The reverse statutory onus
46 Section 809 is in relevantly identical terms to its predecessor section, s 298V, which was in effect prior to the amendment of the WR Act by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). The authorities on s 298V (and predecessor provisions) are therefore relevant to the construction of s 809 of the WR Act.
47 In relation to the operation of what was previously s 298V of the WR Act, Wilcox and Cooper JJ made the following observations in Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463, at 500 - 501 [109];
Under s 298V in proceedings under Div 6 of Pt XA of the Act for a contravention of a section in Pt XA, an allegation in those proceedings of conduct for a prohibited reason is sufficient for it to be presumed that the conduct was engaged in for that reason unless the employer proves to the contrary.
Similarly, in Greater Dandenong City Council v Australian Municipal, Clerical and Services Union(2001) 184 ALR 641 at [7], Wilcox J said:
Section 298V of the Act creates a rebuttable presumption, in an application under Division 6 of Part XA, that the respondent's conduct was carried out for the particular reason alleged in the proceeding against that respondent.
48 The reasoning behind the reversal of the onus of proof in (what is now) s 809 was explained by Nicholson J in Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 at 68, where his Honour said:
If the applicant proves the conduct and alleges that the conduct was carried out for a prohibited reason, it is for the respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible reason ... The reversal of the onus in respect of proof of the reasons for the conduct is a recognition that "the circumstances by reason of which an employer may take action against an employee are, of necessity, peculiarly with the knowledge of the employer". (References omitted)
Moreover, the effect of s 809 is that in most cases an explanation for the real reason for the dismissal, consistent with the absence of a prohibited reason, is, in a practical sense, also necessary to rebut the presumption. As Buchanan J said in Seymour v Saint-Gobain Abrasives Pty Ltd [2006] FCA 1452at [29]:
Because the respondent must exclude delegateship and membership as a reason for termination, normally sworn evidence denying any such reason is necessary and, in most cases, an explanation of the real reason for dismissal consistent with the absence of delegateship or membership as a reason is, in a practical sense, also necessary.
49 Finally, it is important to note that s 809 does not obviate the need for the applicant to prove the existence of objective facts which are said to provide a basis for the respondent's conduct. A Branson J explained in CFMEU v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 at [161]-[162]:
[The employee] did not relevantly participate in proceedings under an industrial law within the meaning of s 298L(1)(j). Section 298V of the Act does not, in my view, allow the applicant to circumvent that finding. Rather it is to be construed as an aid to proof of the intent or reason of the respondent which motivated, or formed part of the motivation for, the respondent's conduct. It may fairly be presumed that the section is intended to alleviate the difficulties of proof by one party of the state of mind or motivation of another.
For analogous reasons, I do not consider, so far as the circumstances proscribed in s 298L(1)(m) are concerned, that s 298V relieves the applicant from the obligation of establishing as a fact that the relevant employee absented himself from work without leave for the purpose of carrying out duties as an officer of an industrial association (s 298L(1)(m)(i)) and that the employee applied for leave before absenting himself and that leave was unreasonably refused or withheld (s 298L(1)(m)(ii)). The impact of s 298V, in my view, is simply to alleviate the evidentiary difficulty facing the applicant of providing proof of the intent or reason which motivated, or formed part of the motivation for, the respondent's conduct following the absence of the employee from work.
50 In the present proceedings, the import of Branson J's comments in Coal and Allied Operations is that it is not sufficient for the applicant to simply allege that he was a member and delegate of an industrial organisation. Rather, on the assumption that the applicant is able to prove the fact of membership or delegateship of an industrial organisation, the burden is cast on the respondent to prove that his membership or delegateship of an industrial organisation did not form part of the reason for the termination of his employment.
51 The respondent's task is to displace the legislative presumption that it has acted for a reason that contravenes the WR Act, and I am satisfied that, having regard to all the evidence, the respondent has been unable to discharge the onus cast upon it by s 809 of the WR Act.
52 Mr Starr gave evidence that the reason he terminated the services of the applicant was because he engaged in misconduct by threatening Mr Sharma and Mr Simmonds. He gave evidence that he had no regard to the reasons identified in the amended application. However, I approach this evidence with some circumspection. Firstly, I do not think Mr Starr has been entirely truthful in his evidence. Perhaps his recollection and account of his actions has been coloured by what was probably, for him, an extremely tense and possibly harrowing experience as a senior manager, being exposed to sustained industrial action that escalated quickly and seriously. I consider that, up to a point, his evidence was tailored, perhaps unconsciously, to support and avoid damaging the respondent's case. For example, comparatively early in his cross-examination, he was taken through the history of negotiations with the NUW and the decision of the respondent to offer AWAs. At that point, Mr Starr resisted the proposition that when the respondent formed the view that it wished to pursue individual contracts, it was doing so because it wished to have new employment arrangements that precluded the involvement of the third party. Later in cross-examination, it was put to him that by 6 August 2007 (when he issued the memorandum referred to at [36] above) or thereabouts, he had formed a view that he wanted to reduce or remove union influence from the site. His response then was that this decision had been made when the company decided to adopt AWAs given that AWAs did not involve the union as a third party. I have little doubt that this later answer reflected the true position. The attitude Mr Starr adopted early in the cross-examination was, in my opinion, to avoid making a concession that then he believed might damage the respondent's case.
53 Secondly a number of factors, in addition to matters referred to already, emerging from the events leading up to and surrounding the dismissal, collectively raise a real issue in my mind about whether the dismissal of the applicant was for the stated purpose. Some of these factors, in isolation, might be thought to be of insufficient moment to raise doubts about the stated reason. However together, they do.
54 One factor is the quite focused way Mr Reidy and Mr Starr went about investigating, documenting and responding to the allegations made against the applicant in the first 48 hours or thereabouts of the industrial action, particularly when they made no attempt to investigate the conduct of other of the respondent's employees.
55 Another factor is that having adopted the position that the applicant had engaged in conduct that might warrant his dismissal and having clearly intimated that whether he would be dismissed would be addressed promptly, no steps were taken to bring the matter to a head until September 2007.
56 Another factor is the way in which Mr Reidy and Mr Starr were selective about the misconduct on which they ultimately focused when deciding to dismiss the applicant, notwithstanding earlier intimations that the applicant had engaged, as they believed, in a range of conduct that was said to be misconduct and raised questions about the applicant's continued employment. The identification of the reasons in the letter of termination have an air of artificiality about them.
57 Yet another factor was the way the termination was effected. Mr Starr gave evidence that he wished to afford the applicant natural justice. However, the actual approach he adopted, together with Mr Reidy following the meeting of 10 September 2007 was, in my opinion, more consistent with them wishing to establish grounds to dismiss the applicant than approaching with an open mind (or at least not with an entirely closed mind) the question of whether the applicant was guilty of misconduct warranting dismissal. By the time the meeting had concluded, the position was that the applicant had, in substance, admitted making the comments to Mr Sharma about which Mr Sharma had complained but had offered to apologise. Communicating the apology was thought by Mr Starr and Mr Reidy to be irrelevant.
58 The fact that the applicant's admission concerning Mr Sharma had been made should have, in my opinion, more clearly focused the attention of Mr Starr and Mr Reidy on whether the account of Mr Simmonds, which was still disputed by the applicant, was true, particularly in circumstances where the language alleged to have been used by the applicant was acknowledged by Mr Starr to be out of character. This fact alone should, in my opinion, have raised significant doubts about whether Mr Simmonds' account was correct, particularly given it was denied by the applicant. However, the further investigation simply involved, on Mr Simmonds' account, Mr Reidy ringing him (from an office in which Mr Starr was present). Mr Starr's evidence was that he rang on his mobile phone, which is consistent with Mr Reidy's evidence. However, who made the telephone call does not particularly matter. What is important is that Mr Simmonds, who was ill at home, was asked by Mr Starr whether he stood by his version. Mr Starr listened to him repeat his version and then asked him whether he would he be prepared to go to court. I infer the reference was made to "going to court" because Mr Starr was concerned to ensure that the decision to dismiss could be defended if challenged in litigation. In my opinion, Mr Starr, by the time he commenced this conversation with Mr Simmonds, had made up his mind to reject the applicant's denial or at least was indifferent to where the truth lay, and was more concerned to ensure that the respondent could defend the decision to dismiss the applicant that would be communicated to the applicant shortly thereafter.
59 Another factor is the manifest convenience, from Mr Starr's perspective, of getting rid of the union delegate who had been at the forefront of union resistance to the preferred employment model the respondent wished to adopt (the employment of employees on AWAs without the need for third-party involvement from the NUW) and who also had been actively involved in what had proved to be a bitter and protracted industrial dispute.
60 The respondent has not provided an "an explanation of the real reason for dismissal [of the applicant] consistent with the absence of delegateship or membership as a reason": Seymour v Saint-Gobain Abrasives Pty Ltd [2006] FCA 1452at [29] per Buchanan J. The respondent has not displaced the presumption created by s 809 of the WR Act. Accordingly, I am satisfied that the respondent dismissed the applicant at least for a reason that included a prohibited reason (if not solely for that reason), namely that he was a delegate of the NUW. However I should indicate, in addition, that the evidence establishes (apart from the presumption) that a reason why the respondent dismissed the applicant was that he was a delegate. In my opinion, an inference can readily be drawn that part of the reason the respondent dismissed the applicant was that he was the NUW delegate at the Minto site.
61 It is unnecessary to consider other aspects of the applicant's case (dismissal because he was a member of the NUW and had engaged in protected industrial action) that were advanced but faintly and fairly clearly as a subsidiary aspect of the case overall. This leads to the question of remedies.