Section 244: whether correct test applied
47The appellant submitted the Commissioner erred in holding jurisdiction was enlivened due to the presumption contained in s 244 of the Act, again by applying the wrong test. In this respect, the appellant referred to what the Commissioner said at [35]:
[35] The Commission finds on the evidence, that the employer has not rebutted the presumption that the applicant was dismissed, in part, at least, due to his injury.
48It followed from the Commissioner's finding, it was submitted, the appellant had rebutted the presumption that the respondent was dismissed because he was not fit for employment as a result of the injury he had received.
49The presumption in s 244 is that the injured worker was dismissed because he or she was not fit for employment as a result of the injury received. The employer may rebut that presumption if the employer satisfies the Commission that the injury was not a substantial and operative cause of the dismissal of the worker. The test is clearly not whether the worker was dismissed, "in part", due to his or her injury. In stating the test in this way, the Commissioner erred.
50However, contrary to what the appellant submitted, merely because the Commissioner found Mr Riley was dismissed, in part, due to his injury, it does not necessarily follow that the appellant had rebutted the presumption that Mr Riley was dismissed because he was not fit for employment as a result of the injury he had received. If it followed it would mean that we would have to accept Macdonald C found the appellant had successfully rebutted the presumption for the reason that the employer had discharged the onus of showing the injury was not a substantial and operative cause of the dismissal: s 244. That is clearly not what the Commissioner found: see [35] of the first instance decision.
51It was the appellant's case at first instance that the reason for Mr Riley's dismissal was not that he was not fit for employment as a result of the injuries to his shoulders resulting in a 40 per cent permanent loss of efficient use of each arm. The reason was a concern that he might re-injure himself and others and given the duties imposed on employers under the OHS Act to ensure the safety of employees, it was necessary for the appellant to terminate Mr Riley's employment to avoid the risk of re-injury and a potential breach of the Act.
52Macdonald C found that Mr Riley had been performing the normal work of a slicer between May 2009 and October 2010 without the employer raising any issue about his capacity to do the work. It was only after Mr Bayes received a letter from the appellant's workers compensation insurer, Allianz, on 18 October 2010 about a large payout to Mr Riley for the loss of efficiency in his left and right arms that Mr Bayes raised with Mr Riley a concern about the risk of re-injury and subsequently proceeded to terminate the employment of Mr Riley.
53The Commissioner considered the risk of re-injury and held the employer "did not produce any medically qualified person(s) as witnesses to argue against the applicant's fitness for work or risk of re-injury" (emphasis added): at [95]. Further, the Commissioner was not persuaded by the evidence of Ms Brabrooke (the occupational therapist) that there was a risk of re-injury (at [95]). On the contrary, the Commissioner found the evidence of Dr Botes and Dr Doig as to Mr Riley's fitness "was not undermined through cross-examination - either directly on the issue of his fitness or his fitness through the possibility of re-injury" (emphasis added) (at [98]). Macdonald C noted Dr Doig's denial "that the applicant was likely to suffer re-injury because he had a "spare-part" inserted as part of a shoulder operation and possibly, he said, there was less risk of re-injury." The Commissioner referred approvingly to the evidence regarding Mr Riley's work methods to avoid the risk of re-injury: at [72]-[73].
54The Commissioner also stated at [82]:
[82] As to the risk of re-injury, Dr. Botes agreed that there is such a risk but stated that it did not necessarily follow that the applicant was not fit for work. He elaborated this response to mean that employees have a way of protecting themselves on the job. In respect of the applicant, certain people had been involved in agreeing that he would perform the job in a specific way. By adhering to that advice, the applicant did not injure himself. Dr. Botes went on to say that anybody doing the work at Bindaree Beef had the possibility of injuring themselves, with or without previous injury.
55In the result, the proper inference to be drawn from the Commissioner's decision is that he considered there was at best, a minor risk of re-injury and accordingly, it was appropriate to order reinstatement. If the Commissioner had found there was, to any material degree, a risk of re-injury it is unlikely he would have ordered reinstatement. On the other hand, if the Commissioner had found there was a risk of re-injury it is likely he would have found that the appellant had rebutted the presumption in s 244 because it was the appellant's contention that the shoulder injuries and consequent loss of efficiency in Mr Riley's arms were not a substantial and operative cause of the dismissal of the worker, but rather it was because of a concern of re-injury and the risk that constituted under the OHS Act. It would seem to follow that in finding that Mr Riley was dismissed only "in part" due to his injury and finding that the employer had not rebutted the presumption in s 244, the Commissioner was of the opinion that whilst re-injury may have formed part of the reason for dismissing Mr Riley, the other "part" of the reason was his injury and that the appellant had failed to show this latter "part" was not a substantial and operative cause of the dismissal.
56Of course, none of this answers the question of whether the Commissioner erred in finding that the appellant had not rebutted the presumption that the reason for dismissing Mr Riley was because he was not fit for employment as a result of the injury received.
57It was not in issue that the appellant carried the burden of rebutting the presumption in s 244(1) of the WC Act by having to prove on the balance of probabilities that the injury was not a substantial and operative cause of the dismissal of Mr Riley.
58The phrase "substantial and operative cause" as it appears in s 244(2) of the WC Act has not been the subject of any authoritative decision. The phrase or similar words are used in the criminal law in some jurisdictions in the context of causation: see, for example, R v Smith [1959] 2 QB 35; R v Rudebeck [1999] VSCA 155 at [66]; Hallett [1969] SASR 141 ("operating and substantial cause"). The phrase also appears in the Industrial Relations Act 1996 in the context of freedom of association: see s 210(2).
59In Smith the victim, who had been stabbed by the defendant had been dropped by stretcher bearers and provided with poor medical treatment. It was, nevertheless, held the defendant was guilty because his act was a "substantial and operating cause" of the victim's death.
60Senior counsel for the appellant helpfully referred to Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14; (2011) 191 FCR 212 (currently under appeal in the High Court) and Maritime Union of Australia v CSL Australia Pty Limited [2002] FCA 513. In Barclay the Full Court was concerned with, inter alia, s 346, s 360 and s 361(1) of the Fair Work Act 2009 (Cth), which provide:
346. A person must not take adverse action against another person because the other person:
(a) is or is not, or was or was not, an officer or member of an industrial association; or
(b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b).
...
360. For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
361(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
61In Barclay, Gray and Bromberg JJ, in allowing the appeal, discussed the test to be applied in determining culpability under s 346:
[25] To the extent that the AEU and Mr Barclay contended before the primary judge, and on the appeal, that the introduction of the word "because" had the effect of making irrelevant the state of mind of the person taking the adverse action, that contention must be rejected.
[26] As Gummow, Hayne and Heydon JJ said in Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92 at [236] of the use of "because" in a similar way to its use in s 346:
For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability. Rather, the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of".
[27] The central question under s 346 is why was the aggrieved person treated as he or she was? If the aggrieved person was subjected to adverse action, was it "because" the aggrieved person did or did not have the attributes, or had or had not engaged or proposed to engage in the industrial activities, specified by s 346 in conjunction with s 347?
[28] The determination of those questions involves characterisation of the reason or reasons of the person who took the adverse action. The state of mind or subjective intention of that person will be centrally relevant, but it is not decisive. What is required is a determination of what Mason J in Bowling (at 617) called the "real reason" for the conduct. The real reason for a person's conduct is not necessarily the reason that the person asserts, even where the person genuinely believes he or she was motivated by that reason. The search is for what actuated the conduct of the person, not for what the person thinks he or she was actuated by. In that regard, the real reason may be conscious or unconscious, and where unconscious or not appreciated or understood, adverse action will not be excused simply because its perpetrator held a benevolent intent. It is not open to the decision-maker to choose to ignore the objective connection between the decision he or she is making and the attribute or activity in question.
[29] So much is evident from the use of the word "because". It is also consonant with the objective and protective purposes of s 346. Further, it is consistent with the approach to construction taken in relation to provisions in anti-discrimination legislation where, in a similar context, the word "because" is utilised: see in particular Purvis at [142]-[166] per McHugh and Kirby JJ and at [234]-[236] per Gummow, Hayne and Heydon JJ; and Toben v Jones [2003] FCAFC 137; (2003) 129 FCR 515 at [31] per Carr J, [61]-[63] per Kiefel J and [151] per Allsop J.
[30] Section 360 continues the long-standing position that, where adverse action is taken against a protected person, culpability will be established if the reasons for that conduct include a reason for conduct that is within the ambit of s 346. The reason must be an operative or immediate reason and need not be the sole or dominant reason (see the Explanatory Memorandum at para 1458). But the drawing of distinctions between proximate or immediate reasons for conduct (Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349; (2001) 112 FCR 232 at [216]), or between the cause of conduct and the reason for conduct (Greater Dandenong at [164]), is not helpful. Those distinctions fail to give sufficient attention to whether or not the reason was operative, and they also draw distinctions between a reason and a factor in a reason. As Gray J (with whom Woodward and Jenkinson JJ agreed) said in Lewis Construction Co Pty Ltd v Martin (1986) 17 IR 122 at 125:
The Act and the authorities do not distinguish between a "reason" and a "factor"; indeed, in Bowling, these terms are used interchangeably.
[31] Further, that no distinction is to be drawn between the cause of conduct and the reason for conduct is supported by our earlier conclusion at [24] as to the meaning of "because" and the interchangeable use by the relevant provisions (ss 340, 346 and 360, 361) of cause and reason.
[32] The onus cast by s 361 on the person taking the adverse action means that, to succeed, that person has to establish that he or she was not actuated by the attributes or industrial activity which s 346 seeks to protect. As Mason J said in Bowling at 617, that objective will not be achieved unless the evidence establishes that the real reason for the adverse action lies outside the ambit of the provision - in this case s 346. The real reason or reasons for the taking of the adverse action must be shown to be "dissociated from the circumstances" that the aggrieved person has or had the s 346 attribute or has or had engaged in or proposes to engage in the s 346 industrial activity.
62At [74] their Honours stated:
[74] If adverse action is taken by an employer in response to conduct of a union, it is impossible for that employer to dissociate or divorce from that conduct its reason for the taking of the adverse action simply by characterising the activity of the union as the activity of its employee. The primary judge failed to approach the matter on the basis that BRIT needed to establish that the real reason for the adverse action taken against Mr Barclay lay outside the ambit of s 346. His Honour did not hold that, in order to succeed, BRIT had to establish by evidence that the real reason or reasons for the conduct taken against Mr Barclay were dissociated from the circumstances that Mr Barclay was an officer of the AEU and had engaged in industrial activity. As we have stated, at [28] above, the search required by s 346 is a search for what actuated the conduct of the person who took adverse action, not for what that person thinks he or she was actuated by.
63Lander J dismissed the appeal. At [199]-[202] his Honour relevantly stated:
[199] In the end, the question for the Court is what was the reason for the person to take the adverse action. The subjective intention of the alleged contravenor if accepted by the Court to be the actual intention will be determinative. That construction is consistent with the reasoning of the High Court in Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92. The appellants' argument that the use of the word "because" rather than the expression "for the reason that" as had been used in previous legislation means that the Parliament opted for an objective test rather than a subjective test must be rejected for two reasons. First, because the difference in the words themselves do not have such a result. The use of the word "because" does not bring about the result that the test is objective. An objective test would be simply inconsistent with the Ancillary Rules in Division 7 of the Act and, in particular ss 360, 361 and 362 of the Act. Secondly, the drafter has used the word "because" as a modern form of drafting.
[200] The reason for the taking of the adverse action must be one of the matters in both sections before the conduct contravenes either section. The person's reasons for taking the adverse action will engage the sections if those reasons are the proscribed reasons in those sections.
[201] The construction of the sections which I favour does not make the sections unworkable. Ordinarily it would be very difficult for a person who is the victim of adverse action to establish the precise reasons why the adverse action was taken against that person. However, as already noted, s 361 reverses the onus of proof and if a person alleges that a person has taken action for a particular reason, and that reason would constitute a contravention, it is presumed that the action was taken for that reason unless the person who took the action proves otherwise. Thus, in this case, it fell upon the respondent and, in particular, Dr Harvey, to satisfy the onus thrust upon the respondent by s 361 to establish the reason or reasons why she took the adverse action which she did.
[202] The construction at which I have arrived does not mean that the person who has taken adverse action can simply claim it was taken for a reason apart from a reason in s 340 or s 346 and that that is the end of the matter. The Court will have to be satisfied to the requisite standard that the person claimed he or she took the adverse action for a reason which would not amount to a contravention of the section. In assessing whether or not the persons' evidence ought to be accepted, the Court will no doubt have regard to all of the facts and circumstances surrounding the taking of the adverse action to determine whether or not the reason which is claimed to be the reason for taking the adverse action is truly stated.
64In Maritime Union of Australia v CSL, Branson J discussed the distinction between the operative (or immediate) reason regarding impugned conduct and the cause (or proximate reason) at [54]-[55]:
[54] It is difficult, if not impossible, to identify the ratio decidendi of Greater Dandenong. However, two members of the Full Court (Merkel and Finkelstein JJ) concluded that the learned primary judge had erroneously failed to distinguish between the operative (or immediate) reason for the Council's conduct and the cause (or proximate reason) for the Council's conduct. While, as it seems to me, this distinction may in many cases be easier to articulate than to draw, especially in respect of a statutory provision that recognises the possibility of a number of reasons having a causal connection with conduct, I consider that I should be guided by the approach taken by Merkel and Finkelstein JJ who constituted a majority of the Full Court in Greater Dandenong on this issue. I am fortified in my decision to adopt this approach by the fact that the approach appears to me to be consistent with that adopted by R D Nicholson J in MUA v Geraldton (see [43] above).
[55] Adopting the approach identified above, I am satisfied that the Company has proved on the balance of probabilities that the operative or immediate reason (or perhaps reasons) for the conduct of the Company with which this proceeding is concerned was Mr Jones' desire that each of the CSL Pacific and CSL Yarra should have the flexibility to trade as part of the CSL International fleet not only on the Australian coast but elsewhere in a cost effective way. I do not doubt, indeed Mr Jones did not deny, that in the process of reaching his decision that the CSL Yarra should be sold and reflagged, he gave consideration to the cost differential between an Australian crew and a foreign crew. As mentioned above, that cost differential flows from the content of the industrial instruments. However, it is necessary for me, as R D Nicolson J pointed out in MUA v Geraldton (see [42] above), to characterise the Company's reasons, which in this case are in reality Mr Jones' reasons. This exercise of characterisation involves, as his Honour observed, questions of judgment. In my judgment, part of the reason (or perhaps one of the reasons) for Mr Jones' decision was the desirability, as he saw it, of the CSL Yarra being able to be used in a cost effective way. I am satisfied that he considered that the freedom to crew the CSL Yarra with a crew which did not enjoy the protection of the industrial instruments would contribute significantly to the cost effective utilisation of the vessel. However, it seems to me that the fact that the crew of the CSL Yarra were entitled to the protection of the industrial instruments, while in part a cause of the decision taken by Mr Jones, was not an operative reason for his decision in the sense identified in [54] above. The relevant operative reason, I find, was the need to be able to utilise the vessel in a cost effective way.
65In referring to these authorities, senior counsel for the appellant seemed to submit that the test to be applied under s 244 was a subjective test, although it is noted in Barclay that whilst the majority said that the state of mind or subjective intention of the person was centrally relevant, it was not decisive. What was required was "a search for what actuated the conduct of the person who took adverse action, not for what that person thinks he or she was actuated by." This would seem to require the application of an objective test, which may or may not take into account the person's state of mind. On the other hand, in Greater Dandenong and in Maritime Union v CSL the approach taken was to consider the operative (or immediate) reason, that is, the employer's subjective reason for engaging in the prejudicial conduct.
66Briefly, and without addressing all of the provisions, the scheme provided by ss 346, 360 and 361 of the Fair Work Act is, firstly, s 346 creates an offence: it provides that a person must not take adverse action against another person because the other person is, inter alia, an officer or member of an industrial association. Section 360 provides that a person takes action for a particular reason if the reasons for the action include that reason.
67Section 361 provides that in an application in relation to a contravention of, inter alia, s 346, it is alleged that a person took action for a particular reason and taking that action for that reason would constitute a contravention (eg., adverse action against another person because the other person is an officer or member of an industrial association), it is presumed, in proceedings arising from the application, that the action was taken for that reason unless the person proves otherwise.
68Section 244(1) of the WC Act, on the other hand, merely creates a presumption that the injured worker was dismissed because he or she was not fit for employment as a result of the injury received. Section 244(2) provides the basis upon which the presumption may be rebutted, namely, "... if the employer satisfies the Industrial Relations Commission that the injury was not a substantial and operative cause of the dismissal of the worker."
69Unlike s 346 or the provisions considered in Greater Dandenong and Maritime Union v CSL, no question arises under s 244(1) as to why the injured worker was dismissed or what was the "real reason" that actuated the employer's conduct in dismissing the worker or whether the "state of mind or subjective intention" of the employer is relevant. Section 244(1) presumes that the injured worker was dismissed because he or she was not fit for employment as a result of the injury received. It seems to us an applicant would need to prove as objective facts, that he or she was an injured worker within the meaning of the WC Act, and that he or she had been dismissed. However, it would be sufficient for the applicant to allege that the dismissal occurred because he or she was not fit for employment as a result of the injury received. The onus would then fall on the respondent employer to rebut that presumption by proving to the Commission's satisfaction that the injury was not a substantial and operative cause of the dismissal of the worker: s 244(2).
70The critical question in s 244(2) is the meaning of "a substantial and operative cause" in the context of the section.
71In General Motors-Holden's Pty Ltd v Bowling (1976) 12 ALR 605 the High Court was concerned with an allegation that a shop steward had been dismissed from his employment for a prohibited reason. Section 5(1) of the Conciliation and Arbitration Act 1904 (Cth) prohibited an employer from dismissing an employee "by reason of the circumstance" that the employee was an officer, delegate or member of an industrial organisation. Mason J concluded (at 616-617) that an employer was actuated by a particular reason or circumstance if that reason or circumstance was "a substantial and operative factor" although not "sole or predominant" influencing him to take that action. Gibbs, Stephen and Jacobs JJ agreed with Mason J's analysis. Barwick CJ dissented.
72As the majority noted in Barclay:
[30] As Gray J (with whom Woodward and Jenkinson JJ agreed) said in Lewis Construction Co Pty Ltd v Martin (1986) 17 IR 122 at 125:
The Act and the authorities do not distinguish between a "reason" and a "factor"; indeed, in Bowling, these terms are used interchangeably.
73It is of some significance, we think, in considering the meaning of "substantial and operative cause" in s 244(2) of the WC Act that Mason J in Bowling applied the test "substantial and operative factor" (factor being used interchangeably with "reason" and given its usual meaning, "reason" may be capable of being used instead of "cause" subject to the context in which the word is used).
74In Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 Nicholson J considered whether there had been a contravention of s 298K of the Workplace Relations Act 1996 (Cth). As Nicholson J observed at [219]:
Section 298K so far as is relevant reads:
"(1) 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;
(b) injure an employee in his or her employment;
(c) alter the position of an employee to the employee's prejudice;
(d) refuse to employ another person;
(e) ..."
It is to be read with s 298L which relevantly provides:
"(1) Conduct referred to in subsection 298K(1) ... is for a prohibited reason if it is carried out because the employee, ... or other person concerned:
(a) is ... [a] member of an industrial association; or
... ...
(h) is entitled to the benefit of an industrial instrument or an order of an industrial body; or ..."
Section 298V provides, so far as is relevant:
"If:
(a) in an application under this Division relating to a person's ... conduct, it is alleged that the conduct was, or is, being carried out for a particular reason ...; and
(b) for the person ... to carry out the conduct for that reason ... would constitute a contravention of this Part;
it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason ..., unless the person ... proves otherwise."
75After referring to Bowling and the cases that followed that authority, Nicholson J at [224] stated:
[224] In my view the words "or for reasons that include a prohibited reason" in s 298K(1) effect a change to the law and permit a reason to be an operative reason provided it is one of the reasons for the conduct. It would not therefore have to be the "substantial" reason. It would have, of course, to be "operative" - that is it would have to be a reason. Section 298L is to be understood subject to that requirement.
76Geraldton was followed in Greater Dandenong, Maritime Union v CSL, Australian Workers' Union v John Holland Pty Ltd (2000) 103 IR 205 and Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 19.
77It will obviously depend on the terms of the statute whether a "reason" will need to be "substantial" or not, but the federal cases consistently refer to "operative reason": see for example, AWU v John Holland Pty Ltd [2001] FCA 93; Helal v McConnell Dowell Constructors (Aust) Pty Ltd (No 3) [2011] FCA 1344; McIlwain v Ramsey Food Packaging Pty Ltd [2006] FCA 828; Australian Meat Industry Employees' Union v Belandra Pty Ltd [2003] FCA 910.
78As noted earlier, the meaning of "operative reason" was discussed in Greater Dandenong by both Merkel J and Finkelstein J in the way described by Branson J in Maritime Union v CSL. A distinction was drawn between the "operative (or immediate) reason" of the Council's conduct in that case and the "cause (or proximate reason)" for the Council's conduct. The distinction was further elaborated on by North J in Belandra at [90]-[95]:
[90] A distinction between the cause of the situation and the reason for the action was explained by Merkel J and Finkelstein J in Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union (2001) 112 FCR 232; [2001] FCA 349 (Greater Dandenong). The council employed people to provide home and community care services. Legislation was introduced which required a proportion of council expenditure to be the subject of competitive tendering. The council decided to put out to competitive tender the home and community care services. Two bids were received. One was an in-house bid, and the other was from an organisation called Silver Circle. The Silver Circle bid was for $6.6 million and the in-house bid was for $7.7 million. The difference in price was largely accounted for by the fact that the award covering Silver Circle employees provided less pay for the same work than the award covering council employees. The council was aware that if the Silver Circle offer was accepted, the council employees would be made redundant, and they would be engaged, at least initially, by Silver Circle. They would do the same work as before, but would be paid less to do it. The council accepted the Silver Circle tender. The trial judge, and Wilcox J on appeal, held that by accepting the Silver Circle tender, the council altered the position of the employees to their prejudice because they were entitled to the benefit of the award covering council employees. This conduct amounted to a breach of s 298K(1)(c) and s 298L(1)(h). Merkel J did not accept that the employees had established that the higher award entitlements was "an operative reason" for the council's conduct. He said, at par 164:
'... the cases demonstrate that s 298K is not concerned with the cause of the prejudicial conduct. Rather, it is concerned with the employer's reason or reasons for engaging in that conduct. Thus, there can be a significant difference between the employer's subjective reason for engaging in prejudicial conduct and the objective circumstances that led to the employer engaging in the conduct.'
[91] He continued, at par 167:
'In my view the proper inferences to be drawn from the primary facts found by the primary judge are that an operative reason for the council's resolution to accept Silver Circle's tender was its lower price and that a circumstance that led to it accepting the lower price was the higher Award and Agreement entitlements of the HACC [council] employees. While the higher entitlements may be causally linked to the council's acceptance of the Silver Circle tender, the evidence does not support the primary judge's conclusion that they were an operative reason for the council's acceptance of the tender. No councillor or council document stated that the entitlements were a reason for the council's acceptance. The inference drawn by the primary judge to the contrary was based on an approach that, erroneously, failed to distinguish between the operative reason for the council acting and the circumstances that led to the price of the in-house bid being higher than the price of the Silver Circle bid. The fact that the councillors were aware of, or considered, those circumstances does not make them a reason for their decision. This is not a case of a council not being prepared to pay Award or Agreement entitlements or seeking to discriminate against its employees by reason of those entitlements. Rather, it is a case of a council, that is required by law to engage in a competitive tendering process, accepting the most competitive tender which met the objective criteria it specified.' [emphasis added]
[92] Merkel J, however, dismissed the appeal because the council had failed to discharge the onus of showing that the acceptance of the Silver Circle tender was not because of the employees' entitlement to the benefit of an industrial instrument.
[93] Finkelstein J would have allowed the appeal, and also made a distinction between the cause of conduct and the reason for conduct. He said at par 199:
'According to these cases, to decide whether an employee has been unlawfully dismissed, it is necessary to ascertain the true motive for, or purpose of, the dismissal. If there is some legitimate reason for the dismissal, such as the desire to avoid bankruptcy or the need to maintain a profitable operation, the dismissal will be lawful. It matters not that the cause of the impending bankruptcy or the unprofitable trading is the high rate of wages payable under an award or certified agreement. That is to say, although the benefits produced by an award or certified agreement have caused the problem which the employer seeks to address, that does not necessarily make those benefits the "reason" or motive for his act.' [emphasis added]
[94] He also said, at par 204:
'Thus, there has been an unbroken line of State and federal authority in favour of the proposition that, for the purpose of deciding whether there has been an unlawful dismissal for the reason that an employee is entitled to the benefit of an award or certified agreement, it is necessary to draw a distinction between the "reason" or motive behind the dismissal and what produced that motive.' [emphasis added]
[95] And finally, at par 216, his Honour said:
'It seems to me that the trial judge failed to distinguish between the immediate reason for the relevant act, be it the dismissals or the acceptance of the Silver Circle award, and the proximate reason for that act. I can make the point by reference to two sentences in the reasons. The trial judge said: `The major and decisive factor in the Silver Circle bid's acceptance was its price. The major and decisive factor in the difference in price was that, as everyone conceives it, Silver Circle would remunerate the workers doing HACC work under the Silver Circle award and not the council's industrial instruments.' The finding that price was a "major and decisive factor" is plainly correct. To describe the other "major and decisive factor" (that the price difference was the result of different award rates) as a motive for the decision is where the error is to be found. This "major and decisive factor" is not what motivated the decision but merely explains the difference in price.' [emphasis added]
79The distinctions drawn by the majority in Greater Dandenong do not appear to have carried much favour in federal cases dealing with contravention of adverse action and anti-discrimination provisions. In Barclay, the majority observed at [30] that:
But the drawing of distinctions between proximate or immediate reasons for conduct (Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349 (2001) 112 FCR 232 at [216]), or between the cause of conduct and the reason for conduct (Greater Dandenong at [164]), is not helpful. Those distinctions fail to give sufficient attention to whether or not the reason was operative, and they also draw distinctions between a reason and a factor in a reason. As Gray J (with whom Woodward and Jenkinson JJ agreed) said in Lewis Construction Co Pty Ltd v Martin (1986) 17 IR 122 at 125:
The Act and the authorities do not distinguish between a "reason" and a "factor"; indeed, in Bowling, these terms are used interchangeably.
80In Purvis v The State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 the High Court dealt with the construction of s 5(1) of the Disability Discrimination Act 1992 (Cth), which provided that "a person discriminates against another person on the ground of a disability of the aggrieved person if, because of the disability" the person did certain things. In the joint judgment of Gummow, Hayne and Heydon JJ their Honours made certain observations about the issue of whether the appellant had been treated less favourably "because of" his disability. Their Honours said (at [234] and [236]) that:
It is, however, desirable to say something shortly about the third issue argued in the appeal: was there less favourable treatment "because of" disability? The arguments about this aspect of s 5(1) sought to draw distinctions between the motive of the discriminator, the purpose of the conduct and the effect of the conduct, and between objective and subjective criteria of operation. Attention was directed to the drafter's use of the expression "by reason of" in the equivalent provisions of the Sex Discrimination Act [144] rather than the expression "because of" used in s 5(1) and other provisions of the Act [145]. Reference was made to s 10 of the Act and its provision that if an act is done for two or more reasons and one of those is the disability of a person "whether or not it is the dominant or a substantial reason for doing the act" then for the purposes of the Act "the act is taken to be done for that reason".
...
For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability. Rather, the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of".
81Despite what was said in Barclay and Purvis about the unhelpfulness of drawing distinctions between proximate or immediate reasons for conduct, or between motive, purpose or effect and, in particular, that no distinction is to be drawn between the cause of conduct and the reason for conduct, we do not consider we are able to ignore the words of s 244 and simply adopt the approach of the majority in Barclay, or in the other federal cases based as they were on a search for the "substantial and operative reason" or "operative reason" for the impugned conduct. The provisions considered under federal industrial laws were quite different in structure, content and purpose to s 244.
82Importantly, in s 244(2) the words "operative cause" are used when the words "operative reason" would equally have been available to the drafters of the legislation, such words having been the subject of a long line of authority commencing, it seems, with Bowling in 1976. The word "cause", we think, is interchangeable with the term "proximate reason" (see Greater Dandenong), which requires a consideration of the objective circumstances that led to the employer dismissing the injured worker and not the employer's subjective reason for so doing. In our opinion, the test to be applied under s 244(2) is an objective one.
83Thus, under s 244(2) in seeking to rebut the presumption in s 244(1), the employer must prove two things: first that the injury was not a substantial cause of dismissing the worker. If there were more than one cause of the employer's decision to dismiss the worker, which included the injury, provided the employer could prove the injury was not a substantial cause it would have satisfied one element of the test. The second element of the test to be satisfied is that the injury was not an operative cause of the dismissal. In satisfying that test the employer's subjective intention is not relevant. The employer must satisfy the Commission, on an objective analysis of all of the circumstances, that the injury was not the operative (or real or effective) cause (or proximate reason) of its decision to dismiss the worker. There must be a substantial causal connection between the injury and the decision to dismiss.
84We do wonder whether the word "operative" in s 244(2) is superfluous because if the injury was a substantial cause (that is, a thing that makes something happen) of the dismissal it must be an operative cause. Nevertheless, the statute uses the phrase "substantial and operative cause" and meaning has to be assigned to each word.
85We note that following exchanges with the Bench, whilst senior counsel for the appellant maintained that the test in determining whether the injury was a substantial and operative course was essentially subjective, counsel conceded a substantial or operative reason for the dismissal may comprise a multiplicity of factors. Some of them, it was submitted, were subjective, in the sense they refer to intention; others were objective, in the sense that they refer to ascertainable facts that comprise the context in which the action was taken.
86It was inevitable, in our view, that such a concession had to be made. However, for the reasons we have expressed, we consider the test is clearly an objective one.
87Turning to the question of whether the Commissioner erred in finding the appellant had not rebutted the presumption in s 244(1), we accept that the Commissioner committed error in the process of arriving at his conclusion the presumption had not been rebutted. What is more, the Commissioner failed to adequately address s 244. Nevertheless, despite these deficiencies, we consider the Commissioner was correct in his conclusion.
88The evidence in the proceedings included the letter of 29 October 2010 terminating Mr Riley's employment. The letter read in part:
[D]uring the meeting, it was agreed that having regard to your 40% permanent loss of efficient use of both arms as determined by the Workers Compensation Commission, the duty we owe under the Occupational Health & Safety Act ... and the lack of any alternative duties positions that would eliminate any risk of injury in the future, we have no alternative but to bring the employment relationship to a conclusion ... (emphasis added)
89The foregoing correspondence may be read with an earlier letter from Mr Bayes to Mr Riley of 19 October 2010 in which Mr Riley is invited to attend:
[A] meeting on 20 October 2010 to discuss your future employment, whether you are able to perform the inherent requirements of those duties, alternative employment duties and your employment with Bindaree Beef Pty Ltd generally, specifically addressing the issues of your current medical restrictions ... This process (even if it may result in the termination of your employment, will not in any way affect your entitlement to workers compensation benefits. (emphasis added).
90Mr Riley deposed to what was said at the meetings on 18 October and 20 October 2010. In the first of the meetings, he refers to Mr Bayes saying that:
I've been talking to Terry about his 40% loss of use of the shoulders, no one can work with that amount of loss and pain. It would be difficult even if the loss was 10% - 15% ... I am sending Terry home on full pay until we get time to organize it, I am sure Terry will want to seek legal advice and we will to (sic)." (emphasis added)
91Mr Bayes deposed to the following:
When I became aware of the medical assessment certificate conclusion, I was immediately concerned that the Applicant would present as an OH&S risk ... the duties being performed ... were repetitive and heavy in nature ... the fact that the Applicant was performing his duties as a slicer caused me most concern as these are repetitive duties which place strain upon both arms and the back ... It appeared to me that the Applicant could not perform his normal duties as a slicer with such a large permanent impairment without ... creating a risk of injury which would arguably constitute a breach ..." (emphasis added)
92As we have noted, the appellant submitted Mr Riley was dismissed not because of his injury, but because of the risk of re-injury or further injury and the appellant's occupational health and safety obligations and potential liabilities. However, it seems plain enough that Mr Bayes was concerned that Mr Riley could not perform the inherent requirement of the job of slicer because of restrictions caused by his injury and because of his "large permanent impairment".
93There would have been no dismissal but for the injury; the evidence is clear that the injury was central to the appellant's decision to dismiss. The appellant would not have even contemplated dismissal if Mr Riley had not received the injury to his shoulders resulting in less efficient use of his arms. Any concern about re-injury would not have materialised if it were not for the injury; the concern about re-injury was merely derivative.
94The appellant sought to distinguish between the aggravation of an existing injury (which is defined as "injury" under the WC Act: see s 4) and a re-injury. To aggravate an injury is to make the injury worse. To suffer a re-injury is to have the injury recur. In this case, the distinction is more illusory than real. It was undoubtedly the case that because of Mr Riley's injury the appellant regarded him as being susceptible to his injury being aggravated and/or that it left him more vulnerable than he otherwise would be to further injury or to the same injury recurring. For these reasons the appellant regarded Mr Riley's health as being at greater risk than if he had not sustained the injury and because of the injury the appellant believed its potential liability under the OHS Act was greater than it otherwise would be.
95It may be accepted that one of the considerations underpinning the decision to dismiss Mr Riley was the appellant's concern about the risk of re-injury and its occupational health and safety obligations and potential liabilities. But the subjective motive of the appellant is irrelevant. Even if it was relevant and could objectively be regarded as a cause, it is inescapable that Mr Riley's injury was a substantial and operative cause.
96The criminal law's treatment of the "substantial and operating cause" test is instructive. The test is an objective one. We mentioned earlier R v Smith. The case was decided on the principle that:
[I]f at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound (at 42-43).
97In R v Evans and Gardiner (No 2) [1976] VicRp 53; [1976] VR 523 the victim, a prisoner, was stabbed in the stomach in April 1974 by the two accused and received prompt treatment by way of a bowel resection and the wound healed. However, in March 1975 the victim died as a result of a secondary condition - a stricture in the bowel at the site of the resection operation.
98The Supreme Court of Victoria rejected the submission that the doctor's failure to diagnose the secondary condition made it unsafe for the issue to go to the jury. It held that the real question for the jury was whether the blockage of the bowel was due to the stabbing. The Court held there was sufficient medical evidence for the jury to support such a finding. The Court in Evans stated:
The failure of the medical practitioners to diagnose correctly the victim's condition, however inept and unskilful, was not the cause of death and the real question for the jury was whether the blockage was due to the stabbing.
99In R v Blaue [1975] 1 WLR 1411 a young girl was stabbed and her lung pierced. She refused a blood transfusion on religious grounds. She had been told that she would die without a transfusion. She died and the defendant was charged and convicted of murder. The Court of Appeal said:
The question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the causal connection between the act and death. (at 450)
100Thus, in Smith, Evans and Blaue it was held that the original stabbing injury was a substantial and operating cause of the death in each case and notwithstanding the contribution that the intervening events may have made to the victims' ultimate demise, those events did not break the chain of causation.
101At the time the appellant took the decision to dismiss Mr Riley the original injury continued to be a substantial and operative cause of the decision to dismiss, albeit there were other considerations in the mind of the appellant. These other considerations were either subjective or if they could be considered as objective could not be regarded as "so overwhelming" as to make the original injury merely part of the history such that it could be said the injury was not a substantial and operative cause of the dismissal. To take the analogy with the criminal cases further, it might be said the appellant's reliance on its concern about the risk of re-injury and its occupational health and safety obligations and liabilities did not break the chain of causation between the injury and the dismissal.
102In Bowling, as we earlier noted, the test that was applied was the substantial and operative factor test. In that case the appellant dismissed an employee who was a member and delegate of a union on the basis of the employee's unsatisfactory attitude to work and supervision. Section 5(1) of the Conciliation and Arbitration Act prohibited the appellant from dismissing Bowling by reason of his being a member or delegate of the union.
103After accepting that the principal reason for the employee's dismissal was that he was considered by his employer to "be a trouble maker" by deliberately disrupting production and setting a bad example to others, Mason J stated (at 617 - 618):
It is ... 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 trouble maker, 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 it 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 ... (and 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 ...
104The onus cast by s 244(2) means that, to succeed, the employer has to establish that it was not actuated by the injury. As Mason J said in Bowling at 617, the real reason or reasons for the taking of the adverse action must be shown to be "dissociated from the circumstances" that the aggrieved person has or had the relevant attribute.
105The evidence in this case does not show that the cause of the decision to dismiss was dissociated from the injury. On the contrary, the evidence shows the injury was a substantial and operative cause of the dismissal.
106We find the Commissioner did not err in concluding that the appellant did not rebut the presumption that Mr Riley was dismissed because he was not fit for employment as a result of the injury received.