Montgomery v Bluescope Steel Ltd

Introduction 1 These reasons for judgment contain my rulings on disputes between the applicant and the respondents in relation to the scope of non-standard discovery that is to be given by the respondents, and upon the applicant's application to amend paragraph 73 of his second further amended statement of claim. 2 The applicant was employed by the first respondent until 22 December 2017 when his employment was terminated. By his second further amended statement of claim, the applicant makes a number of claims against the first respondent, including - (1) that the first respondent took adverse action against the applicant during the term of his employment because he had exercised various workplace rights; (2) that the termination of the applicant's employment by the first respondent constituted adverse action because the applicant had exercised various workplace rights; (3) that the applicant's position had become redundant in consequence of which he was entitled to a redundancy payment; (4) the first respondent, in proffering a deed of separation and release under which it offered to pay the applicant $243,766.55, and which if he did not accept would result in the termination of his employment with pay in lieu of notice, engaged in conduct with the intent to coerce the applicant not to exercise a workplace right; (5) that during the term of his employment the first respondent appointed the fifth respondent, Ms Moss, and not the applicant, to the position of Vice President of Health and Safety, and thereby took adverse action against the applicant by discriminating against him because of, or for reasons that included his gender; (6) that the termination of the applicant's employment was in breach of his contract of employment; and (7) that other employees of the first respondent, who are named as the second to fifth respondents, were involved in several of the contraventions of the Fair Work Act 2009 (Cth) alleged by the applicant. 3 By his originating application, the applicant seeks declarations, an order for reinstatement to his former position, compensation under statute, pecuniary penalties, an order for wages owing, interest, and costs. 4 On 8 April 2019, the Court made orders to prepare the proceeding for trial. Amongst the orders made were orders for non-standard discovery of documents within categories that were to be the subject of agreement between the parties. In relation to discovery by the applicant, the categories were set out in the order. As to discovery by the respondents, the orders contemplated that categories would be agreed, and the orders provided a mechanism for the exchange of categories, and objections. The applicant and the respondents were unable to agree upon all categories of documents to be discovered by the respondents. 5 A hearing was conducted in relation to the discovery dispute on 31 May 2019, following which the parties by leave provided the Court with further written submissions. 6 What follows are my rulings in relation to the categories of documents that the applicant seeks from the respondents that remain in dispute.

Categories of documents in dispute between the parties

(1) Categories (d) - (f) (d) All documents, including position papers and reports submitted to the first respondent's Board of Directors and Diversity Council in respect of the 2017 calendar year regarding the implementation of and/or compliance with the first respondent's "Diversity and Inclusion" policy. (e) Role objectives and key performance indicators (including job goals, short term incentives and long term incentives) for the second and third respondents in respect of the 2017 calendar year regarding the implementation of and/or compliance with the first respondent's "Diversity and Inclusion" policy. (f) Documents containing analyses or statistics in respect of the employment or promotion of females by the first respondent within Bands A-E of the first respondent's management classification structure in the calendar year 2017. 7 The applicant submitted that the relevance of categories (d) - (f) was that in terminating his employment, the first respondent discriminated against him on the basis of his gender, being male. The applicant's pleading of this issue in his second further amended statement of claim is economical - 73. In appointing Moss, rather than the Applicant, to the position of Vice President of Health and Safety, BlueScope discriminated against the Applicant because of or for reasons that included, his gender. Particulars Moss is female. The Applicant is male. 74. In the premises, BlueScope took adverse action against the Applicant in contravention of s.351 of the Act in that it: a. injured the Applicant in his employment (Item 1(b), s.342(1) of the Act); and b. discriminated between the Applicant and the other employees of BlueScope (Item 1(d), s.342(1) of the Act. 8 Counsel for the applicant submitted that the documents sought by categories (d) to (f) were relevant to a claim of indirect discrimination that the applicant made, that is, that there was some policy or quota system in place within the first respondent's operations which sought to favour appointments of women to positions within the company. During the course of argument, I expressed the view that such a claim had not been pleaded by the applicant, and that the spare particulars under paragraph 73 of the second further amended statement of claim did not give fair notice of such a claim. Counsel for the applicant took up the opportunity which I afforded to frame some draft further particulars of paragraph 73 of the second further amended statement of claim, and to file written submissions directed to categories (d) to (f) which I would consider on the papers. 9 The applicant proposed amendments to paragraph 73 of the second further amended statement of claim as follows - 73. In appointing Moss, rather than the Applicant, to the position of Vice President of Health and Safety, BlueScope discriminated against the Applicant because of or for reasons that included, his gender. Particulars Moss is female. The Applicant is male. The discrimination was direct. BlueScope appointed Moss to the position of Vice President of Health and Safety rather than the Applicant because Moss is female and the Applicant is male. Further or alternately, the discrimination was indirect. In appointing Moss to the position of Vice President of Health and Safety rather than the Applicant, BlueScope imposed a requirement or condition that had, or was likely to have, the effect of disadvantaging the Applicant. The requirement or condition imposed by BlueScope was that the successful candidate for the position of Vice President of Health and Safety be female rather than male. This requirement or condition was not reasonable. The requirement or condition was in accordance with BlueScope's "Diversity and Inclusion" policy which provides (inter alia) that: (i) Recruitment and selection practices are appropriately structured so that a diverse range of candidates is considered; (ii) When required due to a lack of diverse representation in occupational groups, BlueScope targets diverse candidates as part of its recruitment activity; and (iii) The principles contained in the "Diversity and Inclusion" policy are the subject of reports to BlueScope's Board of Directors, Diversity Council and senior management. 10 The respondents opposed the amendments to paragraph 73 that were sought by the applicant. The respondents submitted that the proposed amended particulars were an attempt at pleading material facts, and that they were not particulars of material facts that had been pleaded in the second further amended statement of claim. The respondents submitted that should the applicant wish to allege that the first respondent discriminated against him indirectly by imposing a particular requirement or condition in accordance with particular aspects of a policy, he should plead all of the material facts required to support that allegation. 11 I do not find the respondents' submissions on this issue to be attractive, or helpful. They rest upon a distinction that is sometimes drawn between material facts, and particulars. The distinction was explained in Bruce v Odhams Press Ltd [1936] 1 KB 697 where at p 712-713 Scott LJ stated that material facts are those necessary for the purpose of formulating a complete cause of action, whereas the function of particulars was not to fill in gaps in an otherwise demurrable statement of claim, but to - … fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial. Consequently in strictness particulars cannot cure a bad statement of claim. But in practice it is often difficult to distinguish between a "material fact" and a "particular" piece of information which it is reasonable to give the defendant in order to tell him the case he has to meet; hence in the nature of things there is often overlapping. And the practice of sometimes putting particulars into the statement of claim and sometimes delivering them afterwards either voluntarily, or upon request or order, without any reflection as to the true legal ground upon which they are to be given has become so common that it has tended to obscure the very real distinction between them. 12 The distinction is also drawn by a note to r 16.41 of the Federal Court Rules 2011 (Cth), which provides - Note 2: The function of particulars is not to fill a gap in a pleading by providing the material facts that the pleading must contain. 13 However, there is not always a bright line between a material fact and a particular of a material fact: see, Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413 at p 417 (French J). 14 Any evaluation of an objection to a pleading should have regard to the purposes that are served by pleadings, which include giving the other parties fair notice of the case that must be met at trial, identifying issues for the purpose of formulating any discovery obligations, identifying issues against which rulings on evidence might be made at trial, and formulating issues for decision: see, Banque Commerciale SA, en liquidation, v Akhill Holdings Ltd (1990) 169 CLR 279 at p 286 (Mason CJ and Gaudron J). A statement of claim that contains an applicant's "real case" buried within the particulars of conclusory headline allegations may fail to fulfil one or more of these purposes, including because it does not state the material facts in a way that requires that they be addressed by the respondent in the defence: see r 16.07. In such a case, the issues that are joined, and the real issues in dispute, may not clearly arise from the pleadings. Additionally, a pleading which is burdened with extensive particulars of conclusory headline allegations may be so ungainly and unclear that it is liable to be struck out under r 16.21 on the grounds that it is ambiguous, or is likely to cause prejudice, embarrassment or delay in the proceeding. 15 Good drafting practice generally requires that a pleading should strive to contain little by way of particulars, and that a pleading should focus on clear and concise allegations of all the necessary material facts which are to be set out in a logical fashion. This comment is subject to the requirement that a pleading, or a document served with a pleading, should contain any necessary particulars: r 16.41. Economy in the provision of particulars is not always achievable, particularly in more complex litigation where detailed particulars of numerous transactions that are subordinate to the allegations of material fact may be necessary. Moreover, modern pleading practice promotes flexibility so as to give effect to the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth). The Practice Notes of the Court make provision for the adoption of tailored or concise pleading processes where appropriate. Recently, in Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited [2019] FCA 1284, the Chief Justice referred to the advantages of a clear and helpful concise statement in narrative form in a penalty proceeding in which the applicant alleged unconscionable conduct by the respondent. In this pleading environment, there should be little need for fine distinctions between material facts and particulars. 16 I will not act on the respondents' submissions resting upon the distinction between material facts and particulars, which were misplaced. They were made in circumstances where the Court had invited the applicant to furnish some further particulars so as to give the respondents fair notice of his claim of indirect discrimination, which the Court considered had not been pleaded. 17 There is a more significant point that I invite the parties to address before I would permit the applicant to amend his pleadings further so as to introduce the allegation of indirect discrimination. Section 351 of the Fair Work Act, on which the applicant relies, provides - 351 Discrimination (1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin. Note: This subsection is a civil remedy provision (see Part 4-1). 18 There is an exception in s 351(2)(a) which provides - (2) However, subsection (1) does not apply to action that is: (a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or … 19 The term "anti-discrimination law" is defined by s 351(3) of the Fair Work Act to include the Sex Discrimination Act 1984 (Cth). Section 5B of the Sex Discrimination Act defines the concept of discrimination on the ground of gender identity. However, s 7D(2) of the Sex Discrimination Act provides that a person does not discriminate against another person by taking special measures authorised by s 7D(1), which include taking special measures for the purpose of achieving equality between men and women. 20 In Jacomb v Australian Municipal Administrative Clerical and Services Union [2004] FCA 1250; (2004) 140 FCR 149 at [37]-[43] Crennan J considered the background context of s 7D, and extrinsic materials including in particular paragraph 1 of Article 4 of the Convention on the Elimination of All Forms of Discrimination Against Women, which provides - Adoption by State Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved. 21 Crennan J then stated at [44] - A "special measure" as referred to in s 7D, and as construed by reference not only to the ordinary meaning of words repeated from the convention, but also by reference to the context, object and purpose of the convention is one which has as at least one of its purposes, achieving genuine equality between men and women. The phrase "special measure" is wide enough to include, what is known as, affirmative action. 22 Before I would permit the applicant to rely on what is alleged to be the first respondent's "Diversity and Inclusion" policy as a ground to allege that there was indirect discrimination against the applicant in contravention of s 351 of the Fair Work Act, I would need to be persuaded that there is a proper basis in fact and in law to make the allegations. Because of the way the proposed amendments have unfolded, which involved consideration by the Court on the papers with short written submissions in the context of a discovery dispute, there has not been an opportunity for the Court to have the parties address these matters directly. 23 Categories (d) to (f) do not relate to any issue that is currently pleaded by the parties. It is therefore unnecessary for me to consider the other objections to categories (d) to (f) which the respondents advanced.

(2) Categories (m) (formerly (q)) and (n) (formerly (r)) (m) All draft copies of the allegations into the applicant's conduct. (n) All draft copies of any report written or by the fourth respondent into the allegations made against the applicant. 24 In paragraph 29 of his second further amended statement of claim the applicant alleges that on 16 October 2017 the applicant met two of the respondents, Ms Thurlow and Mr McLean, and that Mr Mclean handed a document to him setting out allegations against him, and that they agreed to provide the applicant with an opportunity to respond to the allegations the following day. The applicant alleges in paragraph 30 of his second further amended statement of claim that he responded to the allegations by email on 17 October 2017. In paragraph 51 of their defence, the respondents allege that Mr McLean conducted an internal investigation into the conduct of the applicant, and that on 18 October 2017 he met with Mr Highnam and Ms Thurlow to communicate his findings. The respondents allege that Mr Highnam then determined to terminate the applicant's employment, and that his reasons for making that decision were because he had lost trust and confidence in the applicant due to the allegations that were substantiated in the course of Mr McLean's investigation, and not for the proscribed reasons alleged by the applicant in paragraph 51 of his second further amended statement of claim. 25 The applicant submitted that draft copies of the allegations and any report as specified in categories (m) and (n) are relevant as they go to the veracity of both the allegations and the findings in the final report. The applicant submitted that draft reports may show that the final report did not disclose all relevant facts, and may reveal other motivations for the decision to terminate the applicant's employment. 26 The respondents submitted that these categories are not directly relevant to the pleadings, and that there is no dispute raised about the veracity of the allegations made against the applicant, or the fourth respondent's investigation. The respondents submitted that the drafts of any allegations or report could not assist the Court in determining the reasons why the second respondent decided to terminate the applicant's employment. 27 I do not accept the respondents' submissions. Whether a document "could assist the Court" is not the relevant test under r 20.14 of the Rules for determining whether the document is relevant and should be discovered. And without knowing the contents of a document, the Court cannot evaluate whether it would assist any of the parties. The first respondent bears an onus pursuant to s 361 of the Fair Work Act of showing that it did not take adverse action against the applicant for a proscribed reason: see, Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) [2012] HCA 32; (2012) 248 CLR 500. In seeking to discharge that burden, the first respondent has put in issue the allegations that were made against the applicant on 16 October 2017, and the internal investigation that was undertaken by the first respondent, and its bearing on the decision to terminate the applicant's employment. 28 I consider that the draft documents sought by categories (m) and (n) are directly relevant to the reasons relied upon by the respondents for the termination by the first respondent of the applicant's employment.

(3) Category (r) (formerly category (w)) 29 This category was reformulated by counsel for the applicant during argument as follows - (r) All documents, including file notes emails and recordings of officers or employees of North Star BlueScope and/or Intelex relating to requests by those officers or employees that the Toronto Workshop conducted in September 2017 be held in Delta, United States. 30 The issue on the pleadings to which this category relates is whether the applicant arranged for a Design Workshop to take place in Toronto, despite requests from employees of the first respondent who attended the Workshop that it be held in Delta, USA. The relevant allegation is made by the respondents in paragraph 7(b)(ii) of its response dated 30 October 2018 to the applicant's request for further and better particulars of the defence. 31 The respondents submitted that this category was unnecessarily broad, and sought that the category be limited to documents of those employees who made the requests that the Toronto workshop be held in Delta. 32 I do not see that what the applicant has proposed is materially different from the order that the respondents accepted was appropriate. The category proposed by the applicant, as reformulated in argument and set out above, will be allowed.

(4) Categories (t) - (v) (formerly categories (z), (aa) and (dd)) (t) All documents made by the respondents (or on their behalf) for or in relation to the investigation of the applicant's complaints conducted by Rachel Cornes of Q Workplace Solutions. (u) All documents (including emails and text messages) provided to Rachel Cornes of Q Workplace Solutions by any of the respondents (or on their behalf) in relation to her investigation of the applicant's complaints. (v) The final report of Rachel Cornes of Q Workplace Solutions or any person on her behalf together with all and any attachments and/or accompanying documents in respect of the applicant's complaints. 33 In paragraph 38 of his second further amended statement of claim the applicant alleges that on 31 October 2017 he lodged an online complaint under the first respondent's internal complaints procedure, and at paragraph 51 relies on the making of that complaint as the exercise of a workplace right which was one of the reasons for the termination of his employment. The respondents admit that the applicant made the complaint, but deny that this was a reason for the termination of the applicant's employment. The applicant alleges, and it was not disputed, that the complaint of 31 October 2017 was investigated by an external consultant, Q Workplace Solutions. 34 The respondents submitted that the categories are not directly relevant to any pleaded issue, and that there is no allegation relating to the nature or findings of the investigation into the applicant's complaint. However, at the invitation of the Court the respondents stated that they would not pursue any objection if the categories were reformulated as the documents commissioning the report of Q Workplace Solutions, and the report itself, which counsel for the applicant accepted in reply submissions. I will allow a category that is reformulated in these terms.

(5) Category (cc) (formerly category (jj)) (cc) All correspondence between the second, third, fourth and fifth respondents (or any of them) in relation to the applicant's WorkCover claim between 20 December 2017 and 31 December 2017. 35 In paragraphs 44 and 45 of the second further amended statement of claim the applicant alleges that on 20 December 2017, which was the day prior to his termination, he made a workers' compensation claim which involved the exercise of a workplace right. In paragraph 51 of the second further amended statement of claim the applicant alleges that the first respondent terminated his employment because (inter alia) he had made the workers' compensation claim. The respondents deny this allegation and advance as their reasons Mr Highnam's decision on 18 October 2017 to terminate the applicant's employment for reasons including his loss of trust and confidence in the applicant. 36 The respondents submitted that this category is irrelevant, as there is no issue in dispute in the proceeding that the workers' compensation claim was made. I do not accept the respondents' submissions. Having regard to the effect of s 361 of the Fair Work Act, and the burden on the first respondent, I consider that the category is directly relevant to an issue that is raised by the pleadings, and that discovery of documents in the category referred to above should be given.

Conclusion 37 I will direct that the parties submit an agreed minute of orders to give effect to these reasons and to any other matters of case management that they desire to address. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wheelahan.

SCHEDULE OF PARTIES VID269 of 2018 Respondents Fourth Respondent: BRAD MCLEAN Fifth Respondent: JANE MOSS