FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Bengalla Mining Company Pty Limited [2013] FCA 267

THE COURT ORDERS THAT:

1.    The application be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Adam Dever is an electrical technician employed by Bengalla Mining Company Pty Limited (“Bengalla”). He is also a member of and office-holder in the Construction, Forestry, Mining and Energy Union (“the union”), an industrial association of employees. On three occasions last year Bengalla refused applications Mr Dever made for unpaid leave in order to attend meetings of the union. After his first unauthorised absence Bengalla issued him with a written warning to the effect that further incidents of unauthorised absence from work could result in the termination of his employment. Further disciplinary action may be taken pending the outcome of this proceeding.

2    The Fair Work Act 2009 (Cth) (“the Act”) prohibits an employer taking adverse action against an employee because the employee is a member or officer of an industrial association or because the employee has engaged, engages or proposes to engage in certain types of protected industrial activity. That activity includes participating in a lawful activity organised by an industrial association and complying with a lawful request made by, or requirement of, an industrial association.

3    The union filed an originating application on 9 November 2012 (amended twice since) seeking declaratory relief, orders that Bengalla revoke warnings given to Mr Dever, and civil penalties. Pleadings followed. The parties agreed that if the union is successful the application for civil penalties should be heard at a separate time.

4    The union contends that Bengalla issued Mr Dever with the written warning for the reason or reasons that included the facts that Mr Dever was a member or officer of the union or attended a union meeting. Bengalla, on the other hand, contends that these circumstances were entirely irrelevant.

The statutory background

5    The relevant provisions of the Act appear in Pt 3–1, the stated objects of which include the protection of freedom of association. By s 346 a person must not take adverse action against another person because (amongst other things) the person: is or was a member or officer of an industrial association; or engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of para 347(a) or (b). An officer of an industrial association is defined as a person who holds office in an industrial association or a delegate or other representative of the association (s 12).

6    “Adverse action” is defined in the table to s 342(1) of the Act to involve any of the following circumstances:

(a)    injuring the employee in his or her employment (item 1(b));

(b)    altering the position of the employee to the employee’s prejudice (item 1(c));

(c)    discriminating between the employee and other employees (item 1(d)); and

(d)    refusing to employ a prospective employee (item 2(a)).

7    It also includes threatening to take such action (s 342(2)).

8    The adverse action alleged to have occurred in the present case is the taking of disciplinary action or the threat to do so. It is common ground that such action falls within para (b) above, if not also para (a).

9    Section 347 relevantly provides that a person engages in industrial activity if he or she “becomes or remains” an officer or member of an industrial association, participates in a lawful activity organised by an industrial association or complies with a lawful request made by, or requirement of, an industrial association.

10    Section 360 provides that for the purposes of Pt 3–1:

a person takes action for a particular reason if the reasons for the action include that reason.

11    Thus, the prohibited reason need not be the only reason. It is sufficient that it is one of the reasons, provided, however, that it is “a substantial and operative factor”: General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 (“Bowling”) at 619 per Mason J, Gibbs, Stephen and Jacobs JJ agreeing; Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044; [2012] HCA 32 (“Barclay”) at [104].

12    Adverse action is presumed to be taken for a prohibited reason unless the employer proves otherwise (s 361).

The dispute

13    The union’s case as set out in its further amended application and its statement of claim alleged four contraventions and the union sought four declarations. The first two relate to the issuing of the written warning, the second two to a letter given to Mr Dever on 21 December 2012, which the union contended amounted to or contained a threat to take disciplinary action for the same prohibited reason or reasons.

14    There is no dispute that Mr Dever asked for unpaid leave to attend a union meeting on three occasions and that his requests were refused. Nor is there any dispute that after his first unauthorised absence disciplinary action ensued.

15    Until final submissions concluded there were three issues:

(1)    Was the disciplinary action taken after the first unauthorised absence (the issuing of the warning letter) taken for one or other of the prohibited reasons alleged or for a reason that included such a prohibited reason or, more accurately, has Bengalla proved that it was not?

(2)    Did Bengalla threaten disciplinary action after the second unauthorised absence?

(3)    If so, has Bengalla proved that the threat was not made for a reason that included a prohibited reason?

16    After oral argument, however, the second and third issues fell away. The union advised that it no longer pressed this part of its case. As a result there is only one issue: whether Bengalla has proved that the warning letter was not issued for a reason that included a prohibited reason.

The facts

17    The facts are largely uncontroversial. There is some disagreement about what was said in various conversations, which is scarcely surprising, but the parties agreed that nothing turns on the differences. Unless otherwise indicated, the following account is not in dispute.

18    Mr Dever is an electrician. He has been employed by Bengalla as an electrical technician since 30 June 2001. At all relevant times he has been the president of the union’s lodge at the Bengalla mine and a lodge representative on the Board of Management of the Northern District of the Mining and Energy Division of the union (“Board of Management”). There is no dispute that Mr Dever was an officer of the union or that attendance at Board of Management meetings is an industrial activity for the purposes of the Act.

19    Mr Dever’s terms and conditions of employment are regulated by the Bengalla Enterprise Agreement 2010. He is allocated to a particular crew and works a seven day rotating 12½ hour roster.

20    On 17 June 2012 Mr Dever applied to Bengalla for unpaid leave in order to attend the National Convention of the union’s mining and energy division on 24 and 25 October 2012, two days when he was rostered to work. He completed an application form stating his reasons for wanting leave, adding “official union business as [Board of Management] representative of union” and submitted it to his supervisor.

21    Bengalla is part of the Rio Tinto group of companies. Its general manager, Daniel Janney, is an employee of Rio Tinto Services Incorporated (an American company), seconded to Rio Tinto Services Australia (part of Rio Tinto Coal Australia, which I shall refer to as “Rio Tinto”). He is general manager not only of Bengalla, but also of two other related companies.

22    Bengalla’s leave policy is the Rio Tinto leave policy. There was no dispute that the policy applied to Mr Dever.

23    Under the policy leave may be taken for any one of a number of reasons, but the only types of pre-arranged leave the company provides for are annual leave, long service leave, jury service leave, study leave, parental leave, Australian Defence Force leave and unpaid leave. Mr Dever applied for unpaid leave. Rio Tinto’s policy with respect to unpaid leave is in the following terms:

4.8 Unpaid leave

The Company recognises that special circumstances may arise when an employee finds it necessary to be absent from work for personal reasons which may not be covered by the Company’s normal leave provisions. In such circumstances, where an employee has used all of their other relevant accrued leave, the Company may grant unpaid leave.

4.8.1 Approval

The authority to approve unpaid leave rests with the relevant Manager, and each case is determined on its merits. Employees should submit applications for unpaid leave through their leader who, after consideration of the circumstances, will forward a recommendation to the relevant Manager. The General Manger is to be notified of all unpaid leave that is approved.

24    Unauthorised leave is defined in cl 6 as “any absence that is not approved by the employee’s leader or higher level manager”.

25    Cl 6.1 provides:

6.1 Breaches of Policy

If an employee breaches this policy, their leader should refer to the “Managing Performance Policy”. Such breaches may include cases where the leader finds the employee:

•    Demonstrates a trend or pattern of absenteeism, or

•    Takes leave without adequate supporting documentation.

Any employee who believes they have been treated unfairly by the application of this policy may access the RTCA [Rio Tinto Coal Australia] Fair Treatment System.

26    At no time did Mr Dever seek to avail himself of the Fair Treatment System.

27    On 19 June 2012 Mr Dever’s leave application came to the attention of Julian Blason, the Mobile Maintenance and Warehouse Superintendent at the Bengalla Coal Mine and Mr Dever’s superintendent. Mr Blason had authority to approve some, though not all, applications for leave. He needed to be aware of all leave applications as it was one of his responsibilities to make sure that there were enough employees to run the Mobile Maintenance area.

28    When Mr Blason received Mr Dever’s application, he read it, saw that it was an application for unpaid leave and noted the reasons leave was sought. As he had not previously dealt with an unpaid leave application, he read what the policy said about unpaid leave. He interpreted the policy to mean that unpaid leave was only available if an employee had first exhausted all accrued leave. As the authority to approve unpaid leave rested with the manager, Mr Blason saw it as his job to make a recommendation to him. At this point Mr Blason contacted Jonathan Lawler, the Services Manager (whose responsibilities included human resources) to confirm that his interpretation of the policy was correct. Mr Lawler confirmed that unpaid leave was only available where the employee had no accrued leave.

29    Mr Blason then set about acquiring the information relating to Mr Dever’s accrued leave. He sent an email to Trinette Crawford, who worked in the payroll department. Mr Blason said he needed to determine what leave would be available to Mr Dever around 24 October 2012. He explained that the reason for the request was that Mr Dever had applied for unpaid leave for 24 and 25 October but that Mr Lawler had advised that “Unpaid Leave (manager to approve) is normally only available when all other type (sic) of leave have been exhausted”. It transpired that by 24 October Mr Dever would have accrued 327.73 hours leave.

30    Mr Blason then spoke to Patrick Korman, the newly appointed maintenance manager and Mr Dever’s line manager. Mr Blason recommended to Mr Korman that Mr Dever’s application not be approved because he had accrued leave entitlements. Mr Korman accepted the recommendation. That morning he had been copied into the email Mr Blason sent to Ms Crawford. Mr Dever’s leave application was not attached and the email did not mention the reason for which leave was being sought.

31    On 20 June 2012 Mr Blason emailed Mr Dever to inform him that his application had been refused. The email, which was first sent to Mr Lawler for him to review so as to ensure that it was “clear and consistent with the relevant policies”, was in the following terms:

I have no objection to your planned leave on Wednesday 24th and Thursday 25th October 2012, as per the leave form submitted this week, however the company is unable to provide “unpaid leave” as this falls outside the RTCA Leave Policy.

In the RTCA policy (Document No HR05-002) it refers to 3.0 POLICY, Unpaid Leave as follows:

The company recognises that special circumstances may arise when an employee finds it necessary to be absent from work for personal reasons which may not be covered by the Company’s normal leave provisions. In such circumstances, where an employee has used all of their other relevant accrued leave, the Company may grant unpaid leave.

Having reviewed your current leave entitlements, I note that as of 30th June 2012 you will have 243.73 hour (sic) of annual leave available. In addition to this, between July and October 2012, you will have an additional accrual of 84 hours.

As such I believe it would be fair to request that the leave you have applied for in October is taken as Annual Leave.

Happy to discuss.

32    Some 14 hours later Mr Dever sent an email to his supervisors, Stephen Fuller and David Lawson, informing them of his appointment to the Board of Management and attaching a copy of the returning officer’s declaration of the poll. The email read (without alteration):

Just letting you guys know about my appointment to the Board of Management, Mining & Energy Division, Northern District of the CFMEU. Could you please forward onto the relevant people so they are aware I am now an appointed representative of the Union. There will be on occasion’s duties I will have to attend as part of my role which may require special leave.

33    A copy of the attachment (at least) was forwarded to Mr Blason.

34    On 15 July 2012 Mr Dever resubmitted his application for unpaid leave to attend the National Convention on 24 and 25 October and made a further application for unpaid leave to attend the Board of Management Meeting to be held at the Northern District Branch Office of the union on 29 August 2012. The reasons put in the form for the new application were:

Union meeting – official BOM meeting as union representative.

35    Mr Dever handed the application to Mr Lawson in the presence of Mr Fuller. As he gave the application form to Mr Lawson he explained that the application was for unpaid leave for union business. The following exchange then took place:

Mr Lawson:    “Are you sure your advice is right?”

Mr Dever:    “Yes, I am sure my advice is right and I am entitled to have time off to attend these meetings.”

Either Mr Fuller or Mr Lawson: “We just want to make sure; we do not want to see you get into trouble.”

Mr Dever:    “Why what is going to happen to me if I take the time off? Am I going to lose my job?”

Mr Fuller or Mr Lawson (or both):    “That could happen!”

Mr Dever:    “I take my representative responsibilities very seriously and at the end of the day I will not be attending work on that day, I will be going to the Board of Management Meeting.”

36    The same day, Mr Dever sent an email to Mr Blason asking him to review both his previous form and the new one. He advised Mr Blason that he was aware of the clauses he had mentioned but that he needed unpaid leave to attend to official union business as he was an “appointed representative” of the union. He mentioned that the notification of his appointment to the Board of Management “making [him] an official of the union” was sent to his supervisor and in turn to Mr Blason.

37    Mr Blason said that he considered these applications in the same way he had considered the first (consistently with his usual practice of checking whether an applicant had enough accrued leave). As Mr Dever had a substantial amount of accrued leave owing to him, Mr Blason said he could not recommend to his manager that the application be approved. Before informing Mr Dever of his decision, however, Mr Blason sent another email to Mr Lawler (copied to Mr Korman). The email, dated 18 July 2012 read as follows:

Adam passed in a leave application form on the 17/6/2012 requesting two (2) days unpaid leave to attend, as he put it “Leave required to attend union national convention. Official union business as BOM representative of union”. My response to his leave application was the email below dated 20/6/2012.

Upon his return from annual leave he passed in a second leave application form on the 15/7/2012 re-requesting two (2) days unpaid leave to attend, as he put it “Union meeting – official BOM meeting as union representative”. He accompanied the second application with the email directly below.

My intention is to catch-up with Adam next Monday, when he returns to dayshift, however at this stage I have no intention to recommend manager approval for this leave as I don’t see any clause that allows this in our leave policy.

Our leave policy seems quite clear to me, however would appreciate some advice around whether I have missed something here. Have we supported this type of leave in the past?

38    Mr Lawler replied soon after:

Your position is correct and you are not missing anything. Given Adam has more than sufficient annual leave available to him, we cannot approve leave without pay and he will need to apply for these days off as annual leave.

39    Mr Blason then spoke to Mr Korman about Mr Dever’s applications. He showed Mr Korman a copy of the leave applications, pointed to the relevant clause from the leave policy and told him that because Mr Dever had ample accrued annual leave, he did not believe Mr Dever met the criteria in the policy. Mr Blason recommended that the applications not be approved for this reason. It was at this time that Mr Korman said he first saw a copy of Mr Dever’s application for unpaid leave and in it Mr Dever’s reasons for leave. Mr Korman read through cl 4.8 of the policy and formed the opinion that Mr Blason’s view was consistent with the provisions of the policy. Mr Korman then said to Mr Blason:

So he clearly isn’t entitled to unpaid leave. I don’t mind what reason he has for wanting to take leave. I have no issue with him wanting to attend a union meeting but he can only take leave in accordance with the policy. He has accrued annual leave, which means he can’t take unpaid leave. I’m happy to support an application for annual leave.

40    Mr Blason, who also gave an account of the conversation, did not include in his account any reference to Mr Korman’s indifference to the reasons Mr Dever sought leave. Yet, it was never put to Mr Korman in cross-examination that he did not say these things to Mr Blason. Mr Korman’s statement is consistent with other evidence he gave to the same effect (from which he did not depart under cross-examination). The differences between the witnesses’ recollections count against the likelihood of collusion.

41    On 19 July 2012 Mr Blason advised Mr Dever that the company was unable to support Mr Dever’s application for unpaid leave, but that it would be prepared to support an application for annual leave. Mr Dever told him that he would still be attending the Board of Management meeting.

42    The next day Mr Dever spoke about his situation to Robin Williams, the Vice-President of the Northern District Branch of the union. On 2 August 2012 Mr Williams wrote to Bengalla’s general manager in support of Mr Dever’s leave application, underscoring Mr Dever’s membership of the Board of Management and pointing out that attendance at the union’s meetings constitutes participation in an industrial activity as defined in s 347 of the Act. Mr Williams continued:

We understand that the Company has refused to grant unpaid leave to Mr Dever to attend the Convention despite the fact that written notice was provided in June 2012. Further, we understand that the Company will approve annual leave but not leave without pay. Given these circumstances, we have advised Mr Dever that the refusal by the Company to grant unpaid leave to attend the Convention and other Board of Management meetings and the requirement that he must agree to take paid annual leave to be able to attend is unreasonable and he should therefore attend and no deduction from his annual leave entitlements should occur without his express approval.

43    Mr Williams gave notice to Bengalla that the union would regard any attempt to reduce Mr Dever’s annual leave entitlement or to impose disciplinary sanctions on him because he was attending the Convention or for any related reason as adverse action under the Act, foreshadowing legal action if the company did so.

44    In late August 2012 Mr Lawler apprised the newly appointed general manager, Daniel Janney, of the situation and drew his attention to Mr Williams’s letter. On 28 August 2012 – the day before the Board of Management meeting – Mr Janney replied to Mr Williams. In that letter he advised:

The decision to refuse [Mr Dever’s] application has not been taken because Mr Dever proposes to attend any CFMEU meetings or conferences on those days, or for any other reason associated with him being a union member or official. The same decision would have been made regardless of the place that Mr Dever intended to go, or the people he intended to meet on those days.

…

If Mr Dever fails to attend work on a rostered work day without approved leave, his absence will be dealt with in accordance with Bengalla’s usual policies and procedures. Mr Dever would be treated no differently to any other employees at Bengalla in that regard.

45    On 29 August 2012 Mr Dever failed to appear for work. Mr Blason spoke to Mr Korman and Mr Lawler about Mr Dever’s absence and then telephoned Mr Dever to enquire why he had not attended his shift that day. Mr Dever told him he had attended the Board of Management meeting as he had said he would and understood that the company knew that. Mr Blason reported his conversation to Mr Korman. Mr Korman said that his leave was unauthorised and the company needed to commence an investigation. He asked Mr Blason to speak to “HR” to arrange this. Mr Blason conveyed Mr Korman’s comments to Mr Lawler and emailed him with the details of his conversation with Mr Dever.

46    Mr Blason then arranged a meeting with Mr Dever to discuss the matter. The meeting took place on 7 September 2012. In attendance were Mr Dever, his representative Mr Williams, Mr Blason, and Stefanie White, a human resources specialist with Bengalla. At the meeting Mr Blason informed Mr Dever that the company was investigating his non-attendance on 29 August 2012 as he had not been given authorised leave for the day. He said that leave had been refused in accordance with the leave policy as Mr Dever had accrued annual leave, and that further investigations would be carried out. Mr Dever said he had told both him and his supervisor that he would not be attending work as he would be attending the Board of Management meeting. Upon direct inquiry by Mr Williams, Mr Blason said that the reason for the leave was “not relevant” and that all leave applications are treated in the same way under the company’s leave policy. He then showed Mr Williams a copy of the policy and pointed out the clause relating to unpaid leave. He reiterated that the reason for leave was irrelevant. Mr Blason said that the absence would be investigated. Mr Williams made it clear that the union would prosecute Bengalla under the Act.

47    After discussions with Mr Lawler and Mr Blason, Mr Korman decided to issue Mr Dever with a written warning and Mr Lawler then prepared a letter for his approval. The letter was signed by Mr Blason and issued by him at Mr Korman’s request.

48    On 18 September 2012 Mr Dever attended a second meeting with Mr Blason, Anne Hutchson (a human resources employee), and Mr Williams. At the meeting Mr Blason informed Mr Dever that his behaviour was unacceptable and handed him the warning letter. The letter contained a summary of the events leading up to Mr Dever’s unauthorised absence on 29 August 2012. It noted that he was rostered to attend work that day and failed to do so. It continued:

This was discussed with you in a meeting held with me on Friday 7 September 2012. During this meeting you agreed that you received the email notification on 19 July stating that your application for unpaid leave (for 29 August) was not approved. Furthermore, you stated that you told your supervisor and others that you would not be attending work on that date, despite your knowledge that your leave application was not approved.

Adam, any employee at Bengalla who wishes to be absent from work on a day that the employee is rostered to attend must make an application to be absent on that day and that application must be approved. Any such application will be considered in the usual way and in accordance with the Policy regardless of the place the employee intended to go, or the people they intended to meet. Unless the employee has approved leave the employee is expected to attend work as normal. This is the case for all Bengalla employees.

The investigation into this matter showed that you did not have approved leave for 29 August 2012, a day where you were rostered to work. Furthermore, you had knowledge that your leave application for this day was not approved yet you decided not to attend work as normal. This behaviour is unacceptable.

This letter constitutes a written warning. Further incidents of this behaviour will result in disciplinary action. Termination of your employment at Bengalla may result.

49    On 12 October 2012 Mr Dever applied to Bengalla for annual leave (rather than unpaid leave) for 24 and 25 October 2012 – the days of the National Convention. He completed an application form without specifying any reason and submitted it to his supervisor. The application was approved.

50    Mr Dever later applied for a day’s unpaid leave for 12 November 2012 to attend the Board of Management meeting. That application was refused but no relief is sought in connection with that decision or its actual or potential consequences.

The adverse action – what it is and what it is not

51    Before going any further, it is necessary to say something about the scope of the union’s case. The reasons for the employer’s action must be considered in the context of the alleged adverse action.

52    As I said at the outset, the adverse action upon which the union relies is the issuing of the warning letter on 18 September 2012. Most of the evidence was concerned with the applications for leave and the reasons why leave had been refused. The union did not allege, however, that in refusing Mr Dever’s request for unpaid leave or in encouraging him to use his annual leave Bengalla was taking adverse action within the meaning of the Act. Counsel for the union made it clear that it was no part of the union’s case that enforcement of the leave policy amounts to adverse action.

Was adverse action taken for a prohibited reason?

53    The question of why Bengalla took adverse action against Mr Dever is a question of fact and it must be answered in the light of all the facts. Direct evidence from the decision-maker(s) is obviously relevant, albeit not decisive. The central question is why the action was taken, not what the employer says was the reason it took the action: Barclay at [44] per French CJ and Crennan J. As Heydon J put it in the same case at [141], “mere declarations” by a witness as to his or her mental state may not be enough to discharge the employer’s onus of proof; “[e]xternal circumstances could put into question the reliability or credibility of those declarations”. But if the decision-maker says that the prohibited reason had nothing to do with his decision and that evidence is accepted, then the employer will have discharged its onus: Bowling at 612 per Gibbs J. The position is perhaps best encapsulated in the reasoning of Gummow and Hayne JJ in Barclay at [127]:

In determining an application under s 346 [it is necessary to] assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence [is] to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it [is] the reasons of the decision-maker at the time the adverse action was taken which [is] the focus of the inquiry.

54    The case as pleaded alleged that the adverse action was taken by Mr Blason. As I indicated earlier, however, while Mr Blason signed the warning letter and handed it to Mr Dever he did not make the decision to issue the written warning. That decision was made by Mr Korman after discussions with Mr Lawler and Mr Blason. All three gave evidence about the factors that influenced their actions.

55    Mr Blason said that he did not take into account Mr Dever’s membership of the union, the fact that he was the lodge representative on the Board of Management or that he may have attended a Board of Management on 29 August 2012 or that he was engaging or proposing to engage in industrial activity. He said he did what he did because Mr Dever had breached the leave policy and had failed to attend work as rostered, without approval and without being on authorised leave, in circumstances where he had been told that his application for unpaid leave had not been approved and he had not applied for any other form of leave.

56    Similarly, Mr Lawler said that neither in assisting with the investigation nor in preparing the written warning did he take into account Mr Dever’s union membership, his role as the lodge representative of the Board of Management or his involvement in industrial activity.

57    Mr Korman stated that at the time he decided that Mr Dever should receive a written warning he considered four matters:

•    the terms of the leave policy;

•    the fact that Mr Dever could have applied for annual leave and that he had been told that the company would support such an application;

•    that Mr Dever had “blatantly breached” the leave policy because without approved leave he was obliged to attend for work as rostered; and

•    Mr Dever’s “reckless” failure to notify his supervisors on the day of his unauthorised absence.

58    Mr Korman said that his decision to issue Mr Dever with a written warning was not influenced “in any way” by the fact that Mr Dever was a union official, or was attending or proposing to attend a union meeting, or was otherwise engaging or proposing to engage in industrial activity. Those factors, he stressed, played no part in his decision. He said that at no stage did he have any concern about Mr Dever attending to union business and never suggested to anyone that he could not or should not attend any union-related conferences or meetings. Indeed, he said he was happy to support an application for annual leave to enable him to do so.

59    Mr Korman was unshaken in cross-examination:

MR SLEVIN: Now, at this stage when you’re considering what to do you’re certainly aware that what had happened was Mr Dever had gone to a union meeting on 29 August, aren’t you? ---That’s correct.

And that he had done that in circumstances where he applied for unpaid leave and you had denied that application? ---That’s correct.

And so were those the two considerations that you had in your mind in making your decision about a written warning? ---Sorry, could you just repeat that question?

Was it those factors, I’m just trying to think, going through this material, what material you had, was it those factors that ­ ­ ­

HER HONOUR: Which factors?

MR SLEVIN: ­ ­ ­ influenced you, the two factors, that he had gone to a union meeting in circumstances where he asked for leave and you had knocked him back for leave? ---No.

All right. Well, what was it then? ---That he – he was absent from work and he was not authorised to be absent from work. He was rostered on and he was absent from work. He applied for leave which was refused and he chose to ignore the direction of the company. That was the basis of the decision.

Now, in terms of your consideration, though, his presence at the union meeting was the reason for his absence, wasn’t it? ---That’s correct.

And you simply didn’t take that into account? ---That’s correct.

And so it wouldn’t have mattered if he had gone fishing that day? ---That’s correct. Irrespective of where he was to go or who he was to meet, that wouldn’t have mattered.

60    When it was suggested to him that he could not separate where Mr Dever went from the fact of his absence, Mr Korman accepted that it was in his mind that he was applying for leave to attend a union meeting. He stressed, however, that it was not the reason for his decision:

I understood that where he applied to go, that’s right, and yes, I – that was, yes, that was in my mind but it’s not the reason for the decision. Irrespective of where he wanted to go, that’s not the reason for the decision.

61    To the suggestion that he had convinced himself that he had put out of his mind the possibility that union activity had anything to do with his decision, Mr Korman replied:

I was aware of it for sure but it’s not the basis for the decision. The policy is pretty clear. You’ve got to use all your accrued leave, very happy for you to support your annual leave, very happy to support your application [for] that. Until you’ve used that accrued leave you won’t be considered for unpaid leave. So it’s a pretty easy separation to make.

To go to union meetings? — Any meeting.

62    It is easy to be sceptical about statements like these made in the context of litigation of this kind. They are plainly self-serving. But in this case they are supported by the contemporaneous evidence and there was nothing in what Mr Korman said or in the way he said it to suggest that he was insincere.

63    There is therefore a wealth of evidence from those individuals who took part in the decision-making process that Mr Dever’s union membership, status or activities had nothing to do with the company’s decision to issue the written warning.

64    The union submitted that this evidence should nonetheless be rejected. It contended that the denials by the Bengalla witnesses must be weighed against the evidence that shows that the purpose of the absence was to attend a union meeting. It submitted that their denials are not credible and should not be regarded as sufficient to discharge its onus of proof because:

(1)    when the decision to send the warning letter was made the witnesses were well aware that Mr Dever was a union member and officer who had attended the Board of Management meeting;

(2)    (despite what Mr Korman said) the reason for the absence cannot be separated from the reason for the disciplinary action;

(3)    the investigation process was “tainted” or flawed in that only one interview was conducted, the relevant documents were not collected, the person who carried out the interview was involved in making the decision to refuse the leave, and relevant material was not taken into consideration or investigated – in particular, there was no consideration of the 2 August letter from the union; and

(4)    Mr Korman knew that it would have been unlawful to take Mr Dever’s union affiliations and activities into account.

65    Furthermore, the union contended that if Mr Korman acted only because of what was in the policy, he was, in effect, acting under dictation.

66    I am not persuaded by any of these submissions.

67    First, there is no reason to doubt the reliability of the evidence given by Bengalla’s witnesses. None of them was discredited in cross-examination and their evidence is not inherently implausible. There are no objective facts to contradict it. It is supported by contemporaneous documents and is based on the company’s leave policy. There is nothing to suggest that any of these men had any problem with Mr Dever attending the Board of Management meeting; they were merely concerned about him doing so without approved leave.

68    There is no evidence to suggest that any of the witnesses bore any antipathy towards the union or had any objection to Mr Dever’s involvement with the union. Neither is there evidence to suggest that the policy was applied in a partisan or discriminatory way or that Mr Dever was disciplined when others who had taken unauthorised leave were not. Mr Lawler gave evidence which showed that Mr Dever’s leave applications were considered in precisely the same way as any other employee’s. Mr Janney’s letter to the union made it clear that if Mr Dever absented himself from work without permission he would be treated no differently from any other employee at Bengalla. He gave evidence to the same effect. He was not required for cross-examination.

69    In truth, what the union sought was preferential treatment. Mr Dever conceded as much in cross-examination. The union’s real complaint was not that Bengalla took into account Mr Dever’s union status and commitments, but that it failed to take them into account.

70    Secondly, if the union were right, then no employer who took adverse action against an employee knowing the employee to be a member or officer of a union, or knowing that the employee was engaging or intending to engage in industrial activity, could ever discharge its onus of proof. On the union’s argument, an employer who dismissed an employee for admittedly sexually assaulting a fellow employee or for stealing from the company would contravene the Act and face the prospect of civil penalties merely because it knew that the employee was a union member or officer, or was engaged in an industrial activity. And what if the sexual assault occurred at a union conference or the money was stolen to finance striking employees? The Act was not intended to limit the authority of an employer to take disciplinary action in circumstances such as these. There is a difference between knowing something and taking action for that reason.

71    The union’s argument is not materially different from the argument the High Court rejected in Barclay and to accept it would invite the very criticism levelled at the union parties in that case. As French CJ and Crennan J explained at [60]–[62]:

[60]    First, it is erroneous to treat the onus imposed on an employer by s 361 as being made heavier (or rendered impossible to discharge) because an employee affected by adverse action happens to be an officer of an industrial association. Further, the history of the relevant legislative provisions reveals no reason why the onus must now be different if adverse action is taken while an employee engages in industrial activity – like a person who happens to be an officer of an industrial association, a person who happens to be engaged in industrial activity should not have an advantage not enjoyed by other workers.

[61]    Central to the respondents’ argument on this appeal was the contrary and incorrect view that Mr Barclay’s status as an officer of an industrial association engaged in lawful industrial activity at the time that Dr Harvey took adverse action against him meant that Mr Barclay’s union position and activities were inextricably entwined with the adverse action, and that Mr Barclay was therefore immune, and protected, from the adverse action. If accepted, such a position would destroy the balance between employers and employees central to the operation of s 361, a balance which Parliament has chosen to maintain irrespective of the fact that the protection in s 346(b) has a shorter history than the protection in s 346(a). That balance, once the reflex of criminal sanctions in the legislation, now reflects the serious nature of the civil penalty regime. Speaking more generally, that balance is a specific example of the balance of which Alfred Deakin spoke as being necessary for an effective conciliation and arbitration system.

[62]    Secondly, it is a related error to treat an employee’s union position and activity as necessarily being a factor which must have something to do with adverse action, or which can never be dissociated from adverse action. It is a misunderstanding of, and contrary to, Bowling to require that the establishment of the reason for adverse action must be entirely dissociated from an employee’s union position or activities … The onus of proving that an employee’s union position and activity was not an operative factor in taking adverse action is to be discharged on the balance of probabilities in the light of all the established evidence.

72    Thirdly, this is not an inquiry into the fairness of the investigation or the leave policy, or whether the investigation conformed to the company’s policies. Nor is it an inquiry into whether, by following the policy, the manager wrongly assumed he had no discretion or wrongly fettered his discretion. No allegation of this kind is made in the pleadings. The union’s complaints about the conduct of the investigation and the application of the leave policy are irrelevant.

73    It was put to Mr Blason in cross-examination that he must have considered the reason for Mr Dever’s absence when investigating the misconduct because the company’s “Managing Performance Policy” requires that it be considered. The foundation for this cross-examination was the definition of misconduct in the performance policy, which includes “unauthorised absenteeism without reasonable cause or notice”. It was put to Mr Blason that if he was going to investigate an allegation of unauthorised absenteeism without reasonable cause or notice, he had to consider the reason for the absenteeism and see whether there was a reasonable cause for it. Mr Blason agreed. Mr Blason also agreed that the cause of Mr Dever’s absence was that he was away on union business.

74    The last answer was not explored any further or developed in submissions and the matter was not pursued with Mr Korman, the actual decision-maker.

75    It does not follow from what Mr Blason said that there was any consideration of the cause of Mr Dever’s absence.

76    The evidence indicates that there was no inquiry into the cause of the absence because the cause was known, and there was no inquiry into whether the cause was reasonable because the company was indifferent as to the cause. Indeed, the notes taken during the 7 September 2012 meeting show that Mr Blason told Mr Dever that when approving leave, what the person is doing is not a factor. Mr Dever remonstrated that it should be.

77    Furthermore, the cross-examination assumed that the investigation was into Mr Dever’s “unauthorised absenteeism without reasonable cause or notice”. Mr Blason was merely asked whether that was “the sort of conduct” he was investigating. The cross-examination also assumed that the warning letter was issued for the same reason. But “unauthorised absenteeism without reasonable cause or notice” was only one example of misconduct. On the list (which was not exhaustive) was also “a breach of company policy or procedure” and “a breach of the employee’s contract of employment”. Mr Dever’s conduct answered these descriptions and went to the heart of the reasons Mr Korman gave for issuing the warning. Unauthorised absenteeism rather suggests a trend or pattern of absenteeism (see cl 6.1 of the leave policy). Mr Dever was not disciplined for this reason. The other policy breach mentioned in cl 6.1 was taking leave without adequate supporting documentation. That is what happened here and it was this second policy breach that Mr Korman said he had in mind when deciding to issue the warning. But it is not all that happened. Mr Dever not only took leave without adequate supporting documentation, his leave was not approved, he knew it was not approved and, despite this, he decided not to attend work when he was rostered to do so.

78    Fourthly, it is scarcely to the point that Mr Korman knew it would be wrong to take disciplinary action for a prohibited reason. Teenagers and rebellious children aside, since when does knowing that something is wrong make it more likely that one would do wrong? Indeed, I would have thought that the fact that Mr Korman knew about the prohibition against taking union membership and related matters into account makes it less – not more – likely that he would do so.

79    I am persuaded by the evidence of the Bengalla witnesses that neither Mr Dever’s union membership, nor his position as an officer of the union, nor the fact that he was absent from work to attend a Board of Management meeting had anything to do with Bengalla’s decision to take disciplinary action against him.

Conclusion

80    Bengalla has discharged its onus of proving that the warning letter was not issued for a prohibited reason. Consequently, the application must be dismissed. Neither party applied for costs, nor indicated that it wished to be heard on the question, and none of the limited circumstances in which a costs order can be made under the Act (see s 570) appear to apply here. Accordingly, I will make no order as to costs.

81    The order of the Court will therefore be that the application be dismissed.

Associate:

Dated:    28 March 2013