having "puzzling or unreasonable aspects" to it (see Cuevas at 78-79). It was carried out in an unreasonable and unfair manner, and involved significant inaccuracies on Cann's part in the formulation, recording and presentation of his reasons. 78 In all the circumstances, I have concluded that Ansett has not discharged its onus of excluding the very real possibility that Gencarelli's dismissal was associated with the circumstance that Gencarelli was a delegate of the ASU. The factors to which I have referred in that regard are analogous to a number of the factors referred to by Smithers and Evatt JJ in Cuevas and Bowling v GMH as being relevant to whether a case falls within par (a). 79 I have found the task of deciding the present case to be a difficult one. Had I been required to be satisfied that the ASU has established that the reason for Gencarelli's dismissal was that she was a union delegate I may have had difficulty in being so satisfied. However, the onus has been reversed and, for the reasons set out above, I have decided that Ansett has not discharged that reverse onus of proof cast upon it under s 298V of proving, on the balance of probabilities, that the dismissal was not for the reason that Gencarelli was a ASU delegate in its workplace. 80 It was not submitted that I should apply the Briginshaw standard of proof because of the seriousness of the allegations made: cf MUA v Geraldton at 95-96 per RD Nicholson J and s 140(2) of the Evidence Act 1995 (Cth). Nevertheless, without determining whether I am required to do so, I have approached the determination of the factual issues in dispute on the basis that my finding in favour of the applicant on the issue of liability has been arrived at after the "careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction" that the decision at which I have arrived is a correct and just conclusion: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 350 per Rich J. Conclusion 81 For the foregoing reasons I am satisfied that the ASU is entitled to a declaration that Ansett, in dismissing Gencarelli, a delegate of the ASU, has engaged in conduct in contravention of s 298K(1)(a) of the Act. 82 My conclusion is based on the particular circumstances of the present case in which a union delegate was dismissed for distributing a union bulletin in circumstances where I have found that the distribution of the bulletin was impliedly authorised by her employer. It forms no part of my decision to suggest that union delegates have any general authorisation to distribute union material using their employer's e-mail or IT system. Whether an authorisation exists will depend upon the particular circumstances of the case. However, what is clear is the desirability of employees being made aware, in clear terms, of the criteria