Consideration
113 As I have already observed, adverse action was taken by the respondent against Ms Star within the meaning of the Fair Work Act. The original exclusion of Ms Star from the Mine on 10 November 2017 occurred within a short time period of the exercise by Ms Star of workplace rights. The case of the applicant is that the adverse action occurred because of the exercise by Ms Star of the workplace rights. Section 361 of the Fair Work Act squarely places the onus on BMA to prove that which lies peculiarly within its knowledge, namely that the exercise by Ms Star of workplace rights was not a substantial and operative factor in the reason for the adverse action it took against Ms Star, both the original exclusion from the Mine and the subsequent refusal to allow her to return.
114 That onus is to be discharged according to the balance of probabilities. In noting that this is the standard to be applied, I also note that the proximity in time between the exercise of workplace rights by Ms Star and the taking of adverse action by BMA is not in itself conclusive. As Bromberg J observed in Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76 at [165]:
….A nexus between adverse action and protected activity may be instructive as to whether a nexus between reason and protected activity existed. But because adverse action may be happenstance or coincidental with the existence of the protected activity, the fact of that connection can never be determinative. The focus is upon reason and its connection to the protected activity. That is, in my view, the fundamental point for which Barclay stands. The questions that then arise are these: why was the adverse action taken? By reference to the actual reasons of the decision-maker, was it because of or including because of the protected activity?
115 The respondent has denied that the decision to exclude Ms Star was referable to her exercise of workplace rights, or for any reason prohibited by the Fair Work Act. The key evidence before me is the evidence of Mr Gee as the decision-maker, with Mr Maunder's evidence of importance as informing evidence of Mr Gee's reasons for his decision.
116 It is also appropriate for me to have regard to evidence of Ms Star, Mr Thomas, Mr Hazeldine and Mr Schmidt to the extent that it supports findings contrary to those urged by the respondent. In summary, the evidence of the applicant's witnesses was that Ms Star was a team player with a good work ethic, and skills appropriate to her job. Their evidence strongly refuted the contention that Ms Star was disruptive in the workplace or not a good cultural fit to the workers on the Mine site. I consider the evidence of the applicant's witnesses to be credible. However in so finding, I note that the evidence of these witnesses was relevant, but not as critical to identifying the reasons for the decision of Mr Gee.
117 Taking into consideration the evidence of the witnesses (both oral and written), the submissions of the parties concerning that evidence, and relevant legal principles, I have concluded that the respondent has not discharged its onus under s 361 of the Fair Work Act that the adverse action taken by the respondent was not for a reason or included a reason prohibited by the Fair Work Act, namely the exercise of one or more workplace rights by Ms Star. I have formed this view for the following reasons.
118 First, BMA submitted at the hearing that it was important to recognise that the Court need not make finding about the stated reasons for the adverse action taken by BMA. Counsel continued:
That is, you may - and, as I said, we think you won't get anywhere near this - but you may reach a point where you say, "I'm not 100 per cent confident, or confident on the necessary standard, that the stated reasons were the reasons taken." But provided you are satisfied that the proscribed reasons were not part of the reasons, the onus is still discharged.
HER HONOUR: So in other words, what you're saying is I could find that I have no idea why Ms Star lost her - why BM Alliance did not want her back on the site, but I'm - but you have discharged the onus of establishing that it was not for a proscribed reason.
MR FOLLETT: Precisely.
(Transcript p 83 ll 31-42)
119 In this respect BMA relied on observations of Bromberg J in Newton v Australian Postal Corporation (No 2) [2019] FCA 2192; (2019) 292 IR 396 (Newton) at [93]-[96], [157], [165] and [200]-[204]. In particular I note the following comments of his Honour in that case:
155. It is instructive, I think, to notice that there is no evidence of Metcher exposing Project Dove in Canberra on 8 February 2016 or any time soon thereafter or possibly at all. Indeed, at about 11am on Monday 8 February 2016, Metcher sent an email to Fahour referring to their discussions of the previous Friday. The email was civil and polite. It indicated that Metcher was now receptive to the conduct of the Leanne White Review and proposed the CEPU's nominee for the team of persons who were to conduct that review. The email made no mention of Project Dove. It seems likely that by the time this email was sent, Metcher had been convinced to accept that which he had rejected during the conversation with Fahour on the previous Friday, that APC would not pursue Project Dove. There is only one event of relevance in the evidence before me that occurred between the conversation on 5 February 2016 and Metcher's communication on 8 February 2016. That event is that Michael Newton was removed from his position. There is no direct evidence of how the removal of Michael Newton from his position was communicated to Metcher. Fahour deposed that he did not communicate that to Metcher but, although he said he was speculating, he said he assumed that Walsh would have done so.
156. I do not positively find that Fahour removed Michael Newton from his position because he sought to convince Metcher that Project Dove was truly dead and buried. I need not make that finding. However, that Fahour removed Michael Newton for that reason is an inference not less supportable than the inference that Michael Newton was removed from his position because Metcher demanded that Fahour do so. In other words, each of those reasons are possible logical explanations for why Michael Newton was removed from his position. If the existence of only one logical explanation for Fahour's conduct had been sufficient to allow the inference contended for by Michael Newton to be drawn, the inference cannot be drawn because there are other logical explanations which can explain Fahour's conduct.
157. I have arrived at that conclusion mindful of the fact that, although I raised the possible explanation I have just set out with Michael Newton's Counsel, it had not been raised or relied upon by any of the respondents and not put to Fahour. None of the respondents had an incentive to put that case because each sought to convince the Court that Fahour was a reliable witness whose explanation for removing Michael Newton should be accepted. Fahour deposed that Michael Newton was removed because of Fahour's concern for Michael Newton's wellbeing and in order to protect him from exposure to Metcher. Michael Newton contended that I should not accept Fahour's explanation and for the reasons that follow I do not. However, my non‑acceptance of that evidence (which has contributed to my concern about the reliability of Fahour's evidence and the general impression I gained of him), serves to support the existence as a logical possibility of the undisclosed explanation I have raised, and does so despite the unfortunate position that the explanation was not explored with Fahour.
120 Importantly, Bromberg J continued:
165. That all of that occurred out of a concern by Fahour for Michael Newton's welfare is neither plausible nor believable. All of those findings serve to demonstrate that there was another reason, a reason other than that proffered by Fahour, for Fahour's deep-seated objection to Michael Newton occupying a position which involved Michael Newton with workers' compensation or injury management at APC. The difficulty for Michael Newton's case is that the available explanations which may reveal that other reason, are not confined to the "logical explanation" for which Michael Newton contended.
121 At [203] of Newton his Honour concluded that he was not satisfied, on the facts of that case, that the reason for the applicant being removed from his position was the reason alleged in the pleadings, and rejected the claim that the adverse action in that case constituted a contravention of s 340 of the Fair Work Act.
122 The observations of Bromberg J were in the circumstances of the facts before his Honour in Newton. In my view the reliance by the respondent in the case before me on the fact-specific findings of his Honour in Newton, is misplaced. The respondent in the present case has not suggested that there is any reason for the exclusion of Ms Star from the Mine other than that set out in the respondent's Defence filed on 7 March 2019, namely Mr Gee's belief that Ms Star did not fit well with the overall culture at the Mine. This is the respondent's answer to the case brought against it by the applicant. It is also consistent with evidence given by Mr Gee, whom the respondent admitted was the decision-maker.
123 The words of s 361 of the Fair Work Act are clear. They have been the subject of extensive and authoritative determination by the High Court, particularly in the Barclay case. In an application claiming contravention of Part 3.1 of the Act, if it is alleged that a person took action for a particular reason or with a particular intent, and taking that action for that reason or with that intent would constitute a contravention of that Part, it is presumed that the action was, or was being, taken for that action or with that intent, unless the person proves otherwise; Barclay at [45].
124 In light of this presumption, there is no room for the Court to dismiss an application claiming contravention of Part 3.1 of the Fair Work Act because the Court speculates that there may be a secret, "real" reason why the decision-maker made the decision which resulted in adverse action against a worker, but which reason the decision-maker has not explained. The onus lies on the employer to displace the presumption in s 361. If the employer does not do so, through evidence of its reasons, the presumption is that the action was taken for a reason or with the intent that would constitute a contravention of Part 3.1. It follows that an exercise in speculation by me as to whether there was an alternative hidden agenda to Mr Gee's decision, such that there was an unknown "real" reason for his decision (but which was not one contravening the Fair Work Act), would not only be misplaced, it would not accord with the task of the Court when considering the present application, the provisions of the Fair Work Act, and the evidence before it.
125 Second, while I consider that in giving his evidence Mr Gee endeavoured to be honest, I agree with the applicant that much of Mr Gee's evidence could only be described as reconstruction, rather than his genuine recollection of events and reasons for his decisions, and was unreliable. Holes in Mr Gee's evidence, which seriously undermined the respondent's case, and for which no credible or logical explanation was given by him (either in his affidavits or during cross-examination) included:
Why, at a time when Mr Gee was her ultimate supervisor at the Mine, Ms Star was considered sufficiently a "team player" by others at the Mine (apparently including Mr Maunder because "she had already had the skill": transcript p 158 ll 17-18) to be promoted to the position of trainer assessor at the Mine in 2017, but yet four days later was excluded from the Mine by decision of Mr Gee as not being a team player;
Why, as emerged from evidence of witnesses for the applicant, Ms Star had worked for four years on the Mine Site without apparent trouble or complaint if she actually was, or was even considered by BMA to be, disruptive and not a "team player";
Why, if labour turnover at the Mine was undesirable, Mr Gee considered it necessary to exclude Ms Star who the evidence showed was experienced and good at her job, when no credible effects of her alleged "disruptiveness" were identified;
Why, if Mr Gee had supervision of approximately 180 workers at the Mine, he was able to single out Ms Star as being disruptive and other than a "team player", relying only upon comments Ms Star apparently made at unspecified pre-start crew meeting(s);
Why, if Mr Gee had made a decision on 6 or 7 November 2017 that Ms Star was to be excluded from the Mine, he did not inform BMA Labour Hire of his decision despite his admission during cross-examination that this was his practice, or, as he also accepted during cross-examination, he did not inform BMA Labour Hire of his decision and advise them not to tell WorkPac until Ms Star's roster was completed; and
Why, if the BHP Code of Conduct required fairness and respect to all people including contractors, Mr Gee felt that this was an obligation no-one at BMA owed to Ms Star, or that the BHP Code of Conduct was somehow superseded in her case by an opaque, and unwritten, "company practice".
126 Indeed, there is no reliable evidence before the Court that Mr Gee had any trouble with Ms Star prior to the events of 9-10 November 2017 when Ms Star exercised her workplace rights. Relevantly I note:
Mr Gee gave evidence that there was a constant demand for training new operators at the Mine, the "bottleneck" was always trainer assessors to make that happen requiring the appointment of more trainer assessors, and he "may have been aware" on 6 November 2017 of Ms Star's appointment as a trainer assessor although he could not recall it (transcript p 213 ll 30-47). This evidence in my view is inherently illogical. Indeed it contradicts the fact that Ms Star was appointed as a trainer assessor at a time when Mr Gee had already been a senior manager at the Mine for six months;
Although Mr Gee had worked at the Mine for six months at the same time that Ms Star was there, he had "formed [an unfavourable] view of her" (transcript p 317 ll 32-36) notwithstanding her previous four years of unblemished performance at the Mine;
No substantive evidence was given to address the undesirability of unnecessary staff turnover insofar as it applied to Ms Star, an experienced worker at the Mine who had recently been promoted to trainer assessor, other than Mr Gee's alleged belief that she was not a "cultural fit" at the Mine. Nor was any evidence adduced as to any steps taken to performance manage Ms Star given her alleged "disruptiveness", other than unsubstantiated and undocumented evidence by Mr Maunder of his informal discussions with Ms Star;
Mr Gee gave evidence that Ms Star had "…caused disruption into pre-start crew meetings etcetera by offering, you know, negative comments, I guess. Criticism of the business and its processes. What I saw as, you know, intent to disparage, I guess, BMA" (transcript p 222 ll 8-11). However at its highest, Mr Gee said he "was attending these meetings from time to time" (transcript p 212 ll 42-44). He gave evidence that he did not attend pre-strip daily supervisors meetings (transcript p 185 ll 26-31). The respondent placed weight on evidence given by Ms Star, Mr Thomas and Mr Maunder that Mr Gee may have attended more than one pre-start meeting at the Mine, however in my view that evidence was little more than reconstruction on their part. Ultimately, the evidence before the Court that Mr Gee formed a view of Ms Star being disruptive and negative at meetings at the Mine is very weak, and ultimately not credible;
Mr Gee conceded that there was nothing to stop him informing BMA Labour Hire prior to the completion of Ms Star's roster cycle that she was no longer required, if he had formed a view on 6 or 7 November 2017 that she should be excluded (transcript p 192 ll 41-46); and
Mr Gee gave evidence referable to the BHP Code of Conduct including "… A termination of an employee, no, it's taken lightly….it does have an impact on the people as well" (transcript p 188 ll 1-7), and that notwithstanding that the BHP Code of Conduct required fairness, he understood that company practice was not to provide information or reasons in respect of employees of contractors (see transcript p 203-204). Mr Gee explained in relation to Ms Star and the application of the BHP Code of Conduct that "it is quite grey in this situation" (transcript p 212 ll 34-36). In my view however this evidence is inconsistent, bordering on illogical, and is suggestive of a reconstruction of events and Mr Gee's alleged belief at the relevant time
127 In this context, I again consider the evidence of Ms Star, Mr Thomas, Mr Hazeldine and Mr Schmidt to be credible. In particular I consider Ms Star to be a credible witness, who gave her evidence in a calm manner and plainly could discuss her work at the Mine in an experienced and authoritative fashion.
128 Third, I consider there is a degree of sophistry in BMA's proposition that the applicant's submissions did not deal with the question of "why" including:
What possible reason or motive would Mr Gee have for removing Ms Star from the Mine (and keeping her removed) for exercising the rights she is said to have exercised?
129 The obvious answer to this question, which BMA bears the onus to negate, is that Mr Gee sought to remove Mr Star from the Mine and keep her removed precisely because she exercised the relevant workplace rights. Notwithstanding evidence of both Mr Gee and Mr Maunder during the proceedings that they supported Ms Star's approach to avoiding dangerous conduct, and adhering to proper safety procedures, I do not consider credible their evidence concerning their views of Ms Star's conduct prior to 10 November 2017, and in particular Mr Gee's evidence concerning his reasons for the decision to exclude Ms Star from the Mine.
130 Fourth, I note the submission of the applicant that no evidence was given by the decision-maker, admitted by the respondent to be Mr Gee, until the proceedings were well advanced. The conduct by the respondent of its case, and forensic decisions concerning witnesses who give evidence and the contents of witness affidavits, are plainly matters for the respondent. However, as the High Court emphasised, the evidence of the decision-maker is critical to negate presumptions of adverse action which can otherwise be drawn in the absence of that evidence. The absence of any evidence of the decision-maker until well into the proceedings can only be described as puzzling. Mr Gee eventually did give affidavit evidence of his alleged reasons for the decision to exclude Ms Star from the Mine, however the fact that his final evidence of his reasons was not prepared until one and half years after relevant events must result in an increased likelihood of reconstruction of evidence, particularly in the absence of contemporaneous notes by him.
131 Finally, I consider that Mr Maunder's evidence was unreliable. I take into consideration the difficulty witnesses may have in coping with cross-examination in the Courtroom environment, particularly involving events that had occurred several years earlier. However I formed the impression of Mr Maunder as a person who disliked confrontation, and would not wish to be seen to be in opposition to Mr Gee or to any views Mr Gee might have expressed concerning Ms Star at the relevant time. I consider that Mr Maunder's evidence concerning Ms Star allegedly being "a bit of a bitch" was invented by him at that time to be agreeable to Mr Gee, particularly in light of what appears to have been Mr Gee's clearly expressed views to Mr Maunder concerning Ms Star. Mr Maunder's statement concerning Ms Star was inconsistent with his claimed friendship with Ms Star and Mr Schmidt, and was glaringly in conflict with his conduct - four days prior to Ms Star's exclusion - in promoting Ms Star to a position which required her to be able to maintain good relationships with colleagues.
132 I consider that Mr Maunder's evidence should be accorded no weight.