FEDERAL COURT OF AUSTRALIA
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525
IN THE FEDERAL COURT OF AUSTRALIA | |
DATE OF ORDER: | |
WHERE MADE: |
The Court declares that:
1. In contravention of s 340(1) of the Fair Work Act 2009 (Cth) the First and Third Respondents took adverse action against Jonathan Zwart by instigating and conducting an investigation into his conduct on 5 August 2011, by suspending him from employment on 8 August 2011, and by issuing him with a final written warning on 18 August 2011, because he had exercised a workplace right.
THE COURT ORDERS THAT:
1. The application against the Second Respondent is dismissed.
2. On or before 7 June 2013 the parties consult and file with the Court minutes of proposed orders that address the filing and service of outlines of submission in relation to the Applicants’ claims for the imposition of penalties upon the Respondents.
3. The matter be listed for further hearing on a date to be fixed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
VICTORIA DISTRICT REGISTRY | |
FAIR WORK DIVISION | VID 867 of 2011 |
BETWEEN: | AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION First Applicant JONATHAN PHILIP ZWART Second Applicant
|
AND: | VISY PACKAGING PTY LTD (ACN 095 313 723) First Respondent TONY SCOTT Second Respondent ROBIN STREET Third Respondent
|
JUDGE: | MURPHY J |
DATE: | 29 may 2013 |
PLACE: | MELBOURNE |
REASONS FOR JUDGMENT
introduction
1 In this proceeding the applicants, Jonathan Zwart and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“AMWU”) seek declarations and penalties against the respondents, Visy Packaging Pty Ltd (“Visy”) and two of its managers, claiming that they took adverse action against Mr Zwart under s 340 of the Fair Work Act 2009 (Cth) (“the FW Act”).
2 Mr Zwart is employed by Visy as a fitter and machine setter at its Food Can plant in Coburg (“the factory”). He is a member and a delegate of the AMWU, and also the elected health and safety representative under the Occupational Health and Safety Act 2004 (Vic) (“the OHS Act”) for the Auto Press Section (“APS”) in the factory. The second respondent, Tony Scott, is the Production Manager at the factory, and the third respondent, Robin Street, is Mr Scott’s superior as the Operations Manager.
3 At the base of the dispute is the fact that the noisy factory had forklifts with reversing warning beepers (“the beepers”) which either could not be heard or were barely audible. No doubt the difficulty in hearing the beepers was also related to the fact that all employees were required to wear hearing protection because of the noise. On the morning of 5 August 2011, following his being surprised by a reversing forklift with an inaudible beeper, Mr Zwart “tagged” one and later a second forklift. “Tagging” is an approved process at the factory involving the attachment of a tag to plant or equipment to indicate that it is not to be used and to alert others that it is faulty or unsafe.
4 Over about the next about five hours a number of meetings and discussions (“the meetings”) ensued between Mr Zwart, Mr Scott, Mr Street and other managers (later also including a WorkSafe Victoria inspector) aimed at resolving the issues regarding the tagged forklifts. While some of what occurred at the meetings is in dispute, it is clear that:
(a) Mr Scott and Mr Street took a different view from Mr Zwart as to what temporary measures should be put in place to enable the forklifts to be returned to service until the problem with the beepers had been addressed;
(b) Mr Scott and Mr Street took a dim view of Mr Zwart's attitude to resolving the issue regarding the tagged forklifts, later characterising it as a failure to “cooperate and engage in reasonable discussions about reasonable and practicable alternative control measures.”
(c) Mr Scott and Mr Street considered that Mr Zwart had not used appropriate dispute resolution procedures and had lied in the meeting with the WorkSafe inspector, firstly in saying that he had tagged the forklifts acting as a “concerned employee” rather than as a health and safety representative, and, secondly when he said that there had been prior “near misses” involving forklifts at the factory.
5 The forklifts were returned to service at the direction of the WorkSafe inspector just after lunchtime, and the audibility of the beepers was rectified before 3.30 pm that day. There was little lost production time.
6 Even so, Mr Street decided to conduct an investigation and to suspend Mr Zwart from work while that investigation was on foot. He said he was concerned about Mr Zwart’s unsatisfactory conduct in the meetings, particularly the alleged lack of cooperation by him.
7 Following an application by the AMWU to the Federal Court for interlocutory relief in relation to the investigation and suspension, a decision was made that the investigation should proceed but be undertaken by an independent investigator, Gregory Halse. He conducted an investigation and after receiving his report Mr Wiltshire, the General Manager of Visy’s Food Can Division, decided to give Mr Zwart a final written warning for his conduct (“the Final Written Warning”).
8 In my view the evidence is clear that the beepers were defective. It is clear too that Mr Zwart had a reasonable basis for tagging the forklifts and also for taking the stance that he did in the meetings with the managers and the WorkSafe inspector. The respondents did not contend that Mr Zwart was wrong to tag the forklifts or that he acted other than out of a genuine concern for safety in doing so.
9 I consider that the surrounding facts and circumstances indicate the implausibility of the respondents’ stated reasons for taking the actions that they did. The facts and circumstances point away from the conclusion that Mr Zwart’s conduct in the meetings is the reason for the adverse action. In fact, the evidence points to the likelihood that the respondents’ actions were taken because Mr Zwart tagged the forklifts and then resisted the temporary measures proposed to return the forklifts to service. As I detail below, I found the account of some of the respondents’ witnesses unreliable on some important issues. I prefer Mr Zwart’s account.
10 For the reasons that follow, I have concluded that the applicants have established a contravention by the respondents of s 340(1) of the FW Act. In arriving at this conclusion I have decided that:
(a) the respondents’ actions in instigating and conducting the investigation, suspending Mr Zwart from work, and issuing the Final Written Warning constitute adverse action under s 342(1) of the FW Act;
(b) Mr Zwart’s rights or duties under the OHS Act, whether as a health and safety representative or an ordinary employee, are “workplace rights” within s 340 of the FW Act;
(c) Mr Zwart was exercising a workplace right under the FW Act when he tagged the forklifts because of his concern about the risk they posed to occupational health and safety and during the meetings when resisting the proposals to return the forklifts to service without fixing the beepers; and
(d) the respondents failed to discharge their onus of establishing that Mr Zwart’s exercise of workplace rights was not a substantial and operative factor in their decisions to instigate the investigation, suspend Mr Zwart from work, and issue the Final Written Warning.
The Facts
11 The trial involved detailed analysis, indeed over-analysis, of the otherwise ordinary events of 5 August 2011. Because of the parties’ attention to and reliance on the minutiae of the facts, I have set them out in detail. While many of the facts are uncontroversial, the chronology also records my view of the evidence in relation to those facts that are in dispute.
The relevant Visy employees
12 Mr Zwart is a long term employee at the factory having worked there for about 23 years, commencing in 1988 when it was owned by Southcorp. Visy took over its running in 2001.
13 On 5 August 2011 Mr Zwart was working as a fitter and machine setter in the APS. Since 2004 he had been the elected health and safety representative for the APS day shift which is a “designated work group” under the OHS Act and he has been an AMWU delegate since 2003. As the Production Manager, Mr Scott oversaw the manufacturing process and was the manager to whom Mr Zwart reported in the event of a safety incident. Mr Scott reported to the Operations Manager, Mr Street, who in turn reported to Rohan Wiltshire.
14 Chris Flanagan, who was the manager of the Material Preparation section of the factory, Earl Hayes, who was at the relevant time the Human Resources Manager for Visy’s Northern Operations, and his superior, Ian Harmer, who was the General Manager of Human Resources Operations, also played a role in the events.
15 Each of Mr Scott, Mr Street, Mr Wiltshire, Mr Hayes and Mr Harmer gave evidence for the respondents. The WorkSafe Inspector, Mr Renehan, and the investigator, Mr Halse, were not called. Mr Zwart gave evidence for the applicants.
The safety campaign at Visy
16 From about April 2011 Visy commenced a safety campaign entitled “Tuff on Safety”, aimed at improving safety at the factory. On 9 June 2011 Mr Wiltshire gave a presentation regarding workplace safety to the factory employees. The evidence establishes that Mr Wiltshire exhorted the employees to be more vigilant in addressing safety issues stating, among other things:
• “Challenge the ‘I've always done it this way’ mentality”;
• “Challenge the unsafe behaviour of the guys working next to you”;
• “You have the ability to stop the next injury from occurring”;
• “There is zero tolerance to unsafe practices and behaviour”; and
• “We are all responsible for safety and are expected to act and work in a safe manner and tell someone when we don't think it's safe”.
Importantly, the employees were instructed that there were “absolutely no excuses for ignoring unsafe practices” and that the factory was one of Visy's poorer performing sites.
Visy’s safety rules relevant to the beepers
17 Visy had various safety rules relevant to forklift warning beepers. These are set out in various forms, checklists and procedures and include:
(a) Visy's Standard Operation Procedure, which relevantly states that operators must ensure that forklifts have a reversing warning beeper, flashing light and horn. It prescribes in the following terms a procedure for tagging a forklift for safety reasons:
In the event of a forklift being considered unsafe to drive, the following will apply
a) Remove the ignition key and notify your forklift mechanic or Supervisor.
b) Complete the corrective action report and distribute to appropriate persons.
c) Obtain a “Danger” “Do not use” tag and place [on] the forklift in a prominent and secure position
*NOTE: forklift mechanic is the only person authorised to remove the tag
(b) The WorkSafe Operator’s Checklist sticker affixed to each forklift, which relevantly states that operators should check to ensure that warning devices including lights, horn and reversing beeper are operational prior to use. The checklist states that if faults with warning devices exist, the forklift should not be used;
(c) The operating screen of the computer fitted to each forklift requires that, prior to use, the operator confirm that the forklift’s lights, horn and reversing beeper are all functional; and
(d) The WorkSafe Forklift Safety Checklist which is a sticker identical to the WorkSafe Operators Checklist placed on a visible part of each forklift.
18 A copy of the “tag” used in the subject events is set out below.
19 Safe forklift practices are also prescribed in a WorkSafe publication entitled “A Handbook for Workplaces - Forklift Safety reducing the risk” which states, amongst other things, that “Audio warnings are just as important as visual ones. A mixture of high volume alarms and horns coupled with flashing lights best warn pedestrians of approaching forklifts.” Visy appears to have practices consistent with the recommendations in this publication.
20 It follows that Visy is correctly seen as recognising the importance of warning beepers among the suite of safety measures necessary to avoid the danger that forklifts present in a workplace.
Events on 5 August 2011 prior to 10 am
21 On 5 August 2011 Mr Zwart arrived at work for a shift that began at 7 am. He went about his duties, wearing hearing protection as required, taking samples from different machines and checking their quality. At about 8 am he began to cross an aisle way adjacent to the “E Unit” which was sometimes used by forklifts.
22 His evidence is that he was then surprised by a loaded forklift, being driven in reverse along the aisle-way by his supervisor Dennis Radic. He says that his view of the reversing forklift was obscured by plant and equipment and he did not initially see it and Mr Radic did not apparently see him. Importantly, he says that he did not hear its reversing beeper. This caused him to be concerned that the inaudibility of the beepers was a risk to occupational health and safety. He therefore completed a Hazard Report form, left it in Mr Scott’s office and returned to his usual duties.
23 Mr Zwart then says he became concerned that merely lodging the Hazard Report form did not go far enough in protecting health and safety, and that he may be liable under the OHS Act if he did not take further steps. Accordingly, when Mr Radic later returned with the forklift Mr Zwart approached him and asked him to put the forklift in reverse so as to test the warning beeper. He says that in performing this test he could not hear the beeper adequately over other factory noise. He then tagged it as unsafe. Mr Radic did not object to Mr Zwart tagging the forklift. Mr Zwart then resumed his usual duties.
24 Upon becoming aware of the Hazard Report and that a forklift had been tagged, Mr Scott advised his superior Mr Street. Mr Street told him to clarify with Adaptalift (the company from which Visy leased the forklift) the necessary standard for audibility of a forklift reversing beeper and to discuss the issue with Mr Zwart. Mr Scott says that he requested that an Adaptalift technician be sent to the factory, and then arranged to meet with Mr Zwart to discuss the issue.
The 10 am meeting
25 At 10 am Mr Zwart was called into the APS tea room for a meeting with Mr Scott and Mr Radic. Mr Scott asked Mr Zwart what had occurred and Mr Zwart told him that the forklift was unsafe because its warning beeper could not be heard. Mr Scott suggested to Mr Zwart that a forklift be obtained from another part of the factory, the Full Panel section, and brought to the APS.
26 However, the potential difficulty with this proposal was that some of the forklifts were of the same type, and had the same beepers. Mr Zwart does not dispute that he then said that if another forklift with a similar defect came into the APS he would also tag that forklift as unsafe. The respondents rely on this statement as indicating Mr Zwart’s uncooperative and obstructive attitude. As I later set out, I do not accept that it is appropriate to see it this way.
27 Mr Radic obtained a forklift from the Full Panel section and brought it to the APS. He positioned it near Press No. 9 to enable it to be tested. Mr Zwart’s evidence is that upon testing the warning beeper he could not hear it. Mr Scott does not agree that the beeper was inaudible, but he accepts that it was difficult to hear, particularly when one of the plant’s ordinary process sirens sounded. Mr Zwart tagged that forklift too and then again returned to his usual duties.
28 The evidence establishes that Mr Scott did not disagree at that time with Mr Zwart's assessment that the beeper was difficult to hear, and when Mr Zwart tagged this forklift he did not complain about that action being taken or suggest a different course.
The 10.20 am Meeting
29 Shortly after this Mr Scott rang Adaptalift. His evidence is that he was told that no Australian Standard existed in relation to the required decibel level of a forklift warning beeper. Mr Scott then paged Mr Zwart, Mr Radic and a manager from the Material Preparation Section, Mr Flanagan, to attend a further meeting at about 10.20 am. At this meeting Mr Zwart was informed that Adaptalift said that there was no Australian Standard in respect of the required volume of a forklift warning beeper.
30 Mr Scott proposed, as a temporary measure to enable the tagged forklifts to be returned to service, that forklift drivers should use the steering wheel horn as a warning device when reversing. Mr Zwart strongly rejected this proposal as unsatisfactory.
31 It is uncontentious that this proposal was the only temporary measure suggested by Mr Scott at this meeting, and that after rejecting it Mr Zwart made to leave the meeting. Mr Scott’s evidence is that Mr Zwart made little attempt to cooperate and sought to walk out of the meeting. However, on my view of the evidence, before Mr Zwart left the meeting, Mr Flanagan suggested that a different model forklift should be tested. Mr Zwart accepted this suggestion and went with Mr Flanagan to get such a forklift. It is not in dispute that upon testing the beeper on this forklift Mr Zwart was satisfied that it could be easily heard, and the forklift was put into operation in the APS. I infer from this course of events that Mr Zwart was not as uncooperative as the respondents allege.
32 The forklift cleared the developing backlog in a short time but was then required to be returned to the Material Preparation section. Mr Zwart says that it is common practice for forklifts from other sections to be used if the assigned forklift is not operational. This evidence was not challenged.
33 While Mr Zwart and Mr Flanagan were getting the third forklift, Mr Scott spoke with Mr Street. Mr Scott informed Mr Street that Mr Zwart did not seem interested in temporary measures to resolve the problem with the forklifts, that he had walked away from the 10.20 am meeting and that there had been some “machine down time” as a result of the tagged forklifts. Mr Scott concedes that he did not inform Mr Street that Mr Zwart had accepted Mr Flanagan’s suggestion to use the forklift from the Material Preparation section as a temporary measure.
34 The question as to whether there was any “machine down time” at this time is in dispute. Mr Zwart says there was not. Mr Scott testifies that there was, and says that he told Mr Street that there was. However Mr Street’s evidence is that production was still going, albeit slower than usual. I accept that production may have slowed but the evidence does not establish that it had stopped at this stage.
35 After talking to Mr Scott, Mr Street telephoned WorkSafe Victoria and requested that an inspector be sent to the factory to look at the forklifts and to provide advice. The inspector, Simon Renehan, arrived at about 11.30 am at which time he was briefed on the events of the morning by Mr Scott and Mr Street. Mr Renehan did not separately obtain Mr Zwart’s views. Mr Scott’s evidence is that Mr Renehan only obtained the version of events provided by Mr Street and Mr Scott.
The 12.05 pm meeting involving Mr Renehan
36 At approximately 12.05 pm Mr Zwart was called to the APS office where Mr Scott, Mr Street, Helen Tyler-Meers (Visy’s Health, Safety and Environment Co-ordinator) Mr Flanagan and Mr Renehan were waiting for him. Ms Tyler-Meers, Mr Flanagan and Mr Renehan were not called to give evidence, but there is agreement between Mr Scott, Mr Street and Mr Zwart as to much of what transpired.
37 Mr Renehan began by setting out his understanding of the events of the morning and then proceeded to question Mr Zwart about his status as a health and safety representative and the responsibilities that such a role entails. Mr Renehan advised that a forklift needed only a one warning device which could be either the steering wheel horn, the reversing beeper, the flashing lights, or the reversing lights and that there was no Australian Standard prescribing the decibel level of a forklift reversing beeper.
38 On a number of occasions Mr Renehan put to Mr Zwart that he had issued a “cease work” direction under the OHS Act, apparently on the basis that a cessation of work was the result of his tagging the forklifts. Mr Renehan asked Mr Zwart if he thought there was an imminent risk to safety in respect of the tagged forklifts and Mr Zwart said that he thought that there was. The evidence indicates that his questioning on this topic was insistent and carried the suggestion that Mr Zwart was wrong in issuing such a direction. Mr Zwart repeatedly denied this, saying that he had not told anybody to stop working. The respondents now concede that Mr Zwart did not direct a cessation of work under s 74 of the OHS Act. I accept that Mr Zwart did not issue such an order.
39 Mr Renehan asked Mr Zwart whether there had been other safety incidents at the factory involving forklifts. Mr Zwart says that he told Mr Renehan that there had been several. Both Mr Street and Mr Scott say that Mr Zwart referred to four earlier incidents and used the description “near misses”, which are incidents that are required to be reported to management as part of Visy’s safety system. They also say that he effectively represented that these incidents were recent. Mr Zwart denies using the expression “near misses” and denies making any statement as to when they had occurred. Insofar as the currency of the near misses is concerned, on my view of the evidence the respondents misunderstood Mr Zwart’s statement. Mr Zwart says and I accept that Mr Renehan was first to characterise the incidents as near misses, although it is likely that Mr Zwart picked up the use of that expression after Mr Renehan. Visy relies on this as an example of Mr Zwart “lying”. In my view the evidence does not establish that he did.
40 Not much turns on whether Mr Zwart referred to near misses or not. He agrees that he sought to indicate that there had been previous forklift safety incidents. Upon being informed of the earlier incidents Mr Renehan pressed the issue of whether or not Mr Zwart had reported these incidents as “near misses”. Mr Renehan then returned to questioning of why Mr Zwart had directed a cessation of work. Mr Zwart again denied that he had directed anyone to stop working.
41 At that point Mr Zwart asked for a break from the meeting to seek assistance from the AMWU because he says that the conversation had become technical and he felt uncomfortable. One can well understand why he felt that way. He was required to attend a meeting with four Visy managers and a WorkSafe Victoria inspector, alone and without support. He faced close questioning as to the operation of the OHS Act by an inspector who had been briefed by Visy’s managers but who had not spoken to him to obtain his version of events. The evidence indicates that he had become uncomfortable and disconcerted by the way the meeting was conducted, and was probably somewhat defensive as a result.
42 Mr Zwart telephoned Ian Thomas, an AMWU industrial officer who he says, and I accept, advised him to inform the meeting that he had tagged the forklifts acting as a “concerned employee” rather than as a health and safety representative. He says, in effect, that Mr Thomas told him that he should take this stance because in tagging the forklifts he had not issued a Provisional Improvement Notice under the OHS Act.
43 Mr Zwart returned to the meeting and, following the advice given by Mr Thomas, said that he had tagged the forklifts as a concerned employee. As it turns out, Mr Thomas’ advice was incorrect and Mr Zwart was wrong in following it. However, under both Visy's internal processes and the OHS Act it made no difference whether Mr Zwart tagged the forklifts as a health and safety representative or a concerned employee. It was conceded by Mr Street that the distinction was of no practical consequence. The respondents seek to rely upon this as an example of Mr Zwart lying. On my view of the evidence it is wrong to so characterise it.
44 Mr Renehan again returned to the suggestion that tagging the forklifts amounted to a direction to cease work. Mr Zwart says he denied this again. He again became uncomfortable with Mr Renehan’s line and method of questioning and decided that he needed to make a further phone call to the AMWU.
45 Upon returning from that telephone call he said that he was not going to answer any further questions without the assistance of an AMWU representative. He handed Mr Renehan a note with Mr Thomas’ telephone number. It was then about 1 pm and Mr Zwart had been at work since 7 am. He said that he was going to take his lunch break.
46 Mr Renehan took exception to Mr Zwart’s refusal to answer further questions but Mr Zwart maintained his position and soon after left the APS office and took his lunch break. During the lunch break he again telephoned the AMWU and an official named Georgie Kimmell agreed to be his support person at future discussions.
47 Following Mr Zwart’s departure, Mr Renehan was satisfied that the tagged forklifts could be returned to service and (pending Adaptalift’s attendance to look at the beepers) adopted the temporary measure earlier proposed by Mr Scott - which involved the reversing forklift operators being told to use the steering wheel horn. It appears that one forklift was returned to service over Mr Zwart’s lunch break. Immediately after lunch Mr Zwart was requested to remove a small padlock he had affixed to the other and it was returned to service too.
The conversation with Mr Renehan
48 Upon return from lunch Mr Zwart was asked by Mr Scott to come to the APS Office, where, at least, Mr Renehan, Mr Street and Mr Scott were still in attendance. However, on the basis that he needed AMWU assistance, Mr Zwart said that he was not prepared to be questioned further by Mr Renehan at that time.
49 Following this Mr Scott approached Mr Zwart and again requested that he speak with Mr Renehan. In order to deal with Mr Zwart's concerns about a lack of support, Mr Scott agreed that he could be supported by another employee in the discussion, which would occur without the management team present. Mr Zwart and Mr Renehan then spoke for about thirty minutes. Mr Zwart says that Mr Renehan apologised to him for his earlier approach and sought a “fresh start”.
The alterations to the forklifts
50 The evidence is that an Adaptalift serviceman arrived at the factory during the afternoon to look at the problem with the beepers. It is not clear on the evidence at what point the Adaptalift serviceman arrived, but it is uncontentious that the audibility of the beepers was speedily rectified.
51 At about 3.30 pm Mr Street told Mr Zwart that Adaptalift had altered the configuration of the beepers on the forklifts and the two men then tested them. It is common ground that the new configuration of the beepers significantly increased their audibility, and that Mr Zwart approved their operation. Shortly thereafter Mr Zwart’s shift finished and he left work for the day.
Events of Monday 8 August 2011
52 Mr Street says that late on Friday 5 August he spoke to the Northern Operations - Human Resources Manager, Mr Hayes, about the events of that day. While Mr Hayes says that the conversation took place on Monday 8 August, there is no disagreement between them about what was said. Both say that they discussed Mr Street’s concerns regarding Mr Zwart's conduct in the meetings on Friday.
53 The evidence is that Mr Street informed Mr Hayes of his concerns that Mr Zwart:
(a) had failed to cooperate with the Worksafe inspector;
(b) had made allegations about earlier near misses;
(c) had refused to cooperate in resolving the issue with the forklifts; and
(d) had altered his position from acting as a health and safety representative when tagging out the forklifts to acting as a “concerned employee”.
54 Mr Hayes’ evidence is that Mr Street thought that Mr Zwart's behaviour required investigation and that he wanted to suspend him and conduct an investigation. Both Mr Street and Mr Hayes say they then discussed the application of Visy’s “Performance Management Policy” (“the Policy”) to Mr Zwart. The Policy outlines Visy’s process for employee counselling and disciplinary action.
55 Under a heading “Formal Discipline Procedure” the Policy sets out a graduated series of steps to deal with employment related misconduct. As is common in many large organisations it provides for:
• First Warning (verbal warning);
• Second Warning (written warning);
• Third and Final Warning (written warning);
• Dismissal; and
• Summary Dismissal.
56 Under the heading “Summary Dismissal” the Policy provides:
Summary dismissal occurs where the employee is dismissed without notice being either given or paid and for situations of serious misconduct. It is rare to issue such a dismissal and the misconduct must be of such a nature that it would be unreasonable to require the manager to continue the employment during the notice period.
There are certain performance issues that cannot be tolerated. Whilst in every instance we will examine all the issues, an employee risks being dismissed without notice if they are:
intoxicated at the workplace (alcohol or drugs)
physically fighting at the workplace
serious harassment
using threatening behaviour
carrying out unsafe work practices
negligently or deliberately damaging the environment
displaying wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment
An employee can be summarily dismissed without any prior warnings having been given.
While the listed examples of misconduct that might justify summary dismissal cannot be seen as exhaustive, the Policy nevertheless shows, appropriately in my view, that Visy sees it as a remedy reserved for serious misconduct. In my opinion it is hard to see Mr Zwart’s conduct on 5 August as being in any way similar or analogous to the misconduct specified.
57 On the last page of the Policy, under the heading “Suspension with Pay”, it provides:
Suspension with pay may be utilised in a situation where there is an allegation of serious misconduct against an employee and the manager does not wish the employee to be on the premises while investigations are made. Suspension on pay should only take place if the matter is so serious that it may warrant dismissal.
Managers should ensure that the investigation is handled promptly to resolve the matter as soon as possible.
It seems clear that the reference to a matter which is so serious as to justify dismissal is a reference to summary dismissal. The Policy otherwise only envisages dismissal for misconduct after a graduated series of warnings. The suspension letter given to Mr Zwart on 9 August referred to the possibility of summary dismissal, which is consistent with Mr Street’s evidence.
58 Mr Hayes says that he told Mr Street that he was able to suspend Mr Zwart but only if Mr Zwart continued to be paid for the duration of the suspension. Mr Street asked Mr Hayes to draft a letter of suspension for the purposes of an investigation. Mr Hayes advised that Mr Scott should inform Mr Zwart of the decision and the general reasons for it. In asking Mr Scott to communicate his decision, Mr Street says that he told Mr Scott to say that his concerns included “a lack of trust and confidence” in Mr Zwart in relation to Mr Zwart’s behaviour and professionalism in the meetings on 5 August and his decision to refer to himself as a “concerned employee” rather than as a health and safety representative.
The Suspension
59 Mr Scott then met with Mr Zwart and informed him of the decision to suspend him on pay while an investigation was undertaken, and of Mr Street’s stated concerns. Mr Scott told him that the allegations were of a failure to follow appropriate process in relation to tagging the forklifts; a similar failure to cooperate with the WorkSafe inspector; a failure to report near misses; and a breakdown in trust and confidence. As I explain later, I do not accept that Mr Street’s reasons were so limited. The evidence indicates that his reasons included that he believed Mr Zwart was not acting out of a genuine concern for health and safety when he tagged the forklifts, and was instead motivated to deliberately disrupt production. I do not accept Mr Street’s evidence to the contrary in this regard.
60 Mr Wiltshire, the divisional manager, returned from holidays on this day. He met with Mr Street and Mr Hayes and was informed of the events involving Mr Zwart. While his evidence is that he did not engage with the processes or issues at that time he says that he requested to be kept informed of developments.
61 Notwithstanding that he had been told he was suspended, Mr Zwart attended work as usual on the morning of 9 August 2011. Early in his shift Mr Scott and Mr Flanagan approached him and asked him to leave the site as per the instruction given the previous day. The evidence is that Mr Zwart’s attendance at work was based on his view that the dispute resolution procedures agreed between Visy and the AMWU meant that the status quo was to prevail whenever an industrial dispute was notified to the Fair Work Commission. He informed Mr Scott that the issue of his suspension was being disputed and that he was therefore not required to leave the factory. Mr Flanagan suggested that he wait in the APS tea room until the impasse was resolved and he did so.
62 In my view, it was wrong of Mr Zwart to refuse to leave the workplace when instructed to do so. However, there is no complaint before me in relation to Mr Zwart's behaviour in that regard and Visy does not rely upon it.
63 Mr Scott then spoke to Mr Street and told him that Mr Zwart was in the tea room despite being instructed to leave the site. Both men went to the tea room and Mr Street gave him a letter of suspension drafted by Mr Hayes. Relevantly, the letter provided:
Further to our discussion today, I confirm that you are suspended on pay pending further investigation of allegations under Visy’s Performance Management Policy in relation to the tagging out of 2 forklifts by you on 5th August 2011.
The following matters are alleged against you arising out of those events:
• failure to use appropriate dispute resolution procedures
• lying, and
• breach of trust and confidence.
Please note that these allegations are serious and if proven may warrant summary dismissal.
Mr Zwart left the factory and was then suspended on pay from 9 August 2011 until 23 August 2011.
64 At some point on 9 August Mr Wiltshire asked Mr Hayes to provide a summary of the events, which Mr Hayes emailed to Mr Wiltshire at 11.49 pm that evening. Without descending to the minutiae of his summary, in my view it was one-sided.
The Interlocutory Hearing
65 On the afternoon of 9 August 2011 Mr Zwart and the AMWU brought an application for an interlocutory injunction in this Court seeking to halt the investigation and suspension. Dodds-Streeton J refused the application, in part because of an undertaking by Visy not to proceed with giving effect to any disciplinary action until after the resolution of any application that arose from the outcome of the investigation: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 2) [2011] FCA 953.
66 Following her Honour’s decision, Mr Harmer spoke to Mr Wiltshire and it was decided that the investigation should be carried out by someone independent and external to the company. Mr Harmer’s evidence is that he was afraid that permitting Mr Street or Mr Scott, or others similarly proximate to the events of 5 August, to conduct the investigation “might not be conducive towards getting a clear understanding of the facts.” Mr Wiltshire’s evidence is that he agreed with Mr Harmer’s concerns and an external investigator, Greg Halse, was hired by Mr Harmer to conduct the investigation.
The Investigation
67 Mr Halse was not called by Visy to give evidence, although various emails recording instructions given to him are in evidence, as is his report. He was instructed to interview the persons involved in the events of 5 August 2011, and prepare a report as to those events. While initially he was requested to provide recommendations as to the appropriate disciplinary outcome, if any, he was later instructed by Mr Harmer not to provide any such recommendation.
68 On 16 August 2011 Mr Halse conducted interviews of Mr Zwart, Mr Street, Mr Scott, Ms Tyler-Meers, Mr Radic and Mr Flanagan, being all those present during the relevant events, except for Mr Renehan. Although the investigation was described by both Mr Wiltshire and Mr Harmer as independent, as I set out later, I am not satisfied that it was.
Mr Halse prepared a report, the first version of which was delivered to Visy on the afternoon of 17 August 2010. Following some interventions by Visy, Mr Halse delivered the second version of the report to Mr Wiltshire at 8.30 am on 18 August 2011. The report provided in summary that Mr Zwart:
• caused a cessation of work when other control mechanisms were available and in place;
• failed to co-operate and engage in reasonable discussions;
• failed to co-operate with Worksafe once cessation had occurred;
• described near misses to give the impression that they were relevant (recent) and then changed his position to protect himself;
• hindered effective management through the way in which he collaborated and communicated; and
• initially acted as a health and safety representative and then altered his status to a “concerned employee”.
The Final Written Warning
69 Mr Wiltshire’s evidence is that he chose to read only the first 8 pages of Mr Halse’s 28 page report which contained his findings, and that he deliberately did not read the balance of the report including the interview summaries. He says that he wanted to avoid reaching his own conclusions as to what happened on 5 August as that was the task of the independent investigator, Mr Halse. He says that he wanted to preserve his role as decision maker only.
70 Mr Wiltshire made the decision in relation to the issue of the Final Written Warning. He says that after reading, and relying on, only the first part of the report he decided that the matter of Mr Zwart’s conduct needed to be taken further. I do not accept that Mr Wiltshire was only influenced by the first eight pages of the Halse report, as he had many other sources of information within Visy. I also do not accept his evidence that he was as quarantined from the fact finding process as he says. For example, he had various conversations about the events with Mr Street and Mr Harmer, he received the email from Mr Hayes referred to above, and also a copy of an affidavit of Mr Scott from the interlocutory hearing which set out his version in detail.
71 The evidence of both Mr Wiltshire and Mr Harmer is that they discussed the various disciplinary measures that might be taken in the circumstances. Mr Wiltshire also discussed with Mr Street, and another plant manager in Wodonga, their approach to similar issues in the past.
72 After concluding these discussions Mr Wiltshire says that he made the decision to issue the Final Written Warning to Mr Zwart. Both Mr Harmer and Mr Wiltshire say that the Final Written Warning was drafted by Mr Harmer at Mr Wiltshire’s request, and then signed by Mr Wiltshire and delivered to Mr Zwart on 18 August 2011.
73 The Final Written Warning reads as follows:
Dear Jon
This letter is a final written warning in relation to your conduct.
As a result of the recent investigation into your conduct, Visy has determined that by your actions on 5 August 2011, you have engaged in the following misconduct:
• you failed to follow the appropriate OHS/Dispute resolution procedure insofar as you:
o caused a cessation of work when other control mechanisms were available and in place;
o failed to co-operate and engage in reasonable discussions to resolve the issue;
o failed to co-operate with WorkSafe once the cessation had occurred;
• misrepresented your position:
o by initially declaring that you were acting as an OHS representative and then altering your reasoning to say that you had the status of a “concerned employee” only; and
o described near misses to give the impression that they were relevant (recent) and then changed that position to protect yourself; and
• thereby caused a loss of trust and confidence in relation to the way that you hindered the effective management of the issue through the way in which you collaborated and communicated.
This conduct constitutes serious misconduct. In the context of your prior warning for failure to follow Site Procedure, such serious misconduct could warrant summary dismissal and we have considered a dismissal outcome. However, in circumstances of your long length of service, the potential harshness of this outcome on you in terms of your personal and family circumstances and Visy’s desire to give you one final opportunity to demonstrate that its trust and confidence in you can be restored, I have preferred an outcome of a final written warning.
In this regard, this is your final opportunity and you are directed to ensure that in future:
• you comply with all dispute resolution procedures;
• you co-operate reasonably and appropriately with management in the resolution of those disputes;
• you co-operate with any external or internal investigating authority;
• you act openly and honestly at all times;
• you report all genuine near misses on the appropriate Hazard/Near Miss form; and
• you act consistently with the letter and spirit of Visy’s Values in demonstrating that Visy can be assured that it can have the requisite trust and confidence in you as an employee.
While Visy will seek to give you an opportunity to improve your conduct, further instances of misconduct will not be tolerated and may result in further disciplinary action up to or including the termination of your employment. This warning will be placed on your personnel file and I urge you to comply with the above directions at all times while at work and regard them as part of your usual duties and responsibilities. Finally, your suspension will end on Monday, 22 August 2011 and as such you are directed to return to work as normal from the start of your first usual rostered shift on and from Tuesday, 23 August 2011.
the LEGISLATIVE FRAMEWORK
The Fair Work Act 2009
74 Since the beginning of last century, Commonwealth laws have sought to provide a measure of protection to union officers and members by prohibiting employers from injuring them for reasons that are related to union office, membership or activities and the rights derived from such office, membership or activities. Part 3-1 of the FW Act, under the heading “General Protections”, contains the most recent incantation of these statutory protections and prohibits, what is often described as, adverse action for a prohibited reason.
75 The objects of Pt 3-1 of the FW Act are set out in s 336 and include “to protect workplace rights”.
76 The AMWU and Mr Zwart allege that Mr Scott, Mr Street and Visy contravened Section 340(1) of the FW Act. That section relevantly provides:
A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
77 A “workplace right” is relevantly defined in s 341(1) as follows:
A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body;…
78 It is uncontroversial that the OHS Act is a workplace law as described in s 341(1) of the FW Act. This is so because s 12(d) defines “workplace law” to include:
any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).
It is common ground that Mr Zwart had the role and responsibilities of a health and safety representative under the OHS Act and that the OHS Act gives rise to relevant “workplace rights”.
79 Section 342(1) contains a table defining the circumstances in which a person is treated as having taken adverse action against another person for the purposes of s 340(1). The adverse action relied on by the applicants is of the type defined in item 1(b) and (c) of the table which relevantly provides that adverse action includes action by an employer against an employee, if the employer:
…
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice;
…
80 Sections 360 and 361 are also important to the operation of Pt 3-1. They relevantly provide:
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
361 Reason for action to be presumed unless proved otherwise
If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
The applicants claim that the respondents took adverse action against Mr Zwart for reasons that include that he had exercised a workplace right. The applicants therefore have the benefit of the presumption in s 361.
81 The effect of s 539(1) and (2) of the FW Act is that s 340(1) is a civil remedy provision, the AMWU and Mr Zwart have standing to apply for orders in relation to a contravention of s 340(1), and this Court has jurisdiction to deal with such an application.
The Occupational Health and Safety Act 2004 (Vic)
82 The OHS Act regulates the relationship between employers and employees in relation to workplace safety, providing that both employers and employees have a responsibility to provide a safe place of work: ss 21 and 25 of the OHS Act.
83 Section 25 provides that:
(1) While at work, an employee must—
(a) take reasonable care for his or her own health and safety; and
(b) take reasonable care for the health and safety of persons who may be affected by the employee's acts or omissions at a workplace; and
(c) co-operate with his or her employer with respect to any action taken by the employer to comply with a requirement imposed by or under this Act or the regulations.
Penalty: 1800 penalty units.
(2) While at work, an employee must not intentionally or recklessly interfere with or misuse anything provided at the workplace in the interests of health, safety or welfare.
Penalty: 1800 penalty units.
(3) In determining for the purposes of subsection (1)(a) or (b) whether an employee failed to take reasonable care, regard must be had to what the employee knew about the relevant circumstances.
(4) An offence against subsection (1) or (2) is an indictable offence.
84 Part 7 of the OHS Act provides for the representation of employees by the establishment of “designated work groups” (s 43) and through the election of health and safety representatives.
85 Division 5 of Pt 7 sets out the powers of health and safety representatives and includes s 58(1) which relevantly provides:
A health and safety representative for a designated work group may do any of the following—
(a) inspect any part of a workplace at which a member of the designated work group works—
(i) at any time after giving reasonable notice to the employer concerned or its representative; and
(ii) immediately in the event of an incident or any situation involving an immediate risk to the health or safety of any person;
…
86 Section 73 provides that if a health and safety issue arises at a workplace the employer, the employees, and any health and safety representative must attempt to resolve the issue. Sections 35 and 36 provide that an employer is required to consult with employees and with health and safety representatives and provide the employees and representatives with a reasonable opportunity to express their views. Sections 35 and 36 relevantly state:
35. Duty of employers to consult with employees
(1) When doing any of the following things, an employer must so far as is reasonably practicable consult in accordance with this Part with the employees of the employer who are or are likely to be directly affected by the employer doing that thing—
(a) identifying or assessing hazards or risks to health or safety at a workplace under the employer's management and control or arising from the conduct of the undertaking of the employer;
(b) making decisions about the measures to be taken to control risks to health or safety at a workplace under the employer's management and control or arising from the conduct of the undertaking of the employer;
…
(d) making decisions about the procedures for any of the following-
(i) resolving health or safety issues at a workplace under the employer's management and control or arising from the conduct of the undertaking of the employer
…
(f) proposing changes, that may affect the health or safety of employees of the employer, to any of the following-
(i) a workplace under the employer's management and control;
(ii) the plant, substances or other things used at such a workplace;
(iii) the conduct of the work performed at such a workplace;
…
36. How employees are to be consulted
(1) An employer who is required to consult with employees must do so by-
(a) sharing with the employees information about the matter on which the employer is required to consult; and
(b) giving the employees a reasonable opportunity to express their views about the matter; and
(c) taking into account those views.
(2) If the employees are represented by a health and safety representative, the consultation must involve that representative (with or without the involvement of the employees directly).
87 The OHS Act also provides that a health and safety representative may direct work to cease. Section 74(1) sets out this power in the following terms:
If -
(a) an issue concerning health or safety arises at a workplace or from the conduct of the undertaking of an employer; and
(b) the issue concerns work which involves an immediate threat to the health or safety of any person; and
(c) given the nature of the threat and degree of risk, it is not appropriate to adopt the processes set out in section 73-
the employer or the health and safety representative for the designated work group in relation to which the issue has arisen may, after consultation between them, direct that the work is to cease.
Initially it appeared that the respondents suggested that in tagging the forklifts Mr Zwart directed that work cease. This was also the thrust of Mr Renehan’s questioning. The applicants deny that he did so, but point to s 74 as the source of power to direct a cessation of work if the Court finds that he did. The respondents ultimately accepted that Mr Zwart had not directed a cessation of work under s 74 and the issue does not need to be considered further.
consideration
88 In summary, the effect of the various legislative provisions is that the respondents were prohibited from taking action against Mr Zwart which injured him in his employment or prejudicially altered his position because he exercised a workplace right. In summary, the respondents:
(a) deny that they took adverse action against Mr Zwart in investigating or suspending him or in issuing the Final Written Warning;
(b) while not disputing that the OHS Act creates workplaces rights, deny that Mr Zwart was exercising them at the relevant times; and
(c) deny that any part of the reasons for the actions they took included the reason that Mr Zwart had exercised a workplace right.
89 I consider that three central questions arise in the proceeding:
(a) Is the action complained of by the applicants “adverse action” for the purposes of the FW Act?
(b) Was Mr Zwart exercising a “workplace right”, under the FW Act at the relevant times?
(c) Was the adverse action complained of taken by the respondents because Mr Zwart had exercised a workplace right?
On the final question the respondents have the onus of establishing, on the balance of probabilities, that the substantial and operative factors for the adverse action did not include Mr Zwart’s exercise of a workplace right.
Issue 1: Is the action complained of by the applicants “adverse action” for the purposes of the Fair Work Act?
90 The applicants allege that:
(a) the investigation into Mr Zwart’s conduct on 5 August 2011 was adverse action within the meaning of s 342(1) items 1(b) and/or (c) of the FW Act in that Mr Zwart was wrongly exposed to a disciplinary process in his employment;
(b) the suspension of Mr Zwart was adverse action within the meaning of s 342(1) items 1(b) and/or (c) of the FW Act in that Mr Zwart was prevented from performing his work in his employment; and
(c) the Final Written Warning given to Mr Zwart was adverse action within the meaning of s 342(1) items 1(b) and/or (c) of the FW Act in that Mr Zwart’s continuing employment was made less secure.
The respondents deny that the investigation, the suspension or the Final Written Warning constitute adverse action.
91 In Patrick Stevedores No 2 Pty Ltd and Others v Maritime Union of Australia and Others (1998) 195 CLR 1 at [4] (“Patrick v MUA”) (in dealing with 298K of the Workplace Relations Act 1996 (Cth) which is the predecessor to s 342 of the FW Act) the majority comprising Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ described these two categories of adverse action as follows:
par (b) covers injury of any compensable kind; par (c) is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.
Their Honours considered the reorganisation of Patricks Stevedores in that case as an action that fell within s 298K(1)(c) because the result of the action was that the “the security of the employer companies' businesses was made extremely tenuous. The security of the employees' employment was consequentially altered to their prejudice”: Patrick v MUA at [7].
92 This description of adverse action was adopted by the Full Court of this Court in Community and Public Sector Union and Another v Telstra Corporation Limited (2001) 107 FCR 93 at [17] (“CPSU v Telstra”) per Black CJ, Ryan and Merkel JJ. Their Honours found at [20] that, for the purpose of redundancy eligibility, the addition of detrimental criterion to the criterion already provided by the relevant industrial agreements meant that:
… the employment of employees on awards or certified agreements had become less secure, in a real and substantial manner, than it had been previously.
In those circumstances the Full Court determined that the position of the relevant employees had been altered to their prejudice within the meaning of s 298K(1)(c) and constituted adverse action.
93 In Australasian Meat Industry Employees’ Union v Belandra Pty Ltd (2003) 126 IR 165 at [70] North J observed, and I respectfully agree, that:
It is now established that a prejudicial alteration to the position of an employee may occur without any change in the employees’ legal rights.
94 It is common ground that it is unnecessary for the applicants to satisfy both items 1(b) or (c) of s 342(1) of the FW Act in order to establish that action by an employer against an employee constitutes adverse action. It is convenient to address the question of adverse action primarily by reference to the broader scope of s 342(1) item 1(c).
Is the investigation “adverse action”?
95 The applicants contend that the investigation into Mr Zwart’s conduct on 5 August 2011 injured him in his employment or caused a deterioration in his employment position.
96 The respondents argue that the applicants are wrong in their allegation that the investigation wrongly exposed Mr Zwart to a disciplinary process in his employment. They say that the fact that disciplinary actions were referred to as a possible outcome of the investigation does not convert a fact-finding investigation into a disciplinary process. They argue that the evidence shows that the investigation was a fact finding rather than a disciplinary process, and therefore not adverse action. The respondents also contend that the pleading operates to limit the applicants’ claim to one that the investigation is “wrongful”. They contend that the investigation is not “wrongful” as it cannot be said that there was no possible warrant for Visy wanting to investigate Mr Zwart’s conduct.
97 The respondents’ argument largely boils down to the proposition that when an employer conducts, in good faith, a fact finding investigation into allegations of employment related misconduct, that action cannot constitute adverse action. However, contrary to this submission, the authorities indicate that a properly conducted investigation brought in good faith may nevertheless give rise to a deterioration in the employment advantages enjoyed by the employee, thereby constituting adverse action.
98 In CPSU v Telstra at [17]-[18] the Full Court said:
[17] The question is whether, by sending the e-mail to its recipients, Telstra had altered the position of any of its employees to the employee's prejudice within the meaning of s 298K(l)(C). In Patrick Stevedores at 18 the majority of the High Court held that the subsection covers “not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”. The majority also observed (at 20) that the reorganisation of companies within the Patrick Group resulted in the security of the employer companies' businesses being “extremely tenuous” with the “security of the employees' employment [being] consequentially altered to their prejudice”. The reorganisation did not directly affect or alter any legal rights or obligations of the employees but it left their future employment less secure. Although this issue was not in dispute, the majority appears to have had no difficulty in accepting reduced security of future employment as falling within s 298K(l)(C) because it brought about an adverse affection of, or a deterioration in, the advantages enjoyed by the employees before the reorganisation.
[18] Where the alteration of position is alleged to be indirect or consequential, as in Patrick Stevedores and in the present case, a difficult question may arise as to whether a prejudicial alteration of position has in fact occurred. Answering that question may involve questions of degree. It is sufficient for present purposes to say that if the prejudicial alteration is real and substantial, rather than merely possible or hypothetical, it will answer the description in s 298K(l)(C).
(Emphasis added.)
99 In United Firefighters’ Union of Australia and Others v Metropolitan Fire and Emergency Services Board and Others (2003) 198 ALR 466, Goldberg J dealt with an application for an interlocutory injunction against the hearing and presenting of employment related disciplinary charges. At [89] just prior to referring with approval to the passage in CPSU v Telstra cited above, his Honour held:
I am satisfied that there is a serious question to be tried on this integer of a contravention of s 298K. The laying of the charges imposes a burden on the persons charged to respond to allegations relating to their conduct as employees of the board. I do not consider that one can separate out the effect and consequence of the charges from the fact that they occurred because of the employee's employment by the board. I do not accept that a person charged is not affected in his or her employment until the charge has been proven. The expressions found in s 298K(1)(b) and (c) encompass a wide range of conduct both direct and indirect. The laying of the charges exposes an employee of the board to a potential disadvantage in his or her employment if the charges are ultimately proven.
100 I note too that in Kimpton v Minister for Education of Victoria (1996) 65 IR 317 at 319, North J refused to dismiss an application in which it was contended, amongst other things, that a requirement to respond to a written question in the course of an investigation into the applicants’ activities in the course of their employment constituted injury in their employment. North J observed that he did “not regard it as hopeless or untenable to contend that the requirement to participate in the investigatory process may amount to a relevant injury or prejudicial alteration.”
101 Collier J referred to these authorities in Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22 (“Jones v QTAC”), concluding that the investigation in that case was “adverse action”, although accepting the employer’s evidence that it was not for a prohibited reason. Collier J observed at [80]:
It follows that, on these authorities, commencement of an investigation by an employer into conduct of an employee can in certain circumstances constitute adverse action against that employee for the purposes of s 342, either as injury or alteration of the position of the employee.
At [82] her Honour continued, stating:
While an investigation into allegations of bullying may be appropriate and indeed warranted in the circumstances of an individual case, this does not mean that the employee will not be “injured” or their position altered to their prejudice by the investigation. I do not agree that, as a general proposition, amenability to a disciplinary investigation is a “normal” incident of employment, even if the investigation is commenced in good faith and on a proper prima facie evidentiary basis.
102 Collier J referred to, but did not follow, Ryan J in Police Federation of Australia and Another v Nixon and Another (2008) 168 FCR 340 (“Police Federation v Nixon”). In that case his Honour said at [48]:
I consider, with respect, that amenability to a disciplinary charge brought in good faith and on a proper prima facie evidentiary basis is a normal incident of employment and does not of itself, before the laying of the charge, constitute “an adverse affection of, or deterioration in, the advantages enjoyed by the employee” in the sense used by the High Court in the passage from Patrick Stevedores 195 CLR 1…
103 I respectfully agree with the views of Collier J. With great respect to the approach taken by Ryan J, in my opinion an investigation brought in good faith and carried out properly may nevertheless constitute adverse action. It must be accepted that an investigation which threatens the possibility of dismissal (as in the present case) will operate to reduce the security of future employment of the employee concerned. If it does so, CPSU v Telstra at [17]-[18] is authority for the proposition that it constitutes adverse action.
104 However, it should not be thought that this means that an employer that brings and carries out an investigation properly and in good faith may be seen to have acted unlawfully. Plainly this is not so. Employers must be able to properly investigate concerns regarding employment related misconduct. If unable to do so they may be forced to take disciplinary action on the basis of flawed or incomplete information, allow misconduct to go unpunished, or even allow it to continue. It is important to remember that while an investigation may constitute adverse action, it is only unlawful if the investigation is carried out for a prohibited reason. An employer has not acted unlawfully where the reason for the investigation is other than a prohibited reason. In fact, this was the result in Jones v QTAC.
105 I am satisfied that the investigation in the present case exposed Mr Zwart to a reduction in the security of his future employment which represented a deterioration in the advantages of his employment. It constitutes adverse action.
106 Although it is unnecessary to decide in this context, as I later explain, I am not satisfied on the evidence that the investigation in the present case was independent and impartial. This confirms my view that the investigation constitutes adverse action.
Is the suspension “adverse action”?
107 In determining whether or not the suspension constitutes adverse action the Court must determine whether the suspension had any impact or effect on Mr Zwart which injured him in his employment or altered his position to his prejudice.
108 The applicants argue that the suspension falls within s 342(1) item 1(c) because it is an “adverse affection of, or deterioration in the advantages enjoyed by the employee”, as explained in Patrick v MUA. However, the respondents contend that no direct evidence was adduced as to the actual effect on Mr Zwart of his suspension and that a finding that Mr Zwart had his position altered to his prejudice could only be made on the basis of an inference or assumption about the impact of the suspension, which could easily have been dealt with in the evidence. They contend that having regard to the nature of the proceedings such an inference should not be drawn.
109 In support of this argument they point to the decision of Handley JA in Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd and Another (1991) 22 NSWLR 389 where his Honour at 418 explained that the well known rule expounded in Jones v Dunkel (1959) 101 CLR 298 applied to examination in chief as it did to cross-examination.
110 Contrary to the respondents’ contention, I respectfully agree with the observations of Ryan J in Police Federation v Nixon. His Honour observed that the term “alteration” for the purpose of adverse action (then found in s 792(1)(c) of the Workplace Relations Act 1996 (Cth)) required “substantive change, and that “suspension from duties” constituted such substantive change.
111 Secondly, in the circumstances of this case I can see no reason why I should not infer that there was some deterioration in the advantages enjoyed by Mr Zwart in his employment. That Mr Zwart saw the suspension as causing such a deterioration is plain from his initial refusal to accept it, and his attempt to continue at work despite the advice that he was suspended. That Visy too saw suspension as a measure likely to adversely affect Mr Zwart may be inferred from the fact that in the Policy (set out at [55]-[57] above) suspension was only to be utilised in cases of serious misconduct warranting consideration of summary dismissal.
112 The consideration of whether an action constitutes adverse action should not be limited to an investigation only of how the action affects an individual. To say otherwise would mean that a finding that action by an employer against an employee constitutes adverse action is dependent, for example, on the mental and emotional fortitude of the relevant employee. There is, of course, a place for evidence as to the effects of the action on an employee when determining whether that action constitutes adverse action, but I do not accept that, in the absence of such evidence, the Court cannot reach its conclusion by inference from other evidence.
113 The evidence is that Mr Zwart was required to leave his employment from 9 August until 23 August 2011 and, during that time, he was required to keep all the circumstances of the matter confidential, specifically in relation to discussions with work colleagues. On 8 August he was told of his suspension, and initially refused to accept it. On 9 August he was then provided with a letter of suspension which advised that he was at risk of summary dismissal. He accepted this advice. The suspension meant that he could no longer talk to, mingle with and enjoy the camaraderie of his workmates at work or obtain the satisfaction that work tends to bring.
114 In my view the removal of an employee from their employment against his or her will, even temporarily, will usually be adverse to their interests. To say otherwise would be to deny the benefit one gains from the successful pursuit of activity in a field of expertise. The observation that active employment is a source of more than simply financial benefit is neither new, nor should it be considered controversial: see Squires v Flight Stewards Association of Australia (1982) 2 IR 155 at 164 per Ellicott J; Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 at [32] per Kirby J, and Callinan and Heydon JJ at [80]; Quinn v Overland [2010] FCA 799 at [101]-[103] per Bromberg J.
115 I consider that the suspension resulted in a deterioration in the advantages otherwise enjoyed by Mr Zwart in his employment and constitutes adverse action.
Is the Final Written Warning “adverse action”?
116 The applicants contend that the Final Written Warning had the effect of making Mr Zwart’s continuing employment less secure and therefore constitutes adverse action. The respondents argue against this, relying on Blair v Australian Motor Industries Ltd (1982) 3 IR 176 (“Blair”) where Evatt J rejected a submission that a warning was adverse action because it took the employee “one step closer to possible dismissal in the future”. His Honour held at 180:
Whatever may be the meaning of the phrases ‘injure him in his employment or alter his position to his prejudice’… I am clearly of the view that a mere warning given in the circumstances referred to does not so injure or alter an employee’s position to his prejudice.”
117 I doubt that Blair is good authority since the High Court dealt with this issue in Patrick v MUA. The majority accepted that reduced security of employment fell within s 298K(1)(c) of the Workplace Relations Act, because it brought about an adverse affection of, or a deterioration, in the advantages enjoyed by an employee. The Full Court also took this view in CPSU v Telstra.
118 I respectfully agree with the observations of Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 at [95] (“Coal and Allied Operations”). Her Honour said:
I accept the contention of the applicant that the issuing to an employee of a “written warning” of a “serious or major breach” within the meaning of the document “Disciplinary Procedure” has the effect of making the employee’s continuing employment less secure. Conduct engaged in by an employee who has received such a warning could lead to the termination of his or her employment although the same conduct engaged in by an employee who had not received a warning would not lead to the termination of that employee’s employment. In a sense, written warnings under the respondent’s disciplinary procedures may be regarded as analogous to the receipt of driving demerit points. It seems to me that few holders of driving licences would doubt that the advantage enjoyed by them in holding driving licences is adversely affected by the accumulation of demerit points close to, but less than, the number required to trigger cancellation of their licences.
I find that by issuing a written warning of a serious or major breach, as the case may be, to one of its employees, the respondent altered the position of that employee to the employee’s prejudice within the meaning of s 298K(1) of the Act.
Coal and Allied Operations has been cited with approval in Jones v QTAC at [100] and Finance Sector Union of Australia v Australia and New Zealand Banking Group Ltd (2002) 120 FCR 107 at [139].
119 The Final Written Warning stated that Mr Zwart was given a “final opportunity” apparently in lieu of summary termination, advised that his conduct could have warranted summary dismissal and noted that Visy had considered dismissing him. He was warned that one more misstep would lead to termination of his employment. To my mind, there can be no doubt that the security of his future employment was therefore reduced. In fact, that is one of the main points of the warning. I consider that the issuing of the Final Written Warning to Mr Zwart constitutes adverse action.
Issue 2: was MR ZWART exercising a “workplace right” at the relevant time?
120 Sections 25 and 58 of the OHS Act give rise to workplace rights under s 340(1) of the FW Act. The roles and responsibilities of a health and safety representative may involve the exercise of workplace rights. However, the respondents deny that Mr Zwart was exercising a workplace right at the relevant times.
The pleading issue
121 In closing submissions a complaint emerged in relation to Amended Statement of Claim and the way the applicants put their case in closing. The respondents argue that the pleading sets out each instance upon which the applicants say Mr Zwart exercised a workplace right. They contend that few of the instances pleaded could constitute the exercise of a workplace right in and of itself. The nub of their complaint is that in closing submissions the applicants impermissibly diverged from the case they pleaded, by contending that Mr Zwart was exercising workplace rights in instances where this was not pleaded. Essentially the respondents’ contention is that the only exercise of workplace rights pleaded is that Mr Zwart tagged the forklifts. They deny that it is open to the applicants to reply upon Mr Zwart’s actions in the meetings as constituting the exercise of a workplace right.
122 I do not accept that the case the respondents were called upon to meet is as narrow as they contend. In my view the pleading can be seen to advance the claim that Mr Zwart was exercising a workplace right throughout the period on 5 August 2011 when the parties were dealing with the forklift safety issue. That issue commenced with Mr Zwart tagging the relevant forklifts because of his concerns about their safety and continued throughout the meetings called by the Visy managers as they sought a solution. I consider that to treat the pleading as only making a claim that Mr Zwart was acting as a health and safety representative when he tagged the forklifts and not when he was called into the meetings would be artificial in the extreme. Under s 25 of the OHS Act Mr Zwart had a right or obligation to take action in relation to the deficient warning beepers so as to maintain a safe workplace. Sections 73, 35 and 36 indicate that Visy was required to discuss resolution of this safety issue with Mr Zwart. In any event, commonsense and Visy’s policy of discussing such matters, indicates the same. The action taken in tagging the forklifts and the discussions that followed are inextricably linked.
123 Paragraphs 12 to 28 of the Amended Statement of Claim sets out in narrative form the actions of Mr Zwart on 5 August 2011 in identifying the deficient beepers, tagging the forklifts, attending and participating in the various meetings dealing with the issue of the beepers and, finally, approving the use of the repaired beepers. Immediately following this summary of events the pleading alleges:
29. At all the relevant times, including on 5 August 2011, Zwart had one or both of the following roles or responsibilities under the OHS Act, being:
(a) A role or responsibility under section 25 of the OHS Act to take reasonable care for his own safety and the safety of persons who may be affected by his acts or omissions at the Plant;
(b) A role or responsibility under section 58 of the OHS Act including to inspect any part of the workplace at which a member of the designated work group was in any situation involving an immediate risk to the health or safety of any person.
29A. Each of the roles or responsibilities referred to in paragraph 29 constituted a workplace right within the meaning of section 341(1)(a) of the [FW] Act.
29B. The conduct of Zwart set out in paragraphs 12 to 28 above constituted the exercising of a workplace right, namely the carrying out [of one] or both of the roles or responsibilities referred to in paragraph 29, within the meaning of section 340(1)(a)(ii) of the [FW] Act.
These paragraphs plead a claim that Mr Zwart’s actions in the meetings involved the exercise of a workplace right.
124 Even if I accept that the pleading could more clearly set out the claim that the events of 5 August should be considered together, I can see no basis for the respondents’ contention of procedural unfairness. It is plain that what occurred at the factory is that Mr Zwart decided to tag the forklifts because, in his view, the warning beepers were deficient. He then disagreed with the managers and ultimately with the WorkSafe inspector as to the temporary measures that should be used to address that problem. The pleadings adequately convey the claim that Mr Zwart was exercising a workplace right both when he tagged the forklifts and in the subsequent meetings. The actions of tagging the forklifts and then discussing the problem are properly to be seen as a single course of events connected by Mr Zwart’s refusal to depart from his view on forklift safety. This was also clear from the evidence and in opening submissions. In short, to look at the tagging of the forklifts as separate from the meetings to resolve that issue would be to ignore the reality of the dispute, and I do not read the pleading that way.
125 I note too that the respondents explored the events of 5 August in minute detail and contended that, on a proper view, the evidence supports their stated reasons for the investigation, suspension and Final Written Warning. Their evidence comprehensively addressed the argument that Mr Zwart was exercising a workplace right on 5 August 2011 over a period of about 5 hours. As counsel for the respondents accepted, it is difficult to see what further witnesses they could have called as to Mr Zwart's conduct.
126 I also do not accept the respondents’ contention that the first notice they had that the applicants’ claim was put this way was in closing submissions. I earlier raised with counsel for the respondents that the applicants’ made this claim.
127 The question of allegedly inadequate pleadings was considered by the Full Court in Betfair Pty Ltd v Racing New South Wales and Another (2010) 189 FCR 356 at [55], per Keane CJ, Lander and Buchannan JJ, where their Honours explained:
… mere infelicity of drafting will rarely be allowed to defeat a case on its merits if the merits of the case have been made apparent on the evidence without unfairness to the other party.
I respectfully agree. There was no lack of procedural fairness in this matter and I do not treat the pleadings as operating in the way the respondents contend.
128 Finally, I note that even if the pleading is as narrow as the respondents contend, it makes no difference to the result. As I later explain, the respondents failed to discharge the onus of establishing that Mr Zwart's actions in tagging the forklifts were not a substantial and operative factor in their decision to take the adverse action.
Was Mr Zwart exercising a “workplace right” pursuant to s 25 of the OHS Act?
129 Section 25 of the OHS Act imposes a responsibility on all employees to exercise reasonable care in relation to occupational health and safety. These obligations must be treated seriously. Contravention attracts criminal liability and is punishable by significant penalties. The responsibility applies in relation to both acts and omissions and contravention may be found in circumstances where a person fails to take reasonable care of persons who may be affected by those acts or omissions. The provision is broad and plainly seeks to engage acts or omissions that have not yet led to injury.
130 The Act creates the role of the heath and safety representative, which is intended to provide a bridge between management and employees such that occupational health and safety issues can be discussed and resolved before injuries occur: see Occupational Health and Safety Bill 2004 (Vic) 2nd Reading Speech at 1761. Section 73 provides that the parties must attempt to resolve health and safety issues. This provision together with ss 35 and 36 make it clear that the legislative scheme contemplates discussions as to workplace safety. Experience teaches that, when issues of health and safety are discussed in an industrial context, employers and employees sometimes have different perspectives. Disagreements are not uncommon. In fact, dealing with such disputes is one of the tasks of the inspectors appointed pursuant to the Act. In my opinion the responsibilities of a health and safety representative under s 25 apply to discussions about occupational health and safety concerns as much as they apply to actions such as inspection or directions to cease work.
131 I accept Mr Zwart’s evidence that:
(a) he was surprised by the reversing forklift driven by Mr Radic because he did not see it nor hear its warning beeper;
(b) because of this incident he became concerned about the safety of the reversing beeper on this forklift, and lodged a Hazard Report;
(c) shortly thereafter he became concerned that merely lodging a Hazard Report was not enough and that he might be liable if he did not take further steps to deal with the risk posed by the deficient beepers;
(d) he considered the deficient beepers to be an immediate risk to occupational health and safety;
(e) he tagged the forklifts because he considered that their beepers were unsafe; and
(f) during the subsequent meetings he opposed the temporary measures proposed by others to deal with the issue, because he considered them unsafe.
132 In my view it is clear that, in tagging the forklifts, Mr Zwart was acting consistently with the relevant Visy safety rules and procedures, as set out at [17] above. It is also clear that Mr Zwart’s right or obligation under s 25 of the OHS Act to take reasonable care for the health and safety of other employees related both to his actions in tagging the forklifts and in subsequent meetings. I have no difficulty in accepting that Mr Zwart was exercising a workplace right pursuant to s 25 when he tagged the forklifts on 5 August and in the meetings.
Was Mr Zwart exercising a “workplace right” pursuant to s 58 of the OHS Act?
133 As I have already set out, s 58 empowers a health and safety representative to inspect “any part of a workplace at which a member of the designated workgroup works”. Mr Zwart also relies on this power for his right to inspect and tag the forklifts.
134 The respondents contend that no power to inspect a forklift arises under s 58. They argue that a “workplace” as defined in s 58(1) means only the place “at which” an employee works and not objects or things “on which”, “in which” or “with which” an employee works at that workplace. On this basis the respondents argue that the power to inspect does not include a power to inspect plant or other movable equipment that may be found at a place of work. In my opinion, this submission has no merit.
135 The word “workplace” is defined in s 5(1) of the OHS Act to mean:
…a place, whether or not in a building or structure, where employees or self-employed persons work.
In construing the meaning of this word I must first consider the purpose and context of the statutory provision: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
136 The objects of the OHS Act are set out in s 2 which relevantly provides:
(1) The objects of this Act are-
(a) to secure the health, safety and welfare of employees and other persons at work; and
(b) to eliminate, at the source, risks to the health, safety or welfare of employees and other persons at work; and
(c) to ensure that the health and safety of members of the public is not placed at risk by the conduct of undertakings by employers and self-employed persons; and
(d) to provide for the involvement of employees, employers, and organisations representing those persons, in the formulation and implementation of health, safety and welfare standards-
having regard to the principles of health and safety protection set out in section 4.
(2) It is the intention of the Parliament that in the administration of this Act regard should be had to the principles of health and safety protection set out in section 4.
137 The OHS Act plainly contemplates the inspection of workplaces for the purposes of improving occupational health and safety. In my view it would be inconsistent with the goals of the Act if the meaning of “workplace” was so limited that it allowed inspection only of the workplace itself and not those things necessary for the work found within it. For example, acceptance of the respondents’ construction would mean that a health and safety representative could inspect the floor on which an employee stood but not a piece of dangerous plant standing on the floor and used in the work.
138 Further, there is nothing textually in ss 5(1) or 58 which indicates that the word “workplace” should be construed as meaning only the location or the building in which work takes place, but not the plant and equipment in it. The definition in s 5(1) refers to a workplace “whether or not in a building or structure”. On the respondents’ construction it is only the building or structure that can be inspected. This strongly points away from the respondents’ construction.
139 Another indication that the inspection power is intended to be broad is that it allows a health and safety inspector to inspect “any part of a workplace”. It would be a strange result indeed if, in the circumstances contemplated by s 58 of an incident involving an immediate risk to employee safety that the health and safety representative was to be restricted to an inspection of the building itself, and could not inspect moveable plant and equipment.
140 Accepting Mr Zwart’s evidence as I have indicated at [131] I consider that he was empowered under the OHS Act to inspect the forklifts, and that he was exercising a workplace right under s 58 of the OHS Act when he inspected and then tagged the forklifts.
Issue 3: was the adverse action taken by the respondents because Mr Zwart had exercised a workplace right?
The onus pursuant to s 361 of the FW Act
141 Once an allegation is made that an employer has taken action against an employee because the employee exercised a workplace right, s 361 casts the onus on the employer to “prove otherwise”. Pursuant to s 360, while there may be multiple reasons for the employer taking the adverse action, the employer “takes action for a particular reason if the reasons for the action include that reason.” To displace the presumption, the respondent must show that its conduct was not motivated in whole or in part by the prohibited reason. A failure to displace the presumption enables the allegation by an applicant of a prohibited reason to stand as sufficient proof of that fact: Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 at [109] per Wilcox and Cooper JJ; Australian Municipal, Administrative, Clerical and Services Union v Greater Dandenong City Council (2000) 101 IR 143 at [37] per Madgwick J.
142 Provisions like s 361 have been a part of Commonwealth industrial relations law since 1904. The rationale for the presumption was explained by Mason J in General Motors-Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 617 (“Bowling”) as follows:
...the plain purpose of the provision [is to throw] on to the defendant the onus of proving that which lies peculiarly within his own knowledge.
143 This reasoning was recently endorsed by the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044 (“Barclay”) per French CJ and Crennan J at [51] and per Gummow and Hayne JJ at [106]. In their reasons at [86] Gummow and Hayne JJ set out with approval Mason J’s statement in Bowling at 617 as to the onus borne by a person against whom an allegation of adverse action has been made. Mason J explains:
Section 5(4) imposed the onus on the [employer] of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the [employee], in order to succeed, was not bound to adduce evidence that the [employer] was actuated by that reason, a matter peculiarly within the knowledge of the [employer]. The [employee] was entitled to succeed if the evidence was consistent with the hypothesis that the [employer] was so actuated and that hypothesis was not displaced by the [employer]. To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the [employer] the onus of proving that which lies peculiarly within his own knowledge.
144 However, as Barclay makes clear, the presumption must not be treated as creating so heavy a burden that it is effectively impossible to discharge. Its application was explained at [60] to [63] by French CJ and Crennan J as follows:
[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…
[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…
[62] Second, 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. Such reasoning effectively institutes an interpretation of the relevant provisions indistinguishable from that of Isaacs J in Pearce, which was rejected in Bowling. 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.
[63] Third, it is appropriate for a decision-maker to give positive evidence comparing the position of the employee affected by the adverse action with that of an employee who has no union involvement.
(Emphasis added.)
145 In relation to the Court’s task in deciding whether an employer’s evidence discharges the burden, at [44]-[45] French CJ and Crennan J observed:
[44] The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”
[45] 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.
(Citations omitted.)
146 At [127] Gummow and Hayne JJ described the role of the Court as being:
… 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 was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.
(Emphasis added.)
As is plain from the passages set out above, French CJ and Crennan J also adopted the language of “operative factor” at [62].
Visy’s actions and reasons
147 The applicants allege that Visy is liable for contravening s 340 of the FW Act through the actions of its employees. As a corporation it acts through its officers, employees and agents. As a general proposition the actions of a corporation’s employees are attributable to the corporation.
148 To determine Visy’s liability it is necessary to ascertain which individual or individuals are responsible for the decisions made on its behalf. Where there is only one decision maker, or directing mind, the task of determining the corporation's reasons for particular action may be straightforward. Where a number of employees take action on behalf the corporation it may be a somewhat more complicated question to ascertain its reasons.
149 In dealing with a claim of adverse action, in National Territory Education Union v Royal Melbourne Institute of Technology [2013] FCA 45 at [26] to [27], Gray J set out various authorities relevant to the Court’s task in determining the reasons for a corporation’s actions. His Honour said, and I respectfully agree:
[26] It is often the task of a court to make a finding as to the minds of which natural person or persons constitute the directing mind and will of a corporate body, for the purpose of determining the state of mind of that corporate body. Sometimes, the question is as to the knowledge of the corporate body. As Brennan, Deane, Gaudron and McHugh JJ said in Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 583:
A division of function among officers of a corporation responsible for different aspects of the one transaction does not relieve the corporation from responsibility determined by reference to the knowledge possessed by each of them.
The same can be said of states of mind other than knowledge, such as reason or intent. In Voigtsberger v Council of the Shire of Pine Rivers (No 2) (1981) 58 FLR 239, the question was whether an employee in local government had been dismissed from her employment for a proscribed reason. Although the local council itself had made the ultimate decision to dismiss, Evatt J found that it was an earlier decision of the finance committee that was the critical decision. The council had merely “rubber-stamped” the recommendation of the finance committee later on the same evening. The finance committee consisted of eight councillors, six of whom had not been called as witnesses. His Honour held that the decision to dismiss the employee had not been proved not to be actuated by the proscribed reason alleged.
[27] Wood (On Behalf Of The Industrial Relations Bureau) v Lord Mayor, Councillors and Citizens of the City of Melbourne (1979) 41 FLR 1 was another local government case. The ultimate decision had been made by the Town Clerk, who was the chief executive officer of the employer. There was a question as to whether the decision was tainted by the involvement, in conjunction with the town clerk, of the deputy town clerk, who was said to have acted for a proscribed reason. Ultimately, Smithers J found that the decision was that of the town clerk only, and was not tainted by the proscribed reason. In the course of his reasons, at 19, his Honour said:
In the task of ascertaining the mind of the defendant corporation, with respect to the standing down of Mr. Kane, that mind may be located in the mind of one authorized officer or of more than one person exercising the executive power of the corporation. It is a pure question of fact where in particular circumstances that corporate mind may be located. In a case where two officers are concerned in the solution of an administrative problem and are working jointly to solve it and decide what the corporation is to do and are working in harmony and in full confidence, the one with the other, the mind of the corporation is to be found in the course of conduct agreed upon between them and the reasons which in the end are the operating reasons for the policy agreed upon.
150 In the present case the actions of Mr Street, Mr Scott, Mr Wiltshire, Mr Hayes and Mr Harmer are all attributable to Visy. The evidence is clear that the relevant decision-makers were Mr Street and Mr Wiltshire. It is their reasons which must be considered, and it is their reasons with which Visy is fixed.
The stated reasons for the investigation and the suspension
151 Mr Street says, and I accept, that he made the decision to investigate Mr Zwart's conduct and also to suspend him. The evidence is that he intended to conduct the investigation himself, but later it was decided by Mr Harmer and Mr Wiltshire that it should be conducted by an external and independent investigator.
152 Mr Street refers to two main aspects of Mr Zwart's alleged conduct as requiring investigation. The first aspect relates to Mr Zwart’s alleged failure to cooperate with Mr Scott and then with Mr Renehan. In summary Mr Street, who is supported in these allegations by Mr Scott, says that his reasons for instigating the investigation are that:
(a) during the 10.20 am meeting in the APS office with Mr Scott, Mr Radic and Mr Flanagan, Mr Zwart failed to consider a temporary measure suggested by Mr Scott and began to walk out of the office;
(b) during the meeting with Mr Renehan (and various Visy managers) Mr Zwart refused to answer questions being put to him by Mr Renehan, refused to follow instructions given to him by Mr Renehan, and left the meeting prior to its satisfactory conclusion to take his lunch break; and
(c) generally, his attitude to the attempts to resolve the dispute was uncooperative and obstructive.
153 Mr Street, again supported by Mr Scott, also points to two allegations that Mr Zwart lied, namely that:
(a) during the meeting with Mr Renehan, Mr Zwart claimed to have witnessed four other “near misses” involving forklifts, which he misrepresented as recent; and
(b) during the same meeting, Mr Zwart initially said that in tagging the forklifts he was acting as a health and safety representative, but during the meeting changed his position to that of acting as a “concerned employee”.
154 Mr Street also says that an investigation was appropriate to discover the circumstances around the forklift incident involving Mr Zwart early on 5 August 2011, and to establish whether that incident involved an “imminent risk”. He says that he was concerned to determine whether the four forklift safety incidents described by Mr Zwart during the meeting with Mr Renehan (which he says Mr Zwart called “near misses”) had actually occurred.
155 In relation to the latter issue, Mr Street says that he needed to speak to other “shop floor” employees and it was appropriate that Mr Zwart be suspended while that occurred so as to maintain the integrity of the investigation. His evidence is that the alleged misconduct was serious and that suspension was appropriate under the Policy (as set out at [57] above).
156 Mr Hayes’ evidence supports Mr Street in this account. He says that Mr Street approached him seeking advice on whether he could both institute an investigation and suspend Mr Zwart during the investigation period. Mr Hayes says that he told Mr Street he could do both of those things provided that Mr Zwart continued to be paid. Mr Scott supports Mr Street in that his account of Mr Zwart’s conduct in the meeting is essentially the same.
157 Mr Street strongly denies that any part of his reason for instigating the investigation of Mr Zwart, or for imposing the suspension, was Mr Zwart’s conduct in tagging the forklifts. The thrust of his evidence is that he took the actions that he did because he expected Mr Zwart as a health and safety representative to cooperate in trying to resolve the issue of the tagged forklifts, and that instead Mr Zwart had been uncooperative and obstructive.
The stated reasons for the Final Written Warning
158 Mr Wiltshire says, and I accept, that he made a decision to issue the Final Written Warning. He says that he did so after considering the investigation report prepared by Mr Halse and concluding that Mr Zwart’s conduct constituted serious misconduct. He says that the decision was based on Mr Zwart’s “lack of cooperation and diligence” in relation to the events of 5 August, as found by Mr Halse. In elaborating on his reasons he says that Mr Zwart had engaged in serious misconduct that ultimately caused a cessation of work, and that he had failed to cooperate with both Visy’s managers and WorkSafe.
159 In the Final Written Warning, prepared by Mr Harmer and signed by Mr Wiltshire, the reason he gives for imposing the warning is that Mr Zwart’s conduct constituted serious misconduct, in that:
(a) he had failed to follow the appropriate OHS/Dispute resolution procedure in that he had:
(i) caused a cessation of work when other control mechanisms were available and in place; and
(ii) failed to cooperate with WorkSafe once the cessation had occurred.
(b) he had misrepresented his position:
(i) by initially declaring that he was acting as a health and safety representative and then altering his status to that of a “concerned employee”;
(ii) by describing the near misses to give the impression that they were recent and then changing that position to protect himself; and
(iii) thereby causing a loss of trust and confidence in relation to the way that he had hindered the effective management of the issue.
160 Mr Wiltshire also denies that his reasons for issuing the Final Written Warning had anything to do with Mr Zwart’s tagging the forklifts. He says that he was singularly motivated by reasons associated with Mr Zwart’s conduct in the subsequent meetings.
The link between the adverse action and Mr Zwart's responsibilities as a health and safety representative
161 In my opinion, there are difficulties for the respondents in proving that the adverse action taken was not for a prohibited reason, in that it was taken, not because Mr Zwart tagged the forklifts due to safety concerns but because of allegedly unsatisfactory conduct in the subsequent meetings.
162 First, notwithstanding some inconsistent evidence, Mr Street, Mr Scott and Mr Wiltshire did not say that Mr Zwart was not acting out of a genuine concern for occupational health and safety when he tagged the forklifts, or say that he was not genuinely concerned about safety in the meetings. While arguing that he was unreasonable and uncooperative in the meetings there was no attack on his motives.
163 Secondly, again notwithstanding some inconsistent evidence, each of Mr Street, Mr Scott and Mr Wiltshire made no complaint about Mr Zwart tagging the forklifts.
164 Thirdly, they accept that where an occupational health and safety issue is raised by a health and safety representative, Visy's policy is to organise a meeting between management and the representative to resolve the issue. Such meetings must be seen to potentially involve disagreement. The evidence establishes that Mr Zwart attended each of the relevant meetings at the request of the respondents and that the meetings were called in order to resolve the health and safety issues that arose from the tagging. In my opinion Mr Zwart was seeking to resolve that issue in attending the meetings and in putting forward his view.
165 Fourthly, the actions of Mr Zwart in tagging the forklifts and in meeting to resolve that issue are closely linked. This can be seen in the evidence as to the matters discussed at the meetings.
166 In this regard, the evidence of Mr Street and Mr Scott indicates an acceptance that the misconduct alleged against Mr Zwart is based in an allegation of failure to conduct himself properly in his role as a health and safety representative. This is also seen in the fact that Mr Zwart’s conduct in his role as a health and safety representative is identified by Mr Street as the reason for the investigation and the suspension, and also by Mr Wiltshire as the reason for the Final Written Warning. The allegations of a failure to cooperate are largely referrable to Mr Zwart failing to agree to the temporary measures proposed by Mr Scott.
167 Fifthly, I find that in expressing his view at the meetings as to the safety of the temporary measures proposed, Mr Zwart was carrying out the responsibilities of a health and safety representative under the OHS Act. Section 25 of the OHS Act required Mr Zwart to consider the potential health and safety outcomes of the temporary measures proposed. Discussions between management and health and safety representatives are required under Visy policy, and by ss 73, 35 and 36 of the OHS Act.
168 The OHS Act plainly contemplates that a health and safety representative may have a different view from the employer as to the appropriate resolution of a particular health and safety issue. The right to advocate such a different view is an important workplace right and the dialogue it promotes serves an important occupational health and safety function. In my opinion, actions taken by a health and safety representative in asserting a particular position on a health and safety issue should not lightly be treated as constituting uncooperative or obstructive conduct.
169 Of course, as French CJ and Crennan J explain in Barclay at [61] to [62], it would be wrong to treat Mr Zwart’s status as a health and safety representative engaged in dealing with a health and safety issue as meaning that his position and activities are inextricably entwined with the adverse action. To do so would be to treat a health and safety representative as immune from being appropriately dealt with if he or she commits misconduct while acting in that capacity.
170 I do not approach the question in that way. The respondents’ difficulty in proving that the adverse action taken was not taken for a prohibited reason arises because of the close link I refer to, and the implausibility of their stated reasons when considered against these and other surrounding facts and circumstances. The surrounding facts and circumstances point to a likelihood that Mr Zwart’s actions in tagging the forklifts and/or in maintaining his position in the meetings was, at least, part of the respondents’ reasons for the adverse action taken. Further, while the respondents deny that they were actuated even in part by a prohibited reason, as I set out below, I have serious doubts as to the reliability of some of the evidence adduced on their behalf.
171 In order to understand the implausibility of the respondents’ case, and the unreliability of the evidence upon which they rely, it is necessary to look at the evidence more closely.
The evidence of a lack of cooperation
172 The allegation that Mr Zwart was obstructive or uncooperative in the meetings is firstly based in allegations that he rejected the temporary measures proposed by Mr Scott, one of which was later adopted by Mr Renehan. In my view the evidence establishes that there were only two proposals put forward by Mr Scott.
173 The first proposal made by Mr Scott was to use forklifts of the same model from other sections of the factory. As an indication of Mr Zwart’s uncooperative attitude, Mr Scott points to Mr Zwart’s statement that he would tag any forklifts with inaudible beepers that were brought in from other sections. Mr Zwart does not deny making this statement. I do not accept that his statement indicates an unreasonable or obstructive approach. In fact, having tagged the forklifts because of a concern that their beepers were inaudible, it would make no sense for him to then allow other forklifts with similar deficiencies to operate in the APS. His responsibilities as a health and safety representative related to the APS designated work group.
174 A further indication that Mr Zwart was not being obstructive in this regard is that when Mr Flanagan suggested testing a different model forklift from the Material Preparation section, Mr Zwart readily accepted his suggestion. Mr Scott accepts that Mr Zwart cooperated in getting and testing that forklift. Mr Zwart approved its use in the APS once he knew that its warning beepers were audible.
175 The second proposal put forward by Mr Scott (later approved by Mr Renehan) involved a temporary arrangement under which a direction would be given to forklift drivers in the APS that they must, when reversing, sound the steering wheel horn in order to warn pedestrians. Mr Zwart does not deny rejecting this proposal. I accept his evidence that he did so out of a genuine belief that the proposal was unsafe.
176 While I am not directly called on to determine this issue, the evidence indicates that Mr Zwart had a reasonable basis both for tagging the forklifts and for taking the stance that he did in the subsequent meetings. Mr Wiltshire accepts, and Visy’s safety rules and procedures (set out at [17]) confirm that tagging of equipment is available to any employee, and not just health and safety representatives. Visy’s safety rules and procedures indicate the importance of properly operating warning beepers. It is clear on the evidence that the factory was safer if the forklifts in the APS had warning beepers which could be heard. I also infer that the beepers required rectification from the fact that Visy had Adaptalift repair the audibility of the warning beepers on all forklifts.
177 On this issue there was also unchallenged evidence from two occupational health and safety experts. Geoffrey Waddell, a professional consulting engineer, with significant experience in occupational health and safety, opines:
In my opinion, Mr Zwart acted properly in the circumstances, evidently exercising diligence as a health and safety representative.
In Mr Waddell's opinion Mr Scott’s proposal represented a significant reduction in workplace safety. He refused to endorse it, and describes the suggestion that a memo be drafted to the forklift drivers to follow this course, as an ad hoc approach which would likely increase health and safety risks without proper supervised training and instruction. There is no evidence that any such training was planned before the forklifts were to be returned to service.
178 James Kent, whose past experience includes supervising and managerial roles with what is now WorkSafe, including a period as the Manager - Quality with the Victorian WorkCover Authority and Health and Safety Organisation, also rejected Mr Scott’s proposal stating that “[i]n no circumstances would I recommend that practice.” In an affidavit accompanying his report, dated 25 August 2011, Mr Kent describes Mr Zwart’s actions as a “completely proper, reasonable and safe course to adopt.”
179 The claimed lack of cooperation came to not much more than allegations that he:
(a) refused to agree that he had engaged in wrongly ordering a cessation of work when pressed to do so by Mr Renehan, in circumstances where it is now conceded that he gave no such direction;
(b) failed to cooperate with WorkSafe, in circumstances where the respondents played a role in the meeting taking the course that it did;
(c) refused to agree to the temporary measures proposed in relation to the forklifts, in circumstances where it is apparent that he had a reasonable basis for his position; and
(d) lied about two matters, in circumstances where, as I later set out, it was wrong to so characterise his statements.
The allegation made in the Final Written Warning that he failed to comply with OH&S/ Dispute resolution procedures came to nothing. No such procedures were put in evidence by the respondents and Mr Zwart was not cross examined on this issue at all.
180 Further, this is not the type of case sometimes seen, where a union official is accused of aggressive and threatening behaviour in rejecting an employer view. No such allegations are made against Mr Zwart. It is difficult to see this as a case in which Mr Zwart’s conduct took him outside his role or responsibilities as a health and safety representative.
The evidence that the respondents had no concern regarding tagging the forklifts
181 Mr Street’s evidence is that he makes no complaint about Mr Zwart’s conduct in tagging the forklifts. He repeatedly denied that any part of his reason for the decisions to investigate and suspend Mr Zwart was because he tagged the forklifts, instead stating that he made the decisions because of Mr Zwart’s unsatisfactory conduct in the subsequent meetings.
182 It was plain to me that Mr Street understood the importance to the respondents’ defence of maintaining that he had no concern about Mr Zwart's actions in tagging the forklifts. In my view he gave his evidence in a way that indicated a determination not to damage that case rather than to properly answer each question.
183 Importantly, Mr Street expressly disavowed any view that Mr Zwart was acting other than out of a genuine concern for workplace safety in tagging the forklifts. However, his evidence on this central issue is inconsistent and unreliable. Mr Halse’s report records that when interviewed on 16 August 2011 in relation to Mr Zwart’s actions, Mr Street said:
The things that were done was [sic] purely about disrupting the business… there was nothing there about safety.
Mr Street admits making this statement to Mr Halse. The statement records a belief that Mr Zwart had manufactured a concern regarding forklift safety in order to deliberately disrupt Visy’s business. Mr Street was forced to accept the inconsistency of this statement with his evidence that - at the time of ordering the investigation and the suspension - he believed that Mr Zwart was acting out of a genuine safety concern. Of course, the statement also indicates the implausibility of the respondents’ case that they held no concerns about Mr Zwart's actions in tagging the forklifts, and were not actuated by any such concerns when deciding to investigate his conduct and suspend him.
184 In seeking to deal with this inconsistency Mr Street then said that, although when interviewed on 16 August he expressed the view that Mr Zwart was being deliberately disruptive of Visy’s business, this was not the view that he held on 8 August when he decided to investigate and suspend Mr Zwart.
185 On being cross-examined further on his change of position, he then claimed to have, since 16 August 2011, changed his mind again back to the original position he held on 8 August 2011. In the finish Mr Street invited the Court to accept that:
(a) when he made the decision to investigate and suspend Mr Zwart on 8 August he was unconcerned about the tagging of the forklifts and accepted that Mr Zwart did so out of a genuine safety concern;
(b) when providing a statement to Mr Halse on 16 August 2011, as part of a formal investigation instituted following court proceedings and upon which important disciplinary decisions were likely to be based, his view had changed. He had decided by that date that Mr Zwart had not been acting out of a genuine safety concern and had tagged the forklifts so as to deliberately disrupt Visy’s business; and
(c) when he gave evidence on 6 February 2013 his view had returned to its original position, one of accepting that Mr Zwart acted out of a genuine safety concern.
186 Even if I accepted that Mr Street's position is as changeable as he says, the inconsistency in his evidence on this central issue means that I would accord his evidence little weight. However, I do not accept that his position on this important issue is as changeable as he sought to portray. While I have not reached this view lightly and it has involved some anxious reflection, his prevarication and the contortion that his evidence involved, has led me to conclude that he was not frank with the Court. In my view the evidence shows that Mr Street believed from 5 August onwards that Mr Zwart had been deliberately disruptive in tagging the forklifts, which also informed his opinion about Mr Zwart’s conduct in the subsequent meetings.
187 The respondents reject the suggestion that Mr Street’s actions in instigating the investigation and imposing the suspension can reasonably be seen as being because he considered Mr Zwart had deliberately disrupted production in tagging the forklifts. They argue that the suggestion is inconsistent with the objective evidence and squarely rejected by Mr Street himself. They contend that it is inherently unlikely to be so because, among other things, Mr Street accepted that an audible beeper was an essential safety feature and because the disruption to production was insignificant.
188 I do not agree. Other evidence also points to the conclusion that, contrary to his evidence, Mr Street held real concerns about Mr Zwart tagging the forklifts. For example, Mr Hayes says that when seeking his advice on 5 August Mr Street said that he was unhappy about the fact that some of the plant had stopped production because the forklifts had been tagged. Mr Scott said that Mr Street agreed with him that there was minimal risk in operating the forklift with a defective beeper. This evidence is also inconsistent with Mr Street’s position that he had no concerns about the tagging.
189 In another example Mr Scott says, and I accept, that Mr Street telephoned him early on 5 August and suggested he contact Adaptalift to obtain the Australian Standard on the required decibel level for such beepers. This indicates that Mr Street was looking to undercut the health and safety issue that Mr Zwart had identified, rather than deal with the issue on its merits. I say this because it is difficult to see how the safety efficacy of a warning beeper could be assessed by reference to an Australian Standard. It could only be assessed against the noisiness of the workplace in which it was being used, having regard also to the quality of the hearing protection required to be worn. Plainly, these are not matters that could be expected to be prescribed in an Australian Standard.
190 I do not accept the respondents’ contention that it is inherently unlikely that Mr Street took adverse action because Mr Zwart tagged the forklifts. For example, it is noteworthy that he considered that the defective beepers constituted a minimal risk to safety and was happy to have a forklift driver use the horn instead of relying on the beeper. The proposition that he considered the interruption to production to be insignificant is contradicted by his complaint to Mr Halse about deliberate disruption to production. While he squarely rejected the applicants’ suggestion, his evidence in this regard is not credible.
191 Mr Scott too sought to portray himself as unconcerned about the tagging, and concerned only about Mr Zwart’s allegedly unsatisfactory conduct in the subsequent meetings. He similarly disavowed any view that Mr Zwart had done anything wrong in tagging the forklifts.
192 However, Mr Street threw doubt on Mr Scott’s denial by stating that Mr Scott complained to him about Mr Zwart tagging the forklifts, and the evidence establishes that Mr Scott expressed concerns about the lack of any necessity for Mr Zwart to tag the forklifts to Mr Street, Ms Tyler-Meers and Mr Renehan. It became clear to me that Mr Scott considered that Mr Zwart’s actions in tagging the forklifts were inappropriate. He also prevaricated on this issue, and sought to draw a distinction between the necessity and the wrongfulness of Mr Zwart’s actions. In my view the evidence shows that he considered the tagging to be unnecessary and wrong. I found his evidence on this issue implausible, and I do not accept that his concerns related only to Mr Zwart’s conduct in the meetings.
193 My concerns as to the reliability of both Mr Street’s and Mr Scott’s evidence on this central issue reduces my preparedness to accept their evidence on other issues. Both Mr Street and Mr Scott repeatedly said that they were unconcerned about the actions of Mr Zwart in tagging the forklifts, but aggrieved by his failure to be cooperative in discussing solutions to the problem. I am satisfied on the evidence that they actually held serious concerns about his tagging the forklifts, but sought to disguise that concern. I give their evidence on this issue little weight.
194 It is likely too that this concern flavoured the way in which they viewed Mr Zwart’s conduct in the meetings as obstructive and uncooperative.
The questioning as to the direction to cease work
195 Other evidence illustrates the implausibility of the respondents’ stated reasons, and seems to indicate some level of ill feeling on the part of Mr Street and Mr Scott towards Mr Zwart. This is seen in, for example, their failure to correct Mr Renehan as I set out below.
196 The evidence establishes that Mr Renehan insistently questioned Mr Zwart as to whether he had directed a cessation of work under s 74 of the OHS Act. The questioning suggested that he had given such a direction and that he was in error in that regard. Mr Zwart was forced to repeatedly deny giving such a direction, and also to deny that production had stopped. In my view the evidence shows that Mr Zwart became disconcerted, uncomfortable and out of his depth, and probably defensive and wary in his responses to the questioning. He twice felt it necessary to leave the room to seek telephone advice from the AMWU, and then said that he had to go to lunch, it appears in an attempt to escape any further questions from Mr Renehan. Ultimately he refused to answer any further questions without an AMWU official present to support him.
197 However, Mr Street’s evidence before me is that he did not consider that Mr Zwart had given a direction to cease work. The respondents concede that Mr Zwart did not give a direction to cease work pursuant to s 74. They also describe the interruption to production as “factually and practically insignificant”. In these circumstances I do not understand why Mr Street and Mr Scott did not point this out to Mr Renehan. In cross examination Mr Street was unable to explain his failure to do so. In my opinion Mr Renehan’s insistent questioning on this topic likely played a significant part in causing the angst in the meeting. It is this angst and Mr Zwart’s likely defensive or wary responses which partly underpins the complaint of a lack of cooperation. In my view this may well been avoided or reduced if Mr Street had corrected Mr Renehan.
Mr Zwart’s change in position from acting as a health and safety representative to acting as “concerned employee”
198 In the meeting involving Mr Renehan, Mr Zwart initially said that he tagged the forklifts acting as a health and safety representative and then, following the receipt of telephone advice from the AMWU, he said that he did so acting as a “concerned employee”. Mr Street, Mr Scott and Mr Wiltshire point to this change in position as a basis for their complaint about his conduct at the meeting, describing it as lying. I have previously set out Mr Zwart’s explanation for this change of position.
199 The attempt to characterise his change of position as “lying” does not withstand examination. Lying involves dishonesty. What Mr Zwart did was to set out a revised basis of power for his actions, doing so after the receipt of advice. I can see no dishonesty in what he did. While the advice was wrong (and he was therefore wrong) the evidence shows that he made the change honestly and there is no basis for seeing it as an attempt to mislead.
200 More importantly, the respondents’ evidence that this change of position was one of the reasons for the investigation, suspension and Final Written Warning is quite unlikely. Section 25 of the OHS Act imposes an obligation to maintain a safe workplace on all employees, and not just upon health and safety representatives. Mr Wiltshire concedes that all employees are or should be encouraged to tag equipment if the employee considers it to be unsafe, and accepts that this is part of Visy’s Standard Operating Procedures. It is difficult to then see the change of position as being of any great significance in his decision to impose the Final Written Warning.
201 Mr Street similarly accepts that the outcome is the same whether equipment is tagged by a health and safety representative or by an employee without such a role. When pressed Mr Street was unable to offer any cogent explanation as to how Mr Zwart’s change of position could be seen to support his decision to investigate and suspend Mr Zwart. It is difficult to see the change of position as being of significance in Mr Street’s decision to instigate an investigation and suspend Mr Zwart.
The evidence as to the investigation and the warning
202 As the General Manager of the Food Can division and the person who decided to issue the Final Written Warning to Mr Zwart, Mr Wiltshire is also an important witness. I have set out at [161]-[170] the link between his imposition of the warning and Mr Zwart's responsibilities as a health and safety representative. Mr Wiltshire’s evidence is that the warning was imposed because of Mr Zwart’s conduct in the meetings. As I have previously said, I consider that Mr Zwart was acting as a health and safety representative both in tagging the forklifts, and in attending the subsequent meetings at Visy’s request to discuss resolution of the health and safety issue. I do not see his conduct in tagging the forklifts or in the meetings as taking him outside that role.
203 Further, Mr Wiltshire’s evidence that the warning was imposed because of:
(a) a lack of cooperation:
(b) a change in position to that of a concerned employee;
(c) a failure to follow OHS/Dispute resolution procedures; or
(d) lying about “near misses”.
is implausible for the reasons already canvassed.
204 I turn now to deal with the implausibility of Mr Wiltshire’s evidence that he solely relied on Mr Halse’s report from the independent investigation to ascertain the facts as to Mr Zwart's conduct, and then reached the decision to impose the warning based solely on that report.
205 On Mr Wiltshire’s evidence, the point of the independent investigation was that it removed him and other Visy employees from the fact finding exercise. His evidence is that he divorced himself as far as possible from the investigation, and was concerned that the process be objectively seen as fair. He says that he did not seek to form his own view on the facts, instead relying on the independent investigation. As one example of this approach, he says he removed himself from fact finding by only reading the first eight pages of Mr Halse’s report. The pages that followed were extracts from the interviews rather than findings. According to his evidence, the principal virtue of the approach he adopted is that any decision in relation to Mr Zwart would be based upon facts found in an impartial and independent investigation, without interference by Visy.
206 While there is no legal requirement that an investigation following allegations of employee misconduct be independent, Mr Wiltshire’s evidence is that an independent investigation was appropriate. The thrust of his evidence is that Mr Zwart’s conduct was impartially and independently investigated, and that in making the decision to issue the Final Written Warning he was largely quarantined from fact finding and any bias. The benefits of this approach are clear.
207 However, in dealing with the purported independence and impartiality of the investigation, the evidence indicates Visy’s guiding hand. This evidence includes the following:
(a) From the outset Mr Harmer was involved in the framing of questions that would constitute the investigation. After first circulating the questions to, among others, Mr Wiltshire for feedback, he provided Mr Halse with the questions that should be put to Mr Zwart. It was clearly part of the arrangement between Visy and Mr Halse that Visy approve the investigation questions prior to the interview occurring;
(b) Because of a privacy protocol put in place by Mr Halse prior to the interviews beginning, Mr Halse interviewed the managers alone. However, Mr Harmer instructed Mr Hayes to attend the interview with Mr Zwart. Mr Halse permitted this to occur notwithstanding the protocol;
(c) Benjamin Gee of Fischer Cartwright Berriman, then the solicitors for Visy in the dispute, was in communication with Mr Halse at least between 15 and 17 August 2011. He provided Mr Halse with a copy of Mr Scott’s affidavit referred to above.
(d) After Mr Halse had delivered the first version of his report to Visy on the afternoon of 17 August 2011 Mr Harmer instructed him to speak with Mr Renehan in relation to some key disputes. I infer that Mr Harmer intervened in this way in an attempt to have the report revised so as to strengthen it.
(e) On 17 August at 8.21 pm Mr Gee emailed Mr Halse seeking to discuss the report urgently. He said “I have some questions for clarification purposes that I would like to put to you, in case this leads to you updating or reviewing the report.”
There was no change of significance to the report as a result of either of the interventions referred to in (d) and (e) above.
208 It seems likely that Mr Halse’s findings are affected by the statements made by Mr Street. In relation to Mr Zwart tagging the forklifts Mr Street said to Mr Halse that Mr Zwart was not motivated by any genuine safety concern and deliberately obstructed production. Mr Street was the senior manager present during the events of 5 August and his statement is likely to have materially increased the prospect of Mr Halse finding that Mr Zwart had been obstructive and uncooperative. Importantly, Mr Street now says that his statement to Mr Halse was incorrect.
209 While I draw no inference that Mr Halse’s findings were necessarily based on any interference or on incorrect statements provided by Mr Street, I am not satisfied that the investigation was independent and impartial as Mr Wiltshire contends.
210 The matters to which I have referred may be seen to indicate a relationship in which Mr Harmer supervised Mr Halse. While the impartiality and independence of his investigation and report is not critical to my decision, it is nevertheless significant that Mr Halse, who was in a position to confirm its impartiality and independence, was not called. There can be little doubt that Mr Halse is correctly seen as being in Visy’s camp and it would be unrealistic to expect the applicants to call him: Payne v Parker [1976] 1 NSWLR 191 per Glass JA. Visy’s unexplained failure to call him justifies the inference that his evidence would not have assisted it: Jones v Dunkel (1959) 101 CLR 298.
211 Mr Wiltshire says that he based his decision to issue the Final Written Warning solely on Mr Halse’s findings. While the possibility that Mr Wiltshire reached his decision based on erroneous findings by Mr Halse must be accepted, my conclusion as to the independence and impartiality of the investigation remains relevant to my decision not to accept Mr Wiltshire’s evidence as credible.
212 Nor am I satisfied that Mr Wiltshire was quarantined from the fact finding process, or that his decision to issue the Final Written Warning was based only on Mr Halse’s report.
213 First, the evidence shows that Mr Wiltshire was a party to conversations regarding Mr Zwart's conduct involving variously Mr Street, Mr Harmer and Mr Hayes. It is likely that Mr Street’s views about Mr Zwart being deliberately obstructive found their way to Mr Wiltshire either directly from Mr Street or through Mr Harmer and Mr Hayes. Mr Wiltshire did not speak to Mr Scott, and Mr Hayes’ and Mr Harmer’s understanding of what happened was principally provided to them by Mr Street.
214 Secondly, Mr Wiltshire requested and received a summary of events prepared by Mr Hayes which included statements that Mr Zwart caused a cessation of work, that he had caused a loss of production by tagging the forklifts, and that he had alleged a number of near misses.
215 Thirdly, Mr Wiltshire requested and received a copy of Mr Scott’s affidavit sworn for the first interlocutory hearing which provided a detailed account of his version of events. While there would ordinarily be nothing questionable about this, he did so after deciding that the facts should be found in an independent and impartial investigation. While stating that it was important that he be removed from the fact finding process, in receiving Mr Scott’s affidavit he received views in a way that he previously considered could be seen as unfair. His decision to obtain Mr Scott’s affidavit reduces the credibility of his statement that the fact finding was made entirely by Mr Halse.
216 Fourthly, following receipt of Mr Halse’s report, Mr Wiltshire spoke to Mr Street as to the way in which Visy had previously dealt with similar incidents. This is surprising too given that Mr Street was removed from taking an active role in the investigation because Mr Harmer and Mr Wiltshire were concerned for the integrity of that process. While he says that in speaking to Mr Street he did not refer to the details of the case, it would have been plainly apparent to Mr Street who they were discussing. It was disingenuous of Mr Wiltshire to suggest otherwise. In cross-examination it became apparent that Mr Street was aware that Mr Wiltshire was referring to Mr Zwart.
217 In the finish, I was left with serious doubts as to the reliability of Mr Wiltshire’s evidence. He sought to paint himself as somehow above the fray in the dispute, and as a person whose role was only to make any necessary disciplinary decision based on facts found by an independent third party. In my view this was far from the truth. I am not satisfied on the evidence that the investigation was independent and impartial as he says, or that he was quarantined from the fact finding process or any bias.
218 Notwithstanding his protestations, I am not satisfied that Mr Wiltshire’s decision to issue the Final Written Warning was based only on Mr Halse’s report. In my view, it is more likely to be also based on information provided to him by Mr Street, Mr Scott, Mr Harmer and Mr Hayes. Mr Street tried to disguise from the Court his belief that Mr Zwart had deliberately disrupted production on 5 August, but I have little doubt that this important view was communicated to Mr Wiltshire. Such a serious allegation required to be passed up the management chain. I do not accept Mr Wiltshire’s evidence to the contrary. In the end I do not accept his evidence as credible that no part of his reasons for imposing the Final Written Warning included Mr Zwart’s actions in tagging the forklifts and/or asserting his views in subsequent meetings.
219 In broad summary, Mr Scott and Mr Street gave evidence as to the events of 5 August (and in Mr Street’s case the decision to investigate and suspend), Mr Hayes and Mr Harmer gave evidence as to the role of Visy’s Human Resources department in the decisions, and Mr Wiltshire gave evidence as to the decision to impose the warning. Only Mr Zwart gave evidence for the applicants. It is necessary to consider the cumulative effect of the respondents’ evidence as my fact finding process must be directed at the totality of the evidence, and not to its individual strands: Director, Office of the Fair Work Building Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCAFC 8 at [74] per Besanko and Perram JJ. I consider that the inconsistencies and unreliability of the respondents’ evidence are such that I cannot accept it as capable of discharging the onus.
Other evidence
220 Without going through every aspect of the evidence there are a number of other examples where Mr Street or Mr Scott prevaricated and were less than satisfactory in their testimony.
221 In one example, while accepting that an automatic reversing warning beeper was a feature with safety advantages beyond those offered by the use of the steering wheel horn, Mr Street refused to accept that there was a reduction in occupational health and safety in not having an audible warning beeper, but instructing forklift drivers by memo that they must use the horn to warn other employees when reversing. This is contrary to commonsense and the expert evidence. I see this evidence as implausible and I give it little weight.
222 In another example, while maintaining that suspension was necessary to maintain the integrity of the investigation, Mr Street was unable to provide a clear answer as to how this was so. It was only after repeated questioning that he eventually admitted that he was concerned that Mr Zwart might talk to other employees so as to shore up the position on the question of past “near misses”. He was reluctant to concede this, and reluctant to concede any point that he thought went against the thrust of the respondents’ case.
223 Further, even this statement as to the reason for the investigation might be doubted. Mr Halse’s report shows that no employees were interviewed as to past near misses, and the entire focus of the report was the meetings of 5 August. If the question of past near misses was sufficiently important to Mr Street to require suspension, one would expect the respondents to have conducted such an investigation.
The applicants’ evidence
224 Mr Zwart provides a coherent and credible account of the events of 5 August, giving his evidence in a straightforward way and without prevarication. He concedes making most of the statements upon which the respondents rely for their reasons. He does not deny saying that he would tag other forklifts with defective beepers that came into the APS. As I have said, this does not indicate a lack of cooperation.
225 While he denies using the expression “near misses” he admits making statements to similar effect. As I have said, I accept his evidence that he did not say that these were recent, and I am not satisfied that he lied.
226 He admits that in the meeting he changed his position from acting as a health and safety representative to acting as a “concerned employee”, and gave a credible explanation for that change of course. As I have said, it is inappropriate to characterise this as lying. It is also difficult to see it as a matter of any real significance where the principal concern of those present at the meetings was the resolution of an occupational health and safety dispute.
227 He denies walking out of the meeting with Mr Scott. On his own evidence Mr Scott had no further options for Mr Zwart to consider. While the evidence indicates that he intended to do so, as he thought that the temporary proposal proffered by Mr Scott was unsafe, he did not because Mr Flanagan came up with a proposal to get a different type of forklift from the Material Preparation section.
228 He does not deny disagreeing with both Mr Scott and Mr Renehan as to the appropriateness of temporarily using the steering wheel horn to warn pedestrians when reversing. His position in that regard had a sound basis. His evidence as to his basis for tagging the forklifts and for resisting the temporary measures advocated by Mr Scott is consistent with Visy’s safety rules and procedures regarding forklift warning beepers (as set out at [15]) and with the expert evidence.
the LIABILITY OF VISY
229 As I have said, Visy’s liability for the alleged contraventions must be determined by reference to the actions of its employees. I have accepted the evidence of both Mr Street and Mr Wiltshire that they were the relevant decision makers, and Visy is fixed with the findings as to their decision making.
230 I am not satisfied that either Mr Street or Mr Wiltshire discharged the onus of establishing that their reasons for taking adverse action did not include that Mr Zwart had exercised a workplace right. Mr Street’s evidence was unreliable. On the central question of Mr Zwart's conduct in tagging the forklifts he was exposed seeking to disguise his real concerns. For the reasons I have set out above his evidence is incapable of discharging the onus that his decision to investigate and suspend Mr Zwart was not for a prohibited reason. Mr Wiltshire’s evidence does not suffer from the same level of unreliability but, for the reasons set out, I do not accept it and do not treat it as capable of discharging the onus in relation to his imposition of the Final Written Warning.
231 The evidence of the other managers, namely Mr Scott, Mr Harmer and Mr Hayes, points to the same conclusion. The allegation that Visy contravened s 340 of the FW Act is made out.
Accessorial Liability
232 It is alleged in the Amended Statement of Claim that both Mr Scott and Mr Street are accessorily liable for Visy’s contraventions.
233 Section 550 of the FW Act provides the legislative framework for a claim of accessorial liability. It relevantly provides:
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
…
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
234 In relation to the claim against Mr Scott, there is a discord between the applicants’ pleading and the final submissions. The Amended Statement of Claim pleads that Mr Street and Mr Scott are accessories to Visy’s contravention by reference to s 550(2)(a),(c) and (d). Subparagraph (b) which relates to “inducing” a contravention is not pleaded. The applicants seek a finding that Mr Scott was involved in Visy’s contravention on the basis that he induced that contravention, but that claim is not pleaded. I note also that the pleaded allegation of conspiracy under subs (d) is not pursued against either Mr Scott or Mr Street.
235 Moving now to those allegations that are pleaded and pursued, the applicants submit that Mr Scott contravened s 550(2)(a) and (c) by making allegations about Mr Zwart’s conduct and therefore counselled or procured, or was directly or indirectly knowingly concerned in the contraventions by Mr Street in investigating and suspending Mr Zwart.
236 In relation to Mr Street, the applicants submit that he procured and/or was directly or indirectly, knowingly concerned in the contraventions by Visy in contravention of s 550(a) and (c).
237 The applicants concede that a finding that either Mr Scott or Mr Street is an accessory to a contravention is dependent upon the Court being satisfied that “he knew of the essential elements of the contravention”. These principles are well established: Yorke v Lucas (1983) 80 FLR 143 at 150; Giorgianni v The Queen (1985) 156 CLR 473 at 506 per Wilson, Dawson and Deane JJ, and at 487-488 per Gibbs CJ.
238 In Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299 the Full Court at [26] per Tamberlin, Gyles and Gilmour JJ said:
Regardless of the precise words of the accessorial provision, such liability depends upon the accessory associating himself or herself with the contravening conduct - the accessory should be linked in purpose with the perpetrators (per Gibbs CJ in Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473 at 479-480; see also Mason J at 493 and Wilson, Deane and Dawson JJ at 500). The words “party to, or concerned in” reflect that concept. The accessory must be implicated or involved in the contravention (Ashbury v Reid [1961] WAR 49 at 51; R v Tannous (1987) 10 NSWLR 303 per Lee J at 307E-308D (agreed with by Street CJ at 304 and Finlay J at 310)) or, as put by Kenny J in Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2002] FCA 61; (2002) 117 FCR 588 at [34], must participate in, or assent to, the contravention.
(Emphasis added.)
239 In Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) [2013] FCA 446 Bromberg J dealt with the question of accessorial liability in the context of an adverse action claim. At [289]-[290] his Honour explained
[289]… a person who assisted in the dismissal of an employee carried out by a contravener because of the employee’s race, could not be an accessory to the discriminatory conduct in the absence of having assisted knowing that the contravener’s conduct was motivated by race. Without that knowledge, it could not be said that the alleged accessory is “linked in purpose with the perpetrators”.
[290] An accessory will often know the principal perpetrator’s motive because the perpetrator will have revealed it. Alternatively, an accessory may know the perpetrator’s motive because their conduct is so intertwined, that the motive of one will be the obvious motive of the other.
240 To make out the allegations of accessorial liability the applicants must show that Mr Scott and Mr Street each took some intentional act in furtherance of the contravention and, as Bromberg J put it, knew of the “motive” behind the adverse action:
241 Importantly, the applicants do not have the benefit of the presumption in s 361 in relation to accessorial liability.
242 In the claim of accessorial liability against Mr Scott in relation to Visy’s actions in investigating and suspending Mr Zwart, the applicants must show that Mr Scott had knowledge that Mr Street acted for a prohibited reason. The respondents accept that, in communicating Mr Street’s decision to suspend Mr Zwart, Mr Scott engaged in conduct that assisted the contravention. However, as the respondents observe, the evidence does not establish that Mr Scott had knowledge of Mr Street’s reasons for taking these actions. Without such evidence, I do not conclude that Mr Scott is an accessory to Visy’s contraventions. This claim of accessorial liability fails.
243 The claim of accessorial liability against Mr Street for involvement in Visy’s decision in issuing the Final Written Warning suffers from the same difficulty. There is no clear evidence that Mr Street knew Mr Wiltshire’s motives or reasons for deciding to take that action. I am not satisfied on the balance of probabilities that Mr Street was linked in purpose with Mr Wiltshire.
244 However, the claim of accessorial liability against Mr Street in respect of Visy’s decision to investigate and suspend Mr Zwart does not have this shortcoming. Mr Street was the decision maker for the purposes of these two contraventions and is Visy’s guiding mind for these acts. He had knowledge of his own motives and he carried out various actions in furtherance of the contravention. There is no difficulty in finding that Mr Street procured and was knowingly concerned in Visy’s contraventions in suspending and investigating Mr Zwart. I am satisfied on the balance of probabilities that in making these decisions Mr Street was actuated, at least in part, by Mr Zwart's actions in tagging the forklifts and/or opposing the temporary measures proposed.
Other matters
The rule in Browne v Dunn
245 In reliance on the rule in Browne v Dunn [1894] 6 R 67 (“Browne v Dunn”), the respondents allege a lack of procedural fairness in that the applicants sought to impugn the credit of Mr Street and Mr Wiltshire but did not directly put to them in cross-examination that they were being untruthful. They describe the cross examination of these witnesses as “peripheral” and “willing to wound, but afraid to strike”: Reid v Kerr (1974) 9 SASR 367 at 374. They contend that Mr Street and Mr Wiltshire were not given adequate opportunity to deny that they had been untruthful in giving certain evidence, and that the respondents were therefore not adequately put on notice of the case required to be met.
246 In the formulation of the rule in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 16 (“Allied Pastoral Co v FCT”), Hunt J said:
It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn…
At 22 to 23 his Honour continued:
… There are many reasons why it should be made clear, prior to final addresses and by way of cross-examination or otherwise, not only that the evidence of the witness is to be challenged but also how it is to be challenged. Firstly, it gives the witness the opportunity to deny the challenge on oath, to show his mettle under attack (so to speak), although this may often be of little value. Secondly, and far more significantly, it gives the party calling the witness the opportunity to call corroborative evidence which in the absence of such a challenge is unlikely to have been called. Thirdly, it gives the witness the opportunity both to explain or to qualify his own evidence in the light of the contradiction of which warning has been given and also, if he can, to explain or to qualify the other evidence upon which the challenge is to be based…
247 In the present case I consider that the respondents incorrectly state the operation of the rule. In White Industries (QLD) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 at 216-217 Goldberg J explained:
The rule in Browne v Dunn is a rule of fairness which requires a party or a witness to be put on notice that a statement made by the witness may be used against the party or witness or to be put on notice that an adverse inference may be drawn against the witness or an adverse comment made about the witness in order that the witness may respond to that issue and give an explanation: Browne v Dunn [1894] 6 R 67 at 70; Bulstrode v Trimble [1970] VR 840 at 849; Karidis v General Motors-Holdens Pty Ltd [1971] SASR 422 at 425–6; Allied Pastoral Holdings Pty Ltd v FCT (1983) 44 ALR 607 at 623.
The significance of the rule is that it requires notice to be given of a proposed attack on a witness or on the witness’ evidence where that attack is not otherwise apparent to the witness. The rule does not require that there be put to the witness every point upon which his or her evidence might be used against him or her or against the party who calls the witness.
At 218 his Honour went on to say:
The rule does not apply, in the sense that it is not transgressed, where the witness is on notice that his version is challenged or that an inference may be drawn against him and such notice may be found in the pleadings, in an opening or in the manner in which a case is conducted: Seymour v Australian Broadcasting Commission [1977] 19 NSWLR 219 at 224-5, 236; Jagelman v FCT (1995) 31 ATR 467 at 472 -3; Raben Footwear Pty Ltd v Polygram Records Inc (1997) 145 ALR 1 at 15.
248 In Burke v Corruption and Crime Commission (2012) 289 ALR 150 a recent decision of the Full Court of the West Australian Court of Appeal, Buss JA (with whom Martin CJ and Mazza JA agreed) explained the rule in Browne v Dunn in the following terms at [180]-[192]:
[180] The rule in Browne v Dunn comprises two limbs. The first limb is that, unless notice has already clearly been given of the party's or cross-examiner's intention to rely upon such matters, a party or cross-examiner who intends to invite the court to disbelieve an opposing witness must put to the witness in cross-examination the grounds upon which the evidence is to be disbelieved. The second limb is that, unless notice has already clearly been given of the party's or cross-examiner's intention to rely upon such matters, a party or cross-examiner must put to an opposing witness in cross-examination the nature of the case upon which it is intended to rely in contradiction of the witness's evidence, especially where that case relies upon inferences to be drawn from other evidence (citations omitted).
…
[183] The first limb does not apply where the witness is clearly on notice of the other party's or cross-examiner's intention to invite the court to disbelieve the witness and the witness is also clearly on notice as to the grounds upon which it will be contended that his or her evidence should be disbelieved. The second limb does not apply where the witness is clearly on notice as to the nature of the case upon which it is intended to rely in contradiction of the witness's evidence.
249 Particularly apposite to the present case is a passage at [186] where his Honour said:
In Thomas v Van Den Yssel (1976) 14 SASR 205, Bray CJ (Jacobs and King JJ agreeing) said in relation to the general credibility of a witness (at 207):
[The] principles [in Browne v Dunn] cannot…be applied without qualification to a challenge to the witness’s credit generally…[I]n many…cases the witness must know that the other side will contend that he is not telling the truth, and even in some cases that he is deliberately not telling the truth. I cannot assent to the proposition that counsel cannot argue or the court find that a witness is deliberately giving false evidence unless the witness is asked some such question as, “I put it to you that your evidence is false”, or “I suggest that that is a deliberate lie” or the like.
And at [192]
Where the rule has been breached, and the tribunal of fact is a judge or a magistrate, there is no requirement that the court must accept or cannot reject evidence that has not been the subject of cross-examination. A failure to cross-examine a witness on a point does not mean that any evidence adduced in contradiction cannot be taken into account. The failure to cross-examine is merely a relevant factor to be evaluated and weighed, together with all other relevant factors in the case, in deciding whether to accept or reject the witness's evidence on the point. This is especially the case where the evidence in question is contradicted by other evidence.
(Citations omitted.)
250 The pleadings, the witness statements filed (including in the earlier interlocutory proceedings) and the written opening all set out the applicants’ version of events. The thrust of Mr Zwart’s case before me and through earlier interlocutory hearings was that the action taken against him was not because of his conduct in the meetings, but because he tagged the forklifts on safety grounds. It has always been his case that he rejected Mr Scott’s proposed temporary measures to deal with the deficiency with the beepers. The applicants’ case has always been that the respondents’ stated reasons for taking adverse action against Mr Zwart, were not their real reasons.
251 Mr Street is a party to the proceeding represented by counsel and must be taken to be aware of pleadings and the witness statements. He was obviously on notice that his version of the reasons for the adverse action was under attack. Mr Wiltshire too must have understood the same. I have no doubt that Mr Street and Mr Wiltshire understood that the applicants contended that the respondents’ stated reasons for taking action against Mr Zwart were not their real reasons. They each displayed a good understanding of the nuances of the applicants’ case. The events of 5 August, particularly the reasonableness of Mr Zwart’s conduct, were clearly at issue between the parties. It did not require to be put to each of the respondents’ witnesses that they were being untruthful in their account: see Stern and Another v National Australia Bank Ltd (2000) 171 ALR 192 at [42]-[44] per Hill, O’Connor and Moore JJ.
252 Nor is this a case where, having not challenged the veracity of the respondents’ evidence, the applicants surprised the respondents by producing contradictory evidence. The credit attack made on Mr Street’s and Mr Wiltshire’s evidence is largely based on inconsistencies in the respondents’ evidence, and its implausibility when seen against surrounding facts and circumstances. The evidence in the proceeding was put on by way of witness statements under a pre-trial timetable.
I certify that the preceding two hundred and fifty-two (252) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy. |
Associate:
