Construction, Forestry, Mining and Energy Union v Bengalla Mining Company... [2013] FCA 267 | Case summary

Was adverse action taken for a prohibited reason? 53 The question of why Bengalla took adverse action against Mr Dever is a question of fact and it must be answered in the light of all the facts. Direct evidence from the decision-maker(s) is obviously relevant, albeit not decisive. The central question is why the action was taken, not what the employer says was the reason it took the action: Barclay at [44] per French CJ and Crennan J. As Heydon J put it in the same case at [141], "mere declarations" by a witness as to his or her mental state may not be enough to discharge the employer's onus of proof; "[e]xternal circumstances could put into question the reliability or credibility of those declarations". But if the decision-maker says that the prohibited reason had nothing to do with his decision and that evidence is accepted, then the employer will have discharged its onus: Bowling at 612 per Gibbs J. The position is perhaps best encapsulated in the reasoning of Gummow and Hayne JJ in Barclay at [127]: In determining an application under s 346 [it is necessary to] assess whether the engagement of an employee in an industrial activity was a "substantial and operative factor" as to constitute a "reason", potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence [is] to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it [is] the reasons of the decision-maker at the time the adverse action was taken which [is] the focus of the inquiry. 54 The case as pleaded alleged that the adverse action was taken by Mr Blason. As I indicated earlier, however, while Mr Blason signed the warning letter and handed it to Mr Dever he did not make the decision to issue the written warning. That decision was made by Mr Korman after discussions with Mr Lawler and Mr Blason. All three gave evidence about the factors that influenced their actions. 55 Mr Blason said that he did not take into account Mr Dever's membership of the union, the fact that he was the lodge representative on the Board of Management or that he may have attended a Board of Management on 29 August 2012 or that he was engaging or proposing to engage in industrial activity. He said he did what he did because Mr Dever had breached the leave policy and had failed to attend work as rostered, without approval and without being on authorised leave, in circumstances where he had been told that his application for unpaid leave had not been approved and he had not applied for any other form of leave. 56 Similarly, Mr Lawler said that neither in assisting with the investigation nor in preparing the written warning did he take into account Mr Dever's union membership, his role as the lodge representative of the Board of Management or his involvement in industrial activity. 57 Mr Korman stated that at the time he decided that Mr Dever should receive a written warning he considered four matters: • the terms of the leave policy; • the fact that Mr Dever could have applied for annual leave and that he had been told that the company would support such an application; • that Mr Dever had "blatantly breached" the leave policy because without approved leave he was obliged to attend for work as rostered; and • Mr Dever's "reckless" failure to notify his supervisors on the day of his unauthorised absence. 58 Mr Korman said that his decision to issue Mr Dever with a written warning was not influenced "in any way" by the fact that Mr Dever was a union official, or was attending or proposing to attend a union meeting, or was otherwise engaging or proposing to engage in industrial activity. Those factors, he stressed, played no part in his decision. He said that at no stage did he have any concern about Mr Dever attending to union business and never suggested to anyone that he could not or should not attend any union-related conferences or meetings. Indeed, he said he was happy to support an application for annual leave to enable him to do so. 59 Mr Korman was unshaken in cross-examination: MR SLEVIN: Now, at this stage when you're considering what to do you're certainly aware that what had happened was Mr Dever had gone to a union meeting on 29 August, aren't you? ---That's correct. And that he had done that in circumstances where he applied for unpaid leave and you had denied that application? ---That's correct. And so were those the two considerations that you had in your mind in making your decision about a written warning? ---Sorry, could you just repeat that question? Was it those factors, I'm just trying to think, going through this material, what material you had, was it those factors that HER HONOUR: Which factors? MR SLEVIN: influenced you, the two factors, that he had gone to a union meeting in circumstances where he asked for leave and you had knocked him back for leave? ---No. All right. Well, what was it then? ---That he - he was absent from work and he was not authorised to be absent from work. He was rostered on and he was absent from work. He applied for leave which was refused and he chose to ignore the direction of the company. That was the basis of the decision. Now, in terms of your consideration, though, his presence at the union meeting was the reason for his absence, wasn't it? ---That's correct. And you simply didn't take that into account? ---That's correct. And so it wouldn't have mattered if he had gone fishing that day? ---That's correct. Irrespective of where he was to go or who he was to meet, that wouldn't have mattered. 60 When it was suggested to him that he could not separate where Mr Dever went from the fact of his absence, Mr Korman accepted that it was in his mind that he was applying for leave to attend a union meeting. He stressed, however, that it was not the reason for his decision: I understood that where he applied to go, that's right, and yes, I - that was, yes, that was in my mind but it's not the reason for the decision. Irrespective of where he wanted to go, that's not the reason for the decision. 61 To the suggestion that he had convinced himself that he had put out of his mind the possibility that union activity had anything to do with his decision, Mr Korman replied: I was aware of it for sure but it's not the basis for the decision. The policy is pretty clear. You've got to use all your accrued leave, very happy for you to support your annual leave, very happy to support your application [for] that. Until you've used that accrued leave you won't be considered for unpaid leave. So it's a pretty easy separation to make. To go to union meetings? - Any meeting. 62 It is easy to be sceptical about statements like these made in the context of litigation of this kind. They are plainly self-serving. But in this case they are supported by the contemporaneous evidence and there was nothing in what Mr Korman said or in the way he said it to suggest that he was insincere. 63 There is therefore a wealth of evidence from those individuals who took part in the decision-making process that Mr Dever's union membership, status or activities had nothing to do with the company's decision to issue the written warning. 64 The union submitted that this evidence should nonetheless be rejected. It contended that the denials by the Bengalla witnesses must be weighed against the evidence that shows that the purpose of the absence was to attend a union meeting. It submitted that their denials are not credible and should not be regarded as sufficient to discharge its onus of proof because: (1) when the decision to send the warning letter was made the witnesses were well aware that Mr Dever was a union member and officer who had attended the Board of Management meeting; (2) (despite what Mr Korman said) the reason for the absence cannot be separated from the reason for the disciplinary action; (3) the investigation process was "tainted" or flawed in that only one interview was conducted, the relevant documents were not collected, the person who carried out the interview was involved in making the decision to refuse the leave, and relevant material was not taken into consideration or investigated - in particular, there was no consideration of the 2 August letter from the union; and (4) Mr Korman knew that it would have been unlawful to take Mr Dever's union affiliations and activities into account. 65 Furthermore, the union contended that if Mr Korman acted only because of what was in the policy, he was, in effect, acting under dictation. 66 I am not persuaded by any of these submissions. 67 First, there is no reason to doubt the reliability of the evidence given by Bengalla's witnesses. None of them was discredited in cross-examination and their evidence is not inherently implausible. There are no objective facts to contradict it. It is supported by contemporaneous documents and is based on the company's leave policy. There is nothing to suggest that any of these men had any problem with Mr Dever attending the Board of Management meeting; they were merely concerned about him doing so without approved leave. 68 There is no evidence to suggest that any of the witnesses bore any antipathy towards the union or had any objection to Mr Dever's involvement with the union. Neither is there evidence to suggest that the policy was applied in a partisan or discriminatory way or that Mr Dever was disciplined when others who had taken unauthorised leave were not. Mr Lawler gave evidence which showed that Mr Dever's leave applications were considered in precisely the same way as any other employee's. Mr Janney's letter to the union made it clear that if Mr Dever absented himself from work without permission he would be treated no differently from any other employee at Bengalla. He gave evidence to the same effect. He was not required for cross-examination. 69 In truth, what the union sought was preferential treatment. Mr Dever conceded as much in cross-examination. The union's real complaint was not that Bengalla took into account Mr Dever's union status and commitments, but that it failed to take them into account. 70 Secondly, if the union were right, then no employer who took adverse action against an employee knowing the employee to be a member or officer of a union, or knowing that the employee was engaging or intending to engage in industrial activity, could ever discharge its onus of proof. On the union's argument, an employer who dismissed an employee for admittedly sexually assaulting a fellow employee or for stealing from the company would contravene the Act and face the prospect of civil penalties merely because it knew that the employee was a union member or officer, or was engaged in an industrial activity. And what if the sexual assault occurred at a union conference or the money was stolen to finance striking employees? The Act was not intended to limit the authority of an employer to take disciplinary action in circumstances such as these. There is a difference between knowing something and taking action for that reason. 71 The union's argument is not materially different from the argument the High Court rejected in Barclay and to accept it would invite the very criticism levelled at the union parties in that case. As French CJ and Crennan J explained at [60]-[62]: [60] First, it is erroneous to treat the onus imposed on an employer by s 361 as being made heavier (or rendered impossible to discharge) because an employee affected by adverse action happens to be an officer of an industrial association. Further, the history of the relevant legislative provisions reveals no reason why the onus must now be different if adverse action is taken while an employee engages in industrial activity - like a person who happens to be an officer of an industrial association, a person who happens to be engaged in industrial activity should not have an advantage not enjoyed by other workers. [61] Central to the respondents' argument on this appeal was the contrary and incorrect view that Mr Barclay's status as an officer of an industrial association engaged in lawful industrial activity at the time that Dr Harvey took adverse action against him meant that Mr Barclay's union position and activities were inextricably entwined with the adverse action, and that Mr Barclay was therefore immune, and protected, from the adverse action. If accepted, such a position would destroy the balance between employers and employees central to the operation of s 361, a balance which Parliament has chosen to maintain irrespective of the fact that the protection in s 346(b) has a shorter history than the protection in s 346(a). That balance, once the reflex of criminal sanctions in the legislation, now reflects the serious nature of the civil penalty regime. Speaking more generally, that balance is a specific example of the balance of which Alfred Deakin spoke as being necessary for an effective conciliation and arbitration system. [62] Secondly, it is a related error to treat an employee's union position and activity as necessarily being a factor which must have something to do with adverse action, or which can never be dissociated from adverse action. It is a misunderstanding of, and contrary to, Bowling to require that the establishment of the reason for adverse action must be entirely dissociated from an employee's union position or activities … The onus of proving that an employee's union position and activity was not an operative factor in taking adverse action is to be discharged on the balance of probabilities in the light of all the established evidence. 72 Thirdly, this is not an inquiry into the fairness of the investigation or the leave policy, or whether the investigation conformed to the company's policies. Nor is it an inquiry into whether, by following the policy, the manager wrongly assumed he had no discretion or wrongly fettered his discretion. No allegation of this kind is made in the pleadings. The union's complaints about the conduct of the investigation and the application of the leave policy are irrelevant. 73 It was put to Mr Blason in cross-examination that he must have considered the reason for Mr Dever's absence when investigating the misconduct because the company's "Managing Performance Policy" requires that it be considered. The foundation for this cross-examination was the definition of misconduct in the performance policy, which includes "unauthorised absenteeism without reasonable cause or notice". It was put to Mr Blason that if he was going to investigate an allegation of unauthorised absenteeism without reasonable cause or notice, he had to consider the reason for the absenteeism and see whether there was a reasonable cause for it. Mr Blason agreed. Mr Blason also agreed that the cause of Mr Dever's absence was that he was away on union business. 74 The last answer was not explored any further or developed in submissions and the matter was not pursued with Mr Korman, the actual decision-maker. 75 It does not follow from what Mr Blason said that there was any consideration of the cause of Mr Dever's absence. 76 The evidence indicates that there was no inquiry into the cause of the absence because the cause was known, and there was no inquiry into whether the cause was reasonable because the company was indifferent as to the cause. Indeed, the notes taken during the 7 September 2012 meeting show that Mr Blason told Mr Dever that when approving leave, what the person is doing is not a factor. Mr Dever remonstrated that it should be. 77 Furthermore, the cross-examination assumed that the investigation was into Mr Dever's "unauthorised absenteeism without reasonable cause or notice". Mr Blason was merely asked whether that was "the sort of conduct" he was investigating. The cross-examination also assumed that the warning letter was issued for the same reason. But "unauthorised absenteeism without reasonable cause or notice" was only one example of misconduct. On the list (which was not exhaustive) was also "a breach of company policy or procedure" and "a breach of the employee's contract of employment". Mr Dever's conduct answered these descriptions and went to the heart of the reasons Mr Korman gave for issuing the warning. Unauthorised absenteeism rather suggests a trend or pattern of absenteeism (see cl 6.1 of the leave policy). Mr Dever was not disciplined for this reason. The other policy breach mentioned in cl 6.1 was taking leave without adequate supporting documentation. That is what happened here and it was this second policy breach that Mr Korman said he had in mind when deciding to issue the warning. But it is not all that happened. Mr Dever not only took leave without adequate supporting documentation, his leave was not approved, he knew it was not approved and, despite this, he decided not to attend work when he was rostered to do so. 78 Fourthly, it is scarcely to the point that Mr Korman knew it would be wrong to take disciplinary action for a prohibited reason. Teenagers and rebellious children aside, since when does knowing that something is wrong make it more likely that one would do wrong? Indeed, I would have thought that the fact that Mr Korman knew about the prohibition against taking union membership and related matters into account makes it less - not more - likely that he would do so. 79 I am persuaded by the evidence of the Bengalla witnesses that neither Mr Dever's union membership, nor his position as an officer of the union, nor the fact that he was absent from work to attend a Board of Management meeting had anything to do with Bengalla's decision to take disciplinary action against him.

Construction, Forestry, Mining and Energy Union v Bengalla Mining Company Pty Limited

At a glance

Court

Decision date

Before

Source

Judgment (7 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (3)

Cited By (1)