Ground 1
89 Under this ground of appeal Mr Short alleged that in finding that Ambulance Victoria's decision not to appoint him to the higher duties role was not taken for a reason which included that he made a complaint or inquiry in relation to his employment, the primary judge erred by not properly construing or applying s 361 in relation to his claim that Ambulance Victoria had contravened s 340(1).
90 Mr Short contended, first, that contrary to the primary judge's approach as revealed by his Honour's reasons, he did not submit that Ambulance Victoria's withdrawal of the offer of an interview was the adverse action on which he relied. He argued that by wrongly addressing that non-issue, the primary judge did not deal with his contention that the relevant adverse action was the decision not to appoint him to the higher duties role.
91 We do not agree. We accept that the primary judge unnecessarily considered the withdrawal of the offer of an interview. However, the primary judge also dealt with the allegation that the decision not to appoint Mr Short to the higher duties position was in contravention of s 340. His Honour made this clear when he said (at [25]):
… the next question which arises is whether the withdrawal of the interview and the decision not to appoint Mr Short to a higher duties position was taken because Mr Short had made a complaint or inquiry in relation to his employment.
(Emphasis added.)
92 Secondly, Mr Short contended that the primary judge's failure to properly construe or apply s 361 can be seen in a number of matters, including that:
(a) some Ambulance Victoria employees who were involved in the decision not to appoint him to the higher duties role were not called to give evidence;
(b) he had performed higher duties at the Lakes Entrance branch previously;
(c) Ambulance Victoria had failed to discover relevant documents;
(d) no issues concerning his suitability to perform higher duties had been raised when he initially submitted his expression of interest for that role; and
(e) when Ms Ray made the decision to refuse him higher duties there had been no negative findings about his behaviour, which is inconsistent with Ms Ray's evidence that the reason for her decision was because of his behaviour and communication style.
93 Those submissions reveal that Mr Short's real complaint is not about any misconstruction of s 361, but constitutes a challenge to the findings of fact made by the primary judge that underpinned his Honour's conclusion that the decision not to appoint Mr Short to a higher duties position was not motivated by a prohibited reason. In that respect, Mr Short contended that the primary judge erred in accepting the evidence of Mr Standfield and Ms Ray as reliable in light of matters (a)-(e) and that, as a result, his Honour could not reasonably have been satisfied that Ambulance Victoria had discharged its onus.
94 In Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 248 CLR 500 at [45], French CJ and Crennan J said in relation to the onus under s 361:
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity. (Emphasis added. Citations omitted.)
95 In support of his contention set out at 92 above, and placing particular reliance on the emphasised text in the passage just quoted, Mr Short noted that Ms Reid was not called as a witness. He argued that Ms Reid was deeply involved in the decision not to appoint him to the higher duties role, and he contended that without her testimony Ambulance Victoria could not have discharged its onus.
96 This contention is misconceived. The primary judge accepted Ms Ray's evidence that, although she consulted with Ms Reid, she was the decision-maker rather than Ms Reid. Ms Ray gave direct testimony as to her reasons for not appointing Mr Short to the higher duties role. That evidence was accepted. In some circumstances, the failure to call corroborative evidence may lead to the non-acceptance of the primary evidence called in support of an issue. But that is not always so. In this case, the extent of Ms Reid's involvement was not such that Ms Ray's evidence could not have been accepted absent corroboration from Ms Reid.
97 Mr Short's contention at 92 above, as well as 92, (d) and (e), are in essence complaints that the primary judge should not have accepted the evidence of Mr Standfield and Ms Ray. His Honour had the benefit of direct evidence from Ms Ray, the relevant decision-maker, and from Mr Standfield whom she consulted. Both were cross-examined as to the reasons for the decision, and Ms Ray's evidence included positive evidence that the decision not to appoint Mr Short to the higher duties role was taken because he had been off work with a stress condition and because of his often-explosive behaviour. None of the matters to which Mr Short points reveal any error on the part of the primary judge in accepting their evidence.
98 It was central to Mr Short's case that the real reasons for the refusal to appoint him to higher duties were not as Mr Standfield and Ms Ray testified, and he attacked the credibility of their account. The authorities set a high bar for an appellant seeking to overturn credit findings. In Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 the majority per Brennan, Gaudron and McHugh JJ observed:
More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable". (Citations omitted.)
99 In Fox v Percy (2003) 214 CLR 118 at [26]-[31] Gleeson CJ, Gummow and Kirby JJ reiterated that a finding of fact by a trial judge, based on the credibility of a witness, will usually only be set aside upon appeal where incontrovertible facts or uncontested testimony demonstrate that the judge's conclusions are erroneous, or where it is concluded that a decision was clearly improbable or contrary to compelling inferences.
100 Mr Short did not come close to establishing that the primary judge's findings as to the reason for not appointing him to the higher duties role were inconsistent with facts incontrovertibly established, glaringly improbable, contrary to compelling inferences, or otherwise erroneous. In our view there was a firm basis in the evidence for his Honour's findings.
101 Contrary to Mr Short's contentions, the primary judge was plainly alive to the requirements of s 361 and the onus on Ambulance Victoria. His Honour said (at [27]):
Based on the above evidence, the court considers that Ambulance Victoria has discharged the onus placed on it by s 361 of the Act to show that its decision not to appoint Mr Short to the higher duties role was not taken for a reason which included the reason that Mr Short had made a complaint or inquiry in relation to his employment.
102 Finally, there is no substance to the contention at 92 above, concerning Ambulance Victoria's alleged failure to discover certain documents concerning the decision to refuse Mr Short the higher duties role, which Mr Short contended are "proven to exist". Mr Short did not seek or obtain a ruling from the primary judge in relation to the asserted inadequacy of Ambulance Victoria's discovery and he was unable to offer an adequate explanation for that failure. While an appellate court may entertain a point on appeal that was not raised at trial it is not expedient or in the interests of justice for the Court to now consider whether discovery was adequate: see Water Board v Moustakas (1988) 180 CLR 491 ("Water Board") at 497 per Mason CJ and Wilson, Brennan and Dawson JJ.
103 Ground 1 of the appeal must be rejected.