Construction, Forestry, Mining & Energy Union v Pilbara Iron Company

Construction, Forestry, Mining & Energy Union v Pilbara Iron Company - [2012] FCA 697 - FCA 2012 case summary — Zoe

[6]

The respondent contravened s 340(1)(a)(ii) of the Fair Work Act 2009 (Cth) by taking adverse action against the second applicant within the meaning of item 2(a) of the table to s 342(1) (refusing to employ him after the expiration of his contract) because he exercised a workplace right within the meaning of s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) by making complaints and inquiries in relation to his employment.
The respondent contravened s 340(1)(a)(ii) of the Fair Work Act 2009 (Cth) by taking adverse action against the second applicant within the meaning of item 1(c) of the table to s 342(1) (the assessment of his performance in its mid-year performance review) because he exercised a workplace right within the meaning of s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) by making complaints and inquiries in relation to his employment.
The respondent contravened s 340(1)(a)(ii) of the Fair Work Act 2009 (Cth) by taking adverse action against the second applicant within the meaning of item 1(c) of the table to s 342(1) in that it refused to accept his nomination for the position of safety and health committee representative because he exercised a workplace right within the meaning of s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) by making complaints and inquiries in relation to his employment.
The respondent contravened s 346(b) of the Fair Work Act 2009 (Cth) by taking adverse action against the second applicant within the meaning of item 1(c) of the table to s 342(1) in that it refused to accept his nomination for the position of safety and health committee representative because he engaged in industrial activity within the meaning of paragraph 347(b)(v). THE COURT ORDERS THAT:
The respondent offer the second applicant permanent employment on the same terms and conditions that apply to employees of the respondent classified as rail car examiners who have completed their first year of employment and have accepted offers of permanent employment.
The parties confer with a view to agreeing on any further orders and a timetable for evidence and submissions on the question of penalty.
In default of agreement on the question of further orders and for the purpose of hearing argument on penalty, the proceeding be re-listed for hearing on a date to be fixed.
The matter be listed for directions at 9.30 am on Monday 9 July 2012.
The respondent pay the applicants' costs of its unsuccessful interlocutory application for a transfer of the proceeding to the Western Australian registry filed on 11 November 2011. Otherwise there be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

[10]

REASONS FOR JUDGMENT 1 Daryl Lamberth is a member of the Construction, Forestry, Mining and Energy Union ("CFMEU"), an organisation of employees registered under the Fair Work Act 2009 (Cth) ("FW Act" or "the Act"). Like all trainees in his position, he was employed by the respondent under a fixed term contract of 12 months but, unlike most of the others, he was not offered permanent employment at the end of that period. He and the CFMEU (together "the applicants") claim that the failure to make that offer amounted to adverse action within the meaning of the Act. They also claim that the respondent took other adverse action in marking him down in his mid-year performance review and in failing to accept his nomination for a position on its safety and health committee. In each case the applicants allege that the respondent was actuated for reasons that are prohibited by ss 340 and 346 of the Act. 2 The applicants rely on three reasons: that Mr Lamberth was a member of the CFMEU; that he engaged in industrial activity by promoting or advancing the views or interests of the union; and that he exercised his workplace right to make complaints and/or inquiries in relation to his employment when he took up with his supervisors various issues, particularly issues relating to workplace safety. 3 The respondent admits that Mr Lamberth was a member of the union and concedes that in certain respects he promoted or advanced its views or interests. It also concedes that in some (though not all) instances Mr Lamberth's complaints or inquiries related to his employment. But it denies that adverse action was taken. It also denies that the action complained of was taken for a prohibited reason. Rather, it maintains that it acted as it did because Mr Lamberth exhibited "a poor attitude" and behaved in an aggressive and confrontational way when communicating with his peers and supervisors. 4 The applicants apply for declaratory relief but the substantive remedy it seeks is an order requiring the respondent to offer Mr Lambert permanent employment. A claim for compensation was not pressed. They also apply for a civil penalty but that question has been severed. 5 In general terms, then, the issues currently before the Court are as follows: 1. Whether the respondent took adverse action against Mr Lamberth; 2. Whether Mr Lamberth exercised workplace rights by making complaints or inquiries of the respondent relating to his employment; 3. Whether Mr Lamberth engaged in industrial activity; 4. Whether adverse action was taken because of (b) or (c) or because Mr Lamberth was a union member (a prohibited reason); and 5. If adverse action was taken for such a reason, should the Court make an order requiring the respondent to offer permanent employment to Mr Lamberth? 6 Before I turn to consider these issues, it is necessary to say something about the facts that underpin these matters and the applicable statutory provisions.

[11]

The facts 7 The respondent is a wholly-owned subsidiary of Hammersley Holdings Limited, which, in turn, is a wholly-owned subsidiary of Rio Tinto Limited ("Rio Tinto"). It is the main employing entity within the Rio Tinto group of companies operating in the iron ore mining industry in the Pilbara region of Western Australia. 8 The respondent operates a private rail line used to transport iron ore from its inland mines to the Pilbara coastal ports of Dampier and Cape Lambert. It employs locomotive drivers to drive the ore trains on the mainline connecting the inland mines and the ports and to move engines and carriages within a marshalling yard. It also employs a number of train examiners (also known as car examiners), whose duties include shunting carriages, conducting safety checks and performing minor maintenance on ore carriages. 9 Mr Lamberth is an auto electrician. He left a permanent position as an auto electrician with Fortescue Metals Group Limited at its Cloudbreak Mine in order to take the job with the respondent. At the time, his partner, who worked for the respondent (and still does), was pregnant. This was the main reason he applied for the job. Cloudbreak Mine is about 260 kilometres south east of Port Headland, which in turn is about 240 kilometres away from Karratha where he, his partner and now also their infant son live. It is a 2½ hour drive and a one hour plane flight away. Mr Lamberth saw the opportunity with the respondent as an opportunity to retrain for a new career and plainly looked forward to a long future with the company. He was keen to become a train driver, obtain permanent employment and settle down. 10 On 14 October 2010 Mr Lamberth was offered a position as trainee car examiner at the respondent's rail operations at 7 Mile Yard in Dampier. The 7 Mile Yard is a shunting and maintenance yard. He was employed under a 12-month fixed term contract. He started work in accordance with the contract on 15 November 2010. He completed his training on 24 March 2011. His employment came to an end at the expiration of the fixed term. 11 All employees performing the same kind of work are initially employed by the respondent under a 12-month fixed term contract. It appears that the main purpose of engaging employees under fixed term contracts is to give the employer the opportunity to assess the employee's suitability for permanent employment. Subject to satisfactory assessment, employees are offered permanent employment at the end of the term. Mr Lamberth was one of a small minority of trainee car examiners in the relevant period to whom an offer was not made. He was informed on 7 October 2011 that his contract would not be extended, although, as will be seen, the decision was made much earlier. 12 During the course of his employment Mr Lamberth confronted his supervisors on several occasions about matters of workplace safety and other work-related issues that concerned him. Mr Lamberth has a particular interest in occupational health and safety. Before he started work for the respondent, he had served as an elected occupational health and safety representative for some five years with two previous employers. 13 It was not long before Mr Lamberth's conduct raised the ire of a number of his supervisors. It was soon after one of a confrontation with one of them that he joined the CFMEU. By early June 2011, Michael Wilkings, Rail Operations Superintendent for the 7 Mile depot, had formed the opinion that Mr Lamberth's contract should not be extended. 14 Throughout the period of Mr Lamberth's employment (and, indeed, for some considerable time before it) the CFMEU had been engaged in bargaining for, and then promoting, approval of an enterprise agreement with Rio Tinto, an agreement that the group was initially reluctant to make. Mr Lamberth was open about his union allegiance. He wore the union badge. He actively supported the union's recruitment drive. In June 2011 he distributed pamphlets published by the CFMEU encouraging a vote in favour of the enterprise agreement. 15 In July 2011 the respondent conducted an evaluation of Mr Lamberth's performance ("the performance review"). The process was completed on or by 8 August 2011. Having regard to the opinion Mr Wilkings had already formed, there is much to be said for the view that the respondent was just going through the motions with this review. The reviewer, Matthew Bushby, the Rail Operations Supervisor for "D Panel" (the panel to which Mr Lamberth was assigned), was Mr Lamberth's immediate supervisor (save for the first two months of Mr Lamberth's employment when he was on leave). He reported to Mr Wilkings. Mr Bushby had prepared a draft assessment and submitted it to Mr Wilkings in early July 2011. In the final form dated 20 July 2011, prepared after input from Mr Wilkings, Mr Bushby gave Mr Lamberth an overall score of 488, equating to a "requires improvement" rating. It was a score effectively guaranteed to ensure that Mr Lamberth would not be offered continuing employment. The review form contained a number of criticisms of Mr Lamberth, highlighting what were described as "confrontational issues" said to cause disruption and disharmony amongst the crew. At no time, I might add, was there any criticism of Mr Lamberth's work itself or his attitude to his work. 16 On 19 July 2011 Mr Lamberth sent an email to Mark Hamilton, the Rail Operations Manager, expressing his interest in nominating for the position of safety and health representative, and the next day he submitted a nomination form. But the respondent did not accept the nomination and did not put his name forward for election. 17 There was a dispute about some of the relevant conversations and also about Mr Lamberth's demeanour at the time. Understandably, perhaps, Mr Lamberth tended to play down any suggestion that he was "out of line" and his supervisors tended to emphasise, if not exaggerate, aspects of his behaviour which were not necessarily abnormal or irregular at the workplace, despite the formal requirements. I will deal with the differences in the evidence later. Ultimately, however, I do not think that anything much turns on these differences. Neither does the outcome depend on whether or not Mr Lamberth behaved in the way the respondent's witnesses said he did. The real question is whether the respondent's actions were influenced by factors they were not entitled to take into account. To understand why, it is necessary to examine the terms of the Act.

[12]

The statutory framework 18 The relevant provisions of the Act appear in Part 3-1, which is concerned with what are called "general protections". Its stated objects include the protection of "workplace rights" and freedom of association, including freedom to participate (or not) in lawful industrial activities: FW Act s 336. It prohibits one person from taking "adverse action" against another person in several different contexts. The applicants rely on two of the prohibitions. They are the prohibition against adverse action because of the existence or exercise of a workplace right contained in s 340(1) and the prohibition against adverse action because of membership of an industrial association and/or engagement in industrial activity contained in s 346. 19 The history of these provisions is explained in Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 ("Barclay") at [23]-[24]. They build upon and expand the protections afforded to members and officials of industrial associations contained in the Workplace Relations Act 1996 (Cth) ("WR Act"). 20 Section 340(1) provides that: (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; or (b) to prevent the exercise of a workplace right by the other person. 21 According to s 341(1) a person has "a workplace right", amongst other reasons, if the person: (c) is able to make a complaint or inquiry: (i) … (ii) if the person is an employee - in relation to his or her employment. 22 Section 342(1) contains a table defining the circumstances in which a person takes "adverse action" against another. "Adverse action" is relevantly defined in the table to include any of the following circumstances: (a) an employer altering the position of the employee to the employee's prejudice (item 1(c)); (b) an employer discriminating between the employee and other employees (item 1(d)); and (c) a prospective employer refusing to employ a prospective employee (item 2(a)). 23 Section 346 relevantly provides: A person must not take adverse action against another person because the other person: (a) is or is not, or was or was not, an officer or member of an industrial association; or (b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or (c) … 24 There is a degree of overlap between these two alternatives. The protection offered to members (and officers) of industrial associations extends to activities carried out as an incident of membership (as an office-holder): Barclay at [39]-[40]. That is also clear from the terms of s 347 which relevantly provides: A person engages in industrial activity if the person: (a) becomes …, or remains …, an officer or member of an industrial association; or (b) does, or does not: … (v) represent or advance the views, claims or interests of an industrial association. 25 Allegations made in the further amended statement of claim based on paragraph (b)(ii)-(iv) were not pressed. 26 Elsewhere in Part 3-1 there are prohibitions against taking action "with intent to" do something (such as ss 343 and 355, which deal with taking action with intent to coerce). The contrasting language suggests that no particular intent is required to make out the prohibitions in ss 340 and 347. 27 Section 360 of the FW Act provides that for the purposes of Part 3-1 of the FW Act, … a person takes action for a particular reason if the reasons for the action include that reason. 28 Consequently, if the claim of adverse action is made out, the applicants are entitled to succeed even if one of the reasons (perhaps the dominant reason) the respondent took the adverse action was not a prohibited reason, provided that the prohibited reason is an operative factor: Barclay at [28]-[31] applying General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 619 per Mason J, Gibbs, Stephen and Jacobs JJ agreeing. In other words, it must have influenced or played a role in the action that was taken. 29 Where it is alleged that a person took action, amongst other things, for a particular reason and taking action for that reason would constitute a contravention of Part 3-1 of the Act, then the Act creates a statutory presumption that the action was taken for that reason. It is for the person who took the action to prove otherwise. See FW Act, s 361(1). The reference to taking action for a particular reason is doubtless a reference to those provisions of Part 3-1 (like ss 340 and 346), which prohibit the taking of action "because" of something. 30 As Gray and Bromberg JJ explained in a Barclay (at [32]), where it was alleged that adverse action was taken because the employee engaged in industrial activity: The onus cast by s 361 on the person taking the adverse action means that, to succeed, that person has to establish that he or she was not actuated by the attributes or industrial activity which s 346 seeks to protect. As Mason J said in Bowling at 241; 617, that objective will not be achieved unless the evidence establishes that the real reason for the adverse action lies outside the ambit of the provision - in this case s 346. The real reason or reasons for the taking of the adverse action must be shown to be "dissociated from the circumstances" that the aggrieved person has or had the s 346 attribute or has or had engaged in or proposes to engage in the s 346 industrial activity. 31 Before going any further I should deal with an argument the respondent made during closing submissions. Notwithstanding a concession made in its written submissions (see [6]), the respondent relied on a passage in the reasons of the third member of the Court in Barclay, Lander J (who dissented), for the proposition that, unless the particular reason the adverse action alleged is described with precision in the originating application, the reverse onus contained in s 361(1) of the FW Act does not apply. The respondent does not raise any suggestion of a lack of procedural fairness. Its simple point is that the employer will only bear the onus of proof on this issue if the alleged reason appears in the originating application. That, in substance, is what his Honour said in Barclay at [119]-[120]. 32 Section 361(1) does speak of allegations made in an application but it does not refer to an originating application. The subsection reads: (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, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. 33 "Application" is not defined in the FW Act. As a proceeding for a pecuniary penalty for a contravention of Pt 3-1 may be brought in eligible State or Territory courts (see s 546(1)) where proceedings are not always commenced by an application, so-called, I do not think the section should be read so narrowly as to require the relevant allegations to be made in the originating application. In this Court the Federal Court Rules 2011 (Cth) ("FCR") require an originating application to state the relief claimed and the provision under which it is claimed - no more. See FCR, r 8.03. Rule 8.05 provides that an originating application must be accompanied by a statement of claim or an affidavit. It is there that one would expect to find the allegations supporting the claim for relief. 34 As it happens, however, the originating application in this case did make allegations. It sought (amongst other forms of relief) various declarations that various actions were taken for particular reasons. Two affidavits were filed in support of the originating application, which set out the grounds on which the orders were sought. Five days later the applicants also filed a statement of claim which described in detail the allegations they were making. They included allegations that the respondent took action for particular reasons and that taking those actions for those reasons would constitute a contravention of Pt 3-1 of the Act. In my view, those allegations were identified with sufficient precision to engage the operation of the statutory presumption. 35 Before dealing with the issues I would make one important observation. The legislative intention is clear. The provisions of Part 3-1 are for the benefit of employees - to allow them to join a union and to engage in activities which would promote its interests or views, to take on certain roles or responsibilities and to make complaints or inquiries about work-related matters without the risk of reprisals: Barclay, per Gray and Bromberg JJ at [19]-[22]. Part 3-1 is protective and remedial in nature. For this reason, its terms should not be construed narrowly. See Barclay at [14]-[17]. A construction that would promote its purpose or object is to be preferred to one that would not: Acts Interpretation Act 1901 (Cth), s 15AA. The availability of a civil penalty does not detract from this approach. Cf. Waugh v Kippen (1986) 160 CLR 156.

[15]

Did the respondent discriminate between Mr Lamberth and other employees (item 1(d))? 39 Mr Bushby said that, since 15 March 2010, when he assumed his position as Rail Operations D Panel Supervisor, Mr Lamberth was one of six (out of 15) D Panel trainee car examiners on 12-month fixed term contracts who were not offered further employment at the expiration of the term. Similarly, Mr Wilkings said that since January 2010, he was involved in decisions not to offer contracts to a total of six people on fixed term contracts. Dennis Jones, a mainline driver and president of the Karratha Lodge of the CFMEU (the local union branch) gave evidence based on Lodge records that of at least 120 car examiners initially employed on 12-month fixed term contracts since 2008, only 12 did not have their contracts renewed. It is plain that the majority, if not the vast majority, of those employed on the same basis as Mr Lamberth were offered further employment at the end of their first year. But does this mean that the respondent discriminated between him and other employees? 40 Item 1(d) of the table in s 342(1) does not speak of discriminating against someone (which is the formulation in some anti-discrimination legislation and also in item 2(b) of the table) but discriminating between people. "Discriminates" is not defined so it must have its ordinary meaning which, relevantly, is simply to make a distinction (the first meaning in both the Oxford and the Macquarie Dictionaries). Still, the section is dealing with adverse action. I think it is unlikely - despite the difference in the prepositions used in items 1(d) and 2(a) - that the Parliament had in mind anything other than conduct which discriminated against one employee when compared with other employees. The applicants accepted this in their opening submissions, although they retreated from this position in their closing submissions. I rather think that the different expressions were used for syntactical reasons. 41 Both parties nevertheless accepted that discriminate in this context means "treat less favourably". That necessarily imports the concept of discriminating against the employee who has been treated in this way. 42 The real difficulty is in deciding how the comparison should be made. The difficulty is not as acute in the anti-discrimination legislation where the various statutes provide that a person discriminates against another on a particular ground in defined circumstances. Here, the circumstances are not defined. Section 5 of the Disability Discrimination Act 1992 (Cth), for example, relevantly provides that a person (the discriminator) discriminates against an aggrieved person on the ground of a disability if, because of the aggrieved person's disability, the discriminator treats the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different. In that context, the High Court held in Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 (a case of a disabled child whose disability caused him to behave violently at a school from which he was then excluded) that the relevant comparison was between the child concerned and another child without the disability who had behaved in a similar way. That is, the treatment of the alleged victim is to be compared with the treatment of another person with or without the relevant attribute or ground on which discrimination is prohibited. Here, however, item 1(d) of s 342 does not define the relevant attribute or ground. The prohibited reasons can be found in ss 340 and 346, but these provisions only apply once adverse action has been established. 43 The applicants submitted that the mere failure to offer continuing employment to Mr Lamberth when other trainee car examiners were is sufficient to establish that the relevant discrimination occurred. Yet, this does not seem to be the approach suggested in Barclay. In Barclay (at [35]-[36]) Gray and Bromberg JJ (albeit obiter) appear to have assumed (by their reference to the comparative test in Purvis) that what is required under item 1(d) is indeed a comparison between the employer's treatment of the employee in question and of other employees who acted in the same way as the employee in question. With respect, to import the reasoning in Purvis, which was concerned with the interpretation of different words in a different statute in a different context, is to invite error. Still, I doubt the correctness of the applicants' position that offering further employment to some and not others is sufficient. That approach was rejected in Hodkinson v The Commonwealth (2011) 207 IR 129. In my view item 1(d) requires that one employee is treated differently from others in the same or comparable circumstances. Here, however, no comparisons were offered. The evidence was entirely silent. If this is the correct approach, then the applicants would have failed to make out their claim. 44 It is not necessary for me to come to a firm conclusion, however, because of the view I have reached about the claim under item 2(a).

[16]

Was the respondent a prospective employer who refused to employ Mr Lamberth (item 2(a))? 45 I have no doubt that, in refusing to employ Mr Lamberth after the expiration of his fixed term contract, the respondent took adverse action within the meaning of the Act. Mr Lamberth was employed as a trainee with a view to ongoing employment after the fixed term contract expired. The respondent did not suggest there was no available position. Moreover, Mr Lamberth gave evidence, which was neither challenged nor contradicted, that at his recruitment interview the opportunity for permanent employment was emphasised and he was told by one of the supervisors employed by the respondent that "this is a lifetime thing. The sky's the limit". 46 While it is true, as the respondent submitted, that at the time the respondent told Mr Lamberth it was not going to offer him continuing employment it was his employer and he its employee, for the future (the period beyond the term of his contract), it was a prospective employer and he a prospective employee. There is no reason in principle why the respondent cannot be both an employer and a prospective employer and Mr Lamberth both an employee and a prospective employee. The construction of item 2(a) that the respondent urged would put temporary or casual employees in a worse position than jobseekers. I do not believe that this was Parliament's intention. Moreover, as the applicants submitted, the respondent's construction would operate in an arbitrary way, depending on whether the offer was made before or after the fixed term contract came to an end. A comparison between s 342 of the Act and its predecessor (s 792 of the WR Act) shows that the intention was to expand the range of prohibited action and, correspondingly, the protection for employees and prospective employees. In any event, the refusal to employ is continuing. At the time the originating application was filed, Mr Lamberth was no longer an employee of the respondent and the respondent continued to refuse to employ him.

[17]

The performance review 47 The applicants argue that the performance review conducted in July 2011 amounted to adverse action in that the respondent altered Mr Lamberth's position to his prejudice within the meaning of item 1(c) of s 342(1). An additional claim relying on item 1(d) was abandoned in final submissions. 48 An employee's position may be altered to his or her prejudice regardless of whether the employee suffers any loss or infringement of a legal right. Provided the alteration in the employee's position is real and substantial rather than merely possible or hypothetical (Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93 ("CPSU v Telstra") at [18]; Qantas Airways Limited v Australian Licensed Aircraft Engineers Association [2012] FCAFC 63 at [32]), it will occur if the advantages enjoyed by the employee before the conduct in question have been adversely affected or have deteriorated in any way: Patrick Stevedores Operations No 2 Proprietary Limited v Maritime Union of Australia (1998) 195 CLR 1 at [4] ("Patrick"). 49 Whether particular action alters an employee's position to his or her prejudice depends on a comparison between the employee's position before and after the action is taken: Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329 at [127]. The respondent submitted that Mr Lamberth's position was not altered, let alone prejudiced, by the assessment. Rather, the performance review simply articulated the employer's pre-existing opinion of him. The submission is not without merit. On 7 June 2011, before the review process started, Mr Wilkings met with Chantelle Thom, the Human Resources Superintendent for the respondent's Rail Operations at the 7 Mile depot. He told her he did not want to extend Mr Lamberth's contract or offer him permanent employment. Ms Thom made a contemporaneous note of the conversation which was annexed to Mr Wilkings affidavit. It referred to "behavioural issues/values" and the "inappropriate way [Mr Lamberth] speaks with [Mr Bushby] and other employees". 50 Ms Thom's file note also indicated that Ms Thom had advised that the way forward was to ensure that everything was documented and that the mid year review was consistent with "this feedback". In cross-examination Mr Wilkings accepted that from 7 June 2011, if not sooner, he pursued the objective of ensuring that Mr Lamberth's employment was not extended beyond the life of his contract. 51 Mr Bushby accepted that the performance review was a matter that would be taken into account in determining whether Mr Lamberth would be offered further employment and that, as a general proposition, those achieving more than 500 were liable to be retained. Mr Lamberth, it will be recalled, received a score of 488. This means that the mark he was given jeopardised his prospect of secure employment. This is sufficient to amount to an alteration of his employment to his prejudice. See Patrick at [7], CPSU v Telstra at [17]. Similar conduct was held to be adverse action under the WR Act: Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 at [298]-[300]. In Australasian Meat Industry Employees' Union v Belandra Pty Ltd (2003) 126 IR 165, North J held that the disappointment of an expectation of re-employment, even where there was no legal right to re-employment, was an alteration of an employee's position to his prejudice. 52 Mr Lamberth was undoubtedly in a perilous position before the performance appraisal because of the occasions on which he had fallen foul of his supervisors and because Mr Wilkings had already decided not to extend his contract. Nevertheless, it could not be said that afterwards he was in no different a position. The respondent relied on the performance appraisal to justify that decision. It must follow that Mr Lamberth's position was disadvantaged by the assessment and he was therefore prejudiced because of it. 53 I am therefore satisfied that the performance appraisal amounts to adverse action within the meaning of s 342.

[18]

Refusing to accept Mr Lamberth's nomination for the safety and health committee 54 The applicants also alleged that Mr Lamberth's position was altered to his prejudice when the respondent refused to accept his nomination for the safety and health committee. 55 The respondent submitted that this claim must fail because it did not engage in the action ("the employer had no role to play in the acceptance or refusal of Mr Lamberth's nomination") and Mr Lamberth's position was not altered to his prejudice. The submission must be rejected. It flies in the face of the evidence. 56 The evidence was that on 29 June 2011 Mr Hamilton suggested to Mr Lamberth that he nominate. He conceded in cross-examination that at the time he was of the opinion that Mr Lamberth had the skills and abilities to take up that role successfully. On 19 July 2011 Mr Lamberth sent Mr Hamilton an email signalling his interest in the position and on 20 July 2011 he submitted a nomination form. The respondent admitted in its defence that it did not accept it and the evidence is that on 12 August 2011 Mr Hamilton told Mr Lamberth he was not going to let him be a safety representative. Although there is no direct evidence on the point, it was common ground that Mr Lamberth was not a candidate in the ballot for membership of the committee. 57 The respondent noted that the position of safety and health representative is a position under the Occupational Safety and Health Act 1984 (WA), referring to ss 29-33. Indeed, it is. But the choice of representative is not a matter for the employer. It is a decision for the employees at the relevant workplace. The clear intention of that Act is that the election takes place without interference from the employer. Mr Lamberth was qualified to stand for election. The Act provides in s 34 criteria for disqualification. It was not suggested that Mr Lamberth satisfied any of those criteria. 58 In these circumstances, it is difficult to understand the respondent's submissions. The evidence is unequivocal that the employer had a decisive role to play in the refusal of Mr Lamberth's nomination. Mr Hamilton said he did not accept the nomination. As a direct result of Mr Hamilton's intervention, Mr Lamberth was denied his lawful right to seek to participate in a workplace committee, denied the chance to develop his skills and interests in the area of occupational health and safety, and denied the privilege of representing his fellow workers. On any view of the matter Mr Hamilton's action in refusing to accept Mr Lamberth's nomination for membership of the committee operated to Mr Lamberth's disadvantage and is properly described as altering his position to his prejudice and therefore as adverse action within the meaning of s 342 of the Act.

[20]

Did Mr Lamberth exercise a workplace right by making a complaint or inquiry in relation to his employment? 60 The only issue here is whether the complaints or inquiries Mr Lamberth were made in relation to his employment within the meaning of s 341(1)(c). If so, it will be necessary to decide whether Mr Bushby took that fact into account in Mr Lamberth's performance review, whether Mr Hamilton took it into account in refusing to accept his nomination for the safety and health committee and whether Mr Wilkings took it into account in declining to extend his contract of employment. 61 A relationship connotes a connection or association between two things. Phrases like "related to", "relating to" or "in relation to" are prima facie, at least, extremely wide. That much is common ground. 62 McHugh J said in O'Grady v Northern Queensland Company Ltd (1990) 169 CLR 356 at 376 (followed by the Full Court of the Federal Court in Harris v Commissioner of Taxation (2002) 125 FCR 46 at [68]): The prepositional phrase "in relation to" is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters. See also Joye v Beach Petroleum NL (1996) 67 FCR 275 at 285 per Beaumont and Lehane JJ, Spender J agreeing. 63 The closeness of the relationship in any particular case is to be determined having regard to the nature and purpose of the section and the context in which it appears: PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313 per Brennan CJ, Gaudron and McHugh JJ. Cf. Toohey and Gummow JJ at 331. 64 In my view, in s 341(1)(c)(ii) the requisite relationship between the complaint or inquiry with the employee's employment may be direct or indirect. No contrary indication may be gleaned from the context of the words or the drafting history. Mr Fernon SC, who appeared for the respondent, conceded that the words should be interpreted broadly, though he submitted they were not without limits. That qualification may be accepted but the limits are to be found in the nature and purpose of the legislation, which includes the protection of workplace rights. 65 The applicants relied on six matters they claimed were complaints in relation to Mr Lamberth's employment. 66 The first reported complaint was made on 3 January 2011 - about six weeks after Mr Lamberth had started working for the respondent. Mr Lamberth sent an email to Martin Carroll, a car examiner who was a safety and health committee representative at the rail yard, after he remonstrated with a supervisor who told him he could not place a maintenance tag on a vehicle for missing a bolt. Two days earlier, he and his partner had to use a utility to drive to the south end of the rail yard in the course of their employment. The passenger seat of the utility was missing a bolt. In his email Mr Lamberth said that the absence of a bolt from the passenger seat of a vehicle made the vehicle insecure, this was a category A fault and the vehicle must not be operated until repaired. Mr Carroll forwarded the email to Mr Wilkings asking that it be sorted out. As the respondent accepted, this was plainly a complaint or inquiry in relation to Mr Lamberth's employment. It was made about a task he was carrying out in the course of his employment. 67 The second is a complaint made to the mainline supervisor, Shane Coyle, on 1 April 2011 concerning the speed with which a fellow trainee, Greg Daniels, had been "passed out" (that is to say, completed his training) in comparison to Mr Lamberth. Once again, that is self-evidently a complaint in relation to Mr Lamberth's employment. 68 The third is a complaint made in May 2011. It followed a collision between two work vehicles in the rail yard late the previous month. Mr Lamberth went on leave shortly afterwards. When he returned from leave a month later he asked Mr Wilkings about the outcome of the investigation. Mr Wilkings told him that they did not consider this a serious incident. The next day, 25 May 2011, Mr Lamberth shot off an email to the safety and health committee asking that the issue be brought up at its next meeting, the following day. In the email he expressed alarm at the notion that the incident was not serious, because it had the potential for serious injury. Mr Lamberth continued to pursue the matter until late June 2011 when he complained to Messrs Wilkings, Bushby and Hamilton by email (copied to three others including the safety representative, Mr Carroll) about the absence of any feedback and asked whether the incident had been swept under the carpet. He requested a meeting to discuss the issues. 69 Mr Lamberth was apparently neither a driver nor a passenger in either of the vehicles and there is no evidence that he was in the path of the vehicles at around the time of the collision. Still, the incident occurred at his place of work and the assessment of the safety risks that an investigation might have disclosed would have had potential implications for the safety of all employees who worked there. As such, I am satisfied that this was a complaint and inquiry in relation to Mr Lamberth's employment. 70 The fourth complaint relates to the issue of shift breaks. In June 2011, Mr Lamberth made a complaint to Mr Bushby that another employee had been asked to return to work after a 10-hour break instead of a 12-hour break. He made the complaint on behalf, and at the request, of that employee. Plainly the complaint or inquiry related to her employment and, specifically, to the conditions of her employment. But that does not mean that it did not also relate to Mr Lamberth's employment. She performed the same work on the same panel as Mr Lamberth. The conditions of her employment were also the conditions of his employment. While on this particular occasion she was being asked to return to work after a 10-hour break, on another occasion it could have been him. For this reason the complaint or inquiry was in relation to Mr Lamberth's conditions of employment as much as it was in relation to hers. 71 The fifth complaint was made after Mr Lamberth told Mr Coyle in late June 2011 that he and a fellow car examiner could not go up the train track because they had not done a four-wheel drive training course, that he had been given to understand was mandatory. He complained not only that he had been asked to go up the track without having done the course but that Mr Bushby had denied having given him the advice that he had to do it. This complaint was directly associated with or connected to his employment and was therefore a complaint in relation to his employment. 72 The final complaint involved two employees failing to place their maintenance tags as required. It occurred on 5 July 2011. Mr Lamberth witnessed the incident and on 6 July 2011 emailed Mr Bushby about it. In another email to Mr Bushby of 11 July 2011 he made inquiries about a number of matters raised by the 5 July incident that affected the safety of employees in the yard. For the reasons given earlier, this was a complaint and these were inquiries in relation to Mr Lamberth's employment.

[21]

Did Mr Lamberth engage in industrial activity? 73 There is no dispute that Mr Lamberth became a member of an industrial association. He did so when he joined the CFMEU in April 2011. He remained one throughout his employment. Either of these facts alone is sufficient to satisfy the definition of "engages in industrial activity" contained in s 347(a). The applicants contend, however, that he also engaged in industrial activity by representing or advancing the views, claims or interests of the union, within the meaning of s 347(b)(v). 74 The evidence establishes that Mr Lamberth made no secret of his union membership. He wore the union's badge on his collar. In June 2011 he distributed CFMEU pamphlets given to him by Mr Jones and at his request. A copy of the pamphlet was in evidence, annexed to Mr Lamberth's affidavit in reply. It explained the effect of the enterprise agreement, urged support for it, and encouraged employees to become involved in the union. Mr Lamberth distributed the pamphlets in the operations office where Mr Bushby works. He put them on the computer desks and left the rest in a clear folder, together with CFMEU membership applications also given to him by Mr Jones, attached to the outside of his locker where they could be taken by other employees. His locker was readily identifiable. Mr Lamberth also spoke to employees about the agreement, encouraging them to support it. Mr Bushby said he heard Mr Lamberth speak to employees about the CFMEU. In August 2011 Mr Lamberth handed out CFMEU badges for other employees to wear and attended CFMEU training as a union representative. 75 Notwithstanding the submission to the contrary made by the respondent, there can be no doubt that these were activities that advanced the views, claims and/or interests of the union. The evidence indicates that the union was the instigator of the enterprise agreement, that Rio Tinto had continually refused to negotiate until early 2010, and that it took 16 months of negotiations before agreement was reached on its terms. The CFMEU urged employees to vote for the agreement. Mr Lamberth's conduct in distributing the CFMEU pamphlets, encouraging employees to become involved in the union, handing out union badges and wearing one himself, were unquestionably activities that represented and advanced the views, claims and/or interests of the union. One of the obvious interests the union has is to increase its active membership. Encouraging employees to join or become involved in the union and to identify themselves as union members promotes that interest.

[22]

Was any of the adverse action taken for a prohibited reason? 76 To answer this question it is necessary to look into the minds of those responsible for the relevant action. Where, as here, the reasons the actions were taken are not always documented and reasons are expressed for the first time in the context of legal proceedings particular care is required in evaluating their testimony. The question is what the reason was, not what the actors say or think it was. As the majority said in Barclay at [28]: The state of mind or subjective intention of that person will be centrally relevant, but it is not decisive. What is required is a determination of what Mason J in Bowling (at 241; 617) called the "real reason" for the conduct. The real reason for a person's conduct is not necessarily the reason that the person asserts, even where the person genuinely believes he or she was motivated by that reason. The search is for what actuated the conduct of the person, not for what the person thinks he or she was actuated by. In that regard, the real reason may be conscious or unconscious, and where unconscious or not appreciated or understood, adverse action will not be excused simply because its perpetrator held a benevolent intent. It is not open to the decision-maker to choose to ignore the objective connection between the decision he or she is making and the attribute or activity in question. 77 The respondent accepted that I am bound by the judgment in Barclay, while formally submitting it was wrong. (The judgment was the subject of an appeal to the High Court. At the time of writing, judgment was reserved.) It argued that a subjective test is required. But I do not read the majority judgment as involving the imposition of an objective test. Their Honours rejection (at [25]) of the applicants' submission that "because" had the effect of making irrelevant the state of mind of the person taking the adverse action points in the opposite direction. It seems to me that their Honours were merely concerned to emphasise that the section required a decision about the actual reasons, rather than the stated or professed reasons. Given the prohibition on taking action for certain reasons and the penalties for it, it is likely that many astute individuals would try to conceal or disguise the real reason. The Court's task is to find it. 78 The relevant actors are Messrs Bushby, Wilkings and Hamilton. The first two were involved in the performance review, Mr Hamilton in the action taken with respect to Mr Lamberth's nomination for the safety and health committee, and all three (directly or indirectly) in the decision not to offer Mr Lamberth further employment. If any one them was actuated or influenced by a prohibited reason in taking the action, the respondent will not have discharged its onus of proof: Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 291 at [37]. 79 The respondent contends that the actions it took were actuated by one reason only: that Mr Lamberth had "a poor attitude" and his manner of communication with both his peers and his supervisors was "unsatisfactory, aggressive and confrontational". Each of the participants in the decisions in question said that he knew Mr Lamberth was a member or otherwise involved with the CFMEU but asserted that that circumstance did not influence him. 80 Mr Hamilton said that the decision not to accept Mr Lamberth's nomination was taken because of the continuing reports he had received about Mr Lamberth's "unsatisfactory communication style" (the way he interacted with both his peers and his supervisors). For this reason, he said he considered Mr Lamberth to be unfit to represent his peers as a safety representative. In his affidavit he referred to a number of instances in which he described Mr Lamberth as "abrupt", "assertive" and "aggressive". He said that he had none of these concerns with respect to the other nominees. Mr Bushby said that it was the manner in which Mr Lamberth raised safety issues, not the fact that he had raised them, which concerned him, and that Mr Lamberth's communications did not accord with the values espoused in "The Way We Work", a document published by Rio Tinto. He admitted to having a role in the assessment of his performance in July 2011 and, although in his affidavit he eschewed a role in the decision whether or not to renew his contract, he conceded in cross-examination that the performance appraisal was relevant to that decision. Mr Wilkings's evidence was that the reason Mr Lamberth's contract would not be extended was because of "a number of issues relating to [his] attitude, communication and behaviour, which is not aligned with [the company's] values". This reference to values is again a reference to Rio Tinto's "The Way We Work" publication. In substance, the applicants' case is that the reference to the company's values was, at least in part, really a reference to its preference for "direct engagement" with its employees, that is, a disliking for third party (in particular, union) intervention in workplace matters, despite a statement in The Way We Work that Rio Tinto "recognise[s] the right of all employees to choose to belong or not to belong to a union and to seek to bargain collectively". 81 The applicants do not deny that Mr Lamberth was spoken to from time to time about his communication style but argue that the respondent has retrospectively exaggerated the situation and is using it as a smokescreen to disguise the real reason, which is a prohibited reason. To some extent this view might find some support from the amended defence filed in the proceeding. It particularises ten incidents, some of which did not occur, or did not come to the attention of the relevant actors, until after the adverse action was taken. 82 The applicants rely on one or more of three reasons in each case: (a) that Mr Lamberth was a member of an industrial association (i.e. the CFMEU); (b) that he engaged in industrial activity within the meaning of s 347(a) and (b) of the Act; and (c) that he exercised a workplace right or responsibility (by making a complaint or inquiry in relation to his employment) within the meaning of s 341(c)(ii) of the Act. 83 As I mentioned earlier, it is for the respondent to prove that a prohibited reason did not influence or contribute to the action taken. It is not, therefore, enough for the respondent to demonstrate that the action was taken for the reasons given. The respondent must also exclude the prohibited reason. Several of the incidents upon which the respondent relied to justify its actions relate to or arise out of complaints and inquiries Mr Lamberth made. It is for the respondent to disentangle the fact that the complaints and inquiries were made from the manner in which Mr Lamberth communicated his concerns. 84 I will deal with these issues in chronological order. The first is the matter of the performance review.

[23]

Was the assessment at the performance review made for a prohibited reason? 85 In an affidavit sworn on 11 December 2011 Mr Bushby said he had two primary concerns with Mr Lamberth's work performance. They were with his "communication" and the "lack of respect shown to his leaders and team members". He said his communication did not accord with the values in "The Way We Work", in particular because he showed a lack of respect for others. He said he knew that Mr Lamberth was a member or was "otherwise involved with the [CFMEU]". He also said he knew that he had been a support person for some employees. But he denied that this played a part in his decision to give him the scores he gave him in the performance review. 86 In his evidence Mr Bushby referred to six particular matters. They were: (a) The way Mr Lamberth spoke to Mr Coyle on 1 April 2011; (b) The way Mr Lamberth spoke to Lawrence Nel, a shunter, on 26 May 2011; (c) The way Mr Lamberth had spoken to him (Mr Bushby) and Paul Lowicki, another supervisor, in early June 2011; (d) The attitude Mr Lamberth had displayed during a meeting with him (Mr Bushby) on 2 June 2011 in which the above three issues were raised, together with other "general concerns" about his communication and team membership; (e) The manner in which Mr Lamberth confronted him and questioned an email he had sent regarding an issue to do with four-wheel drive training; and (f) The way Mr Lamberth had questioned the outcomes of a tagging incident involving two other employees. 87 On 4 April 2011, soon after the first episode, Mr Lamberth joined the CFMEU. 88 Before considering the assessment process itself it is convenient to explore the evidence relating to the alleged concerns with Mr Lamberth's behaviour in each of these cases. There was a dispute between the parties about the terms of many of the conversations. That is understandable. I would not expect that anyone could remember precisely what was said. For this reason alone I am inclined to accept conversations that are supported by contemporaneous notes - whether diary notes or emails - and to treat with caution those that are not. In general, I accept the evidence given by the respondent's witnesses that Mr Lamberth was argumentative and, at times, confrontational in his approach. The reasons for that will emerge in my discussion of the conversations.

[24]

The encounter with Mr Coyle on 1 April 2011 89 The encounter with Mr Coyle occurred a week after Mr Lamberth was passed out. 90 Mr Lamberth overheard a conversation between Mr Coyle and Mr Bushby in which Mr Coyle told Mr Bushby that Mr Daniels was to be passed out. The conversation occurred near Mr Bushby's desk. Mr Lamberth was apparently surprised and annoyed that Mr Daniels had been passed out sooner than he. It is common ground that Mr Lamberth was concerned that he had been treated differently from Mr Daniels. But there is a dispute between the parties about what Mr Lamberth actually said. 91 Mr Lamberth claims he said: "So it only took Greg one night to get passed out?" and when Mr Coyle replied in the affirmative, he responded: That is unbelievable. Why did you make me jump through the hoops for 3 shifts? 92 He said Mr Coyle then asked him to come into his office if he wanted to talk to him about it. 93 Mr Coyle said he did not remember the initial comment that Mr Lamberth made, but said it was made from about 20 metres away. Mr Bushby (who said that Mr Lamberth was in fact about 5 to 10 metres away) said that after he had been told about Mr Daniels, Mr Lamberth "in an abrupt, loud, condescending and disrespectful manner" and an aggressive tone of voice, said: "Oh, far out, what's that about?". Mr Bushby then said that Mr Coyle asked "what's what about?", to which Mr Lamberth replied, again in an aggressive manner, "Oh, how come he's already passed out?". Mr Bushby said that he could see that Mr Coyle was shocked and he, too, was "a bit shocked" by what he described as the abrupt and aggressive manner in which Mr Lamberth addressed Mr Coyle. He does not corroborate at least one statement Mr Coyle attributed to Mr Lamberth, which Mr Lamberth denied, and which, according to Mr Coyle, prompted Mr Coyle to invite Mr Lamberth to come into his office. That was: This place is fucked, we have different standards, what's wrong with this place, there's no standard form of assessment. 94 In cross-examination Mr Bushby said he could not remember whether Mr Lamberth used inappropriate language. But the evidence was that the use across the workforce of expletives in conversation was not uncommon. Despite Mr Lamberth's denial, I think it probable that he did use the words Mr Coyle attributed to him. But I am not satisfied that he used the words outside Mr Coyle's office. 95 The parties agreed that in Mr Coyle's office Mr Lamberth did complain about the absence of standards of assessment and that the conversation became heated. Mr Coyle said that he told Mr Lamberth he had a standard and that he explained to Mr Lamberth why he had not measured up to it. He said that Mr Lamberth was upset and agitated. Mr Coyle said he tried to explain to Mr Lamberth that the way he was going about raising issues was inappropriate and he should try to work as a better part of the team. He said he did not appear to accept that he had simply been deemed "not yet competent". He said he urged him to raise the issues directly with his leaders, rather than in a public forum or in a negative way. It is not disputed that Mr Coyle told Mr Lamberth that if he kept bringing up (or going on about) issues like this he would make himself a target. Mr Lamberth said that he replied: I am passionate about everything I do and if I think something is not right I will say something about it. If that makes me a target so be it. 96 Mr Coyle claimed that Mr Lamberth replied, rather, I'm not a sheep, I don't roll over, if I have a point I'll stick up for it. 97 The parties agree, however, that Mr Coyle said there was no need to take the matter further. 98 Mr Bushby said he could not hear what was being said in Mr Coyle's office but he could hear loud voices and yelling, although he was unable to distinguish between the two voices. Mr Lamberth conceded that the conversation became heated, although was only prepared to say that voices were "maybe" raised "a little bit". I do not accept that this is a frank account. I think it is highly likely that at some point both men were yelling. 99 Mr Bushby said he took Mr Lamberth to task about the incident, saying he did not appreciate how he spoke to Mr Coyle and asked him to think about "time and place" and how he speaks to people. He said that Mr Lamberth replied (though Mr Lamberth denied it): Oh whatever, I didn't speak to anyone wrongly and besides there was no one else around in the office. 100 Mr Bushby said that he responded that there was someone else in the office. He then went in to speak to Mr Coyle, who told him he was angry and frustrated about how he had been treated and spoken to. 101 Mr Bushby reported the incident to Mr Wilkings and also made a diary note. The diary note was in the following terms: Daryl challenged Coyley in office - wrong attitude. Shane took him in the office. Will follow up about his negative attitude and the way he speaks and challenges management. Spoke to Daryl after this and Shane's meeting. All I got was attitude and denial over the way he spoke. 102 Mr Coyle said he made a note in his personal diary but the note was never produced. Mr Bushby's note is consistent with both versions. To the extent that the accounts differ, the differences are essentially immaterial. Either way, Mr Lamberth interrupted a conversation between two supervisors. The interruption was rude and inappropriate. Both Mr Bushby and Mr Coyle were taken aback by it. Notwithstanding the fact that Mr Bushby did not confirm Mr Coyle's version of what was said immediately before Mr Lamberth was called into Mr Coyle's office, I largely accept Mr Coyle's evidence. It had the ring of truth about it and I was not persuaded by Mr Lamberth's account. In some respects I found Mr Lamberth's evidence unsatisfactory. Some of his denials I consider implausible. For example, during cross-examination he denied that anything was raised about the way he was passed out. I find that impossible to believe. After all, that was the context in which he made his complaint. He also vigorously denied in cross-examination that he felt victimised or discriminated against in comparison to Mr Daniels. Yet, that is the inexorable conclusion from his own account. In at least one instance he gave contradictory evidence. He insisted that his complaint to Mr Coyle concerning Mr Daniels was that he had been treated differently but not unfairly (T116/30-3). Yet, later in the cross-examination (T116/45), after repeatedly denying that he was not complaining that he had been treated unfairly, in direct response to a question I asked of him, he assented to the proposition that it was "differently in the sense of less favourably". Even so, when Mr Fernon returned to the point a little later in the cross-examination (T122/1-5, T124), he appeared to retreat again; repeatedly denying that he was complaining that he had been treated unfavourably. He also said that it was not true that he joined the union three days after this conversation until his application was put before him and he was forced to make the admission. He also denied that he made the application because he appreciated that his conduct with Mr Coyle had put his employment in jeopardy. Whether or not that denial is strictly accurate, the timing of the application and the absence of any other explanation for it leads me to the conclusion that the confrontation with Mr Coyle played a significant role in Mr Lamberth's decision to join the union. There is, of course, nothing untoward about that. But Mr Lamberth's refusal to make reasonable concessions makes it important to scrutinise his evidence carefully when it is contradicted by the evidence of others.

[25]

The way Mr Lamberth spoke to Mr Nel on 26 May 2011 103 On 26 May 2011 the second incident said to trouble Mr Bushby took place. Apparently a handbrake had been left on and no handbrake marker put in place. Mr Lamberth had checked the vehicle but failed to report that the handbrake was on. It is common ground that Mr Lamberth put the blame for this on Mr Nel. According to Mr Bushby, Mr Lamberth said to Mr Nel in a confrontational manner, waving his statement in his face: "Look what you've done. You fucking caused this. You didn't put a bloody hand-brake marker on. All you done is set us up." And Mr Nel responded: "You should have checked the hand brakes". 104 Mr Lamberth's version is that, after the incident on that day, he said to Mr Nel: This is why we need to put bloody handbrake markers on, so other people don't end up in the shit. And this would not have happened if you had. 105 There is no evidence that either man made a contemporaneous note of what was said or (except in the most general of terms) the way in which it was said. It seems to me, however, that there is no difference in substance between the two versions except that Mr Lamberth denied waving the statement in Mr Nel's face. Mr Bushby claimed he spoke to Mr Nel afterwards to see if he was all right and he told him he was not impressed by the way Mr Lamberth spoke to him. But there is no evidence from Mr Nel, himself. Mr Bushby reported the matter to Mr Wilkings and made a note in his diary. The note is not especially helpful. It merely recited that "Daryl spoke to Laurie unfairly". It also contained a sentence to the effect that Mr Lamberth challenged Mr Bushby and was not going to follow his direction till he had to pull him up. But it is not clear when this sentence was written or to what it referred. 106 In an email sent to Messrs Wilkings and Hamilton within hours of the conversation Mr Bushby's only reference to the confrontation between Mr Lamberth and Mr Nel is consistent with both versions. It is that "Daryl seems to be the one arguing and who had a go at Laurie for not putting a marker on the [hand brake]". 107 Mr Lamberth said in his affidavit in reply that he had spoken to Mr Nel about the incident (albeit over four months after it occurred) and asked him whether he was offended by what he had said and Mr Nel told him "there was nothing in it as far as I was concerned". 108 Nothing really turns on the differences in the two versions of events. Mr Lamberth acknowledged in cross-examination that he had an angry confrontation with Mr Nel, that his behaviour was inappropriate, and that Mr Nel should not have had to put up with it.

[27]

The attitude of Mr Lamberth at the meeting with Mr Bushby on 2 June 2011 112 The next day Mr Bushby called Mr Lamberth into Mr Coyle's office for a one-on-one meeting and took him to task. Although there is a dispute about what was said, it is common ground that Mr Bushby told him he wanted to have a chat about his attitude, the way he approached people and "the way he comes across"; that they discussed the issue of 12-hour breaks and the rules; and that Mr Lamberth asked Mr Bushby what was happening with the handbrake issue. Mr Bushby said he specifically mentioned the way Mr Lamberth "verbally attacked" Mr Nel and that he again voiced his concerns about the way he spoke to Mr Coyle on 1 April, saying there is a time and a place and he should not speak like that to a supervisor. Mr Bushby said Mr Lamberth responded that he and Mr Coyle had sorted it out. Mr Bushby said he told him he was not happy about how he spoke to him in front of others in the office. 113 According to Mr Bushby at various points in the conversation Mr Lamberth said he was "not a mouse like the rest of them", he would always challenge things that are not right and speak his mind when he wanted to, he was not someone who could be pushed around and was unlike "these weak pricks around here". Mr Bushby said that he also told him in an arrogant tone that it was his right to challenge things and that he had been "working in the mining game longer than you and Mick put together". Mr Bushby further said that he told him repeatedly that if it cost him his job he did not care. 114 Mr Lamberth denied making any of these comments to Mr Bushby. Notwithstanding these denials, I think it is likely that he did make comments along these lines. Mr Bushby sent a lengthy email to Mr Wilkings and Ms Thom the next night, which is consistent with his evidence. Mr Hamilton said that Mr Lamberth made similar comments at a meeting with him on 29 June 2011. Mr Lamberth was prepared to stand up for himself (and for his fellow workers). I expect he was more experienced than many other trainees and genuinely believed he was acting in the best interests of the employees (and the employer). He was obviously upset. In the heat of the moment he may have said things he did not mean. He plainly did care about his job; he left a higher paid position to take it, although it involved starting at the bottom. 115 More importantly, Mr Bushby asked Mr Lamberth: Why do you keep challenging people over things that have nothing to do with you? 116 On the question of the 12-hour shift issue Mr Bushby said he told Mr Lamberth he should watch what he says "because sometimes things that you read [referring to the rule book] aren't always what they are". Mr Bushby said he warned him that his attitude was not what he wanted from his crew and that "a negative attitude" could rub off onto other, younger new members and get them into trouble. 117 At the end of the meeting Mr Bushby said he told Mr Lamberth he wanted him to change his attitude and watch how he spoke and when and where he did so. He warned him he was going to document the conversation. He claimed (though Mr Lamberth denies it) that Mr Lamberth had been very animated and cocky. 118 Mr Bushby said that Mr Lamberth later returned and dropped the rule book loudly on his desk, saying words to the effect "there's the rule book there. You're wrong". Mr Bushby said he told him he knew the rule was there but he should not believe everything he reads because it changes a lot "and there is always something else out there". He claimed that Mr Lamberth then made "a smug grunt noise, grabbed the book, turned around and walked off abruptly". Mr Lamberth agreed that he did return to Mr Bushby and handed him the rule book, but denied dropping it on his desk. 119 Mr Bushby later spoke to Mr Wilkings about his concerns about Mr Lamberth's attitude and the way he had spoken to him. 120 On 3 June 2011 Mr Lamberth sent Mr Bushby an email in the following terms (without alteration): As per our conversion yesterday (1-6-11), I would like to thank you for bringing those issue's to my attention. However I have been thinking about our conversation over night and feel it is unfair of you to blame me for other peoples actions on this crew (as you did). I strongly disagree with your accusation that I am responsible for influencing other team members for what they do or do not do. I would have expected that each employee to be responsible for their own actions and behaviours. I enjoy working at Rio Tinto rail 7 mile, and it is a great job. I have had many different roles in my working career and as in this case always give 100% and try to be the best I can be. I am passionate about my role in Rail Ops and genuinely care about my fellow work mates, unfortunately I feel that you have misinterpreted this in a negative way as was the reason for our discussion yesterday. Lastly I was absolutely shocked by your response yesterday when I referred you to the Railway operating procedures book in regard to shift lengths and breaks between shifts. I am still bewildered by your response that I "shouldn't believe everything you read in it, because it changes all the time" I have to say I was disappointed by your blasé attitude to the Railway operating procedures as my supervisor, as the company insists all employees must follow the Railway operating rules and Procedures "We depend on it" Regards Daryl 121 Mr Bushby forwarded the email to Ms Thom and Mr Wilkings. He informed them that "this is not the positive attitude that he gave me towards his job". He said he would put his version of the conversation in an email to them and explained that what he meant about the rules was that "it isn't always that black & white as what is in our rules & procedures". 122 Mr Bushby replied to Mr Lamberth indicating he would follow up with "Mick" (presumably Mr Wilkings) "to make sure the contents of our conversation is what actually what took place" and attached the procedure "that states that an employee can come in with a 10 hr break as per how I "meant" my comments after you challenge me once more regarding the shift lengths and breaks between shifts straight after our discussion". 123 Later that night, in an email dated 4 June 2011, Mr Bushby set out his version of the events for Mr Wilkings and Ms Thom. 124 On 7 June 2011 Mr Wilkings forwarded the 3 June 2011 email chain to Mr Hamilton and Ben Van Roon, the General Manager of Rail Operations. 125 On 8 June 2011 Mr Van Roon emailed Mr Wilkings and Mr Hamilton urging them not to allow "this email warfare with supervisors". He said he was "highly concerned" about the lack of support given to supervisors across depots. 126 On 10 June 2011, three days after his meeting with Ms Thom in which he said he did not want to extend Mr Lamberth's contract, Mr Wilkings asked Mr Lamberth to hang back after another meeting had concluded. Mr Lamberth accepted that the one-on-one conversation took place, but disputed Mr Wilkings's account of some of the contents of the conversation. Unlike Mr Lamberth, Mr Wilkings made a contemporaneous diary note that supported his evidence and it was not put to him that the note was wrong. Mr Wilkings said he told Mr Lamberth that supervisors had raised concerns with him about how he challenged them. He told him that the feedback he had was that Mr Lamberth's general approach was "confrontational". He said the concerns also include the way he communicated with his peers. He told Mr Lamberth that he needed to work on these matters because "it is becoming a concern". In his diary note, Mr Wilkings recorded that Mr Lamberth said he was 40 and would not change and was happy to speak up if something was not right. The diary note recorded that Mr Wilkings told him he did not have a problem with challenging or questions but with his approach. In conformity with what he had also recorded in his diary note Mr Wilkings said that he told Mr Lamberth he needed to show respect to his peers and his supervisors but Mr Lamberth replied (though Mr Lamberth denied it): "respect needs to be earned".

[28]

The manner in which Mr Lamberth handled the four-wheel driver training issue in June 2011 127 In late June 2011 Mr Lamberth refused to comply with an instruction to drive a four-wheel drive with a fellow car examiner up the train track to the 29.6 km mark. Mr Lamberth told Mr Coyle they could not because they had not undertaken the four-wheel drive training course. Mr Lamberth claimed that Mr Bushby had told him that it was only necessary to do the course if he had to go up the train track and that he would not be required to do so during the first 12 months of his employment. Mr Coyle told Mr Lamberth that the policy was that employees only need four-wheel drive training if they are working alone in an isolated environment. Mr Lamberth said he just wanted to make sure he was complying with company policies. Mr Coyle said (and Mr Lamberth denied) that Mr Lamberth said that this was typical of the company not complying with its own policies. Mr Coyle said (and again, Mr Lamberth denied) that Mr Lamberth said he did not have safety concerns and that when Mr Coyle followed the matter up on his return he said that everything was fine. 128 Mr Lamberth later raised the issue with Mr Bushby. Mr Bushby insisted that he did not tell Mr Lamberth he could not go up the track without a four-wheel drive course. On 27 June 2011, Mr Bushby sent an email (MJB11) to the various supervisors seeking confirmation of Mr Lamberth's understanding and pointing out the different position taken by Mr Coyle. 129 Mr Bushby said that on 4 July 2011 Mr Lamberth approached him outside the mainline supervisor's office and told him he had seen the email in which Mr Bushby had asked for clarification about the four-wheel drive qualification (MJB11). Mr Bushby said that Mr Lamberth then stated: That's bullshit, you fucking told us that at one of the safety briefs when I first started here. You were the one who told me that everybody needs to have their four wheel drive course completed in order to go up the track. 130 Mr Bushby also said that Mr Lamberth was "right up close to [his] face" when he spoke to him and was "very aggressive and confrontational in his manner". Mr Bushby said he told Mr Lamberth that he had never had a conversation about having to have the four-wheel drive qualification to go up the track and that, had he had one before, he would have told him. 131 Mr Lamberth denied that he uttered the words Mr Bushby attributed to him. Rather, he said his only complaint related to the use of his name in the email. He also denied he was "right up close" to his face and claimed to be standing about three metres away from Mr Bushby. 132 I prefer the evidence of Mr Bushby. He made a diary note at the time in which the words "in my face" followed by two exclamation marks appear. The diary note also said "see Mick", which I take to be a reference to Mr Wilkings. The next day Mr Wilkings met with Mr Lamberth and encouraged him to work on his communication. Mr Bushby's account is arguably corroborated by a file note taken by Mr Wilkings the same day in which he recorded that he "was aware that [Mr Lamberth's] approach again to the supervisors wasn't appropriate", and referred to the four-wheel driving training as an example.

[29]

The way Mr Lamberth questioned the outcomes of a tagging incident in July 2011 133 In the early hours of the morning of 6 July 2011 two employees failed to place maintenance tags as required. The short description in the record incident form (sent to Mr Bushby at 10.22 pm that day) was that "shunter and trainee proceeded to work on a consist without following the 'maintenance in possession' procedure". 134 During the afternoon Mr Lamberth sent Mr Bushby an email concerning the incident, which he copied in to Mr Wilkings, Mr Carroll and Kym Gellard, another mainline supervisor. It was in the following terms: As you are probably aware by now, we on our crew last night had 2 people (1 Trainee) fitting an ETM bracket and ETM to an ore car without their tags on or protection on that road, they had just finished shunting loco's onto 7 road and overlooked placing their tags after the shunt. Maybe we need to run everybody through the procedure rollout again?, but I would of thought that seeing we all did it last week it would be still fresh in everybody's minds. If you want to discuss this further feel free to contact me. 135 Mr Bushby responded within half an hour, thanking Mr Lamberth for his email, telling him he had been informed about the incident the previous night "by the people involved", "that an incident" had been raised and all information would be passed on to "Mick", whom I infer is Mr Wilkings. He concluded by saying: The feeling is that this is a new procedure that has been updated & re-rolled out & that we should be all assisting each other in regards to go forward & implementing these changes. 136 Mr Lamberth emailed Mr Bushby again on 11 July 2011, apparently dissatisfied with his response. He raised three points: - Was the incident raised the night when it happened? Did drug tests occur and why did work just continue after an isolation breach? As far as I'm aware no statements were taken from all personal involved. - Trainee's getting trained by people that have only just been passed out themselves, Are you aware of any minimum time an employee has to be deemed competent in a particular role before they can train someone in that role? And do they need to be qualified (cert 4)? - Fitting an ETM and ETM Bracket is not a grey area in the new procedure we have always needed a Maintenance Tag to perform this. Additionally it has always been the rule for car-man to get possession AND protection when working on rolling stock in yard Rds. 137 Mr Lamberth concluded with the following remarks: Yes I agree that it is good that the persons involved came forward after they were informed and identified the incident, but it doesn't take away the fact they put themselves in a very unsafe position. I personally think that people need to slow down and think about what they are doing. I would have thought it unsafe and not conductive to good training standards to have people training others that have only just recently been passed out themselves. 138 On 13 July 2011 Mr Wilkings sent a reply to Mr Lamberth's email which thanked him for his concerns, advised that Grant Ramsay, the acting yard superintendent, was investigating the matter and commented on Mr Lamberth's concerns about training. Two days later, Mr Lamberth sent a statement relating to the incident to Messrs Bushby, Wilkings, Ramsay and Gellard. 139 Mr Bushby said he had two discussions with Mr Lamberth relating to the tagging incident in which, he said, Mr Lamberth queried the disciplinary outcomes on the people involved. During the discussions, he explained, Mr Lamberth repeatedly asked what was happening with the investigation and what feedback were they going to get about its outcome and also raised the matters set out in his email of 11 July. He said that on both occasions he told Mr Lamberth that the matter was being investigated but he would not be advised of the disciplinary outcomes as this was confidential. 140 In his oral evidence Mr Bushby said he took into account for the purposes of Mr Lamberth's performance review Mr Lamberth's complaint about the tagging incident, specifically, the way he followed up on the incident and the manner of his communications. During cross-examination, Mr Bushby acknowledged that a failure to tag appropriately has potential consequences for other employees who might try to move the train and that Mr Lamberth was entitled to be interested in the outcome of the investigation into the incident. Despite his earlier comments, he admitted there was nothing inappropriate about the content of Mr Lamberth's emails and that he did not criticise Mr Lamberth for the way he followed up on the incident in his emails. Yet, later, he said he took into account the fact that employees had expressed concerns about Mr Lamberth's conduct, which did relate to the content of the emails. His attempt to explain the apparent inconsistency was unconvincing. I am driven to the conclusion that the reason it was unconvincing is that, despite his assertion that he was not influenced by the fact that complaints and inquiries were made, only the way they were made, when pressed it was difficult for him to divorce the one from the other.

[30]

The performance review 141 On 3 July 2011, Mr Bushby emailed Mr Wilkings with a draft of Mr Lamberth's mid-year performance review. The overall score was 520.5, 32.5 points higher than his eventual score, equating to a "meets expectations" performance rating. Mr Bushby gave him scores of 5 (meets expectations) and above for everything except "effective and constructive communication" and "respect for others and team membership". The highest possible score was 10 (constantly exceeds expectations). Under the heading "Leader's Feedback" (which was designed to reflect an employee's safety performance, performance relating to all other key tasks including teamwork and productivity, and strengths and weaknesses), Mr Bushby noted a number of matters relating to Mr Lamberth's communication and referred to the handbrake incident and its aftermath and their 2 June 2011 discussion. 142 Mr Bushby finalised his report on 20 July 2011. On 8 August 2011, at the second of two follow-up meetings he had with Mr Lamberth, Mr Bushby confirmed that he would not be changing Mr Lamberth's scores, despite the higher ratings Mr Lamberth gave himself. 143 The final report differed in material respects from the draft Mr Bushby had provided Mr Hamilton on 3 July 2011. 144 The draft report allocated scores of 6 in each of two categories - "personal attitude to use of health, safety and environment systems" and "use of relevant health, safety and environment systems"; as well as team scores of 6 and 6.5 for the "team action plan" and "team safety" categories, respectively. In the final document Mr Lamberth's scores in the two individual categories, and the team's scores, had slipped to 5. His total score slipped from 520.5 and the performance rating of "meets expectations" to 488 and a performance rating of "below expectations". The leader's feedback in the draft report referred to both strengths and weaknesses. In the final report there was no mention of Mr Lamberth's strengths. Rather, it was entirely critical. 145 Apart from the changes in the scores, perhaps the starkest difference is the assertion made in the draft report that Mr Lamberth had fitted in "fairly well" into the crew, whereas the final report refers to "disruptions and disharmony" in the crew. The differences appear below in tabular form (emphasis added): 3 July 2011 20 July 2011 Daryl has fitted in fairly well into the crew & just needs to think about how he speaks to crew members - Laurie (26th May) Daryl needs to improve how he speaks to crew members "The way we work" - Laurie Nel (26th May) As per out meeting on the 2nd June 2011. Daryl needs to think about his communication with "when & were" & think about the challenges he make with regard to weather they involve him or not. As per our meeting on the 2nd June 2011. Daryl needs to think about & improve his communication with "when & were" in regards to challenging & speaking to people. As per our meeting on the 2nd June 2011. Daryl needs to think about the challenges he make's in regards to how we speak to supervisors (Disagreement with Shane Coyle over pass out process) & with regard's to weather they involve him or not. (Shane held meeting with Daryl to discuss the pass out process issue). All the above confrontational issues cause disruptions & disharmony on our crew. Daryl needs to remember to report incident ASAP as they happen in regards to H/B being left on a set I/C during a shunt in the yard. N/A

[31]

146 Mr Bushby said that the two individual scores of 6 and the team scores were, in effect, inadvertent. He suggested that they had been left over from a template and that he did not read the form before he sent the draft to Mr Wilkings for his input. He denied knowing that Mr Lamberth had a particular interest in health and safety issues. I do not accept this evidence. I do not believe Mr Bushby's professed lack of knowledge of Mr Lamberth's interest in health and safety issues and I gained the impression during this evidence that Mr Bushby was going out of his way to protect his employer's position in the case. 147 After all, his evidence in chief was that he knew of all the matters Mr Lamberth had raised before conducting his review and many of those matters were concerned with workplace safety. Mr Lamberth raised matters that did not merely concern him directly but affected other employees. The contretemps over the 12-hour shift breaks is a classic example and that had occurred not long before the draft report was prepared. Both Mr Hamilton and Mr Wilkings were aware of Mr Lamberth's interest in the area, even though Mr Wilkings, at least, worked a different shift. It is unlikely that the more senior supervisors would know of it and Mr Lamberth's direct supervisor, with whom he presumably had more frequent contact, would not. Mr Bushby only supervised a total of 11 employees. While, no doubt mistakes of this kind can happen, the fact that the higher scores were in the very areas in which Mr Lamberth apparently excelled (at least in relative terms) is unlikely to be a coincidence. I also think it is unlikely, despite Mr Bushby's denials, that Mr Bushby would not have read the document before he sent it to Mr Wilkings. He said he did not send draft performance reviews for all employees to Mr Wilkings. In this case his covering email posed the question: Can you have a look over Daryl's review & let me know what you think???? 148 This suggests that Mr Bushby was concerned that he had got the assessment right. Mr Wilkings response came five days later. It was in the following terms: Have had a chat with Chantelle and Mark. As I suggested with regards to the team work score. 149 I have come to the conclusion that Mr Bushby's actual views were reflected in the draft report but that the final report was designed to produce the outcome Mr Wilkings needed to facilitate the termination of Mr Lamberth's employment. Mr Wilkings, it will be remembered, had already made up his mind not to extend Mr Lamberth's contract and had been advised to make sure that the mid-year review was consistent with the "feedback". Doubtless Mr Wilkings intended that the review provide a basis for justifying the decision not to offer permanent employment. It is likely that Mr Wilkings made his thinking plain to Mr Bushby, whether or not he expressly told him he wanted to get rid of Mr Lamberth. Mr Bushby was asked in cross-examination about whether he had had any discussions with Mr Wilkings about whether Mr Lamberth should be offered further employment and replied: "I can't remember, but I don't think so". I would be surprised if there was no communication about a matter such as this with the leader of the team in which the employee had worked and I think it is more likely than not that Mr Wilkings did speak to Mr Bushby about it in this case. Mr Bushby conceded that he took a close interest in the question of who is or is not offered further employment after the conclusion of the trainee period. Mr Lamberth was one of only two employees coming to the end of their 12-month contract in November 2011.

[32]

Was the fact that Mr Lamberth exercised a workplace right a reason for the assessment on the performance review? 150 The applicants made much of the lack of formal documentation or official warnings given at the time of the allegedly offending conduct to support their submission that the importance of the events has been exaggerated. I do not think that there is much joy to be had from the lack of formal documentation or official warnings. There was a note of all of these events. And Mr Lamberth was on probation anyway. I accept that both Mr Bushby and Mr Coyle were shocked about the way Mr Lamberth behaved on 1 April 2011. I think that, with time, the event assumed a greater importance, not because of this proceeding, but because it was not an isolated incident. Rather, it became symptomatic of a pattern of behaviour. 151 Mr Bushby repeatedly said it was not the fact that he was challenging management decisions and processes that concerned him but the way he went about doing so. 152 I do not doubt that Mr Lamberth was imprudent in the way in which he dealt with his supervisors and at times intemperate and discourteous. I accept that his supervisors were genuinely displeased with the manner in which Mr Lamberth expressed himself, especially to management. I gained the distinct impression, however, that Mr Bushby, in particular, was offended by the fact that the complaints were made, or at least repeatedly made, and by the fact that Mr Lamberth was not easily placated. He was particularly irritated by the challenges made directly to him over the 12-hour shift requirement and the four-wheel drive training. He might have been embarrassed by them. In my assessment, he thought that Mr Lamberth was too big for his boots, that is to say, that he considered he was taking up issues he would not have expected a trainee to raise, that he resented Mr Lamberth's continuing intervention in matters he considered were no concern of his and that he found the task of dealing with his complaints burdensome. In cross-examination Mr Bushby denied that he was troubled by the fact that Mr Lamberth was raising the shift break issue, asserting that everyone has the right to raise any concerns. My impression, however, was that this was the answer Mr Bushby felt he had to give to support the respondent's case and not a candid account of what he thought at the time. The evidence is at odds with Mr Bushby's email to Ms Thom and Mr Wilkings of 4 June 2011 (MJB10). In the email Mr Bushby detailed the scope of the discussion he had had with Mr Lamberth on 2 June 2011. While the email recited, amongst other things, Mr Bushby's concern with the way Mr Lamberth had spoken to members of the crew and supervisors and the times and places he challenged people, he also recorded that he had asked Mr Lamberth why he had a negative attitude towards the business as he seems to raise a lot of indifferences with in our business, he informed me that he was not a mouse like the rest of "THEM" & he said I will always challenge things that are not right. I asked him what was not right do we ask people to work in an unsafe workplace he said no so I asked why do you need to keep challenging people over things that have nothing to do with you an example of this was him questioning Grant Ramsey & Myself over the light vehicle incident that took place in the yard & he also challenged me & Paul Lowkic over Jamie-lee not having a 12 hr break between shifts, I explain that there was a time, place & way of communicating this enquiry. [Emphasis added.] 153 I should say that when I asked Mr Bushby to explain what he meant by "indifferences", he said "he's seeing things differently than what we actually do in the business", "the things he was raising and the follow-up on them things was - the feedback we were giving him he wasn't happy with, so that's what I was referring to". 154 Mr Bushby's denial is also at odds with what was in his affidavit. In his affidavit he stated that he asked Mr Lamberth on 2 June 2011 why he kept challenging people over things that had nothing to do with him. 155 Later in his cross-examination he reluctantly made the concession: MS HOWELL: So you thought that the 12 hour shift break issue had nothing to do with Mr Lamberth? MR BUSHBY: It had to Jamie Lee Paterson. MS HOWELL: And you thought he should have just kept out of it altogether? MR BUSHBY: No, he can still raise it but it would have been good to come from her. MS HOWELL: See, what's the problem with it coming from Mr Lamberth? MR BUSHBY: Nothing, just that, if anything, the people involved should bring it up. HER HONOUR: So you didn't think it was any of his business, basically? MR BUSHBY: Yes. MS HOWELL: That's an example - the approach you prefer is one of direct engagement; is that right? MR BUSHBY: From the people involved, yes. MS HOWELL: Yes. And you were making it very clear to Mr Lamberth in this part of the discussion that you thought he was sticking his nose in, in effect, to things that had nothing to do with him? MR BUSHBY: Yes, it seemed to be happening, yes. MS HOWELL: Yes. And that was one of the concerns you had about his conduct? MR BUSHBY: Not the concerns with his raising; how he raised it. MS HOWELL: Mr Bushby, that's just not right, is it? The concern is he's sticking his nose into matters that don't concern him? MR BUSHBY: Yes. 156 Ms Howell then asked Mr Bushby about his concern with respect to the light rail incident: MS HOWELL: And is it - in general terms, Mr Lamberth was concerned about the way in which that incident had been handled? MR BUSHBY: Yes. MS HOWELL: And he pursued that by way of email, and I think there are some in your affidavit? MR BUSHBY: Yes. MS HOWELL: Yes. And again, you thought he was sticking his nose into things which were not his business? MR BUSHBY: He wasn't happy with the answers he was given. HER HONOUR: Well, could you just answer Ms Howell's question, Mr Bushby? MR BUSHBY: Yes. 157 In his file notes and emails Mr Bushby frequently complained of Mr Lamberth's "wrong' or "negative attitude" towards the respondent and the way he spoke to people, including managers. I accept that this is not an exercise in statutory construction and it is not unusual for people to put the same thing in two different ways. But I do think that properly understood, Mr Bushby was not merely troubled by the manner of Mr Lamberth's communication. He was also concerned by the fact and frequency of his complaints. 158 The attempt to divorce or disentangle the fact that the complaints were made from the way in which they were conveyed was not successful. 159 In the result, I am not satisfied that the statutory presumption in s 361 has been rebutted. In other words, I am not satisfied that the action taken in connection with the performance review was not taken for reasons that included the fact that Mr Lamberth made complaints and inquiries in relation to his employment. I am not satisfied that that fact was not a substantial and operative reason for the poor assessment.

[33]

Was the fact that Mr Lamberth was a union member or engaged in industrial activity a reason for the assessment on the performance review? 160 The undisputed evidence was that at the relevant time there were approximately 250 members of the Karratha Lodge of the CFMEU and that an estimated 85% of the locomotive drivers and car examiners at the 7 Mile Yard were members of the CFMEU. Mr Lamberth's partner has been an active member of the Lodge since its inception. She remains an employee of the respondent. Mr Hamilton gave evidence that he had been a union member for nearly 30 years although he no longer is. Mr Coyle said he was a member of the CFMEU and participated in industrial action it organised in 2008. In these circumstances I am satisfied that Mr Lamberth's union membership per se had nothing to do with the adverse performance assessment or, indeed, with any of the decisions that were taken. 161 I am also satisfied that Mr Lamberth's industrial activities did not play a part in the assessment. As I indicated earlier, there is much evidence to show that the respondent did not welcome the presence of the CFMEU or its activities. But there is little, if any, evidence to suggest that before 7 June 2011 when Mr Wilkings reached his decision about Mr Lamberth's future with the company, Mr Lamberth was at all active in the union. Mr Lamberth did not hand out the union badges until August 2011. Mr Jones said that from April 2011 he requested Mr Lamberth to remind D Panel members of Karratha Lodge meetings and encourage attendance. There is no evidence, however, that Mr Lamberth did this or that, if he did, his activities came to his supervisors' notice. Mr Bushby said he was aware that Mr Lamberth was talking to other employees about the union but there is no evidence about when that was. Mr Jones said that "during 2011" he provided Mr Lamberth with verbal and written information to pass on to employees in relation to the enterprise agreement and the voting process. Information contained in the pamphlets Mr Lamberth circulated and displayed from his locker show that they were not printed after 11 June 2011. By then, however, Mr Lamberth's fate was sealed.

[34]

Did the respondent refuse to accept Mr Lamberth's nomination for a prohibited reason? 162 I now turn to consider whether the respondent has proved that the refusal to accept Mr Lamberth's nomination as a member of the safety and health committee was not taken for a prohibited reason. 163 The respondent made limited submissions on this issue, apparently opting to rest on its earlier submission, which I have rejected, that the refusal to accept the nomination does not amount to adverse action under the Act. 164 As it was Mr Hamilton's idea that Mr Lamberth nominate, the logical question is: what changed between 27 June 2011 and 12 August 2011? 165 In cross-examination Mr Hamilton asserted that by the end of his meeting with Mr Lamberth on 29 June 2011 he had changed his mind. I do not accept this evidence. If that were so, then why not tell Mr Lamberth there and then? Why not tell him when he received his email on 19 July 2011? Mr Hamilton responded by thanking him for his nomination and informing him that the formal nomination communication would come the next today. The assertion made in cross-examination was not made in chief. In his affidavit Mr Hamilton said that he did not accept Mr Lamberth's nomination because there had been no improvement in Mr Lamberth's communication style and he continued to receive "similar feedback" about it. Moreover, if Mr Hamilton was of the opinion that he had the skills and abilities to undertake the role during the meeting, despite his past dealings with him and the feedback he had received from other supervisors, it is likely that something else was at play. 166 On 29 July 2011 Mr Bushby sent Mr Hamilton a report of his meeting with Mr Lamberth that day concerning his performance review. In it he referred to his concerns, which he said he had raised with Mr Lamberth, that, instead of just doing his job, he challenges his supervisors. He concluded his report with the statement: I just thought I would raise this as some of my examples Daryl could turn around & use as he & others that he associated [with] would do. 167 Mr Bushby denied that "others that he associated [with]" was a reference to Mr Lamberth's association with Mr Jones. He said it was a reference to his association with another employee, whom he supposed was also a member of the union. It is plain from his evidence that what concerned him was the prospect that Mr Lamberth would complain about him and, in the process, misrepresent him. I infer that he was keen to put his version down first to strengthen his position in the event that that occurred. Nevertheless, it is difficult to accept that the reference to Mr Lamberth's associates was not intended as a reference to his union connections. Mr Bushby was acutely aware of them. On 20 August 2011 Mr Bushby expressed surprise to Mr Lamberth that he did not appear in a photograph with other CFMEU members published in the West Australian about three days earlier. 168 Mr Bushby denied that he considered Mr Lamberth to be a troublemaker. But the whole tenor of Mr Bushby's evidence, particularly his contemporaneous accounts, leads me to the conclusion that this is precisely what Mr Bushby thought of him. It was a view shared by all Mr Lamberth's supervisors. 169 On 2 and 3 August 2011 Mr Lamberth went to Perth for training as a union representative in a course conducted by the CFMEU. Mr Jones also attended. It is unlikely that Mr Lamberth's supervisors were unaware of this (although Mr Hamilton denied any knowledge of it). 170 Mr Lamberth said that Mr Hamilton told him on 12 August 2011 that he was not going to let him be a safety representative because of his poor communication skills. Mr Hamilton did not suggest otherwise in his evidence. And this was the position he took in his affidavit in which he also stated that none of the other nominees had "communication issues" like Mr Lamberth. He said his view was that Mr Lamberth was "not fit to represent his peers as a safety representative due to his communications and interactions with his peers and leaders". Mr Jones, however, said that he had a conversation with Mr Hamilton on 11 August 2011 in which he made certain comments, which, it seems to me, raise an inference that, if this were a reason, it was not the only reason the decision was made. 171 Mr Jones said that Mr Hamilton told him: "I thought you were going to speak to your protégé and ask him to calm down a bit?" Mr Jones said he then asked: "Who are you talking about?" Mr Jones claimed Mr Hamilton replied: "You know who - Daryl", which I take to be a reference to Mr Lamberth. Thus far, the conversation is not inconsistent with Mr Hamilton's position or, indeed, what Mr Lamberth was told. But at that point, according to Mr Jones, Mr Hamilton said: You know there's no requirement for a union at Rio Tinto. The wages and conditions here are really good. Unions are only a necessity in smaller operations. Tell me, just what do you think you have achieved for your membership with this agreement? 172 Mr Hamilton did not deny this conversation. And it reflects the corporate view (notwithstanding statements to the contrary effect in The Way We Work). The evidence showed that the Rio Tinto group has a long-standing policy that favours "direct engagement" with staff. From time to time this message was transmitted to staff through emails, including during the period of Mr Lamberth's employment. Although "direct engagement" was not defined, the evidence indicated that it refers to employees and employers interacting directly without the intervention of an intermediary, in particular a trade union. Mr Hamilton explained that the business does not prefer that unions represent employees as it goes against the principle of direct engagement. 173 Mr Lamberth's activities in support of the union and the enterprise agreement were at odds with this policy. 174 The timing of this conversation is significant. It occurred two days before the close of voting on the enterprise agreement. Mr Lamberth had been openly canvassing for votes in favour of the agreement. Mr Wood said that this was the first collective agreement negotiated with a union to apply to the respondent's operations since the introduction of statutory individual contracts in the early 1990s. It was therefore a very important event for the union, the employees and the respondent. 175 Although Mr Hamilton at first "absolutely" denied that he knew that if Mr Lamberth contested the ballot he would be elected, the contemporaneous evidence showed (and Mr Hamilton accepted) that he was of the view that he would win the ballot handsomely. On 23 August 2011 Mr Hamilton sent an email to Mr Van Roon at 7 Mile depot, telling him that he was certain that Mr Lamberth would "walk away with the election" were his name put forward. 176 I consider that the respondent's witnesses exaggerated the extent of Mr Lamberth's problems interacting with his peers. Mr Jones encouraged Mr Lamberth to stand for election as he believed Lamberth had the necessary level of commitment and support of the workforce to do the job. His nomination form was seconded by a mainline driver with over 35 years experience. Mr Hamilton's conclusion that if Mr Lamberth's name were put to the employees he would certainly "walk away" with the election suggests that his real opinion was that he was in fact popular with his peers - perhaps because he was prepared to stand up to his employer on their behalf. Mr Bushby had recorded in his draft report of the performance review that Mr Lamberth had fitted in fairly well into the crew. 177 It is tolerably clear that the decision not to accept Mr Lamberth's nomination was made in order to avert the likelihood, if not the inevitability, that he would win the ballot, an outcome repugnant to the respondent. The respondent may well have considered that Mr Lamberth was unsuitable to be a member of the safety and health committee because of his confrontational manner. I am not, however, satisfied in all the circumstances that his efforts to recruit employees into the union, to canvass other employees to vote in favour of the enterprise agreement and, in general, his enthusiastic support for the union had nothing to do with the respondent's actions. I believe that more probably than not Mr Lamberth's pro-union activities had an effect on Mr Hamilton's thinking. It is likely that some time between making the suggestion to Mr Lamberth and his conversation with Mr Jones on 11 August he became aware of Mr Lamberth's energetic advancement of the union's interests. There is little else to account for his change of heart. Mr Hamilton was aware of the "poor communication skills" when he made the suggestion in July. There was no material change on that score in the interim period I have not overlooked the conflict over the performance review. That may very well have played a role in Mr Hamilton's thinking. But I am not persuaded that it was the only reason he changed his mind. 178 Furthermore, I am not satisfied that Mr Lamberth's readiness to complain about or inquire into matters relating to his employment did not play a part in the decision. Mr Bushby made sure that his superiors were kept informed of his actions in this regard. 179 I therefore conclude that the respondent refused to accept Mr Lamberth's nomination for election to the safety and health committee because he exercised a workplace right and engaged in industrial activity.

[35]

Was the failure to offer Mr Lamberth continuing employment taken for a prohibited reason? 180 Each of the men involved in the decision (either directly or indirectly) gave evidence to the effect that he was actuated only by his concerns about Mr Lamberth's manner of interacting with his peers and supervisors. 181 Evidence was given of an occasion not long before Mr Lamberth was informed of the respondent's decision not to offer him further employment that the respondent relies on as influential in that decision. On 30 September 2011 Mr Hamilton apparently mistook Mr Lamberth for another employee, calling out to him "Hey Marty". Mr Hamilton said that he realised his mistake and then apologised but Mr Lamberth turned around and said "Mate you're not even fucking close". Mr Lamberth did not dispute that he said these words but denied that he had spoken loudly or aggressively and claimed he was walking away from Mr Hamilton at the time. I think it is likely that he did speak loudly and, whether or not it was aggressive, it was out of order. Mr Bushby heard him and later reprimanded him for it. Whilst Mr Lamberth's behaviour on that occasion would not have endeared him to his employer and it was not atypical, I am confident it played no part in the decision not to renew his contract. Although the decision was not conveyed to Mr Lamberth until much later, as I have said, it was made well before then - by 7 June 2012. 182 7 June 2012 happens to be the day after an in-principle agreement was reached between the CFMEU and Rio Tinto over the enterprise agreement. I am not, however, satisfied that had anything to do with the decision. In fact I am satisfied that the decision not to extend Mr Lamberth's contract was not made for a reason that included Mr Lamberth's union membership or activities. 183 Mr Bushby gave uncontradicted evidence that each of the employees whose contract was not extended had "various safety or performance related issues during the term of their fixed term employment". No attempt was made to test this assertion. For the same reasons I gave earlier in connection with the performance review, the evidence as to Mr Lamberth's union membership and involvement in union activities leads me to the conclusion that they did not play an operative role in the decision not to offer him employment after his contract expired. More likely what persuaded Mr Wilkings was the information he received from Mr Bushby in his email of 4 June 2011 concerning the confrontation at the 2 June 2011 meeting. Mr Lamberth disputed parts of Mr Bushby's account of what occurred at that meeting but I prefer Mr Bushby's account, supported as it is by his contemporaneous email. The dispute, however, is immaterial. What matters is what was said in the email to Mr Wilkings, not the truth of its contents. 184 However, to the extent that the email reflected Mr Bushby's concern that Mr Lamberth was making complaints or inquiries about matters related to his employment, they do involve a prohibited reason, although it was obviously not the only reason and it might not have been the principal reason. I am satisfied, as I indicated earlier, that it affected Mr Bushby's thinking and, although Mr Bushby denied playing a part in the decision not to renew Mr Lamberth's contract, as the concerns he reported to Mr Wilkings undoubtedly contributed to Mr Wilkings's decision, I am not satisfied that the respondent has excluded as an operative reason the fact that those complaints and inquiries were made.

[37]

What is the appropriate form of relief? 186 The Court has the power to make any order that it considers appropriate: FW Act, s 545(1). Subsection (2) of s 545 provides that, without limiting subsection (1), the Court may make orders granting an injunction to "prevent, stop or remedy the effects of a contravention", awarding compensation, and for reinstatement of a person. The section confers the broadest of discretions on the Court. Importantly, unlike s 170EE(2) of the WR Act, there is no express requirement to consider whether reinstatement (or here, re-employment) is impracticable. Similarly wide powers are conferred on the Court by s 23 of the Federal Court of Australia Act 1976 (Cth). 187 The applicants should have the declaratory relief supported by the findings I have made. The next question is what, if any, order should be made. 188 Originally the applicants asked for an order that Mr Lamberth be reinstated. In closing submissions that request was abandoned. The order they seek is in the following terms: An order requiring the respondent to offer Mr Lamberth permanent employment on the same terms and conditions that apply to employees of the respondent classified as rail car examiners who have completed their first year of employment and have accepted an offer of permanent employment. 189 Section 170EE of the WR Act provided that if reinstatement is impracticable, the Court may make an order for compensation instead. There is no such precondition under s 545 of the FW Act, although doubtless such a consideration would be relevant. Here, there is no dispute that an order of this kind may be made. The issue is whether it should be. 190 Finkelstein J said in Independent Education Union v Geelong Grammar School [2000] FCA 557 at [34] of the remedy of reinstatement that where an employee has been dismissed for a prohibited reason, in the ordinary case reinstatement is the appropriate remedy. That observation applies equally here. It is common ground, however, that it is relevant to consider whether a satisfactory working relationship can be achieved. 191 The respondent urged that the order the applicants want should not be made. It submitted that the following circumstances were relevant: Mr Lamberth's "present position", which I take to be a reference to the fact that he is currently employed elsewhere; the interests of Mr Lamberth's current employer as a third party who would be affected by the order "the circumstances that gave rise to the application" and "the applicant's view of his employer". Mr Fernon submitted that, "whatever view one takes of this case there's no doubt that Mr Lamberth displayed disagreeable attributes which would militate against the court exercising the power to require an employer to employ him". 192 I have thought long and hard about the respondent's submissions but I cannot accept them. 193 First, I do not see how the fact that Mr Lamberth secured alternative employment is material. The job he now has he obtained because the respondent refused to renew his contract. It is the job he left to take up a position on lower pay and at a lower status with the respondent. It is a job that requires him to live and work far away from his wife and young child. The job he wants is the job the respondent wrongly denied him. The interests of Mr Lamberth's current employer are entirely irrelevant. 194 As for the second matter Mr Fernon raised, it is difficult to understand what is meant by "the circumstances that give rise to the application". If that is meant to be a reference to the fact that the respondent declined to offer Mr Lamberth permanent employment, it would mean that no matter how egregious an employer's behaviour an order of this kind could never be made. If it is meant to be a reference to the reasons the respondent proffered, they must be seen in the light of the findings I have made. 195 Thirdly, the "disagreeable attitudes" were said to relate "in particular" to Mr Lamberth accusing Mr Bushby of having lied to him. It is true that the relationship between Mr Bushby and Mr Lamberth would be uncomfortable, at least at first, but that is insufficient reason not to make the order the applicants seek. Apart from anything else, there is no reason why Mr Lamberth would have to work on Mr Bushby's panel. In any case, to paraphrase what the Full Court of the Industrial Relations Court said in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 ("Perkins") at 191, it may be embarrassing and inconvenient to an employer to have to re-employ an person the employer believes to have behaved inappropriately but that will be because in bringing the employment to an end the employer was actuated by a prohibited reason. 196 Fourthly, Mr Fernon conceded that if I were to accept his submissions the respondent would benefit from its unlawful action. That would not promote the legislative purpose. 197 There is no evidence that re-employment would be impracticable. The respondent's enterprise is not a small business. The evidence was that there are 207 employees in the 7 Mile Rail Operations team. There was no suggestion that re-employment would seriously affect productivity and I do not accept that it would seriously affect harmony within the business. Nor do I accept that it would be likely to impose "unacceptable problems or embarrassments." See Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 57 IR 50 at 60-1 cited with approval in Perkins at 189-90. 198 There is no evidence to suggest that Mr Lamberth is not competent in his work. His interest in workplace safety, the welfare of his fellow employees and his experience show that he has a positive contribution to make to the respondent's business. 199 Mr Fernon urged that, if the order were to be made the adjective "permanent" should be removed. I think that is unnecessary. "Permanent" only means indefinite. It does not mean forever. If Mr Lamberth does not fulfil the terms of his contract, the respondent may still dismiss him, just as long as they do not do so for a prohibited reason. 200 But there is one thing that does concern me. Plainly, Mr Lamberth has had some problems interacting with his supervisors. He did acknowledge that he had a problem, but only up to a point. Although he was reproached about his manner on several occasions, the events of 30 September 2011 suggest that he has not addressed the problem. Whilst I do not think that Mr Lamberth's conduct on that occasion had anything to do with the decision not to extend his contract, because that decision was made a good deal earlier, I do think that it is relevant to the question of what orders should be made. There are ways that this might be addressed, short of refusing to order re-employment. 201 In all the circumstances, I am minded to make the order the applicants seek but I want to hear further from the parties about what additional order should be made to address my concerns. In the first instance the parties should confer with a view to seeing whether consensus can be reached on the terms of such an order.

[38]

Costs 202 Section 570(1) of the FW Act relevantly provides that a party may be ordered to pay the costs incurred by another party only in accordance with subsection (2). Subsection (2) provides: The party may be ordered to pay the costs only if: (a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or (b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or (c) the court is satisfied of both of the following: (i) the party unreasonably refused to participate in a matter before FWA; (ii) the matter arose from the same facts as the proceedings. 203 No application was made for costs of the principal proceeding and I do not propose to make such an order. But the applicants applied for the costs of an interlocutory application the respondent made on 11 November 2011 for the proceeding to be transferred to the Western Australian registry so that the matter could be heard in Perth rather than Sydney. They relied on para (b) of subs (2). They contended that the respondent's unreasonable act or omission caused them to incur the costs of that interlocutory application. 204 The respondent opposed the order the applicants sought. Its reasons, in short, were: (1) The absence of a connection between the matter and New South Wales; (2) The residence of the witnesses; (3) The place of Mr Lamberth's employment; (4) The additional time and expense to which Pilbara Iron would be put if the matter proceeded to a hearing in Sydney; (5) The urgency with which the matter was managed, which ultimately proved unnecessary (as Mr Lamberth had been made an offer of employment before the interlocutory application had been heard and accepted it the day of the interlocutory hearing. I interpolate that there is no evidence that the applicants' legal representatives were aware of these matters at the time). 205 The respondent contended that it had "at least a strongly arguable case for a transfer" and that, as things transpired, the argument has been shown to be compelling. 206 I reject these submissions. 207 As I said when I refused the interlocutory application, I had some sympathy with the respondent's position. But I dismissed the application for several reasons. First, the applicants chose to file the application in New South Wales and there was no suggestion that the decision was made capriciously; the applicants' legal representatives live and work in Sydney. Secondly, there was no juridical advantage in the matter being heard in Perth. Thirdly, there was no resident Western Australian judge who was available to hear the case. Fourthly, although all the witnesses resided in Western Australia, the evidence in chief was to be given by affidavit. There was no inconvenience to any of the witnesses unless they were required for cross-examination. In the event that credit was not in issue, evidence could be given by video-link. At the time the application was made, the applicants had filed their evidence in chief but the respondent could not tell the Court whether anything their witnesses said would be challenged. Absent a challenge there would have been no need for the Court and the lawyers (all of whom were based in Sydney) to travel to Perth where it was envisaged the trial would take place. In essence, if there were a reasonable case for transfer, the respondent came to Court without the evidence or even instructions necessary to support it. Consequently, the application failed. See Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd [2011] FCA 1541. 208 Although I indicated that the respondent could make a fresh application when these matters became known, it did not do so. 209 Four of the five matters the respondent relied upon were canvassed in the judgment on the application. That, of course, does not make the act of mounting and pursuing the application unreasonable. But in the absence of any juridical advantage in having the matter heard in Perth, the lack of a connection with New South Wales was entitled to little, if any weight. There was no request for a view and no suggestion that one would be necessary. The additional time and expense of a Sydney hearing was only relevant if the witnesses had to be brought to Sydney. Yet, counsel was unable to tell the Court that that would be necessary. As the applicants put it in their submissions, the respondent brought the application and required the applicants to deal with it before it had ascertained whether the essential facts necessary to make it out existed. In particular, the respondent was unable to tell the Court on the hearing of its motion the extent to which the affidavit evidence filed by the applicants was contested; the number of witnesses who would be called by the respondent; which witnesses if any would be required for cross-examination; and the extent to which any oral evidence might be given by video link. 210 I accept the applicants' submissions that to pursue the application without knowing the answers to any of these questions was an unreasonable act that caused them to incur the costs of meeting the application. It is true that, the matter could have been transferred to the Western Australian registry had it not been for the perceived need for urgency, a perception that proved to be wrong. But that does not mean that the application had any greater likelihood of success when the respondent was unable to answer the Court's questions on matters of critical importance to its case. I certify that the preceding two hundred and ten (210) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann

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