attribution of the second respondent's reasons to the first respondent - the respective submissions and my reasoning
28 I should mention that the parties were content to have this motion decided by the application of a test analogous to that explained in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 i.e., in relation to this point that if the applicant's proposition for attribution of the second respondent's reasons to the first respondent (and any other legal proposition contended for by the applicant in his pleading) was not reasonably arguable in law then he should not be allowed to amend his statement of claim to plead the particular cause of action in that manner. In my opinion, that is the correct approach. There are no disputed issues of fact - in particular, it is common ground that the first respondent did not terminate the applicant's employment for any reason actually held by it which was a prohibited reason, cf Webster v Lampard (1993) 177 CLR 598 at 602-603.
29 The respondents contended that, as a matter of well-established law, the second respondent's alleged reasons for instructing the first respondent to terminate the applicant's employment, being the reasons set out in paragraphs 14(a) to (e), could not be attributed, in the manner described in the proposed Particulars of Attribution of Reasons, to the first respondent. They relied on two fairly recent decisions of this Court in Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 and AWU v John Holland Pty Ltd [2001] FCA 93, an earlier case of Wood v Lord Mayor, Councillors and Citizens of the City of Melbourne (1979) 41 FLR 1, and a decision of the High Court of Australia, General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605.
30 Mr R L Le Miere QC who, with Mr D F Parker, appeared for the second respondent submitted that when considering a contravention of s 298K it was the actual operative reasons of the employer which fell to be considered. It was not arguable, as a matter of law, that the second respondent's reasons could be attributed to the first respondent.
31 Mr Le Miere submitted that it was not enough merely that there be a connection between, for example, union membership and the termination (i.e. that the second respondent wanted the applicant to be dismissed because he was a member of the relevant union and so instructed the first respondent), but there had to be a causal connection between the first respondent's conduct and, in this example, the applicant's union membership. The inquiry had to be directed to the reasons of the employer - citing Geraldton Port Authority at [294]-[295]. The relevant reason, so it was submitted, had to be a reason which actuated the mind of the employer. This could not be so in this case, because the applicant's case was that the first respondent did not even know of the matters which were said to be the reasons which actuated its conduct in terminating his employment. The applicant's solicitors by a letter dated 19 April 2001 to the first respondent's solicitors had conceded that it was not part of the applicant's case that any of the pleaded reasons were advised to or known by the first respondent at the material time. The respondents argued that if an employer did not know the subject matter of the relevant reason it could not be actuated by such a reason. They relied also, for that proposition, on the decision in John Holland where (at [42]) Goldberg J found that the major operative reason why the executives of the respondent terminated Mr McGee's (the relevant employee in that case) employment was a reason which did not fall within the statutorily-prohibited reasons and that their reasons did not include such a prohibited reason. In that case Mr McGee's membership of the applicant union (and certain other matters personal to him) caused a rival union, which I shall refer to as "the CFMEU", to put pressure on the respondent to terminate Mr McGee's employment. Mr Le Miere submitted that Mr McGee's membership of the AWU may have been the catalyst for the CFMEU's antagonism to him, but that antagonism for that reason was not "transferred" to the respondent in that case. He submitted that the factual circumstances in John Holland were very similar to those in the present matter. Again, in Wood's case the defendant had stood Mr Kane (the relevant employee) down following pressure from the union involved in that matter. The union's reasons for wanting Mr Kane to be stood down were prohibited reasons but those reasons had not been attributed, without more, to the employer. The respondents also relied on General Motors Holden Pty Ltd v Bowling for the same proposition - that being a case on s 5(1) of the Conciliation and Arbitration Act 1904 (Cth) which could be considered as a predecessor of s 298K of the Act.
32 I now turn to the applicant's submissions in support of the proposition that it is reasonably arguable that an employer's conduct may be "for a prohibited reason" where the employer does not actually have such reasons, but those reasons are held by another person and are causally connected to the employer's conduct. Those submissions can be summarised as follows. First, it is said that although an intent by the employer will admittedly be the most common way in which a causal connection can exist between the employee's prior conduct as described in the various sub-paragraphs of s 298L(1) and the dismissal and other prejudicial conduct referred to in s 298K, that is not required by the literal terms of s 298L(1).
33 Section 298K(1)(a) relevantly provides that:
"An employer must not, for a prohibited reason, or for reasons that include prohibited reason, do or threaten to do any of the following:
. . ."
34 Section 298L relevantly provides that conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:
"(a) is, has been, proposes to become to has at any time proposed to become an officer, delegate or member of an industrial association; or
. . .
(i) has made or proposes to make an inquiry or complaint to a person or body having the capacity under an industrial law to seek:
(i) compliance with that law; or
(ii) the observance of a person's rights under an industrial instrument; or
(j) has participated in, proposes to participate in or has at any time proposed to participate in a proceeding under an industrial law; or
. . .
(n) as an officer or member of an industrial association, has done, or proposes to do, an act or thing for the purpose of furthering or protecting the industrial interests of the industrial association, being an act or thing that is:
(i) lawful; and
(ii) within the limits of an authority expressly conferred on the employee, independent contractor or other person by the industrial association under its rules."
35 The applicant submitted that the use of the word "because" in the opening words of s 298L only required a causal relationship between the action of, relevantly, terminating employment and the current or prior industrial actions of the employee. There was no express provision that the termination must be motivated by the employer's knowledge of such prior conduct or some disapproval of it. The applicant pointed out that s 298K did not specify (and could have, had this been the test proposed) intent on the employer's part. It was reasonably arguable that it was enough that a chain of events such as occurred in the present matter was precipitated by activity of the type referred to in s 298L.
36 Secondly, the applicant sought to distinguish John Holland and Wood on the basis that in both of those cases it was clear that the employer had substantial motivating reasons (other than prohibited reasons) for terminating the employee's employment. By contrast in this matter, so the applicant submitted, the first respondent had no motives or reasons of its own leading to the termination of the applicant's employment, but simply acted in accordance with the request from the second respondent. The applicant sought to rely upon references by Goldberg J in John Holland to the attitude of the CFMEU being overtaken by the realisation by the employer's representatives of other matters which caused it to terminate Mr McGee's employment (see John Holland at [42]) and a further reference at [49] in that case to the interposition of other factors between the CFMEU's antipathy to Mr McGee and the termination of his employment. The applicant said that this raised the question of what would be the position if a third party's attitude had not been "overtaken" or some other factor not been "interposed". Similar reasoning was said to occur in Wood where at p 15 Smithers J, when referring to s 5(1) of the Conciliation and Arbitration Act said:
"Those words imply that the employer's hostile action against the non-striker is taken because the employer disapproves of the failure to join with the fellow employees in the strike or at least reacts to that aspect of the situation in a manner injurious to the non-striker." [Emphasis added]
37 The applicant submitted that it was arguable that the fact that the first respondent simply reacted to the second respondent's request (based on what would be prohibited reasons had that party been the employer) brought the conduct within s 298K. The question was still open, so it was put, whether or not a sufficient causal connection can exist between a third party's antipathy and termination of employment where the employer has no individual "overtaking" "overwhelming" or "interposing" motives for action. This was said to be in accordance with the object of the Act, namely to protect employees from discrimination or prejudicial action because of their union or other industrial actions. The evil, so it was submitted, was the same from the employee's perspective whether the prejudicial impact originated from the employer or a head contractor. The applicant acknowledged that it would still be necessary to establish causation, in accordance with usual principles.
38 The applicant relied upon a line of authorities for the proposition that a court at first instance should be careful not to risk stifling the development of the law by summarily rejecting a claim where there is a reasonable possibility that as the law develops, it will be found that the cause of action will lie. The authorities included Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365 at 373 and Middleton v Western Australia (1992) 8 WAR 256.
39 In reply, on the policy issue, Mr Le Miere pointed to the fact that the provisions were penal in nature and that if the applicant's argument were correct it would be possible, as in this case, for an employer (the first respondent here) to be found to be in contravention of the Act without having any knowledge of the reasons which caused the third party (the second respondent) to press for the termination of the applicant's employment.
40 As I see it, what the applicant is seeking, in effect, to plead in the Particulars of Attribution of Reasons in paragraph 14 is that because the second respondent's instruction caused the first respondent to terminate the applicant's employment and because, in giving that instruction, the second respondent had reasons which (had the second respondent been the employer of the applicant) would have been prohibited, then it is reasonably arguable as a matter of law that the first respondent's conduct is to be taken to have been carried out for the same reasons.
41 When these motions came on for hearing, Mr J R Johnson, counsel for the applicant, made it clear that the applicant had no other basis for attributing to the first respondent the prohibited reasons. He said:
"… whether it [the applicant's case] stands or falls - will be that it was the second respondent who had the pleaded reasons for issuing the instruction to the first respondent who was the employer to immediately terminate employment. We will not be alleging that the first respondent intended or had a motive to terminate employment on those grounds. It was the second respondent's reasons for giving the instruction to the first respondent to terminate.
We don't make any allegations of knowledge of that. We simply say that in our view it's arguable that that falls within the prohibition in the (A)ct.
. . .
All that we can prove is that the first respondent acted on the instruction of the second respondent, so its motive was simply that it was told to do something. It did not harbour any acrimony towards the applicant on the basis of his previous union activity or any of the other things that we have pleaded as reasons for the termination, so our case depends on accepting that the prohibition is not simply a question of the motives of the employer. If, your Honour, you conclude that the prohibition only applies if it's the motives of the employer for terminating or taking the other forms of action set out in the section, then that claim should be struck out."
42 Mr Johnson then, in answer to a question from me, expressly eschewed any reliance in respect of the first respondent, upon s 298V of the Act (which relevantly elevates an allegation of conduct being carried out for a particular reason to a presumption to that effect) other than via the second respondent's reasons. The applicant thus concedes that the first respondent did not dismiss the applicant for any reason on its part that falls within those identified as prohibited reasons in s 298L(1). The question is whether it is sufficiently clear that in those circumstances, as a matter of law, the claim based on s 298K of the Act must fail?
43 Recognising, as I do, that this is not an application for summary judgment, I think that I can still draw some guidance on the approach to be taken to this issue from the observations of Mason CJ, Deane and Dawson JJ in Webster v Lampard at 602 and their Honours' citation of the well-known passage in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91. Adapting those observations, the question is not whether the respondents will probably succeed on this point in their defence, but whether this part of the application should not be permitted to go to trial in the ordinary way because it is apparent that it must fail. Is there a real question of law to be determined?
44 These are stringent tests from the respondents' viewpoint.
45 Nevertheless, in the somewhat unusual circumstances of this matter, I think that the respondents have discharged their heavy onus.
46 I should record that I take into account, in acceding to the respondents' submissions, the fact that the short legal point which the applicant seeks to raise has been the subject of quite extensive written submissions on both sides and oral argument on the two separate occasions (the hearing of the motion had to be adjourned for a few days, part heard) of the hearing of the motion. I am conscious of the observation of Higgins J in Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 98 that:
"It is surely absurd to argue for days as to a plaintiff's case being arguable."
47 But that was in the context of a summary termination of an action where there were evidentiary matters to be resolved. See also Barwick CJ's observations in General Steel Industries at 130 about the usefulness, on occasion, of extensive argument in matters of this kind.
48 I refer to the fullness of argument as a relevant factor because, focussed as it was on a short point of law, in my view, it caused the legal position to become clear to the requisite degree.
49 In my opinion, it is very clear indeed that the literal interpretation of s 298K(1) and s 298L advanced by the applicant must fail. Section 298K(1) prohibits, in strong mandatory terms, an employer from, relevantly dismissing an employee for a prohibited reason or for a reason that includes a prohibited reason. The word "for" qualifies the reason why the employer engages in that conduct. In my view, it is not reasonably arguable that the reasons referred to in s 298K can mean reasons which are not held by the employer. The applicant's reliance upon the word "because" in s 298L is misplaced when he says that this word requires that there be only a causal connection. The word "because" simply means "for the reason that" - see the Newer Shorter Oxford English Dictionary at 201 and the Macquarie Dictionary at 154. I now turn to the authorities which the applicant sought both to distinguish and rely upon to some extent.
50 In each of the authorities discussed above (on the question of an employer's reasons) the Court has sought to identify the actual reasons of the employer. The observations made by Goldberg J and Smithers J in John Holland and Wood respectively, upon which the applicant relies, were only in the course of passing from an assessment of the third party's motivations to an analysis of the employer's reasons in each case. They do not, in my view, render arguable the proposition which the applicant advances.
51 If, as the applicant concedes, there is a vacuum devoid of prohibited reasons on the first respondent's part, it does not follow, as a reasonable argument, that that vacuum must be filled with the reasons held by the second respondent.