Jessup J
1 This is an appeal from a judgment of a single Judge of the court delivered on 26 March 2015, in which her Honour dismissed an application by the appellants, the Construction, Forestry, Mining and Energy Union ("the union") and Stephen Byrne challenging the legality of the termination of Mr Byrne's employment by the respondent, Anglo Coal (Dawson Services) Pty Ltd. It was alleged that the termination was in contravention of certain provisions of Pt 3-1 of the Fair Work Act 2009 (Cth) ("the FW Act") and amounted to a breach of Mr Byrne's contract of employment with the respondent.
2 The statutory element in the appellants' case was that adverse action had been taken by the respondent when it dismissed Mr Byrne, and that this action was taken because he exercised the "workplace right" involved in his entitlement to personal/carer's leave under the relevant industrial instrument (s 340(1)(a)(ii) and s 341(1)(a) of the FW Act) and because he was temporarily absent from work because of illness (s 352 of the FW Act). The primary Judge treated these as two different statutory articulations of what was, in effect, the same allegation, and it is convenient to do so again on appeal.
3 The contractual element in the appellants' case was that Mr Byrne had not conducted himself in a way that justified the summary termination of his employment. This was a conventional wrongful dismissal case (save that, as will be mentioned further below, Mr Byrne abandoned his claim to damages), and the primary Judge rejected it. Mr Byrne contends on appeal that her Honour was in error to have done so.
4 Mr Byrne was employed by the respondent at the Dawson Mine ("the mine") at Moura in central Queensland as a Mine Employee Level 2. He was rostered to work day shifts on 21 and 22 April 2014, and night shifts on 24 and 25 April 2014. On 21 April 2014, he applied for two days of annual leave, which he wished to take on 24 and 25 April 2014. On 22 April 2014, that application came to the attention of the mine superintendent, Andrew Lawn, and was rejected by him. Later on the same day, Mr Byrne went to Mr Lawn's office and was told that his leave application had been declined "due to overall crew numbers". There followed an exchange between the two, in which Mr Byrne insisted that, under the relevant enterprise agreement, the leave application could not be declined for that reason, and in which Mr Lawn adhered to his decision not to approve the leave for which Mr Byrne had applied.
5 According to Mr Lawn's evidence, which the primary Judge accepted, the conversation then proceeded in substance as follows:
Mr Byrne: Fine, I'm going to be sick anyway.
Mr Lawn: Mate, you have asked for annual leave, it is not within the time period, it's not approved.
Mr Byrne: I will get a medical certificate. You will find that very hard to challenge.
Mr Lawn: If you get a certificate from a medical practitioner, that is fine but you have already told me that you are going to be sick. If you take sick leave, we will have to have a completely separate discussion based on the discipline policy.
The primary Judge also accepted Mr Lawn's evidence that, during this conversation, Mr Byrne, while "agitated", did not exhibit signs of being unwell.
6 Before the primary Judge, there was some controversy as to whether Mr Byrne was exhibiting signs of sickness at other stages, and in the presence of other people, on 22 April 2014. Her Honour did not accept evidence called on his behalf that he was. On the findings which her Honour made, the position seems to have been that Mr Byrne did not exhibit any such signs on that day.
7 On 23 April 2014, Mr Byrne consulted his doctor, Dr Vahid Farahmand. Dr Farahmand advised Mr Byrne not to attend work on the nights of 24 and 25 April 2014, prescribed him antibiotics, and issued a medical certificate certifying that he would be unfit for duty on those dates. Dr Farahmand gave evidence before the primary Judge. He said that he knew Mr Byrne, and that, on 23 April 2014, Mr Byrne was exhibiting symptoms which were compatible with asthma exacerbation and a lower respiratory tract infection. Her Honour accepted that evidence.
8 Having seen Dr Farahmand, Mr Byrne telephoned his supervisor, and informed him that he was unwell and would not be attending work for the night shifts on 24 and 25 April 2014. He also sent a text message to the respondent's Human Resources Manager, Amanda Baker, informing her of the terms of the medical certificate which had been issued by Dr Farahmand.
9 The primary Judge found that Mr Byrne was ill on 24 and 25 April 2014. That finding is not challenged by the respondent.
10 Mr Byrne did not return to work until 30 April 2014. In the afternoon of that day, he was required to attend a meeting with Mr Lawn. At the meeting, Mr Byrne was accompanied by Heath Timmins, and also present were the respondent's Human Resources Manager, Kaitlyn Britton and a human resources superintendent, Stephanie Elliott. They questioned him as to why, if he was absent from work on account of sickness, he had originally applied for annual leave. Mr Lawn thought that Mr Byrne had been dishonest in this respect. In the course of the meeting, Mr Timmins said that, by asking for annual leave, Mr Byrne had been trying to help the respondent by improving the leave statistics and figures.
11 On 1 May 2014, on Mr Lawn's initiative, Mr Byrne was given a letter, signed by the then Mine Manager, which invited him to show cause why disciplinary action should not be taken against him. At the same time, he was stood down from work pending the later meeting at which he would show cause.
12 On 5 May 2014, Tony Power took over as Mine Manager (having previously held that position from 28 March 2011 to 19 August 2012). In the days which followed, he was told by Mr Lawn that, when he informed Mr Byrne that his application for annual leave had been declined, Mr Byrne had said that it did not matter because he was not going to come to work, and would obtain a medical certificate which would mean that his absence from work could not be challenged. Mr Power formed the view that Mr Byrne's attitude was a serious one, because it demonstrated an attitude of, "I will do what I like and when I like it".
13 At a meeting on Friday 9 May 2014 with Mr Power, Ms Baker and Ms Britton, Mr Byrne (again accompanied by Mr Timmins) provided a written response to the show cause letter. In that response, and in the conversation which followed, Mr Byrne stated that he had been unwell on 22 April 2014, and that the only reason that he had applied for annual leave was to avoid a further deterioration in his crew's, and the respondent's, statistics in respect of unplanned absenteeism. At the end of the meeting, Mr Byrne was told that he would be informed of the respondent's decision on the following Monday.
14 On Monday 12 May 2014, Mr Byrne's employment was terminated by a letter over the hand of Mr Power which, omitting formal and presently irrelevant parts, was in the following terms:
You attended a meeting with Dawson Mine Management ("the Company") representatives on 9 May 2014 to show cause why your employment with the Company should not be terminated in relation to your misconduct.
We have now taken into consideration your response. It is the Company's position that your behaviour is unacceptable. Steve, you made it clear that regardless of the Company's rejection of your leave application, you would not be in attendance for your rostered shifts and you then did not subsequently attend your rostered shifts.
The Company considers that your conduct is in breach of your terms and conditions of employment and has irreparably damaged and undermined the employment relationship.
Given the seriousness of your misconduct, the Company has decided to terminate your employment at Dawson Mine effective immediately. You will be paid one week in lieu of notice and all entitlements owing. Your termination pay will be transferred within seven (7) business working days.
15 In evidence which the primary Judge accepted, Mr Power stated his reasons for terminating Mr Byrne's employment. Factually, he accepted what Mr Lawn had told him about his conversation with Mr Byrne on 22 April 2014. He formed the view that Mr Byrne had, in effect, threatened Mr Lawn with a medical certificate, and had indicated to Mr Lawn that he would use the certificate to get what he wanted, thereby putting himself above reproach by Mr Lawn or his employer. He thought that Mr Byrne had expected that his request for annual leave would be approved and, when it was not, decided to take the leave in any event, without regard for the impact of his conduct on his colleagues or his employer. As it appeared to Mr Power, Mr Byrne had no regard for the need for annual leave to be managed carefully because of its impact on productivity and operations and the pressure it placed on other employees when too many people were away at any given time. He considered that Mr Byrne had conducted himself in a manner which showed that he intended to be dishonest with his actions and to take sick leave when he was not in fact sick. Mr Power believed that Mr Byrne had not been unfit to work on 24 and 25 April 2014, and that he had obtained a medical certificate because it was an easy way to circumvent the refusal of his annual leave request. He said that, in his experience, it was easy for an employee to get a medical certificate, even if he or she were not unwell, because of the reliance which doctors placed on their patients self-reporting their symptoms. He did not attach any significance to the fact that Mr Byrne had obtained a medical certificate.
16 Mr Power also considered the fact that, at the show cause meeting on 9 May 2014, Mr Byrne did not show any remorse for his conduct or otherwise accept that his conduct was not appropriate. Indeed, according to Mr Power, the attitude then exhibited by Mr Byrne showed contempt and disdain for his employer and its processes. That attitude led Mr Power to believe that Mr Byrne thought that his behaviour was acceptable, and did not understand why it was problematic.
17 The primary Judge also accepted Mr Power's evidence that, if the conversation between Mr Byrne and Mr Lawn (on 22 April 2014) had not occurred, there would not have been any issue with the fact that Mr Byrne had taken sick leave.
18 The appellants' challenge to the correctness of the primary Judge's conclusions under the FW Act are concerned with the application to the facts of the case of ss 340 and 352. Relevantly, s 340(1) provides:
A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right ….
Under s 341(1)(a), a person has a workplace right if he or she is entitled to the benefit of a workplace instrument. By cl 3.2.3(a) of the applicable workplace instrument, the Dawson Mines Collective Enterprise Agreement 2014, an employee was entitled to take personal/carer's leave where the leave was taken "because the employee is not fit for work because of a personal illness or injury affecting the employee".
19 Section 352 provides:
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
20 Whether by the operation of ss 340 and 341 in conjunction with the enterprise agreement or by the direct operation of s 352, the questions which arose were whether Mr Byrne had been absent from work on 24 and 25 April 2014 because of illness or injury and, if so, whether he was dismissed from his employment because of that circumstance. The primary Judge answered those questions in the affirmative and the negative respectively. There is no challenge to the first answer. It is with the second answer that the present appeal is concerned.
21 Her Honour found that the decision to dismiss Mr Byrne had been made by Mr Power, and that it was his reason or reasons for making that decision that fell to be considered.
22 As to Mr Power's reasons, the primary Judge said:
[T]he facts support a finding that Mr Byrne himself created a situation where, notwithstanding that I now find that he was actually ill on 24 and 25 April 2014, his employers had strong reason to believe that he simply wanted time off work over the Anzac Day holiday in 2014, and that he was prepared to acquire a medical certificate to overcome the respondent's refusal to grant him that time off work as annual leave.
Her Honour also concluded that "it was open to Mr Power to form the view, as he evidently did, that Mr Byrne had adopted the attitude that he would take leave on those days irrespective of the views of the respondent, and justify it by the artifice of a medical certificate."
23 Her Honour accepted Mr Power's evidence that he did not believe that Mr Byrne was ill on the basis of the medical certificate issued by Dr Farahmand.
24 Her Honour held that "Mr Power did not terminate Mr Byrne's employment for any reason associated with his temporary absence from work because of illness or injury, [or] Mr Byrne's exercise or proposed exercise of the workplace right of taking sick leave …." Putting the matter positively, her Honour held that Mr Byrne had been dismissed because Mr Power believed that Mr Byrne had conducted himself in a dishonest manner by planning to take sick leave when he was not sick, by threatening to use a medical certificate as a justification for taking annual leave which had been refused him, by obtaining that medical certificate to circumvent the respondent's refusal of his annual leave request, by persuading Dr Farahmand to issue a medical certificate in reliance on a description of symptoms, and by disingenuously claiming that his original application for annual leave had been to assist the respondent in relation to maintenance of low absentee statistics and/or had been pursuant to a practice in respect of taking annual leave when sick rather than sick leave. That final aspect was a reference to evidence given by Mr Byrne to the effect that there was a practice at the mine of employees, at least sometimes, opting to take annual leave when they were unwell because leave of that kind, unlike sick leave, could not be "cashed out" if not taken. Her Honour did not accept that evidence.
25 In their submissions, the appellants contend that the primary Judge's conclusion about Mr Power's reasons involved errors in two ways, namely:
• in finding that the Respondent had discharged the onus imposed by s. 361 of the FW Act in circumstances where the decision maker (Mr Power) took advice from human resource personnel and where, either human resource personnel were not called or, where called gave no evidence regarding the content of meetings with Mr Power, and in circumstances where Mr Power could not recall the details of the meetings; and
• in finding that the Respondent had discharged the onus imposed by s. 361 of the FW Act in circumstances where Mr Power's evidence should not have been accepted because of incontrovertible facts indicating reasons such that the onus on the Respondent was not or could not be satisfied and in circumstances where the real strength of the evidence indicated that the Respondent could not have discharged the onus.
26 With respect to the first ground, the starting point is s 361(1) of the FW Act upon which the appellants rely. It provides as follows:
(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 that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
27 In the context of a provision such as ss 340 and 352, the effect of s 361 is to reverse the legal onus in relation to the reason or reasons for which the adverse action was taken. That is to say, at the end of the trial of fact, the question will be whether the respondent has established, on the civil standard, that the action taken was not taken for a reason, or for reasons which included a reason, proscribed by the legislation. That question is to be answered by reference to all of the evidence which bears upon it. Section 361 does not impose upon the respondent concerned the onus of calling any and every piece of evidence that might arguably influence the answer to the question of reasons or intent. The section is not, in other words, concerned to impose upon the respondent a continuing, unchanging, evidentiary onus with respect to that question.
28 In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, 516 [41], French CJ and Crennan J said that "the question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the [FW] Act." Their Honours continued (248 CLR at 517 [45]):
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. [See, eg, General Motors-Holden's Pty Ltd v Bowling (1976) 136 CLR 676 (note) …] Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker [See, eg, Pearce v WD Peacock & Co Ltd (1917) 23 CLR 199 at 208 per Isaacs J; at 211 per Higgins J.] or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity. [See, eg, Harrison v P & T Tube Mills Pty Ltd (2009) 188 IR 270 at 276 [31]-[33].]
In other words, whether the onus arising under s 361 has been discharged in a particular case will depend upon the assessment of all of the facts by the trier of fact, including, most importantly in the conventional case, his or her assessment of the evidence given by the decision-maker acting on behalf of the employer.
29 In the present case, the appellants relied upon the respondent's omission to call three members of its staff with human resources roles, Ms Britton, Leah Brosnan and Ms Elliott. Ms Britton was present at the meeting between Mr Lawn and Mr Byrne on 30 April 2014, she drafted the letter to Mr Byrne of 1 May 2014, she was present at a meeting with Mr Power and Ms Baker on 8 May 2014, and she was present at a meeting, after the show cause meeting, with Mr Power, Ms Baker and Ms Brosnan on 9 May 2014. At least so far as appears, the latter meeting was Ms Brosnan's only involvement. Likewise, so far as appears, Ms Elliott's only involvement was by way of her presence at the meeting on 30 April 2014 referred to in para 10 above.
30 Although it seems to have been put to the primary Judge that Mr Power was not the sole decision-maker in the facts of this case, on appeal it was accepted that he was. The submission now made by the appellants is the more limited one that her Honour was in error not to have held that the respondent did not discharge the onus of proof when it had not called these human resources personnel who had advised Mr Power on the matter which fell to him to decide. On this point, the primary Judge said:
That Mr Power would seek advice from human resources staff as to appropriate procedures including the show cause meeting, and meet with the human resources staff after the show cause meeting to discuss ongoing procedures, is neither surprising nor inappropriate in an organisation like the respondent particularly when Mr Power was so new to his position at the time. Ms Baker and Ms Taumalolo were called to give evidence at the hearing, and did so. Mr Puna [the previous Mine Manager], Mr Lawn and Mr Hutchings also gave evidence. They all supported Mr Power's evidence that the decision to dismiss Mr Byrne was his alone. I see nothing sinister about the failure of the respondent to call the other human resources staff who were present at the same meetings as Ms Baker and Ms Taumalolo. In written submissions the respondent said that, in respect of the cross-examination of Mr Power at the hearing:
It was not put to him that someone other than him had made the decision, or that someone else had told him what to do. That is perhaps not surprising because there is no evidence of any such thing.
In my view this submission is correct.
31 With respect, for the primary Judge to have observed that it was "neither surprising nor inappropriate" for Mr Power to seek advice from human resources staff as to appropriate procedures did not meet the appellants' point. Mr Power was not being criticised for doing something surprising or inappropriate. Rather, the question was whether, when it was, apparently, uncontroversial that he had received some advice from these human resources personnel, his evidence, and that of others who were called, was sufficient to discharge the legal onus which arose under s 361.
32 Notwithstanding that relatively minor reservation, I am unpersuaded by the appellants' case on appeal that her Honour's conclusion as to Mr Power's reasons was attended by error. While a party's failure to lead particular evidence may tip the scales in favour of drawing an inference adverse to that party, the inference must still be fairly open on the evidence which has been called. In the present controversy, the questions presumptively in play were, first, whether the uncalled witnesses had advised Mr Power to dismiss Mr Byrne, and secondly, whether he followed that advice. At the first level, her Honour's observation that the advice given by the three human resources staff members who did not give evidence related to matters of procedure has not been challenged. At the second level, Mr Power gave evidence, was tested on his reasons, and was believed by the trier of fact.
33 Although not specifically adverted to as a factor by the primary Judge, I think the circumstance that the participation of each of the three uncalled human resources staff members was limited to attendance at meetings at which others were present, either without or additionally to Mr Power, was also relevant to her Honour's conclusion that no adverse inference should be drawn from the respondent's omission to call them. Put the other way round, there was never an occasion when one or more of those staff members met with Mr Power in the absence of some who was called to give evidence. In respect of every occasion when Mr Power's thinking was potentially exposed to the influence of others, at least one of those others was called as a witness.
34 Once the notion that, by the operation of s 361 of the FW Act, the respondent was under an obligation to call every person who might have influenced Mr Power in some way is rejected, there was nothing about the evidence, or the case generally, to justify the conclusion that the respondent ought to have called these three human resource staff members as an indispensable component of its evidentiary case. There was, correspondingly, no error in the primary Judge deciding the case by reference to the evidence which was called.
35 With respect to the appellants' second ground of appeal, in the written outline filed on their behalves, the argument was expressed as follows:
The finding that the Respondent had discharged the onus was wrong in circumstances where the reasons asserted by Mr Power in his affidavit … were not either investigated or put to Mr Byrne in the show cause meeting.
The finding that the Respondent had discharged the onus was wrong in circumstances where Mr Power was unable to recall adequately, if at all, matters to which he deposed only some weeks earlier.
It was submitted that the primary Judge's conclusion about Mr Power's reason for dismissing Mr Byrne was "glaringly improbable" or "contrary to compelling inferences" (Fox v Percy (2003) 214 CLR 118, 128 [28]-[29]), and amounted to a failure to consider properly the real strength of the evidence (State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588, 607, [63]-[64] and 588-622 [93]-[94]).
36 The circumstances referred to by the appellants in their outline might well have been the stuff of the cross-examination of a decision-maker in a case such as the present, and they may well have contributed to an outcome adverse to him or her. In the present case, however, they did not. It was for her Honour to weigh those circumstances in the balance against the evidence which favoured the conclusion for which the respondent contended. A crucial finding by her Honour, in my view, was that Mr Power did not believe that Mr Byrne was sick at all. To the extent that inferential reasoning might have had any part to play in her Honour's path to the making of that finding, it could only have supported it. The conversation which Mr Byrne had with Mr Lawn on 22 April 2014 was foundational. It provided the plainest of justifications for the belief to which Mr Power swore. There was no circumstantial evidence to which our attention was drawn on appeal that would undermine her Honour's finding in that regard. By definition, neither Dr Farahmand's certificate nor her Honour's own finding that Mr Byrne had been sick would do so. The simple fact was that Mr Power said that he believed neither Mr Byrne nor Dr Farahmand, and her Honour accepted that he was telling the truth in this regard. Once that bar was crossed, the conclusion that Mr Byrne's absence on account of illness was not a reason why he was dismissed by Mr Power followed almost as a matter of course. It was not "glaringly improbable" or "contrary to compelling inferences": if anything, the contrary.
37 Although not the subject of a ground of appeal as such, there was some debate at the hearing of the appeal on the question whether it ought to have been found that Mr Byrne was dismissed because of his absence from work on account of illness because, objectively, he was absent for that reason and that absence was a factor in Mr Power's reasons for his decision to dismiss. Counsel for the appellant, correctly in my view, considered that it was not open to him to argue along these lines in the light of Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243. For my own part, I consider that the present case was more straightforward than those, such as BHP Coal and Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150, which involve questions of characterisation, and was, rather, analogous to cases in which the result depended on the employer's knowledge of the entitlement arising under the industrial instrument, such as Musgrove v Murrayland Fruit Juices Pty Ltd (1980) 47 FLR 156. It is true that the present case turned on the decision-maker's belief in the existence of facts which would have given rise to the entitlement, rather than on his knowledge of the existence of the entitlement as such, but, in my view, the principle - that the case must be decided by reference to the actual reason or reasons of the decision-maker - is essentially the same in each situation.
38 Turning to Mr Byrne's claim under his contract of employment, the appellants' grounds of appeal propose that the primary Judge's reasons involved errors in the following respects:
• in that, having found that Mr Byrne was ill so as to be unable to work, and in circumstances where the reason for his termination was a failure to attend rostered shifts, the Learned Trial Judge should have found that the summary termination of Mr Byrne's employment was unjustified; and
• [in] failing to order specific performance in the alternative to an order for reinstatement consequent upon a breach of the FW Act.
39 Corresponding with these grounds, there were two questions before the primary Judge on the contractual issue. The first was whether the termination of Mr Byrne's employment amounted to a breach of that contract. If that question were to be answered in the affirmative, the second question arose, namely, whether the court should make an order requiring the respondent specifically to perform the contract by taking Mr Byrne back into its employment. As mentioned above, Mr Byrne abandoned his claim for damages for breach of contract.
40 As to the first of these questions, the primary Judge said:
First, I am not prepared to find that Mr Byrne did not engage in serious and wilful misconduct sufficient for termination of employment. While the Court has the benefit of both hindsight and evidence to make a determination of such facts as whether Mr Byrne was, in fact, developing a medical condition on 22 April 2014, the respondent was not so advantaged.
I accept that, in considering the appropriate outcome of the investigation into the matter, Mr Power applied the respondent's Consequences Model such that he was satisfied that termination of Mr Byrne's employment was a proper decision. I am satisfied that Mr Power's application of the Consequences Model was fair. There is no evidence before me that the respondent's Consequences Model is unfair or should not be followed. Considerably more material would need to be before me in the circumstances of this case to persuade me that the respondent acted unfairly in dismissing Mr Byrne.
41 The first sentence in the first of these paragraphs from the primary Judge's reasons implies that, absent her Honour being persuaded that Mr Byrne had not engaged in serious and wilful misconduct, the respondent's decision to dismiss him could not be disturbed. This was, with respect, to reverse the proper order of things. Mr Byrne was dismissed without notice (although there is a rather confusing reference in the evidence to the payment of a week's pay in lieu of notice, a payment which, we were assured, was never made). Absent a contractual term to the contrary - and we were referred to none - an employee who has not given his or her employer cause for summary termination cannot be dismissed unless notice, either as provided in the contract or such as is reasonable in the circumstances, is provided. If the employer seeks to uphold a dismissal which was done without the provision of notice, the grounds necessary to justify summary termination are the employer's to establish. In the present case, Mr Byrne did not have the onus of proof, or the onus of persuasion, in this regard.
42 The second sentence implies that the question whether there had been conduct sufficient to justify the summary termination of Mr Byrne's employment was to be addressed not with the benefit of hindsight and evidence, but against the facts as they appeared to the respondent at the time of its decision to dismiss him. Once again, with respect, this reasoning is problematic. Whether an employee's conduct justified summary dismissal is an objective question to be answered by reference to the facts as they existed, that is, to the facts as they are ultimately found by the court concerned, with all the benefits that hindsight, the examination and cross-examination of witnesses, and other conventionally available forensic processes provide.
43 The only justifications for the summary termination of Mr Byrne's employment advanced on behalf of the respondent were that he had been absent from work when not entitled to be absent, and that he had been dishonest with his employer in concocting a false reason for that absence. But, because of his sickness as certificated by Dr Farahmand, and as found by the primary Judge, Mr Byrne was entitled to be absent from work, and had not been dishonest in that regard. There was, therefore, no valid justification for the summary termination of his employment. He was wrongfully dismissed.
44 As to the second of the questions, the primary Judge referred to what had been said by Brennan CJ, Dawson and Toohey JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 428:
Moreover, a court will not, save in exceptional circumstances, order specific performance of a contract of personal service. The possible continuation of the contract of employment after a wrongful dismissal will, therefore, ordinarily be of no real significance as it will for all practical purposes be at an end.
Having referred to two earlier authorities, her Honour continued:
In this case exceptional circumstances to reinstate the contract of employment between Mr Byrne and the respondent have not been demonstrated. The only circumstance put to me by the applicants is that Mr Byrne appears to be functioning adequately in the working environment of the respondent since he was reinstated last year pending this decision. However putting to one side that this is a bare assertion of the applicants unsupported by evidence, in my view this circumstance is not "exceptional". It certainly can be given no more weight than the bare assertion of the respondent, through its Counsel, that the fact that both parties have complied with the interlocutory order temporarily reinstating Mr Byrne does not change the position of the respondent that it dismissed Mr Byrne for dishonesty and it has not changed that view.
45 On appeal, counsel for the appellants did not submit that the principle was anything other than as set out above in the passage from Byrne. Rather, he submitted that exceptional circumstances existed in the present case because it had been demonstrated, during the period when Mr Byrne had been at the workplace pursuant to the interlocutory order which he obtained at the outset of the proceeding, that he was able to work to the satisfaction of the respondent. That was the argument referred to in the paragraph from her Honour's reasons set out above. However, save to reiterate the argument, no real attack was made on those reasons. In my view, the basis upon which her Honour rejected the argument is unassailable. More importantly, it is free of error of the kind that would warrant the disturbance of the exercise of a discretionary judgment: see House v The King (1936) 55 CLR 499.
46 Moreover, for my own part I would not generally regard it as a circumstance warranting the exceptional remedy of an order for the specific performance of a contract of employment that, as required by an interlocutory injunction, the employer concerned had continued to tolerate the presence at the workplace of someone whom it had dismissed. If this came to be recognised as such a circumstance, the discretionary, and intensely pragmatic, process of considering how best to maintain the status quo at the outset of a proceeding, before the rights and wrongs of the matter had been investigated, would be significantly complicated.
47 For the reasons given above, I would dismiss the appeal.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup .