Mr Christensen's and Mr Fleming's reasons
194 Before turning to examine the reasoning process employed by Mr Christensen and Mr Fleming, it is appropriate to say something about Mr Scott's manner or attitude. The reason for this is because his manner or attitude has, as mentioned above, the potential to be contentious in the application of the four attitude assessment criteria to those employees involved in CFMEU-related activities at the Mine. Based on my observations of his demeanour in the witness box and, more importantly, the various incidents described in his evidence and the evidence of other witnesses, including Mr Pretorius and Mr Fleming, I formed the impression that Mr Scott's general manner was direct and blunt. My impression was that he adopted the same manner when carrying out his union activities. In that role, I assessed him to be keenly aware of his industrial rights and those of his fellow CFMEU members, and to be particularly assertive about those rights. The evidence also shows that, in carrying out his union activities, he was quick to challenge those in authority at Clermont Coal, from Mr Pretorius down to Mr Fleming. Indeed, it shows that he threatened both men with legal action on two specific occasions - for Mr Pretorius, see the State of the Nation incident described at [139] above and, for Mr Fleming, see the incident described at [181] above. I also formed the impression that Mr Scott had a tendency to goad those in authority at Clermont Coal. I can therefore understand why both Mr Christensen and Mr Fleming formed the view he was, at times, sarcastic. For all these reasons, I think it was likely that he was generally known within Clermont Coal's management team, and by its superintendents and supervisors, as a union activist who was particularly difficult to deal with.
195 Given these aspects of his general manner and his approach to carrying out his union activities, it was always likely to be a difficult task for Mr Christensen and Mr Fleming to assess Mr Scott's attitude, ensuring their assessments were free of the substantial and operative intrusion of the alleged particular reasons. This does not mean that s 361 of the FWA will inevitably apply to protect a union activist like Mr Scott from adverse action. This very point was made by French CJ and Kiefel J in BHP Coal at [20], and French CJ and Crennan J in Barclay at [60]-[62]. However, it does mean that, where an employee's attitude is a central part of an assessment as to whether he will be subjected to such adverse action and that employee is a union activist, it will be necessary to carefully examine the reasoning process of the person making the assessment to ensure that it is made for a reason associated with his performance as an employee, or more generally, rather than for any reason substantially and operatively associated with his union activities. In my view, Mr Christensen made that distinction, but I am not satisfied, on the balance of probabilities, that Mr Fleming did. My reasons for reaching this conclusion are set out in the following paragraphs.
196 As to the manner in which they each gave their evidence, Mr Christensen does not retain any continuing ties with Clermont Coal so I consider his evidence is less likely to have been slanted in Clermont Coal's favour. Mr Fleming, on the other hand, remains employed by Clermont Coal.
197 From my observations, Mr Christensen gave his evidence in a frank and responsive manner, and I consider his evidence was broadly coherent. By comparison, I found Mr Fleming's evidence to be vague and discursive. In my view, it contained a number of unexplained discrepancies and perplexing inconsistencies, many of which have already been remarked on.
198 As I have mentioned, both men assessed Mr Scott's manner to be sarcastic on occasions. However, I thought their differing reactions to that sarcasm was telling. Mr Christensen's reaction to it was to counsel Mr Scott about it (see at [153] above). Consequently, he claimed to have a good rapport with Mr Scott (see at [148] above), a claim which, in all the circumstances, I accept. Their ability to amicably resolve the perceived conflict between Mr Scott's work and union duties provides a good example of this (see at [20(a)] above). By comparison, Mr Fleming appeared, in my view, to be personally affronted by Mr Scott's sarcasm: see, for example, the evidence set out at [180]- [182] above. As a result, Mr Fleming said he had a "manageable" relationship with Mr Scott (see at [159(d)] above). In all the circumstances, I think this description is more likely to have been a euphemism for "difficult".
199 Both men gave Mr Scott a score of 2 for the third attitude criterion. In this respect, it is worth adding that, while this was the only 2 score Mr Christensen gave Mr Scott, Mr Fleming gave him five 2 scores. In his comments in support of his 2 score for this criterion, Mr Christensen relied on his "dealings with Mr Scott while performing his duties as a pump crew operator". For his part, Mr Fleming also relied on his "dealings with Mr Scott", but he did not specify the capacity in which those dealings occurred. As well, he relied on: "feedback that has been provided to me regarding [Mr Scott]". However, as his evidence proceeded, it became apparent that his personal observations of, or dealings with, Mr Scott were essentially reduced to the two incidents described above (at [181]-[182]). Significantly, both of those incidents involved dealings in Mr Scott's capacity as a member of the CFMEU executive (see at [180] above).
200 Aside from these two incidents, during his evidence, Mr Fleming progressively discounted his personal observations of, or dealings with, Mr Scott and emphasised the "feedback" he had received from others. This can be seen from the questions and answers at [173]-[175] above, where he began by saying he had relied on "small observations and some casual conversations", then he said that his observations were "a bit tough" to recall because he had no notes, and finally he adopted the position that he relied on: "more of a conversation I had had with his supervisor". I infer that this conversation was the conversation Mr Fleming claims he had with Mr Fry (see at [166] above). This is the first of three items of "feedback" that Mr Fleming ultimately identified in his evidence as particular matters upon which he relied in making his assessment of Mr Scott. The other two items were the two-way radio incident and the 2014 Enterprise Agreement vote incident. I will deal with each of these three items in turn.
201 As to the first, two things should be noted at the outset. First, this is the only item of "feedback" where the source was specifically identified, namely, Mr Fry. Secondly, this was Mr Fleming's only item of "feedback" that specifically related to Mr Scott's performance as an employee, rather than his attitude or dealings with Mr Fleming as part of his union activities. I do not include the two-way radio incident in this because that was related to his attitude, rather his performance. This item of "feedback" was described in Mr Fleming's comments for the third skills criterion (willingness to use skills) in the following terms: "on a number of occasions in the past, I have received feedback from Mr Scott's direct supervisor, Kevin Fry, to the effect that Mr Scott is lazy, that he lacked initiative and that he would often not do things unless he was asked to". In contrast to this claim, the general tenor of Mr Fry's evidence (see at [124]-[126] above) was that Mr Scott's work performance met the expectations of his role. The comments he made in Mr Scott's earlier WPRs (see at [125] above) provide contemporaneous evidence of this assessment. More significantly, Mr Fleming's evidence that Mr Fry had told him that he thought Mr Scott was "lazy" was not put to Mr Fry in his evidence-in-chief (see at [129] above). In those circumstances, I am not willing to infer in Clermont Coal's favour that Mr Fry made that comment to Mr Fleming on one of the occasions during 2014 when he had "general work-related discussions with him": see Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419 per Handley JA, Kirby P agreeing. Without such an inference, I do not consider I can conclude that Mr Fry told Mr Fleming that Mr Scott was lazy. Instead, I conclude that whatever "feedback" Mr Fry did provide to Mr Fleming, it is more likely to have been to the same general effect as his evidence described above. Since this is the only item of "feedback" where Mr Fleming identified a specific source, this conclusion raises obvious doubts about the reliability of Mr Fleming's evidence about the other "feedback" he received relating to Mr Scott. Moreover, this "feedback" was also used by Mr Fleming to justify his score of 2 for the third skills criterion.
202 As to the two-way radio incident, it is instructive to note, first, how Mr Christensen described that incident. He said that "on a number of occasions Mr Scott has made inappropriate comments over the two-way radio when he has been asked to make changes to his working arrangements. The issue would then be escalated to me and I would have to sort it out." The "inappropriate comments" Mr Scott made were therefore matters that Mr Christensen said he dealt with personally to the extent that he had to "sort it out". By comparison, Mr Fleming was not personally involved in the two-way radio incident and his knowledge of it came from: "feedback from other supervisors exactly who I cannot remember". Notwithstanding this lack of personal knowledge and vagueness of the hearsay "feedback" upon which he relied, when it was put to Mr Fleming in cross-examination that the members of the pump crew had been instructed by their supervisor not to agree to work for other crews without prior approval from that supervisor (see at [179] above), he responded that it was the "smart way … he says it over the radio". This answer is, in the circumstances described above, implausible and it, too, reflects adversely on the general reliability of Mr Fleming's evidence.
203 There are two other aspects of this two-way radio incident and the score Mr Fleming allocated to Mr Scott, at least partly based upon it, that are worth mentioning at this juncture. First, it is significant that, with his personal involvement in the incident, Mr Christensen gave Mr Scott a score of 3 for the second attitude criterion to which his comment above was directed. On the other hand, with his sparse, vague and hearsay knowledge of the incident, Mr Fleming gave him a score of 2 for the same criterion. Secondly, at about the same time as Mr Fleming gave Mr Scott this score of 2, at least partly based upon this incident, for which Mr Scott was not in any way disciplined, he gave Mr Kelly a score of 3, when Mr Kelly had a recent disciplinary breach for a similar type of incident (see at [189] above). It should also be noted that this latter matter was compounded by the fact that Mr Fleming also relied upon the two-way radio incident to give Mr Scott a score of 2 for the third attitude criterion (see at [177] above).
204 While I am highlighting the disparities in Mr Fleming's assessment scores for Mr Scott, compared to Mr Christensen's scores, it is convenient to identify another one. For the first skills criterion, Mr Christensen gave Mr Scott a score of 4 because, as he said in his comment for that criterion, "the pump crew was a crew which had skills and tickets which other crews did not have". He went on to exemplify the members of that crew having tickets to operate chainsaws, poly-welding equipment, loaders, excavators and trucks. On the other hand, notwithstanding these higher skills levels, Mr Fleming gave Mr Scott a score of 3 for the same criterion. Significantly, he did that without bothering to access Clermont Coal's computer system to ascertain what particular tickets, skills and licences Mr Scott held. Moreover, at about the same time, he allocated scores of 4 and 5 to the 15 employees from the haulage section who, based on Mr Christensen's observations, had lower skills levels, as a group, than the members of the pump crew (see at [187] above).
205 Finally, the only other specific item of feedback Mr Fleming relied upon to justify his assessment of Mr Scott was the "feedback" referred to in the third paragraph of his comments for the fourth attitude criterion score (see at [164] above). This "feedback" turned out to be, what could only be described as, rumour about an exchange between Mr Scott and Mr Pretorius at the 2014 Enterprise Agreement vote where, again, Mr Scott was acting in his capacity as a union official (see at [185] above). It is of interest to note that Mr Pretorius apparently did not consider this incident was particularly significant because he did not make any mention of it in his evidence.
206 Before leaving the topic of the "feedback", it is also worth recording just how vague Mr Fleming was when attempting to provide any details of it. For example, he said: it was "over a period of time of some small observations and some casual conversations" (see at [173] above); "There have been other occasions, but I'm not a hundred per cent sure on them at all" (see at [177] above); and "I'm not a hundred per cent sure, because it was second-hand from another supervisor" (see at [189] above). And finally on this topic, it is worth noting that Mr Fleming appeared to conflate the "feedback" referred to in his comments for the second, third and fourth attitude criteria. An example of this was his evidence that the "push back" referred to in relation to the third attitude criterion was based on the same "feedback" that founded his comments about the second attitude criterion, namely, the feedback about the two-way radio incident (described at [177] above). This conflation means that all of those comments are founded on the same vague, unsourced and, in my view, unreliable hearsay.
207 Finally, it is necessary to return to the unexplained discrepancies in Mr Fleming's evidence surrounding the ranking spreading (Exhibit A11). On Mr Scott's case, these discrepancies show that Mr Fleming was introduced as a second assessor after that spreadsheet was prepared on or about 16 September 2014 by an unidentified person in Clermont Coal's management team to ensure that Mr Scott's average assessment score was sufficiently low that he would be ranked among those employees whose positions would be made forcibly redundant. This contention is supported by the following matters:
(a) First, Exhibit A11 shows that on or about 16 September 2014 Mr Scott had one assessor, namely, Mr Christensen. Mr Fleming said in his evidence that he undertook his assessment in "late September 2014". That evidence is consistent with what is shown in Exhibit A11. However, it is inconsistent with the date shown on Mr Fleming's score sheet for Mr Scott: 10 September 2014. Moreover, Mr Fleming constantly confirmed this date in his evidence;
(b) Next, while it was claimed that Mr Fleming was introduced to provide a second assessor for the group of 16 employees, including Mr Scott, Mr Scott's inclusion in that group is peculiar for at least two reasons. First, he had a 2013 WPR score of 3, whereas the other 15 employees in the group had a 2013 WPR score of 2. Secondly, Mr Scott was the only employee in the group who was being assessed for the second time and there is no apparent reason why the other 15 employees were being assessed at all given that, with a 2013 WPR score of 2, they were to be made forcibly redundant in any event. With the exception of Mr Scott's 2013 WPR score of 3, Mr Fleming said he was aware of all those matters when he was asked to undertake these assessments (see at [161] above); and
(c) Finally, there are the marked disparities between the scores Mr Fleming gave to Mr Scott and the scores he gave to the 15 other employees he assessed at the same time, and the 119 employees he had assessed earlier (see at [187] above). As I have mentioned a number of times above, there is also the significant disparity between his scores for Mr Scott - a total of 19 including five 2 scores - and Mr Christensen's scores - a total of 24 with one 2 score.
208 The explanation given by Clermont Coal's counsel for the discrepancy presented by Exhibit A11 (see at [53] above) does not, in my view, address most of the discrepancies set out above. In fairness, it was probably not intended to, but rather to support Clermont Coal's contention that Mr Scott's position would have been made redundant, in any event, based on that ranking spreadsheet. On that issue, there is the countering evidence of Mr Fleming about the four, or possibly five, employees on that spreadsheet with a ranking lower than Mr Scott's ranking whose positions were not declared redundant (see at [162] above). In addition, it is to be noted that, in Kodak, the Full Court was willing to assume that, if the assessment was "done without having regard to [a] prohibited reason, it is likely that a different ranking would have been given" (Kodak at [37]). While this observation is obviously affected by the factual circumstances of that particular case, taking into account the unsatisfactory nature of Mr Fleming's evidence described above, I consider it is more likely than not that, had Mr Scott's second assessment not been affected by a prohibited reason, his average assessment score may well have been such that his position was not declared redundant. The fact that an average assessment score of 24 turned out to be the decisive ranking reinforces this conclusion.
209 In any event, I do not consider I need to resolve these discrepancies because it suffices for me to conclude that, unexplained as they are, they fall to be weighed in the balance against Clermont Coal in assessing whether or not it has discharged its onus under s 361 of the FWA.
210 Having undertaken this examination of the reasoning process employed by Mr Christensen and Mr Fleming, I am drawn to two conclusions. The first is that I consider Mr Christensen's reasons for his assessment scores were properly focused on Mr Scott's performance as an employee and more generally on his manner and attitude. Because of the various matters I have highlighted above, I accept Mr Christensen's evidence that the reasons for his assessment were not substantially and operatively based on any of the particular reasons above. That being so, I consider Clermont Coal has discharged its onus insofar as Mr Christensen's reasoning process is concerned.
211 However, I do not consider I am able to come to the same conclusion about Mr Fleming's reasoning process. Based on the many unsatisfactory aspects of his evidence highlighted above, I do not consider Mr Fleming concentrated, as he should have and as I consider Mr Christensen did, on Mr Scott's performance as an employee and his attitude and manner more generally. Instead, I consider Mr Fleming was distracted from that course by his difficult relationship with Mr Scott, which stemmed from his terse dealings with him as a CFMEU executive member. In that state of mind, I consider he did allow one or more of the alleged particular reasons above to affect his reasoning process.