Edgar v Norton Rose Fulbright Australia Services Pty Ltd

Did the primary judge err in not finding that Mr Cross was part of the decision-making process? 44 For the following reasons, and those stated above, this ground is not made out, and the primary judge did not err in not finding that Mr Cross was a decision-maker or part of the decision-making process. 45 As is evident from the above, the determination of whether Mr Cross was a decision-maker, or whether his purported affected or infected report formed some integral part in the ultimate decision made by NRFA Services to terminate Ms Edgar's employment, is a question of fact. 46 There was no dispute between the parties as to the applicable legal principles, most recently elucidated by the Full Court in Wong at [26] per Katzmann, Charlesworth and O'Sullivan JJ. In Wong, the Full Court found that, where a corporate entity is alleged to have taken adverse action against an employee acting on information or advice actuated by a prohibited reason, that may necessitate the conclusion that the entity's reasons included a prohibited reason, even where the person providing the information or advice does not formally possess the authority or power to make the decision. Ms Wong's supervisor, Mr Arnott, was found to be a decision-maker. Analogising between this appeal and Wong, Ms Edgar submitted that, without the findings made by Mr Cross in his investigation report on Ms Edgar's complaints, Ms O'Rourke would never have been called on to make a decision in relation to her ongoing employment. In Ms Edgar's contention, Mr Cross's evidence as to the reasons why he made the findings in his report was therefore crucial to NRFA Services discharging the reverse onus. Although the Full Court in Wong had found the employer not to have contravened the Act, that decision was on the basis that the first instance Court had made findings in relation to Mr Arnott's state of mind assuming that its conclusion that he was not a decision-maker was wrong. The same is not true here, as the primary judge did not make findings in relation to Mr Cross's state of mind in the context of the reverse onus. 47 The extent to which an analogy can be drawn between this case and Wong is, however, limited given the differences between the roles of Mr Cross in this case and Mr Arnott in Wong. In Wong, Ms MacLeod (the person with the power to terminate) acknowledged that Mr Arnott's input into her decision to remove Ms Wong from her roles was "essential": Wong at [71]. The Full Court noted (at [79]): The case was not one in which Ms MacLeod received information from Mr Arnott the reasonableness, truth or accuracy of which she investigated for herself. Mr Arnott was not a mere informant or witness among many. Rather, in our view, he was an instigator of the process that led to the adverse actions being taken on the basis of his word, without reference to Ms Wong. Not only did he provide a large part of the information upon which Ms MacLeod acted, he also personally authored the reasons for the removal decision in dot points that reflected his own experiences with Ms Wong in the workplace. He accompanied Ms MacLeod in the seeking of advice as to whether the "case management history" (being an historical narrative largely provided by him) would form a sufficient basis to put in train a process for Ms Wong's dismissal. He expressed the opinion that Ms Wong's employment was untenable. That Ms MacLeod formed the same view is hardly surprising, given her acknowledgement that she accepted everything Mr Arnott said to be truthful (including the assertion that Ms Wong was to blame for his deteriorating emotional state). 48 In this case, Mr Cross investigated Ms Edgar's complaints and produced a report, which made no recommendation about whether Ms Edgar's employment should be terminated. It was never alleged, nor would be provable on the facts as found, that Mr Cross had any involvement or influence in the decision-making process save for the allegation of him pre-determining the outcome for a prohibited reason (the fact of Ms Edgar making the complaint), which was expressly rejected by the primary judge, and those findings then being relied upon by Ms O'Rourke. Therefore, the facts of this case are very different from those in Wong, where Mr Arnott: (a) was found to be "an instigator of the process"; (b) he "personally authored the reasons [for dismissal]"; and (c) accompanied Ms MacLeod in seeking advice and expressed his opinion of the employment being "untenable": at [79]. 49 Relying on the principles in Wong, Ms Edgar submitted that the primary judge was in error for the following reasons. First, his Honour purportedly treated Mr Cross's conduct like that of Messrs Melzer and Boxsell, even though Mr Cross was responsible for conducting the investigation while Messrs Melzer and Boxsell were merely participants in it. I do not accept that this occurred. It is clear from his Honour's reasoning that his Honour understood the different allegations made against each of the gentlemen. It is apparent, however, as set out in the extracted portion of Ms Edgar's submissions regarding each of their alleged involvement at [26] above, that there was an intertwining of Ms Edgar's allegations as they related to Mr Boxsell and Mr Melzer as participants and Mr Cross as investigator. This explains why his Honour dealt with them all together. It does not arise from error but rather is responsive to the way that Ms Edgar formulated her case. 50 It was Ms Edgar's case that Messrs Boxsell and Melzer fed up to Mr Cross a series of denials (or lies) about their alleged conduct towards Ms Edgar which was the subject of her complaint. It was then alleged that Mr Cross chose to accept those lies because he wanted to "shut" down Ms Edgar's complaint to protect his interests as a partner of the firm. As observed earlier, his Honour rejected Ms Edgar's allegations as against Messrs Boxsell and Melzer, and therefore the allegation of them "lying" goes nowhere. Similarly, the allegation against Mr Cross of his having chosen to accept lies must fall away. Further, to the extent that the allegation was made against Mr Cross on the basis of the alleged animus (actuation by a prohibited reason) for his findings, this also was rejected and therefore any reliance on those findings per se by Ms O'Rourke would go nowhere without findings of animus for a prohibited reason on her part, independently of Mr Cross to the extent that there was such an allegation, it was that Ms O'Rourke was actuated by a prohibited reason given the dismissal letter included a heading that "the working relationship between you and Lex and Alex has been strained as a consequence of the unsustained complaint you made against them" (emphasis added). Ms Edgar submitted that this provided clear evidence that the decision to terminate was made because of the complaint. This was rejected by the primary judge: see J[790]. 51 Relatedly, it was submitted that the primary judge created (erroneously) an artificial distinction between the decision-making and the investigative process. Whether such a distinction will be appropriate or artificial is fact-dependent. Further, in this case, the reference to the distinction was responsive to how Ms Edgar had framed her case (see for example an extract from her submissions at [26] above) rather than by the adoption of a principled conceptual line. If his Honour had approached the question from the perspective that only the person authorised to make the decision can be the decision-maker and that a material contributor (albeit one without the authorising power) cannot, then that approach would be erroneous, as was found in Wong. However, it is clear that the primary judge understood that the inquiry was a broader one: This can be seen from the fact that the primary judge posited the broad question "whether [the] adverse action was the product of the reasoning process of more than one person": at J[783]. Immediately thereafter his Honour cites Gibbs and Clermont Coal, which both recognise the breadth of the inquiry and the capacity for material influencers to infect or affect the process, stating that more than one decision-maker has been found when there was "advice of others on issues material", including those "who make tendentious statements of fact or fact-finding which affect in a substantial or operative way the decision": at J[783]. It is clear that his Honour ultimately found that Messrs Boxsell, Melzer and Cross did not form part of the decision-making process. This was because his Honour makes three related findings: first, he preferred their evidence over Ms Edgar's and made no finding that they exhibited any prohibited animus towards Ms Edgar; secondly, Mr Cross's investigation and findings were not pre-determined or actuated by animus to Ms Edgar because she had made complaints; and thirdly, Ms O'Rourke had exercised independent judgment in making the final decision. 52 In support of her submission that the distinction between the investigative process and the decision-making process could not be maintained, Ms Edgar referred to emails between Ms Wetherall (Human Resources Manager) and Mr Cross dated 27 and 28 March 2018 sent while Mr Cross was in Dublin in which they discussed how to inform Ms Edgar of the results of Mr Cross's investigation. Ms Wetherall outlined a proposed process with respect to next steps and attached a draft letter regarding the outcome of the investigation. Mr Cross responded by saying "[a]gree with the process and the letter". It was never suggested that Mr Cross's involvement in this process went further than this email, and Ms Wetherall's 28 March email notes that she and Ms O'Rourke had spoken with another employment partner at the firm, Mr Noakes, about the issue in Mr Cross's absence. Ms Edgar's closing submissions below included a brief reference to Mr Cross's involvement "in giving advice about Ms Edgar's employment both before and after the investigation" in the context of distinguishing this case from Ibarra. To the extent that Mr Cross's alleged involvement in the decision-making process following the conclusion of the investigation mirrors the pre-determination argument run below, I find that there was no error in his Honour's rejection of this submission. To the extent that this was pursued on appeal as an additional, separate basis to the pre-determination argument run below, this argument is distinct from the argument run below and the primary judge cannot be criticised on appeal with respect to it. 53 The second attack was based on the primary judge purportedly finding that, because Ms O'Rourke was the decision-maker, her being unaware of any shortcomings in the report meant that Mr Cross's evidence was not relevant to the determination of the reverse onus. This challenge appears to arise in relation to his Honour's consideration of an alternative hypothetical referred to at [40] and [41] above. I do not accept that the primary judge's reference to such a hypothetical constituted a finding with the claimed import. The infelicity arose in the context of considering a hypothetical that could not arise in this case. 54 Further, in any event, it is clear that his Honour was considering a distinction described by Gray J in Gibbs between where the actual decision-maker simply "rubber stamps" a decision in fact made by another and where the actual decision-maker exercises his or her mind independently. It is also apparent that his Honour was nevertheless aware that where a person, influenced by a prohibited reason, contributed to the ultimate decision, the ultimate adoption of that affected or infected contribution by another person unaware of the same may nonetheless mean that the impugned decision was so infected, given his reference to the reasoning in Ibarra, as referred to at [38] above. 55 The third to sixth bases upon which Ms Edgar submits that there was error arise with respect to the findings concerning Ms O'Rourke. Ms Edgar disputes the correctness of the finding that the termination decision was made only by Ms O'Rourke, rather than being made in reliance on Mr Cross's findings. In addition, Ms Edgar alleges failure to find that the investigation of Ms Edgar's complaints was a substantial and operative reason for Ms O'Rourke's decision because it included factual findings by Mr Cross that Ms Edgar had made unsubstantiated disparaging comments about Mr Boxsell that were crucial to the finding that she could not continue to work with him, and noting Ms O'Rourke's evidence that she relied entirely on Mr Cross to reach a conclusion about whether Ms Edgar's complaints were proven. She also submitted that the primary judge's failed to find that the termination letter relied on Mr Cross's investigation of Ms Edgar's complaints, noting that it mentioned the investigation in the context of explaining the reasons for termination. Finally, Ms Edgar asserts that his Honour did not give full effect to the plain meaning of Ms O'Rourke's correspondence, which was that Mr Cross's investigation was a substantial and operative part of her decision. 56 Each of these bases are related to the other challenges referred to above. For the reasons set out above, I can discern no error in his Honour's ultimate findings regarding the position of Ms O'Rourke as the sole decision-maker and the separateness of her decision to dismiss from Mr Cross's findings. Ultimately, this involved an assessment of fact based on the testimony of Ms O'Rourke and the contemporaneous documentation. As described above, the primary judge considered Ms Edgar's challenges of Ms O'Rourke's evidence and rejected them in a reasoned way. The primary judge's ultimate conclusion that Ms O'Rourke was the sole decision-maker was made on the basis of a multitude of underlying, incremental factual findings both with respect to Mr Cross and Ms O'Rourke, as reasoned above. I do not accept that error has been established. 57 Given therefore that Ms Edgar has been unable to dislodge the primary judge's finding that Mr Cross was not part of the decision-making process, it is not necessary for me to go on to consider what would have been the next necessary limb to the appeal - whether NRFA Services had rebutted the presumption that Mr Cross was motivated by a prohibited animus. However, even if I had been required to do so, as evident from the above reasoning, careful consideration needed to be given to how Ms Edgar had argued the case below as against Mr Cross. I am not satisfied, on the basis of how she had argued her claim with respect to Mr Cross, that NRFA Services would not have been able to discharge its onus. As observed above, the primary judge made substantial findings of fact that Mr Cross was not motivated by any prohibited animus. 58 Therefore, in the absence of overturning the factual findings of the primary judge that Mr Cross was not actuated by a prohibited animus in his conducting of and findings in the investigation, then even if the primary judge were incorrect to find that Ms O'Rourke's decision did not rely on Mr Cross's findings, such a finding would go no way to impugn the ultimate decision to dismiss. 59 Given my conclusions in this regard, there is no necessity to deal with the balance of the appeal.

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