Jessup J
1 This is an appeal from a judgment of the Federal Circuit Court of Australia given on 3 October 2013, whereby the application of the appellant, the Construction, Forestry, Mining and Energy Union, alleging contraventions of Pt 3-1 of the Fair Work Act 2009 (Cth) ("the FW Act") by the respondent, Endeavour Coal Pty Ltd, was dismissed. The Federal Circuit Court had published reasons for this judgment on 27 June 2013, and it is those reasons that are the subject of the appellant's challenge in the present appeal.
2 The proceeding in the Federal Circuit Court related to adverse action which had been taken by the respondent against Alan McDermott, a maintenance fitter employed at its West Cliff Colliery ("the mine"), in September 2010 and April 2011. In relation to the September adverse action, the primary Judge held that Mr McDermott had previously exercised a workplace right within the meaning of s 341 of the FW Act (the terms of which are set out below), but his Honour found that the action had not been taken for a reason, or for reasons which included a reason, that would have made it unlawful under Pt 3-1. In relation to the April adverse action, his Honour held that it had been taken for a specific reason which did not amount to the exercise of a workplace right, and that no previous exercise of an arguably relevant workplace right by Mr McDermott was the reason, or part of the reason, why that action was taken.
3 The primary Judge's conclusions with respect to the reasons for which the adverse action was taken against Mr McDermott are challenged in this appeal.
4 Mr McDermott had been on the permanent maintenance staff at the mine since November 2005. In the period leading to the events which became relevant in the proceeding in the Federal Circuit Court, he was employed on what was described as the "weekend day shift roster", which involved him working on Fridays, Saturdays and Sundays. Between 21 December 2007 and 5 September 2010, he was absent from work on 15 occasions, covering a total of 29½ days, by way of sick leave, carer's leave, or parental leave, which may be referred to compendiously as "personal leave". In all but one instance (13 June 2010), this leave was within Mr McDermott's entitlement under the agreement which applied to his employment, the West Cliff Colliery Workplace Agreement 2008 ("the agreement"), a "workplace instrument" within the meaning of s 341(1)(a) of the FW Act.
5 On 10 September 2010, the respondent moved Mr McDermott from the weekend day shift roster to the ordinary Monday-Friday roster. This was adverse action within the meaning of Pt 3-1 of the FW Act. The decision to make the change was made by Warwick Young, Engineering Manager at the mine. I shall return to the evidence about Mr Young's reasons for making this change presently, but for the moment it is sufficient to note that they were substantially related to Mr McDermott's absences from work as referred to in the previous paragraph.
6 Mr McDermott thereafter worked on the Monday-Friday roster until 8 November 2010, when he signed a document, described as an "agreement" between himself and the respondent, in the following terms:
I agree to comply with the following terms and conditions, as a condition of my returning to Weekend Dayshift roster at West Cliff mine and in accordance with the West Cliff Mine Workplace Agreement 2008.
1. I agree to take responsibility for properly managing my attendance at work, including managing the personal issues that I have raised with the Company.
2. I agree to seek support and assistance in understanding how to manage my reactions to situations within the workforce and to provide evidence to the Company that demonstrates that I have developed in this area.
3. I agree to notify the Shift Undermanager as soon as I become aware that I may not be able to attend work, which shall be at least 2 hours prior to the start of that shift. In cases where the Shift Undermanager cannot be contacted I will contact the Shift Engineer or the Maintenance Manager.
4. I agree to arrange an alternate shift during the week when I have taken periods of unplanned absence, unless otherwise agreed by the Maintenance Manager.
5. I agree to provide a medical certificate setting out the reason for my absence in support of all future absences on personal/carers leave. I will ensure the medical certificate includes details of the specific illness or injury that has caused me to be unable to attend work.
6. I agree to attend discussions with the Maintenance Manager after any future absences from work.
7. I understand that the Company has a right and responsibility to manage the Operations and this may include moving me to another shift if my absenteeism cannot be self-managed.
I understand the above agreement between the Company and myself and commit to the terms and conditions within it. I understand that if I fail to comply with the terms and conditions in this agreement without reasonable excuse, the Company may take further action.
In consequence of Mr McDermott executing that document, he was returned to the weekend day shift roster, and remained there until 1 April 2011.
7 On 18 March 2011, Mr McDermott absented himself from work. He claimed that this was because he was feeling unwell, but he did not, on that day or subsequently, provide any kind of medical support for that claim. He did not comply with cl 16.7 of the agreement, which provided:
16.7 Proof of illness or injury
If required by the Company an Employee must prove to the satisfaction of the Company that the absence from work was on account of such illness or injury to themselves or an illness or injury or unexpected emergency suffered by a member of the Employee's immediate family or household.
Neither did Mr McDermott provide evidence of the kind referred to in s 107(3) of the FW Act.
8 On 1 April 2011, the respondent issued Mr McDermott with a final written warning with respect to absenteeism (to the terms of which I refer below), and again moved him from the weekend day shift roster to the Monday-Friday roster. This was the second instance of adverse action, within the meaning of s 342 of the FW Act, referred to above. The decision to issue the warning and to make the change - treated by the primary Judge as effectively a single process - was made by Mark Peace, who was then Engineering Manager at the mine. His reason or reasons for doing so were the subject of findings by the primary Judge, and I shall return to them. It is sufficient here to note that the action he took was at least responsive to his reading of the circumstances in which Mr McDermott was absent from work on 18 March 2011.
9 The provision of the FW Act upon which the appellant proceeded in the Federal Circuit Court was s 340(1)(a), which provides as follows:
(1) 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; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; ….
The meaning of the term "workplace right" which was relevant was that given in s 341(1)(a):
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; ….
10 The following adjectival, but nonetheless important, provisions of Pt 3-1 of the FW Act were also relied on in the appellant's case below:
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
361 Reason for action to be presumed unless proved otherwise
(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….
11 I propose to commence with the case against the respondent in relation to the adverse action which it took in September 2010. The primary Judge held that, in absenting himself from work on the occasions, and in the circumstances, referred to in para 4 above, Mr McDermott had exercised a workplace right within the meaning of s 341(1)(a) of the FW Act, namely, the entitlement given to him under the agreement to take personal leave. That holding is not challenged by the respondent in the present appeal. The situation was, therefore, that it lay upon the respondent to discharge the onus of proving that its reasons for taking this adverse action did not include the circumstance that Mr McDermott had exercised that entitlement. His Honour held that the respondent did discharge that onus. His reasoning in this regard lies at the centre of the appellant's appeal with respect to the September adverse action.
12 As mentioned above, the decision to transfer Mr McDermott to the Monday-Friday roster was made by Mr Young. As to his reasons for doing so, the primary Judge set out the following evidence of Mr Young, which his Honour accepted:
74. Mr Young said that Mr McDermott was moved to weekday shifts for reasons which included his six periods of unplanned absence from September 2009 to September 2010, some of which were due to family reasons. He said that the real reason for the action taken in relation to Mr McDermott was his poor attendance, regardless of the justification. Mr Young said that Mr McDermott's absences were causing operational problems for the Mine.
75. Mr Young agreed that the reasons for Mr McDermott's absences did not matter to him, rather it was the fact of those absences that mattered. He said that Mr McDermott's record of absences going back two years was unsatisfactory and that this was part of the reason he was removed from the weekend day shift.
13 The primary Judge also said:
174. It can be accepted that Mr McDermott's absences on the weekend day shift would have been very inconvenient and possibly expensive to Endeavour for the reasons elaborated by Messrs Young and Hannigan. I accept that Mr Young decided to move Mr McDermott from the weekend day shift because he was concerned for the economic effectiveness of that shift as well as for safety reasons which he mentioned.
And:
177. I have concluded that Mr McDermott was moved from the weekend day shift because Endeavour did not want to have workers on that shift whose attendance was not predictable and reliable and I am of the view that it used the Absenteeism Management Process as a procedure sanctioned by the Agreement as the means to achieve this. But even though in Mr McDermott's case the Absenteeism Management Process operated by reference to occasions of leave which he had been entitled to take, I have concluded that it was the lack of predictability in Mr McDermott's attendance which was the reason for the decision to move him from the weekend day shift, not the fact that he had previously exercised his rights to personal/carer's leave.
14 It was the concluding passage in this extract from the primary Judge's reasons that amounted to a finding that the respondent had discharged the onus of proving that its reasons for taking adverse action against Mr McDermott did not include his exercise of the entitlement to take personal leave. At the purely factual level of Mr Young's thinking, the appellant did not challenge this finding. If that were the end of the matter, the present appeal could not succeed: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 ("Barclay"). However, it was submitted on behalf of the appellant that the absences from work by reason of which adverse action was undoubtedly taken against Mr McDermott were, in fact, the very absences which were covered by the leave to which he was entitled under the agreement. On the primary Judge's findings, it should have been held, and it should now be held, that, in taking action against Mr McDermott because of those absences, the respondent took action against him because he exercised that entitlement.
15 Consideration of this submission will require close attention to be given to the reasons of the High Court in Barclay, and in the later case in the same line, Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 314 ALR 1 ("BHP Coal").
16 In the facts leading to the judgment in Barclay, an employee, who was also an officer of the relevant union, was disciplined (and thereby subjected to adverse action within the meaning of s 342 of the FW Act) after he sent an email to the staff working for his employer, an institute of technical and further education, informing them that members of the union had witnessed, or been asked to participate in the production of, false and fraudulent documents for use in a forthcoming audit of the institute's activities. He asked the staff not to engage in such conduct, and to contact the union if they were under pressure to do so. The email was signed by the employee in his capacity as an officer of the union, and it would seem to have been uncontroversial that the sending of it was, in point of fact, an "industrial activity" within the meaning of s 347 of the FW Act.
17 As set out in the reasons of French CJ and Crennan J in Barclay, the relevant decision-maker explained her reasons for disciplining the employee as follows (248 CLR at 511-512 [27]):
"I considered the investigation into Mr Barclay's actions necessary because it appeared to me that he had failed to notify either me or his direct manager of very serious allegations, being allegations of fraudulent conduct in the workplace, which were material to the Audit process. Instead, he proceeded to cast aspersions and innuendo upon his colleagues by way of a widely circulated email. I regarded this as prima facie evidence of a breach of the Code of Conduct and his obligations as … [an institute] employee.
I made the decision to investigate Mr Barclay's conduct in sending the Email on the basis that he is an employee of … [the institute] who is required to adhere to policy and procedures that govern his employment, not because of his membership of or role in the AEU ….
I made the decision to suspend Mr Barclay because I was of the view that the allegations against him were serious and I was concerned that if Mr Barclay was not suspended he might cause further damage to the reputation of … [the institute] and of the staff … [of the institute]."
This evidence had been accepted by the primary Judge, a course which was not thereafter challenged (either in the Full Court or in the High Court).
18 In their joint reasons, French CJ and Crennan J rejected the idea that s 346, and s 361, required only an objective inquiry into the defendant employer's reason for taking adverse action. Their Honours continued (248 CLR at 517 [44]):
The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?"
19 Their Honours also rejected the proposition that the employee was protected under Pt 3-1 of the FW Act because his "union position and activities were inextricably entwined with the adverse action" taken against him (248 CLR at 523 [61]). Their Honours held that an employer could discharge the onus of proof arising by reason of the terms of s 361 of the FW Act without proving that the reason for the adverse action in issue was "entirely dissociated from an employee's union position or activities" (248 CLR at 523 [62]). They added that it was appropriate for a decision-maker to give positive evidence comparing the position of the employee affected by the adverse action with that of an employee who had no union involvement (248 CLR at 524 [63]).
20 In conclusion, French CJ and Crennan J said (248 CLR at 524 [65]):
In this case the primary judge adopted the correct approach to the relevant provisions. Dr Harvey gave evidence of her reason for taking adverse action against Mr Barclay and also gave positive evidence that this was not for a prohibited reason and that she would have taken the same action against a person circulating a similar email who was not an officer of the [union].
21 In the reasons of Gummow and Hayne JJ, the first of four questions said to arise in the appeal - whether the reasons of the decision-maker were to be identified objectively or subjectively (248 CLR at 540 [118]) - was not to be answered by reference to that simple dichotomy. Rather, the test was "whether adverse action [had] been taken because of a proscribed reason" (248 CLR at 542 [129]). In this respect, "the reasons of the decision-maker at the time the adverse action was taken … [were to be] … the focus of the inquiry" (248 CLR at 542 [127]).
22 The treatment given by Gummow and Hayne JJ to the remaining three questions in Barclay was concerned with the facts of the case, and would not add to an understanding of the matters presently under consideration.
23 The remaining member of the High Court in Barclay, Heydon J, commenced with the following proposition (248 CLR at 544 [140]):
Examining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action.
His Honour also said that, to "search for the "reason" for a voluntary action [was] to search for the reasoning actually employed by the person who acted" (248 CLR at 546 [146]). Rejecting the proposition that it was a logical consequence of the fact that the employee had acted for and on behalf of the union that the employer had to fail in discharging its onus of proof under s 361, Heydon J said the decision-maker's "mental state did not turn on whom [the employee] was acting for, but on what he did" (248 CLR at 547 [148]).
24 In BHP Coal, a union delegate had, in the course of participating in a union protest outside the entrance to his employer's premises during a period when most, but not all, of the relevant employees were on strike, held up and displayed a sign that contained the word "SCABS", with apparent reference to those who were continuing to work. The employee was dismissed. Summarising what had been accepted by the primary Judge, French CJ and Kiefel J said that the reasons of the decision-maker (Mr Brick) for dismissing the employee (Mr Doevendans) were that -
… the word "scab", which appeared on the sign Mr Doevendans held up and waved, was inappropriate, offensive, humiliating, harassing, intimidating, and flagrantly in violation of BHP Coal's workplace conduct policy (that policy required courtesy and respect to be accorded to fellow employees); Mr Doevendans was well aware of the policy; Mr Doevendans demonstrated arrogance when confronted with the objections to his conduct; and Mr Brick regarded the conduct as not only contrary to the policy, but antagonistic to the culture that Mr Brick was endeavouring to develop at the mine.
(314 ALR at 3, [3]). Referring to the reasons of the primary Judge, their Honours said (314 ALR at 3, [4]):
His Honour did not find that the mere fact that Mr Doevendans had held and waved the sign was one of Mr Brick's reasons for terminating the employment. Mr Brick's reasons had to do with the nature of Mr Doevendans' conduct. His Honour accepted Mr Brick's evidence that the fact that Mr Doevendans occupied certain positions within the CFMEU, and had engaged in industrial activity, did not play any part in Mr Brick's decision.
25 Turning to s 346 of the FW Act, French CJ and Kiefel J said (314 ALR at 3-4 [7]):
The focus of the inquiry as to whether s 346(b) has been contravened is upon the reasons for Mr Brick taking the adverse action. This is evident from the word "because" in s 346, and from the terms of s 361. The inquiry involves a search for the reasoning actually employed by Mr Brick. The determination to be made by the court is one of fact, taking account of all the facts and circumstances of the case and available inferences.
Of the four sentences in this passage, three were footnoted with references to Barclay. The first sentence contained a footnoted reference to paras 44, 127 and 140 of that judgment. The third sentence contained a footnoted reference to para 146. The fourth contained a footnoted reference to paras 45 and 127. All but para 45 have been covered by what has been written above. In para 45 of Barclay, French CJ and Crennan J had said, relevantly, that the question was one of fact, which had to be answered "in the light of all the facts established in the proceeding".
26 Returning to the facts of the case itself, French CJ and Kiefel J said (314 ALR at 4 [10]) that "[n]one of the reasons given by Mr Brick, and accepted by the primary judge as true in fact, was a reason prohibited by s 346(b)." Their Honours continued (314 ALR at 4 [10]):
Mr Brick did not dismiss Mr Doevendans because he participated in the lawful activity of a protest organised by the CFMEU (s 347(b)(iii)), nor did he dismiss Mr Doevendans because, in carrying and waving the sign, Mr Doevendans was representing or advancing the views or interests of the CFMEU (s 347(b)(v)), as the CFMEU alleged. Mr Brick's reasons related to the content of Mr Doevendans' communications with his fellow employees, the way in which he made those communications and what that conveyed about him as an employee. Mr Brick's reasons included his concern that Mr Doevendans could not or would not comply with the standards of behaviour which Mr Brick was attempting to instil in employees at the mine.
Referring to the finding of the primary Judge that the display of the scabs sign constituted industrial activity, their Honours said (314 ALR at 6 [22]):
The only inference which can be drawn from this additional reasoning is that, because the adverse action was based upon the sign which Mr Doevendans held and waved, this activity must be taken as one of the reasons for the action. That is to say no more than that the adverse action had a connection, in fact, to the industrial activity. That connection may necessitate some consideration as to the true motivations of Mr Brick, but it cannot itself provide the reason why Mr Brick took the action he did. That inquiry was concluded by his Honour's earlier findings. His Honour, in effect, wrongly added a further requirement to s 361, namely that the employer dissociate its adverse action completely from any industrial activity.
27 The other member of the majority in BHP Coal, Gageler J, elicited the following proposition from Barclay (314 ALR at 18 [85]):
Where the adverse action taken is in consequence of a decision made by a responsible individual within a corporation, the existence or non-existence of a particular reason as an operative and immediate reason for taking that adverse action turns on an inquiry into the mental processes of that individual.
His Honour continued (314 ALR at 18 [87]):
Two aspects of the background to the decision in Barclay are important to an understanding of the significance of that conclusion. The first was that evidence of the chief executive officer accepted by the primary judge did include prominently among the reasons for taking the adverse action the fact that the employee had sent an email to other employees. The second was that the majority in the Full Court of the Federal Court had made additional findings. Those additional findings were that the employee, in sending that email, encouraged or participated in a lawful activity organised by his union, and represented or advanced the views or interests of his union. [Footnote omitted]..The conclusion in this court was reached without addressing, much less disturbing, those additional findings. Whether or not the employee, in sending the email, encouraged or participated in a lawful activity organised by his union or represented or advanced the views or interests of his union was irrelevant to the reasoning adopted in this court to reach the conclusion. [Emphasis added]
And (314 ALR at 19 [89]):
In a case where the totality of the operative and immediate reasons for one person having taken adverse action against another person are proved, the question presented by s 346(b) is whether any one or more of those reasons answers the description of the other person having engaged in any one or more of the industrial activities listed in s 347(a) or s 347(b).
28 Gageler J finally referred to a submission made on behalf of the unsuccessful appellants in BHP Coal that the consequence of allowing the decision of the Full Court in that case to stand would be "to undermine the statutory protection afforded to protected industrial activity by allowing an employer to escape culpability by choosing to apply its own characterisation to otherwise protected industrial activity" (314 ALR at 19 [91]). His Honour answered that submission at two levels (314 ALR at 19 [92]-[93]):
Part of the answer to that argument lies in recognition of the nature of the protection that is afforded to protected industrial activity through the operation of s 346(b). The protection afforded by s 346(b) is not protection against adverse action being taken by reason of engaging in an act or omission that has the character of a protected industrial activity. It is protection against adverse action being taken by reason of that act or omission having the character of a protected industrial activity.
Another part of the answer lies in recognition of the significance of the combined operation of ss 360 and 361. An employer could not escape the proscription in s 346(b) merely by proving that the employer applied its own characterisation to an act or omission having the character of a protected industrial activity. The employer would need, in addition, to prove that the act or omission having the character of a protected industrial activity played no operative part in its decision.
[Emphasis added in each case]
29 The other members of the court in BHP Coal, Hayne and Crennan JJ, dissented.
30 In the Full Court in the present case, there was some debate as to whether BHP Coal had a ratio decidendi at all. The view that it did not was based on the premise that the reasons of Gageler J differed from those of French CJ and Kiefel J. At the level of principle, I would not accept that premise. Helpfully from the perspective of later courts, the reasons of Gageler J disclosed the essence of the decision of the majority in that case and, as their Honours found, of the decision in Barclay. The passages from the reasons of French CJ and Kiefel J which I have set out above reveal a distinction between the act done which is said to have amounted to participation in an industrial activity, on the one hand, and the thinking of the decision-maker with respect to that act, on the other hand. In essence, that was the same distinction that Gageler J referred to when his Honour said that the protection given by s 346 was not against adverse action being taken by reason of the employee engaging in an act or omission that had the character of a protected industrial activity, but, rather, it was protection against adverse action being taken by reason of that act or omission having the character of a protected industrial activity.
31 Counsel for the appellant in the present case based her argument seeking to distinguish Barclay and BHP Coal upon the holding of French CJ and Kiefel J in the latter that it was not sufficient for there to be a connection between the adverse action taken by the employer and the industrial activity in which the employee had engaged; and that, under s 361, it was not incumbent on the employer completely to dissociate the adverse action from any industrial activity. By contrast in the present case, counsel submitted, the absences from work by reason of which adverse action was taken against Mr McDermott were in fact the personal leave to which he was entitled under the agreement. Her client was not relying merely on some degree of association or connection between the two: Mr McDermott was subjected to adverse action for the very absences to which he was entitled.
32 The "connection" which was held not to be sufficient in BHP Coal was between the adverse action taken by the employer and the industrial activity in which the employee had engaged. It was not between two different characterisations of the conduct of the employee, in that case, as a contravention of the employer's conduct policy and as participation in industrial activity. As French CJ and Kiefel J made clear, if adverse action was taken because the conduct involved such a contravention, it did not become a breach of s 346 merely because the conduct was, at the same time, participation in industrial activity. The existence of such a "connection" was insufficient. What was necessary was that the actual reason of the decision-maker, in his or her own mind, be the employee's participation in industrial activity. To see their Honours' reasons in this way is, in my view, to recognise the consistency of those reasons with the statements of principle contained in the reasons of Gageler J in the same case. Those statements represent the law after Barclay and BHP Coal.
33 We are here dealing, of course, not with s 346, but with s 340, of the FW Act. But the formula which the legislature has chosen to define the relationship between the adverse action and the factual circumstance involving the employee against whom the action was taken is the same in each instance. The law as I have identified it above is to be applied under s 340 no less than under s 346. The contrary was not submitted by either party in the present case.
34 On the findings of the primary Judge, it was not the circumstance that Mr McDermott exercised his right to take personal leave which acted upon the mind of Mr Young when he took adverse action against Mr McDermott on 10 September 2010. Rather, it was that the respondent "did not want to have workers on [the weekend] shift whose attendance was not predictable and reliable …." It was "the lack of predictability in Mr McDermott's attendance which was the reason … [for the adverse action], not the fact that he had previously exercised his rights to [personal] leave." Anticipating the analytical framework later formulated by Gageler J in BHP Coal, the respondent satisfied the primary Judge that the character of Mr McDermott's absences as personal leave played no operative part in Mr Young's decision to take adverse action against him.
35 On these facts, I cannot distinguish BHP Coal. I would dismiss the appeal in relation to the September 2010 adverse action.
36 The challenge to the primary Judge's conclusion in relation to the April 2011 adverse action raises slightly different, and in some ways less complex, considerations. His Honour held that Mr McDermott was not entitled to be absent from work on 18 March 2011, because he had "failed to meet the s 107(3) and cl 16.7 tests". In absenting himself from work on that day, he was not, therefore, exercising a workplace right within the terms of s 341(1)(a) of the FW Act. That aspect of his Honour's decision is not challenged in this appeal.
37 However, it was the appellant's case below that, when he took adverse action against Mr McDermott, Mr Peace took into account not only the absence on 18 March 2011, but also Mr McDermott's unsatisfactory attendance record which led to the adverse action of September 2010. When he was absent on those previous occasions, Mr McDermott had been exercising an entitlement which he had under the agreement and, if those earlier absences were an element in Mr Peace's reasons for the action which he took in April 2011 (as to which the appellant had the benefit of s 360), the appellant should have succeeded in that part of its case that related to that action.
38 But the primary Judge rejected the appellant's factual case in this regard. His Honour said:
The decision to remove Mr McDermott from the weekend day shift was prompted by Mr McDermott's absence from work on 18 March 2011 and by his related failure to report that absence in the manner prescribed by the November 2010 agreement together with his failure to substantiate its legitimacy by a doctor's certificate. Also relevant to Mr Peace's concerns was the fact that the absence coincided with a period of annual leave which Mr McDermott had unsuccessfully requested, in that the coincidence of dates cast some doubt on the genuineness of the absence. At least as far as Mr Peace was concerned, it is apparent that Mr McDermott's absence, which was neither substantiated by a medical certificate nor, in Mr Peace's understanding, notified in accordance with the November 2010 agreement, was unacceptable in light of the existence of that agreement.
His Honour said that he was -
… not of the view that the character of many of Mr McDermott's previous absences as exercises of a workplace right was of any particular significance to Mr Peace when he made his decision in March 2011.
In conclusion with respect to the April roster change, his Honour said:
Consequently, I accept Mr Peace's evidence that the reason why he decided to move Mr McDermott from the weekend day shift was because the 18 March 2011 absence, coupled with its immediate circumstances, amounted to a breach of the November 2010 agreement which he was not willing to tolerate. Put another way, Endeavour has displaced the presumption that the reason or part of the reason for its decision to move Mr McDermott from the weekend day shift in April 2011 was the fact that in 2009, 2010 and 2011 he had exercised his workplace rights to take personal/carer's leave, whether because of illness or because he had family responsibilities.
39 In relation to the issue to Mr McDermott of a final written warning on 1 April 2011, the primary Judge said:
The final written warning was part of the process associated with the removal of Mr McDermott from the weekend shift in April 2011 and I see no reason to doubt that the same considerations motivated both steps. Consequently, for the reasons given earlier in relation to the reason for the shift change, I find that Endeavour has displaced the presumption that it issuing [sic] the final written warning because Mr McDermott had exercised his workplace rights to take personal/carer's leave, whether because of illness or because he had family responsibilities.
On appeal, the appellant did not seek to disturb so much of his Honour's reasons as treated the roster change and the written warning as effectively aspects of the same process, motivated by the same reasons, whatever they were. Its challenge was to so much of his Honour's conclusion as held the events of September 2010 and earlier to have been no part of Mr Peace's reasons for each of the steps which he took in relation to Mr McDermott.
40 That challenge is advanced on the ground that his Honour's findings are glaringly improbable, and that the conclusion that Mr McDermott's earlier absences from work were not part of Mr Peace's reasons was not open on the evidence before him. Should this challenge succeed, the result would be that those earlier absences were again available to the appellant as reasons which had to be disproved by the respondent. Absent success in her client's challenge to the September 2010 decision to take adverse action, counsel for the appellant accepted that it would "almost certainly follow" that it would fail in its challenge to the April 2011 decision. For my own part, I would regard this as an unduly fatalistic view of things, since the question arising in relation to the latter relates wholly to Mr Peace's reasons, and the fact that Mr Young acted, in September 2010, for reasons which attracted themselves to him would go no distance towards establishing the respondent's evidentiary case in relation to the events of April 2011.
41 The appellant's case requires some reference to the evidence which was led in the proceeding below. The primary Judge laid out that evidence witness-by-witness, as it were, without providing a flowing narrative of events as they unfolded as disclosed in the evidence of all relevant witnesses. It was not always apparent which aspects of the evidence his Honour accepted, and which, if any, he rejected. Subject to that cautionary note, I shall attempt to identify from his Honour's reasons, and from such other sources as are now before the Full Court, the events which led to Mr Peace's decision to take adverse action against Mr McDermott.
42 On about 18 March 2011, Mr Peace was advised by Wayne David, the Weekend Day Shift Engineer at the mine, that Mr McDermott had failed to attend work, and had not notified Mr David of his absence. A few days later, Mr Peace became aware that Mr McDermott had previously requested, but had been denied, leave from 18 to 20 March 2011, and was also advised that, although Mr McDermott had said that the reason for his absence on 18 March 2011 was that he had been unwell, he had not provided a medical certificate. Mr Peace was aware of Mr McDermott's poor attendance record in the past. He was aware of a number of occasions when Mr McDermott had failed to follow correct procedures with respect to the taking of leave by leaving work early, by failing to turn up to a shift without notice and by failing to provide a medical certificate to explain an absence. This history of absenteeism contributed to the suspicion, which Mr Peace entertained, about the genuineness of Mr McDermott's claim to have been unwell on 18 March 2011.
43 In late March 2011, Mr Peace met with James Stewart, the Manager Mining Engineering, and Ms Lyndal Bailey, the Human Resources Manager. They discussed the fact that Mr McDermott had failed to comply with the agreement which he had signed in November 2010, and decided to utilise that fact to justify their decision to move him from the weekend roster to the Monday-Friday roster. After this meeting, Mr Peace spoke to Heath Hannigan, the Mine Manager, recommending that Mr McDermott be removed from the weekend day shift roster, and seeking approval for that course. Mr Hannigan gave that approval. At some point, it was agreed as between Messrs Peace and Stewart that Mr McDermott should also be given a final warning.
44 On 31 March 2011, Ms Bailey sent an email to Messrs Peace and Stewart, with a copy to Mr Hannigan. There were four documents attached to this email, identified by Ms Bailey in the following terms:
1. Record of Discussion Summary - past 3 years Attendance History and Discussion History.
2. Record of Discussion form - to be completed as a record for tomorrow's discussion.
3. Written Warning - to be handed to Alan at end of discussion tomorrow, please review and ensure that your [sic] ok with what's been recorded. Also may need to include the information that Terry Troy provided regarding the AL being declined (if substantiated).
4. Attendance Calendars from past 3 years.
The second attachment, the "Record of Discussion form" was in evidence, and is before the Full Court. It contained some details in typescript which were, it seems, part of what was sent by Ms Bailey, namely the date of the following day (1 April 2011), Mr McDermott's name and employee number, the identification of the relevant "supervisor", namely, Messrs Stewart and Peace, and the "Issue", being "Breach in Attendance Management Plan". Beneath that, in a box headed "History", the following appeared:
5 periods of unplanned absence in 12 months, 1 period of Leave w/out Pay, 4 periods on Friday, 3 of these single day absences. Failure to comply with Attendance Management Plan conditions with most recent absence on 18.03.11.
In the form as tendered, other items were in handwriting, and his Honour did not make any finding as to whether they were on the form when it was emailed by Ms Bailey. It is, however, unlikely that they were, since they purported to set out what was a "Summary of Discussion". The form was signed by Mr Peace, and dated, in hand, 1 April 2011 (from which I think it may be inferred that the handwritten section was in Mr Peace's hand).
45 On the following day, 1 April 2011, Mr Peace and Mr Stewart met with Mr McDermott, who was accompanied by Mr McLachlan. Mr Peace informed Mr McDermott that, from 4 April 2011, he was being moved to the weekday day shift because of his failure to follow the November 2010 agreement. Mr McDermott was given the final written warning. Mr McDermott said that he had tried, but failed, to see a doctor in connection with his absence on 18 March 2011. In evidence which the primary Judge apparently accepted, Mr Peace said that he did not believe this. It was his view that Mr McDermott had not "tried very hard" to see a doctor, and that someone could get to see a doctor in the Illawarra if they genuinely wanted to. At the meeting on 1 April 2011, Mr McDermott also claimed that he had telephoned the mine on 18 March 2011 in relation to his absence that day, but there was, apparently, no log or other record of any such telephone call, and it is clear from the primary Judge's recounting of Mr Peace's evidence that Mr Peace was sceptical, to the say the least, about this claim.
46 In his evidence, Mr Peace said that he considered that Mr McDermott had "abused the system" by not providing a medical certificate to support his absence when taking leave on a day for which he had previously been denied leave, and that he doubted the genuineness of Mr McDermott's claim to illness. Mr Peace said that it was for these reasons that he moved Mr McDermott to the weekday shift. The primary Judge noted that, at one point in cross-examination, Mr Peace said that the three-year history sent by Ms Bailey was part of the reason for moving Mr McDermott from his shift, but his Honour added that Mr Peace later said that Mr McDermott was taken from the weekend shift because he had failed to conform to the November 2010 agreement, and that another factor in his decision was that it would be easier to manage Mr McDermott's absenteeism on weekdays, where he could be more closely monitored.
47 In the light of this evidence, was the finding of the primary Judge that Mr McDermott's absences down to September 2010 were not part of Mr Peace's reasons for the adverse action which he took in April 2011 glaringly improbable? This question must be addressed, of course, in the light of the explanation given by French CJ and Crennan J in Barclay that "[i]t is a misunderstanding of, and contrary to, [General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605] to require that the establishment of the reason for adverse action must be entirely dissociated from" the protected circumstance upon which an applicant relies (248 CLR at 523 [62]). The pre-September absences were drawn to the attention of Mr Peace and, as the primary Judge held, he treated them as part of the background against which he made his decision. In the pre-printed section of the "Record of Discussion" (see para 44 above), these absences were referred to as "History". But the "Summary of Discussion" section, written in hand by Mr Peace himself, referred only to Mr McDermott's failure to conform to the agreement of 8 November 2010. Likewise, the final written warning, signed by Mr Peace, referred to the earlier absences in the context of "[previous]… disciplinary action taken with regard to this issue…." The actual conduct to which the warning related was Mr McDermott's failure to comply with his attendance management plan.
48 In this setting, the primary Judge had to decide whether the earlier absences were a reason why the warning was given, and the shift change was made, on 1 April 2011. The respondent carried the onus of proof in this area, but that did not require it entirely to dissociate the adverse action taken by Mr Peace from those earlier absences. Put another way, the respondent might well have discharged the onus notwithstanding the existence of some connection between that action and those absences. What this means is that the finding which the appellant must now establish was glaringly improbable is the finding that the earlier absences were not a reason for the adverse action of 1 April 2011, albeit that there may have been some connection between the two. The appellant does not do this by drawing the Full Court's attention to evidence which favoured, even strongly, some other finding. A concession made by a witness in the course of lengthy cross-examination, such as that by Mr Peace (and acknowledged by his Honour) that the three-year history sent by Ms Bailey was part of the reason for moving Mr McDermott from his shift, is not self-evidently a knock-out blow for the appellant on appeal, as it need not have been at first instance. Evidence of that character was, no doubt, of some forensic value to the appellant but, ultimately, it was for his Honour to measure that against the whole of the evidence of the relevant witness and the other (including documentary) evidence in the case. In this regard his Honour had the advantage "that derive[d] from the obligation at trial to receive and consider the entirety of the evidence and the opportunity … to reflect upon that evidence and to draw conclusions from it, viewed as a whole": Fox v Percy (2003) 214 CLR 118, 126 [23].
49 In my view, the primary Judge's finding now challenged by the appellant was open to his Honour on the evidence before him. It could not be described as glaringly improbable.
50 It follows, in my view, that the appeal should be dismissed.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.