FEDERAL COURT OF AUSTRALIA
Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27
IN THE FEDERAL COURT OF AUSTRALIA | |
| Applicant | |
AND: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Respondent |
DATE OF ORDER: | |
WHERE MADE: |
1. In redeploying, suspending and dismissing the applicant, the respondent contravened s 351 of the Fair Work Act 2009 (Cth).
THE COURT ORDERS THAT:
2. The respondent pay the applicant $3000 by way of compensation for the distress and humiliation caused by its contravention.
THE COURT DIRECTS THAT:
3. On or before 6 February 2015, the parties draw up and file minutes of proposed final orders reflecting the Court’s reasons for judgment concerning the amount to be awarded to the applicant pursuant to s 545 of the Fair Work Act 2009 (Cth) for compensation for loss of income arising from the respondent’s contravention.
4. On or before 13 February 2015, the applicant is to file and serve any submissions he wishes to make as to the claim for penalties pursuant to s 546 of the Fair Work Act 2009 (Cth).
5. On or before 27 February 2015, the respondent is to file and serve any submissions it wishes to make as to the claim for penalties pursuant to s 546 of the Fair Work Act 2009 (Cth).
6. The submissions referred to in paragraphs 4 and 5 are not to exceed 10 pages.
7. On or before 6 March 2015, the applicant file and serve any reply he wishes to make to the respondent’s submissions, not to exceed 3 pages.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
VICTORIA DISTRICT REGISTRY | |
FAIR WORK DIVISION | VID 1072 of 2013 |
BETWEEN: | MUHAMMED ALI SAYED Applicant |
AND: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Respondent |
JUDGE: | MORTIMER J |
DATE: | 30 January 2015 |
PLACE: | MELBOURNE |
REASONS FOR JUDGMENT
INTRODUCTION
1 The applicant, Mr Sayed, was employed by the respondent, the Construction, Forestry, Mining and Energy Union, for a little over three months. Although both parties commenced their employment relationship with high hopes about Mr Sayed’s role in a somewhat historic alliance between the respondent and the Australian Workers’ Union (AWU), it was not to be.
2 Based on three causes of action, the applicant seeks relief from this Court in relation to his treatment during his employment with the respondent and in relation to the termination of his employment.
3 For the reasons I set out below, I have found that the respondent has contravened s 351 of the Fair Work Act 2009 (Cth) (Fair Work Act) in respect of three adverse actions taken against the applicant. The applicant is entitled to compensation for loss of income and for distress and humiliation. Compensation is limited because of a paucity of evidence about his loss, or the effect of the adverse action on him. Whether any penalties should be imposed pursuant to s 546(3) of the Fair Work Act will be the subject of separate determination, after submissions from the parties.
GENERAL FACTUAL FINDINGS
4 The parties filed an agreed statement of facts, which was tendered pursuant to s 191 of the Evidence Act 1995 (Cth). The matters in this section represent my findings on the chronology of events of the dispute, and are drawn from the agreed statement, and from the oral and documentary evidence. Factual findings which go to the core aspects of the applicant’s claims are dealt with in the following section of these reasons.
5 The applicant is a law graduate from the University of Melbourne. He has worked in a number of positions in property management and hospitality while completing his studies to make enough to pay his tuition fees and living expenses. In early 2013, and after completing his law degree, he answered an advertisement for the position of “Trade Union Organiser” with the respondent. The advertisement stated:
Fulltime position working within North Western Australia. You will participate in planning, implementing, and review of targeted organising campaigns. Duties will include probing targets, setting up campaigns, making initial contact, developing organising committees, systematic contact of members.
You must be self-motivated and have a genuine desire to help workers within the mining industry. You will need to be enthusiastic, work with energy and creativity. A commitment to trade unionism, excellent listening, verbal communication and interpersonal skills are an essential requirement for this position.
Good written communication and computer skills are required. Interstate travel maybe required. You will hold a current drivers licence.
The CFMEU Mining and Energy Division is a principal union that covers mine workers in Australia. You will be part of a highly motivated and dedicated team of organisers and will be working at the forefront of industrial organising.
6 Mr Vickers, the principal witness for the respondent, described the proposed alliance between the AWU and the respondent in the Pilbara region as coming after 100 years of “difficult history” and of the unions “hating each other”. The aim of the alliance, according to Mr Vickers’ evidence, was to commence re-unionisation of the iron ore industry in Western Australia, beginning with the Rio Tinto operations in the Pilbara.
7 One aspect of the alliance was an arrangement that two organisers — one from the AWU and one from the respondent — would be sent to live and work at the Pilbara, to start the process of encouraging re-unionisation of the Rio Tinto workforce. The position the applicant applied for was the CFMEU organiser in that arrangement.
8 The applicant attended an interview on 27 February 2013 with Mr Michael Weise, who is the National Organising and Training Coordinator for the CFMEU Mining and Energy Division.
9 Subsequently, on approximately 28 March 2013 the applicant had a telephone discussion with Mr Weise during which Mr Weise advised the applicant that he would be offered fixed-term employment, on a six-month contract, in the position of CFMEU trainee organiser in Queensland. The contents of this conversation are important to findings about the nature of the employment relationship between the applicant and the respondent, as well as to the applicant’s claim under Sch 2 of the Competition and Consumer Act 2010 (Cth) (the Australian Consumer Law).
10 That telephone conversation was followed up with a letter of offer to the applicant dated 1 April 2013, which he signed and dated on the same day and returned to the respondent.
11 The letter relevantly stated:
I am pleased to confirm our offer of employment to you as a Trainee Organiser with the CFMEU Mining and Energy Union. You are required to commence employment with us on Thursday the 11th of April 2013.The position is based on “Fixed Term” employment from your date of engagement until October 11th 2013. Severance and retrenchment provisions do not apply for fixed term employment.
The “Trainee Organiser” annual salary is $72,047 per annum. Your employment conditions are based on the UNITE Employment Agreement 2012. You will accrue leave on a Pro Rata basis.
12 The second letter given to the applicant that day, and signed and acknowledged by him, relevantly stated:
This letter is confirmation of our telephone discussion held on March 28, 2013. You applied for the position of organiser with the CFMEU Mining and Energy Union, to be based in Tom Price, Western Australia. This position is to be part of an alliance with the Australian Workers Union and therefore subject to such alliance being initiated. Due to unforeseen administration issue, the alliance is yet to be finalised and is currently unable to be initiated. As in interim measure you have been offered fixed term employment with the CFMEU Mining and Energy Union. In the event that the alliance can be initiated during your fixed term contract, it is expected that you will transfer to the alliance project and be relocated to Tom Price. Full time employment with the CFMEU Mining and Energy Union on the West Australian alliance will be subject to you accepting the employment contract for this position.
In the event that the alliance is unable to be initiated your employment with the CFMEU Mining and Energy Union will cease on October 11th 2013.
13 It was common ground between the parties that the reason Mr Weise offered the applicant a fixed-term contract of the kind he did was because the arrangements between the AWU and the respondent for the alliance had not been formalised and finalised, and Mr Weise did not want to “lose” the applicant.
14 On 11 April 2013 the applicant commenced employment with the respondent in Queensland. He relocated from Victoria to Queensland to take up the position. He worked with Mr Ross Kumeroa, who was the CFMEU lead organiser in Queensland. He described, and I accept, that his work involved “doing membership, organising meetings, doing trainings and at one of the occasions appeared before management, BHP management, to resolve a dispute between workers and the management”.
15 The applicant has in the past been a member of a political party called the Socialist Alliance. The Socialist Alliance is a registered political party at both state and federal levels in Australia. The applicant gave evidence that it is a socialist organisation, “heavy on … class politics”, revolving around the idea that there are those who own the capital and those who work. Its members variously supported the ideas of Trotsky, Marx, Mao and what the applicant described as “social democrats”. All these people, he said, came together in the Socialist Alliance as a “broad non-sectarian socialist political party”. He became involved in around 2009, and became a member. Eventually he had personal doubts about the political strategy he thought the Socialist Alliance used. He disagreed with what he saw as too much focus on elections and not enough on youth work. He withdrew as a member at the end of 2011, although he retained links and involvement for some time after that. The precise details of when his involvement ceased are relevant to the issues in the proceeding and I return to those details below.
16 In about June 2013 Mr Weise gave the applicant a proposed contract relating to his employment as an alliance organiser in the Pilbara, entitled “CFMEU Mining & Energy Division 2013 West Australian Mining Alliance Employment Agreement” (the Pilbara contract). The applicant had a discussion with Mr Weise about the stipulated six-month probationary period in the agreement. The applicant said, and I accept, that after consulting Mr Vickers, Mr Weise informed him that the time he had worked under the six-month fixed-term contract would count towards the probationary period in the Pilbara contract. The applicant said, and I accept, that this conversation with Mr Weise occurred in the respondent’s national office in New South Wales at the end of June 2013, at a training meeting for its organisers.
17 At this time Mr Michael Kerley, an organiser from the AWU, had been working with Mr Kumeroa and the applicant in Queensland. This was pursuant to an arrangement under the proposed alliance, whereby the nominated organiser from each of the CFMEU (the applicant) and the AWU (Mr Kerley) would spend time working in the partner union, to gain a better understanding of how that union operated, especially in the way it organised its members. Mr Kerley stayed with the applicant and travelled around with him.
18 The applicant tendered some evidence, in the form of an agenda and some documents of a meeting held on 26 June 2013 at the respondent’s national offices in Sydney, which set out the proposed arrangements between the two unions. The four people at the meeting were the applicant and Mr Weise, and Mr Kerley and Mr Daniel Walton from the AWU. Mr Kerley was to report to Mr Walton, and the applicant was to report to Mr Weise.
19 The alliance was formally launched the same day. It was “formalised”, to use Mr Vickers’ term, by a memorandum of understanding (MOU) between the two unions. The terms of that memorandum are not material to the issues in this proceeding, however the fact that it was formalised on 26 June 2013 is of some significance to the applicant’s arguments.
20 The formalisation of the alliance meant that the applicant would shortly thereafter move to Western Australia, to begin preparatory work on the alliance project.
21 After the 26 June 2013 launch in Sydney, the applicant returned to Queensland. On about 1 July 2013 there was an incident at a motel, which the respondent sought to highlight in the applicant’s cross-examination. The applicant objected to the line of questioning. The incident involved an accident whereby the applicant had driven a rental car into the side of a motel at which he was staying with Mr Kerley. Allegations were made by the motel staff about rude behaviour, which the respondent sought to attribute to the applicant. These allegations were made first through Mr Weise at the time, in a telephone conversation with the applicant on 3 July 2013, and then again in cross-examination in this proceeding. The applicant denied the allegations, both at the time to Mr Weise and in evidence. In evidence the applicant stated eventually Mr Weise accepted it was Mr Kerley who had interacted with the particular motel staff member who had made the complaint, not him. In his evidence Mr Weise did confirm the applicant denied engaging in the behaviour at the time.
22 The respondent submits the motel incident was principally relevant to the applicant’s credit, as well as being relevant to his damages claim, on the basis that it was the kind of incident which demonstrated that, even if the termination of the applicant’s employment was unlawful, his employment would not in any event have lasted very long because of his behaviour.
23 I reject both submissions. I see nothing in the way the applicant dealt with this topic in his evidence which reflects poorly on his credit. In my opinion it is clear the applicant maintained at the time (as confirmed by Mr Weise) that it was not he who had engaged in this behaviour, and he continued to maintain that in his evidence. I also do not accept that there is anything in this evidence which could support an inference that the applicant would have subsequently engaged in conduct such as that alleged against him on this occasion so as to bring his employment to an early conclusion in any event.
24 Mr Weise then spoke to the applicant again on 5 July 2013. This meeting was in person, in Brisbane, at Mr Weise’s initiative. It lasted about half an hour. The purpose of the meeting, on Mr Weise’s evidence (which I accept) was to raise some issues with the applicant about his demeanour and approach before he headed over to Western Australia. Mr Weise’s evidence, which I accept, was
I said to Ali, you know, that I considered him a very bright person, passionate, but, you know, over the top in some respects and we had had discussions previously about – and they were general discussions, and we were talking about social issues and, you know, refugee rights and, you know, Ali was quite happy to talk about things that he had done previously and said, you know, that unions ought to be doing more in that regard, you know, and I said, “Well, you know, we need to just keep things simple. Back off; you’re making people uncomfortable with the way that you present yourself.”
25 In cross-examination, the applicant accepted that Mr Weise did give him some advice to this effect at the 5 July meeting, although the applicant denied any specific complaints were put to him. In my opinion, Mr Weise may have placed a gloss on the amount of detail he put to the applicant on that occasion and, in contrast, the applicant underplayed the matters Mr Weise raised with him. For the purposes of the issues in this proceeding, and especially the respondent’s submissions about the way the applicant did not “fit” with the alliance arrangement, I find that Mr Weise was, by 5 July 2013, raising aspects of the applicant’s behaviour and attitude because Mr Weise believed the applicant was having trouble adjusting to the milieu in which he found himself, and believed there were some interpersonal difficulties between the applicant and the AWU officials he was working with, especially Mr Kerley.
26 The applicant also gave evidence that he asked Mr Weise if he could be paid under the Pilbara contract when he moved to Western Australia. His evidence was that Mr Weise responded “Your pay will go up on the date of the contract”. Mr Weise did not contradict this version in his evidence and I accept this was the substance of what was said about the Pilbara contract on 5 July 2013.
27 On 8 July 2013 the applicant commenced work in Western Australia. He commenced work in Bunbury at the AWU office, working with five or six AWU organisers and officials, just as Mr Kerley had worked with CFMEU organisers in Queensland.
28 There was little or no direct evidence about the performance by the applicant of his work in Western Australia between 8 and 16 July 2013. As the applicant contended in final submissions, the respondent did not defend this proceeding by seeking to prove misbehaviour, misconduct or poor performance on the part of the applicant. Rather, as I set out below, the respondent relied on the existence of complaints from the AWU, and Mr Vickers’ and Mr Weise’s opinions about those complaints. I return to those issues in more detail below.
29 On or about 16 July 2013 Mr Weise called the applicant to tell him the respondent had received complaints from the AWU about the applicant. There had been a complaint made by Mr Paul Howes, the Secretary of the AWU, to Mr Tony Maher, the National President of the respondent, that the applicant was “a Trot” and was “bagging” AWU officials and delegates. The evidence appears to be that this conversation occurred on or prior to 16 July 2013.
30 Mr Weise told the applicant he was directed to attend a meeting in Sydney to address those complaints. It was common ground that this direction was given by Mr Vickers, was triggered by the conversation between Mr Howes and Mr Maher, and was conveyed to the applicant through Mr Weise. It appeared to be common ground there was in fact more than one telephone conversation between Mr Weise and the applicant on 16 July 2013 about the need for him to travel to Sydney. The various accounts of these conversations are contentious and relevant to the issues in the proceeding and I deal with these in more detail below.
31 The applicant flew to Sydney as directed, having packed up all his personal belongings from where he was staying in Perth.
32 An email was sent by Mr Walton of the AWU dated 18 July 2013, which set out a series of complaints the AWU had about the applicant and his behaviour, although this was after the direction had been given to the applicant to return to Sydney for the meeting on 18 July 2013. However, the “bagging” allegation appears to have been made by Mr Howes prior to the 16 July 2013 conversations between Mr Weise and the applicant. The details of the complaints, and how they relate to the direction to come to Sydney, are contentious and I deal with them below.
33 On 18 July 2013 the applicant met with Mr Weise, Mr Vickers, and Mr Maher at the respondent’s offices in Sydney. He had asked for Mr Kumeroa to be flown down from Queensland to act as his support person at the meeting, and the respondent had agreed to this. Mr Weise took contemporaneous notes of what was said at the meeting, which were tendered in evidence. His evidence, which I accept, was that he did not get everything down in his notes, but “tried to capture as much as … I possibly could” of what was said. Again, what was said at the meeting is contentious to some extent, and I return to my findings on this issue at [99] below.
34 As a result of that meeting, the applicant did not return to Western Australia. Instead, on 22 July 2013 he returned to Queensland and continued working as an organiser at the Queensland branch.
35 That same day, another employee of the respondent drew some matters about the applicant to Mr Vickers’ attention. This person was one Mr Andrew Dallas, a legal industrial officer employed in the national office of the Mining and Energy Division of the respondent, but who was working out of the Queensland office. This included informing Mr Vickers about material appearing on the applicant’s Facebook page. This material, according to Mr Vickers, indicated two things — first, that the applicant was active with the Socialist Alliance at times after those he had given to Mr Vickers during the 18 July 2013 meeting and, second, that the applicant had posted some comments on Facebook on the day of the 18 July 2013 meeting. There was no dispute about the text of the comments, an extract from the applicant’s Facebook page being tendered in evidence in the proceeding. The comments were:
Oh how the world changes. When you think you know smone [sic] find out got buncha rats around you! No worries stay true to yourself and keep soldering on.
36 The meaning and context of the applicant’s comments was the subject of some debate and I deal with this below.
37 This information caused Mr Vickers to write to the applicant, in a letter dated 23 July 2013. In this letter Mr Vickers advised the respondent had suspended the applicant from his position on full pay with immediate effect. The letter required the applicant to show cause why his employment should not be terminated, and required him to attend a meeting at the respondent’s national office in Sydney on 26 July 2013. Mr Vickers also advised the applicant to provide a response to the allegation made against him in the letter as soon as possible but no later than the commencement of the meeting on 26 July 2013. In its terms, the letter disclosed Mr Vickers’ concerns were twofold. First that the applicant had lied to Mr Vickers about his involvement in the Socialist Alliance since 2010. Second that the Facebook posting to which I have referred at [35] above was directed at Mr Vickers, and/or other officials of the respondent, and the use of the term “rats” in the context of the labour movement was “offensive and derogatory”.
38 The applicant provided a response the following day, 24 July 2013. In that response, he stated that he now “realize[d] that I made a mistake in dates of my resignation from Socialist Alliance” and stated he actually left “end 2011 start of 2012”. He also stated that he made the Facebook posting “well before” he met with Mr Vickers and that it was “clearly directed to someone I have known on a personal level” rather than Mr Vickers or CFMEU officials. He did not name the person in his response. In his oral evidence, the applicant developed these two explanations somewhat and I deal with these developments below.
39 The meeting occurred on 26 July 2013 as foreshadowed. It was not a long meeting. As I set out below, I find Mr Vickers had already made up his mind about the applicant’s fate before the meeting started. He was absolutely firm in his opinions. He did not accept the applicant’s explanations. He considered he had been lied to. He told the applicant he considered he was not fit to work as a trainee organiser with the respondent and that, although he could be summarily dismissed for what Mr Vickers believed he had done, the respondent would instead pay out his fixed-term contract subject to the applicant leaving immediately and returning all property belonging to the respondent.
40 That is what occurred. It was common ground the applicant was paid out all his entitlements under his fixed-term contract up to 11 October 2013.
THE APPLICANT’S CLAIMS AND THE RESPONDENT’S RESPONSES
The adverse action claims
41 The applicant identified in his statement of claim five events or pieces of conduct which he alleged constituted adverse action for the purpose of s 342 of the Fair Work Act. They are:
1. The conduct on 16 July 2013 when the applicant was informed of complaints against him and directed to fly to Sydney to attend a meeting about the complaints;
2. The conduct of the meeting on 18 July 2013 in Sydney;
3. The redeployment of the applicant to Queensland after the 18 July 2013 meeting;
4. The giving of the show cause letter of 23 July 2013 to the applicant; and
5. The termination of the applicant’s employment on 26 July 2013.
42 The respondent accepted that the last two events were within the meaning of “adverse action” in s 342, but denied that the first three events could be characterised in that way. The respondent accepted the giving of the show cause letter constituted a threat to take adverse action (by way of dismissal) within the scope of s 342(2) of the Fair Work Act.
43 Insofar as the first three events or pieces of conduct were concerned, the applicant alleged those actions injured the applicant in his employment (s 342(1), Item 1(b)), or discriminated between the applicant and other employees of the respondent (s 342(1), Item 1(d)) and (as to the redeployment only) altered the position of the applicant to his prejudice.
44 On the first day of the trial the applicant applied for and was granted leave to rely on an amended statement of claim, which in substance added one matter. In relation to the first, second and fourth events or pieces of conduct the applicant also sought to allege the conduct altered the position of the applicant to his prejudice, for the purposes of Item 1(c) of the table in s 342(1), thus bringing the pleading into line with the allegations in respect of the redeployment.
45 In relation to each of the five events or pieces of conduct, the applicant alleged that the adverse action was taken for reasons including the applicant’s political opinion. In other words, for the purposes of s 351(1), the applicant alleged all the identified adverse actions were taken “because of” his political opinion. The applicant contended, relying on s 360, that the reasons for the adverse action at least included his political opinion.
46 No particulars were given in the statement of claim of what constituted the applicant’s political opinion. Not surprisingly, particulars were sought by the respondent. In a letter dated 25 October 2013 the respondent sought particulars of various aspects of the applicant’s statement of claim. A response was provided by the applicant on 8 November 2013. There are only two relevant aspects of the particulars to the issues which need to be determined. First, the manner in which the applicant particularised his political opinion. Second, the manner in which the applicant particularised the allegation that he was a member of a “political party” called the Socialist Alliance.
47 On the first aspect, the applicant identified his political opinion in the following way:
the Applicant’s political opinion included political opinions he shared with the Socialist Alliance, his membership of the Socialist Alliance, his alleged belief in “Trotskyism”, and the belief that he was a communist.
48 On the second aspect, the applicant gave the following particulars:
(a) the Socialist Alliance is a political party insofar as it is a party with a political opinion;
(b) the Applicant was a member insofar as he paid membership fees;
49 The respondent contended that the applicant’s political opinion formed no part of the reasons for any of the actions, even if they were all properly characterised as adverse actions. It contended that, even if the Court were to find that the applicant’s membership (past, present, or imputed) of the Socialist Alliance was a reason for any of the alleged adverse actions, membership of the Socialist Alliance did not constitute a “political opinion” as that phrase should properly be construed in s 351(1) of the Fair Work Act.
The contract claim
50 This claim is put on the basis that the Pilbara contract became a reality rather than, as the respondent contends, simply being the subject of negotiations which were never concluded. The applicant contended that he commenced employment under the Pilbara contract on 8 July 2013, when he moved from Brisbane to Perth. This contract, he contended, entitled him to higher rates of pay, and was for a fixed term until 31 December 2014.
51 The applicant contended that his dismissal on 26 July 2013 was thus in breach of the Pilbara contract.
52 As I have noted, the respondent’s answer to this claim was a simple one: namely, that the only contract between the parties was the six-month fixed-term contract which was due to expire on 11 October 2013, and the Pilbara contract was never concluded. In the alternative, the respondent contended that, even if the Court were to find the Pilbara contract was concluded, it contained an express term permitting the respondent to terminate the applicant’s employment without notice during the probationary period, or on one month’s notice outside that period. Therefore, there was no breach. The termination on 26 July 2013 was within the probationary period, alternatively the applicant was paid out in a sum which exceeded one month’s pay in lieu of notice.
The consumer law claim
53 The applicant alleged in his statement of claim that the respondent (through Mr Weise, it appears to be alleged) made two representations for the purposes of ss 18 and 31 of the Australian Consumer Law.
54 The first is expressed in the statement of claim at [40] to be “that when the Western Australian Mining Alliance was operational it would employ him at Tom Price in a full time capacity”.
55 Senior counsel for the applicant informed the Court in opening at trial that the second pleaded representation was not pressed and I do not consider it further.
56 The respondent denied the entirety of the allegations made by the applicant in respect of the consumer law claim. In its submissions, the respondent contended the representation was not made in the terms alleged and, even if it was, it was not made in trade or commerce, and was a representation as to future matters and not false or misleading at the time it was made. Alternatively the respondent submitted it had reasonable grounds to make the representation and on no basis was the representation false or misleading.
Loss and damage claims
57 The only economic loss which was quantified by the applicant was alleged to be the loss of income from the Pilbara contract until the date it was expressed to expire: namely, 31 December 2014. The applicant alleged this loss amounted to the sum of $120,188.77 in lost income, plus eligible superannuation entitlements.
58 The applicant also alleged that the contraventions of the Australian Consumer Law caused him to elect not to go on and complete a Graduate Diploma in Legal Practice so as to be able to seek employment as a legal practitioner. No claims for loss and damage were quantified in respect of this claim.
59 In relation to the adverse action claims, aside from the claim for penalties, the applicant claimed damages or compensation for “distress, humiliation, pain and suffering”. He also sought reinstatement.
60 As to the claim for penalties under the Fair Work Act, and the claim that any penalties imposed be paid to the applicant, the parties informed the Court that both sought an opportunity to be heard on appropriate penalties, and issues about payment, if the Court concluded the contraventions were established.
RELEVANT LEGISLATIVE PROVISIONS
61 Relevantly, s 351 of the Fair Work Act is headed “Discrimination” and prohibits the taking of adverse action by an employer against an employee for specified reasons. At the time of the alleged contraventions it provided:
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Note: This subsection is a civil remedy provision (see Part 4 - 1).
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or
(b) taken because of the inherent requirements of the particular position concerned; or
(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed — taken:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
62 “Adverse action” is defined in s 342(1) by means of a table setting out the circumstances in which a person takes adverse action against another person. In relation to an employer and employee, Item 1 of the table provides:
Adverse action is taken by … if …
an employer against an employee the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
63 Each of the federal, territory and state anti-discrimination statutes are specified in s 351(3) as an “anti-discrimination law” for the purposes of subs (2).
64 By s 342(2), adverse action includes threatening to take and organising the action specified in the table in s 342(1).
65 Section 360 of the Fair Work Act is an important provision for the resolution of this proceeding. It provides:
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
66 Section 361 affects the manner in which the reason for particular action is to be proved. It provides:
(1) 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.
67 Section 545 provides for payment of compensation for contraventions of the Fair Work Act:
(1) The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.
…
(2) Without limiting subsection (1), orders the Federal Court or Federal Circuit Court may make include the following:
(a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;
(b) an order awarding compensation for loss that a person has suffered because of the contravention;
(c) an order for reinstatement of a person.
…
68 Section 546 of the Fair Work Act empowers the Court to impose penalties for contraventions of civil penalty provisions of the Fair Work Act and, if satisfied it is appropriate, to order any such penalty to be paid to a specified person, including the employee affected by the contravention. Section 546 provides:
(1) The Federal Court, the Federal Circuit Court or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.
…
Determining amount of pecuniary penalty
(2) The pecuniary penalty must not be more than:
(a) if the person is an individual — the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2); or
(b) if the person is a body corporate — 5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2).
Payment of penalty
(3) The court may order that the pecuniary penalty, or a part of the penalty, be paid to:
(a) the Commonwealth; or
(b) a particular organisation; or
(c) a particular person.
Recovery of penalty
(4) The pecuniary penalty may be recovered as a debt due to the person to whom the penalty is payable.
No limitation on orders
(5) To avoid doubt, a court may make a pecuniary penalty order in addition to one or more orders under section 545.
69 The applicant also makes a claim of contraventions of s 18, or alternatively s 31, of the Australian Consumer Law. Those sections provide:
18 Misleading or deceptive conduct
(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
(2) Nothing in Part 3-1 (which is about unfair practices) limits by implication subsection (1).
31 Misleading conduct relating to employment
A person must not, in relation to employment that is to be, or may be, offered by the person or by another person, engage in conduct that is liable to mislead persons seeking the employment as to:
(a) the availability, nature, terms or conditions of the employment; or
(b) any other matter relating to the employment.
70 The applicant alleges the respondent’s contraventions of those provisions entitle him to orders for the payment of loss and damage pursuant to s 236 of the Australian Consumer Law, alternatively orders for the payment of compensation pursuant to s 237 of the Australian Consumer Law. Those sections provide:
236 Actions for damages
(1) If:
(a) a person (the claimant) suffers loss or damage because of the conduct of another person; and
(b) the conduct contravened a provision of Chapter 2 or 3;
the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.
(2) An action under subsection (1) may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct accrued.
237 Compensation orders etc. on application by an injured person or the regulator
(1) A court may:
(a) on application of a person (the injured person) who has suffered, or is likely to suffer, loss or damage because of the conduct of another person that:
(i) was engaged in a contravention of a provision of Chapter 2, 3 or 4; or
(ii) constitutes applying or relying on, or purporting to apply or rely on, a term of a consumer contract that has been declared under section 250 to be an unfair term; or
(b) on the application of the regulator made on behalf of one or more such injured persons; make such order or orders as the court thinks appropriate against the person who engaged in the conduct, or a person involved in that conduct.
…
(2) The order must be an order that the court considers will:
(a) compensate the injured person, or any such injured persons, in whole or in part for the loss or damage; or
(b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the injured person or any such injured persons.
(3) An application under subsection (1) may be made at any time within 6 years after the day on which:
(a) if subsection (1)(a)(i) applies — the cause of action that relates to the conduct referred to in that subsection accrued; or
(b) if subsection (1)(a)(ii) applies — the declaration referred to in that subsection is made.
FACTUAL FINDINGS IN RELATION TO CONTENTIOUS ASPECTS OF THE APPLICANT’S CLAIMS
71 All witnesses gave oral evidence. It is as well to begin with general findings about each of the relevant witnesses.
72 It was clear to me that the applicant is a person who is firmly passionate in his views. The Facebook page extract displays an icon for the applicant which, rather than a photo of the applicant or anything from his personal or social life, displays the words “[s]eeking asylum is a human right”. He appears to be a person who makes his views known, with some conviction. The evidence about the approach he brought to his position(s) with the respondent suggests he had a strong desire to support workers at a grassroots level, and to advance their workplace rights.
73 However, it is clear he was also inexperienced with union structures and union politics. I accept Mr Weise’s evidence that he found the applicant to be passionate, and to be a person who spoke up on social justice issues, and might have been inclined to do so even if the context, in terms of where he was and who he was with, was not conducive to strong expression of those views.
74 I accept that at all material times the applicant held a political opinion aligned with the political platform of the Socialist Alliance. In describing how he came to be involved in the Socialist Alliance, he said:
Initially, I was reluctant in getting active, because I frankly didn’t understand socialism or Communism, coming from Pakistan where, you know, there was very anticommunist education. We went to war with the Soviet Union in Afghanistan, so communism was not really something looked upon or understood. And it took me a few months to actually just engage with them, talk with them around different political issues before actually getting active or involved with them in 2009.
75 He did not refer in his own evidence to any identification with particular political theories, although he did refer to communism. He did make it clear that he came to support the kind of platforms advocated by the Socialist Alliance:
I had, to begin with, views similar but not the same, like, around social justice, around crimes that took place here against indigenous population, stolen land, what was taking place around asylum seeker issues so I mean in principal a lot of what they were saying I agreed with before getting involved but once I got involved I really understood and studied on the whole class nature of politics and society and then basically shared those views with other people to recruit them into Resistance and set up Resistance clubs on campuses…
76 I accept his evidence that he parted company with the Socialist Alliance not because of any disagreement with their political platform but because he did not agree with some of their political strategies. He encapsulated his explanation in the following evidence, which I accept:
I had doubts about the political strategy that we were using, namely, focusing so much on elections and not so much around youth work. These differences started emerging around mid to late 2011 and 2012 national conference, after that I decided that it was probably – yes, I just felt that I will be wasting my time. I still agreed with their politics, with their views, I have the same views but as a political organisation, how we were operating, I had concerns that really it’s not achieving the political goals we should be aiming for.
77 That the applicant continued to share the political views of the Socialist Alliance is consistent with the threat he made in his 23 July 2013 response to Mr Vickers that he would rejoin the Socialist Alliance.
78 As a witness, in terms of his recollection I found the applicant reliable on some issues and not others. In terms of his recollection of conversations, he appeared not to have an especially good recollection of the detail of conversations, although on some occasions, which I set out below, I found his response to be genuine and clear in distinguishing between matters he did recollect that he or others had said, and those he denied were said. To this end, he made concessions about what others said which were sometimes against his interests but which I consider to be an indicator of a general level of honesty.
79 I find that he tended to agree with propositions put to him in cross-examination more, it seemed, to put an end to the questioning than because he in fact agreed with the version of events being put to him. For that reason I have given little weight to the answers in his evidence which were along the lines of “if that is how you want to put it, then I will agree…”. The applicant was not a forthcoming witness and there were aspects of his evidence where his explanations remained incomplete and unsatisfactory — for example, his evidence about why he did not tell Mr Vickers the true extent of his involvement with the Socialist Alliance.
80 Mr Vickers was a confident witness whose evidence was frankly expressed. Relevantly, I have found at [233] below, that his denials about the role played by the applicant’s affiliations with the Socialist Alliance in his decision-making should not be accepted. Otherwise, his evidence about the sequence and nature of contested events was generally reliable.
81 Mr Weise I found to be a generally reliable witness, although his recollection of details of conversations was, like the applicant’s, imperfect.
82 It was curious that no party called Mr Kumeroa as a witness. I make one finding about his absence at [314] below.
The basis of the applicant’s employment
83 It is clear from the evidence that the applicant applied for a position working as an organiser for the respondent on a new venture with the AWU in the Pilbara. He did not apply to be a general organiser with the respondent. He was employed on the recommendation of Mr Weise because Mr Weise considered the applicant was a good candidate for the advertised Pilbara position, not because Mr Weise considered the applicant should be employed by the respondent for any other reason. The parties both submitted that the six-month fixed-term contract under which the applicant was employed was an interim arrangement, made so that the respondent did not “lose” the applicant and he would be available to take up the organiser position when the alliance with the AWU was finalised, as all parties expected it would be. I accept those submissions.
84 The applicant altered his living arrangements to accommodate both the interim position and the alliance position. He moved from Melbourne to Queensland, and then from Queensland to Western Australia.
85 The applicant was given a copy of a proposed employment contract for his position as an organiser with the alliance by Mr Weise.
86 The proposed Pilbara contract was expressed to commence on 22 July 2013. It was expressed, in proposed cl 2, to remain in force until 31 December 2014. It is clear the parties were indeed working towards a start date on or about 22 July 2013 when the applicant left Queensland and moved to Western Australia from 8 July 2013, after the signing of the MOU with the AWU. Clause 14 of the Pilbara contract provided:
14. PROBATIONARY PERIOD
Employees shall be subject to a probationary period of 6 months from the commencement of their employment. During this probationary period, the employer, or the employee, may terminate the employment agreement without providing notice to the other party.
The severance and retrenchment provisions of this agreement do not apply during the probationary period.
87 Aside from the probationary period clause, cl 3 entitled either party to terminate the contract of employment on one month’s notice.
88 As I set out in more detail below at [262], I find that there was never a concluded agreement between the applicant and the respondent in relation to the Pilbara contract.
89 Therefore, I proceed on the basis of a finding that at all material times the applicant’s employment was governed by the six-month fixed-term contract of employment with the respondent.
The direction to the applicant on 16 July 2013 to attend a meeting in Sydney
90 After he had arrived in Western Australia on 8 July 2013, the applicant went to work at the Bunbury office of the AWU, with five or six AWU officials including Mr Kerley. He arrived in the middle of a campaign by the AWU to secure majority support for a petition signed by workers or members at one of the BHP plants, in order to start enterprise negotiations between BHP and the AWU.
91 Just over a week after the applicant had arrived, a complaint was made which led to Mr Weise having a conversation with the applicant, during which he directed the applicant to attend a meeting in Sydney. The applicant’s evidence was that there were three conversations with Mr Weise on 16 July 2013. The applicant had been due to fly to Tom Price on approximately 22 July 2013, to begin work with the AWU on the Pilbara alliance.
92 In the first conversation, the applicant described being told by Mr Weise to “pack up my stuff and he will make arrangements for me to fly to Sydney where Andrew Vickers and Tony Maher need to speak to me or want to speak to me”. I accept the applicant’s evidence that Mr Weise told him he did not know the reasons for the meeting.
93 The applicant then called Mr Weise back. He asked for more information and for a support person, nominating Mr Kumeroa.
94 The third conversation involved Mr Weise calling the applicant back, telling him Mr Vickers agreed to Mr Kumeroa being flown down to act as a support person. In this third conversation the applicant’s evidence was Mr Weise told him the meeting “was basically around my membership of a political party, Socialist Alliance”. His evidence was Mr Weise used the phrase “not happy with my politics”, in describing the complaints. In cross-examination he maintained this phrase had been used, saying he was told Tony Maher had received complaints from Paul Howes. He repeated, in cross-examination, that what he was told was that Paul Howes had a “complaint about your politics and Social – and your involvement with Socialist Alliance”.
95 In cross-examination he agreed Mr Weise had also conveyed to him there was a complaint about the applicant “bagging” AWU officials to AWU members.
96 Mr Weise did not give any evidence in chief on the topic of the 16 July 2013 meeting. In cross-examination he admitted that all the detail he had at the time of the 16 July 2013 conversations (of which he said there were two) was that some links had been discovered about the applicant’s involvement with the Socialist Alliance and that Mr Maher had received complaints from Mr Howes that the applicant was “bagging” AWU officials to their members.
97 The evidence of both the applicant and Mr Weise is to the same effect about the topics of the conversation being the applicant’s links with Socialist Alliance and complaints that he had been “bagging” AWU officials to their members. It is immaterial whether the content was spread over two conversations or three and neither witness’s recollection was clear enough to make a finding one way or the other. Both witnesses were clear that Mr Weise did not offer any reason for the direction to attend the meeting in Sydney, or indicate what the meeting was about in the first conversation he had with the applicant. I am not prepared to accept Mr Sayed’s evidence that his “politics” was at least part of the way Mr Weise described the problem. The witnesses’ recollections are not clear enough for me to be persuaded one way or the other about whether any such term was in fact used by Mr Weise.
98 So far as the issues in dispute are concerned, the important factual point is that one of the two reasons given to the applicant by Mr Weise for the applicant being directed to “pack up” and go to Sydney was his links to, or involvement with, the Socialist Alliance. It is also important that, at this stage, the concern on this issue was expressed as originating from Mr Howes. In my opinion, the fact Mr Howes was the person making the complaint explains to a large extent why it was acted on so precipitously, and why the applicant was summoned in such an arbitrary fashion to “pack up” and fly back across the country to deal with the complaint.
The 18 July 2013 meeting
99 The meeting was convened on Mr Vickers’ directions, as the person responsible in a line management sense for the applicant. Nevertheless, it was only a preliminary or first inquiry about the complaints made by Mr Howes. The applicant was being given a chance to explain his side of the story, and I find that Mr Vickers and Mr Weise brought reasonably open minds to that meeting. They were, I find, concerned especially at anything which might threaten the embryonic alliance in the Pilbara. Work on the alliance was very close to commencing and the alliance had already been formalised by an MOU signed on 26 June 2013. It was this heightened concern which led to the convening of the meeting.
100 There were some aspects of the conversations during this meeting which were not in dispute in substance. I make the following findings. Present at this meeting were Mr Maher, Mr Vickers, Mr Weise, the applicant and Mr Kumeroa. It was held at the respondent’s national office in Sydney. The atmosphere was tense, there was none of the small talk about sport or the like which often accompanied such meetings. The applicant had met Mr Vickers and Mr Maher only once before, at different times. Mr Maher told the applicant there were two areas of complaint against him — his association with the Socialist Alliance and his “bagging” of AWU officials.
101 It was Mr Maher who led the conversation with the applicant at the meeting about the remarks made by Mr Howes. The applicant’s evidence, which I accept on these issues, was that Mr Maher told the applicant he received a phone call from Mr Howes, who raised a “couple of concerns” with him — his association with the Socialist Alliance and his “bagging” of AWU officials. Mr Maher told the applicant what Mr Howes had said during his telephone call to Mr Maher — “once a Trot, always a Trot”. Although it is not in Mr Weise’s notes, Mr Vickers accepted this is what Mr Maher conveyed to the applicant at the meeting.
102 Mr Vickers also gave some evidence about how the complaint from Mr Howes had been conveyed. His evidence was that Mr Maher had made a statement to Mr Vickers in early July 2013 (Mr Vickers could not be more precise about the date) to the following effect “Howes has got a problem with our bloke in the West. He reckons he’s a Trot and he’s bagging his officials and delegates”. It was this conversation with Mr Maher that prompted Mr Vickers to call Mr Weise and have him arrange a face to face meeting with the applicant. There is also an email from Mr Howes to Mr Maher, on 16 July 2013, but it is clear this email is for the purposes of Mr Howes providing further information about the applicant to Mr Maher to support his complaint. The email consists of hyperlinks to two Socialist Alliance websites, one Facebook page and a “Greenleft” website.
103 Mr Maher also told the applicant the AWU was not happy with his body language and demeanour; that he got “in other people’s personal space”.
104 The applicant’s evidence was that Mr Vickers was the person who spoke most about the second aspect of the complaint. Mr Vickers told the applicant Mr Howes had complained about the applicant bagging the AWU to its members, and bagging AWU officials to AWU members. Mr Vickers told the applicant one of the complaints was that he had said the AWU was a bosses’ union and had sold out on its members.
105 There were three key statements made by Mr Vickers. The applicant gave evidence, and I accept, that Mr Vickers talked “a fair bit” about why the applicant’s involvement with the Socialist Alliance was not acceptable. There was no debate between the parties that Mr Vickers made these statements. The real issue is what they reveal about Mr Vickers’ reasons for taking the decisions he did at this meeting, and subsequently.
106 The first statement made by Mr Vickers was in relation to the applicant’s involvement with the Socialist Alliance. Mr Vickers told the applicant “It may be a problem for Mr Howes but it is not a problem for me”.
107 In cross-examination, the applicant agreed that Mr Vickers had then continued, with words to the effect of “Having said that, the Trots have a history of infiltrating progressive organisations and seeking to undermine them”. In his own evidence, the applicant described Mr Vickers’ statements in the following way:
That he – that this was a huge concern. He has seen what Socialist Alliance does, how it infiltrates the union movement and hijacks trade unions. He talked about his bad experience that his wife had, who – with her union Socialist Alliance had played a negative role. And that he won’t sit back and watch a union that he has worked for and built for so many years be taken over by Socialist Alliance…. Their policies are destructive. He talked about, you know, that they’re – if they want to take over the union, it will be complete destruction…. He will not sit back and allow Socialist Alliance to take over the union. I remember that. Those were his words. I remember the negative role Socialist Alliance had played in his wife’s union. I remember him talking about how destructive Socialist Alliance and their influence in the union movement is. Now, if you’re talking – if you ask me to put this in quotation marks, this is the best I can come up with.
108 There were other versions of this conversation put to the applicant in cross-examination, but the applicant did not accept them. In my opinion the passages I have extracted above reflect his best attempt to recall what Mr Vickers said. It is obvious from his own evidence that it is in part recall, and in part reconstruction.
109 Mr Vickers himself did not really deny the substance of the applicant’s evidence about these statements. I note that there is some inconsistency between Mr Vickers’ assertion I have set out in [106] and the remainder of his remarks. This is an inconsistency of the same character as that apparent in his oral evidence. I express my findings on the importance of those inconsistencies at [228]-[233] below.
110 Mr Vickers’ recollection of the allegation made by Mr Howes was clear. He described it as being: “That … he [that is, the applicant] was a Trot”. Mr Vickers described his own concern with the applicant being “a Trot” in the following terms:
The concern that – that I had was the way that I knew Trots operated inside the trade union movement or sought to.
111 Mr Vickers’ evidence was that he assumed Mr Howes had the same concern. He said that the words he may have used (to describe what he believed members of the Socialist Alliance did in unions) “were that [they] infiltrated and undermined the leadership of trade unions”. He repeated the phrase “infiltrating and undermining” on several occasions during his evidence.
112 Mr Weise took notes at this meeting. They were taken contemporaneously. In answer to a leading question, his evidence was that where he could, he tried to take down what people said “verbatim”. He then volunteered “I mean, people talk quicker than I can write, but I tried to capture as much as what I possibly could”. I accept that latter evidence, but not his statement about taking down what people said “verbatim”. Mr Weise was later asked to type up his notes, which he did. The applicant did not dispute the typed version was an accurate transposition of the handwritten version. Each of the witnesses’ evidence involved aspects of reconstruction. In my opinion Mr Weise’s notes, given their contemporaneity and his evidence about what he diligently tried to capture, reflect the most reliable account of what was said at the 18 July 2013 meeting.
113 The notes are as follows:
18-7-2013 TM AV RK AS MW
4.10pm
ALI SAYED
Tony Maher opened discussions informing of complaints received by us from Paul Howes.
• Bagging AWU
• Socialist Alliance involvement
AV – spoke about alliance with AWU hard to do politically 100 years of troubled history.
Pilbara tough environment
Big investment by us ie $1 million
AV says he understand why people are critical of AWU, as he is critical of them
Socialist alliance affiliations is very concerning, is worrying possible infiltrations
AV don’t micro manage unite but won’t stand by and let it be at risk
AS Socialist alliance left 3 years ago through political differences was not aware he had to disclose involvement in all things
Resigned 2010 after National Conf because of political differences
AS said he has talked extensive to MW about his social involvement
Had discussion about (Ali stated) his beliefs stated he’s proud about his beliefs
AS said he is not a hack from a political party here to infiltrate our union
AS said he is not here to defend all practices of Social Alliance
AV spoke on his view on Social Alliance in particular that part of there (sic) mantra is that they oppose trade unions
AV said he accepts that Ali is being honest about his explanation on his involvement or non involvement
AV made point of clarifying his role in union
AWU – commentary
AS says at no time in the since he has been with AWU did he bag anyone form their union
AS went through some of his work and said at no time did he bag
AS said he has thought long and hard about all comments and only can recall discussions he had with Michael Kerley after work they had discussed differences between two unions
AS went through discussions delegate and organisers some of things they say are too bad or hard to accept
AS gone through his work outline success etc
AS told that he joined union (our) as soon as he stared with us
RK told meeting Michael Kerley rang RK and in told him some things RK said he worked with us and has had discussions about his attitude approach
RK says he has no doubt AS did not bag directly anyone. RK said he and AS and RK had discussions about AWU and history.
RK said he had spoke (sic) his mind to the lads – Michael Kerley said he has told AWU about AS comments.
RK questioned who/what type of work and methods will be applied in Tom Price – cause AWU don’t get it
AS asked if there were any allegations about his work
OUTLINE OF SOME ISSUES
TM - not listening
opinionated and arrogant
body language and intimidation
TM - spoke about aluminium been a tough industry – all looking to get out
AS made point he has his views and if he witnesses something he considers is wrong he can’t sit back no matter what
AV you have not said anything that is inconsistent with comments from AWU other than the socialist alliance. AV also said that the way AS has responded today also fits in with AWU suggestion or complaints.
AV outlined difficulties and sensitivity on getting alliance to happen
AV summed up AS as he respects AS views and morals but thinks that AS is a square peg in a round hole
AS has arrived at the same conclusion. He is not right man for job.
RK asked if there was any chance AS could be put to work in QLD
114 In relation to the last part of these notes, about the applicant’s suitability for the Pilbara position, the applicant strongly denied saying anything to the effect that he had “arrived at the same conclusion. He is not the right man for the job”. This was one aspect of his evidence he was firm about. Despite his firmness, I find on the balance of probabilities that Mr Weise’s notes record the substance of what the applicant did say at the meeting. Whether the applicant meant it when he said it or was just agreeing to accommodate the concerns raised, or immediately regretted saying it, or regretted saying it later, is a separate matter. In my opinion the fact the applicant agreed with Mr Vickers’ “square peg in a round hole” statement is of little relevance to the liability of the respondent under the Fair Work Act. There are a multitude of explanations for why an employee in the applicant’s position would make a statement like that, other than the proposition that he was conceding he was not right for the job. It is neither possible nor necessary to reach a concluded view as to why the applicant may have made a statement to such an effect.
115 The applicant’s evidence about the “square peg in the round hole’ statement was as follows:
Now, after that did Mr Vickers say anything about what was to then happen?---Yes. So this is where I guess I heard how – so what he said was that everything that I had said fitted with the complaint of CFMEU that this is exactly how Socialist Alliance members talk and I’m not – I’m a square peg in a round hole and I was not the right person for the job in Pilbara.
116 The discussion then turned to what should happen next. The applicant’s evidence was:
Did you make any response to that as to what would happen?---I asked him what be my future and he said they will pay me a month pay in lieu and send me where I want to go and this is where I raised that I actually signed a fixed term contract which he wasn’t aware of.
…
- - - was anything said about what would happen to you then?---So at – the conclusion was that they were going to talk about me staying in Queensland. Ross Kumeroa had asked them if there was any way that I could stay in Queensland and the union doesn’t lose someone like me, now that AWU doesn’t want me.
117 I accept that evidence. The applicant then described how he and Mr Kumeroa left the meeting and went downstairs. Mr Weise and Mr Vickers then came downstairs, and told the applicant that he could fly to Queensland and work with Mr Kumeroa as an organiser in Queensland to the end of his contract. The evidence is clear in my opinion that this arrangement was made by reference to the fixed-term contract due to end on 11 October 2013.
The 23 July 2013 show cause letter and the applicant’s response
118 As I have set out above, it is not contentious that on 22 July 2013, the same day the applicant flew to Queensland to start work there as arranged, some information was given to Mr Vickers, which Mr Vickers interpreted as indicating, first, that the applicant had lied about the extent of his involvement with the Socialist Alliance and, second, that the applicant had put up a Facebook posting which Mr Vickers interpreted as directed at him, and at other CFMEU officials.
119 This led Mr Vickers, on 23 July 2013, to send the “show cause” letter to the applicant, alleged by the applicant to constitute the third form of adverse action against him. In this letter, Mr Vickers also suspended the applicant from duty. It is clear, and the applicant does not dispute, that the two matters referred to in the show cause letter were matters drawn to Mr Vickers’ attention after the meeting with the applicant on 18 July 2013. The applicant received this letter when he was in Mackay, in Queensland. In the letter, Mr Vickers required the applicant to attend a further meeting in Sydney on 26 July 2013, and suggested the applicant prepare a response to the allegations. Having recited the importance of the alliance and of the applicant’s role in it, and emphasising that the alliance needed to be based on “a newly established level of trust and cooperation between the two organisations”, Mr Vickers then set out in the letter how he considered the applicant’s behaviour had not been consistent with this:
Therefore, I was deeply disappointed to learn that you had expressed derogatory and/or defamatory comments about the AWU and its officials whilst employed in the role of organiser with the CFMEU. These were matters expressly raised with you during our meeting in Sydney on 18 July 2013 at which it was generally accepted that you were an inappropriate person to be the CFMEU organiser in that joint venture project. Notwithstanding, and based upon your assurances to me and the other officials of the CFMEU present at the meeting, the CFMEU was prepared to continue your fixed term employment but based other than in the Pilbara.
I have subsequently been made aware of the apparent inaccuracy of your assurances and another matter, which deeply concern me and lead me to conclude, prima facie, that your employment should be terminated. In this letter we outline allegations going to serious misconduct, which, if substantiated, would justify the termination of your employment.
Your truthfulness during my interview with you on 18 July 2013
On 18 July 2013, as well the AWU complaints referred to earlier we raised general concerning general concerns about your outside political involvement. The purpose of us raising this with you, as was made clear, was not to prevent from being politically involved, but to make clear our expectations that you would not allow your political views or activities to interfere with, or prejudice your role as an organiser with the CFMEU.
As I made clear to you in answer to an assertion by you to the effect of “all union leaders are members of the ALP” I am not a member of a political party and I am agnostic about the party membership choices of employees or officials of the union.
However, what greatly concerns me is the nature of the responses you gave in answer to the allegation put to you that you were a member of the National Council of the Socialist Alliance. During this conversation you denied being a member of the Socialist Alliance and stated that you severed all relations with this organisation in 2010. However, subsequent Internet searches have revealed that this response is clearly untrue. For example:
• The draft minutes of the Socialist Alliance National Council meeting of January 15-16 2011 (available at: http:alliancevoices.blogspot.com.au/2011/03/raft-minutes-of-socialist-alliance.html) lists you as a participant in this meeting, including as a mover of a resolution calling on more experienced members of the Socialist Alliance to conduct education sessions for members of Resistance.
• You were advertised in Green Left Weekly as a speaker at a forum on the Revolution in Egypt, which occurred at Melbourne University on 1 March 2011. You are mentioned as a member of Resistance. At our meeting on 18 July 2013, you confirmed that you were a one-time convenor of Resistance and that Resistance is the “youth wing” of the Socialist Alliance.
• I have viewed video posted on your Facebook page on 23 October 2011 by an individual identified as “Aron Micallef” addressing a crowd at an “Occupy Melbourne” rally in which you declare, inter alia, “… I am a Socialist from Socialist Alliance….”
• You are identified as a co-author (with Mikaelia Baillie) of a document entitled “Amendments to Socialist Alliance’s Charter of Women’s Rights” which was posted on the “Alliance Voices: Socialist Alliance Discussion Bulletin and National Newsletter” website on or about 11 January 2012 (available at http://alliancevoices.blogspot.com.au/2012/01/amendments-to-socialist-alliances.html)
• I have been provided with a Facebook entry made by an individual identified as “Grant Brookes” dated 4 November 2012 in relation to local council elections in Victoria. You are listed as one of the “activists” that assisted with the campaign. Immediately below that posting is a posting by you exclaiming your delight that Sue Bolton had been elected to Moreland Council. Publicly available material on the Internet indicates that Sue Bolton is a prominent member of the Socialist Alliance. Sue Bolton is also listed on the employee form that you signed shortly after being offered employment with the CFMEU as your nominated contact person in the event of an emergency.
These postings clearly indicate that you have lied to me about your involvement in the Socialist Alliance or Resistance since 2010. Please specifically address this allegation.
Facebook posting – “…buncha rats around you!”
I have been made aware of a Facebook posting by you apparently lodged via mobile whilst you were in the vicinity of Pyrmont in Sydney on Thursday 18 July 2013. The posting states:
“Oh how the world changes. When you think you know smone find out got buncha rats around you! No worries stay true to yourself and keep soldering on”
I am concerned that the use of the term “rats” is a reference to myself and/or other officials of the CFMEU. Its posting seems to be directly related (by virtue of time and location) to my interview with you on 18 July 2013. It hardly bears repeating that the term “rat” is an offensive and derogatory term in the labour movement. It conjures the image of disreputable turncoat, or alternatively, someone to be equated with filth vermin. I take extreme exception to being described in this way, if I am the intended object of this comment. I also object to any official of the CFMEU being portrayed in this way.
Please also specifically address this allegation in your response to me.
120 The applicant did provide a written response. He characterised the different information he had provided about his involvement in the Socialist Alliance as a “mistake”. He emphasised there was not “a single piece of evidence” to show he had been involved with Socialist Alliance since commencing with the respondent. He stated that he posted the Facebook comments “well before” his meeting with Mr Vickers, Mr Maher and Mr Weise, while he was waiting at the reception desk. He described the allegations of him bagging AWU officials as “hearsay” and “false allegation”. He ended his response in the following terms:
I have been involved in numerous campaigns around workers rights and take a stand in support of the vulnerable that continue to suffer at the hands of our politicians and corporate Australia. I am proud of my involvement in each and every single campaign that I was involved in. I believe there is a lot I can offer in organizing members of CFMEU. But I reiterate my view here that for me injustice is egregious regardless of whether it is in a workplace or outside it. I am proud to call myself a communist. It is for this reason that I put my hand up for this job and will continue to fight the neo liberal onslaught against the working people within and outside Australia.
I also want to let you know that regardless of the outcome of our meeting tomorrow; I will go and sign up with Socialist Alliance. Not because I want to cause trouble within CFMEU but due to what I have witnessed over the past few weeks. I am still coming to terms with the fact that I have been put through all this primarily for my ‘suspected involvement’ in in a socialist party. I have been advised by well wishers within this Union that by doing so I will put myself as an open target for the Union leadership to come at me with everything and do it relentlessly until they get rid of me. To this I say fine! If I am to work in this Union all I can assure you is that the members will always come first. And my actively engaging in a party with a socialist agenda is a clear manifestation of where me allegiances lay: with the working people! Their interest will be my only guide as it is the very reason I joined this Union or any other in future. I respect that there are others in this Union who whist may not share my views are working very hard to further the interest of our members, and I greatly respect that.
I don’t ever intend to undermine the democratic process of this Union regardless of what I might think personally. I hope that you accept this letter with a similar sense of openness and forthrightness that I have written it. The members pay my wages and I consider myself their servant. I would never do anything that keeps me from giving my 100% to the members.
121 It was clear from Mr Vickers’ evidence that he believed he had been lied to by the applicant about the nature and extent of his involvement in the Socialist Alliance. It is also clear that Mr Vickers genuinely believed the Facebook posting referred to him, and to other CFMEU officials. It was not until the applicant gave evidence in this proceeding that the applicant identified the target of those comments as Michael Kerley, the AWU organiser he had been working with. The applicant did not identify Mr Kerley as the object of those remarks in his written response to Mr Vickers, nor at any time before or after his dismissal. His evidence was that he thought saying in his written response that it was directed at someone “on a personal level” was enough, without “naming names”. It might be said the applicant missed an opportunity to correct the impression Mr Vickers had formed, but in my opinion as I set out below I have formed the view that Mr Vickers’ view that the applicant had to go was so firmly entrenched I doubt such correcting information would have made any difference.
122 The applicant’s oral evidence on this issue was marked by a reluctance to admit that he made a conscious choice not to tell Mr Vickers about the nature and extent of his ongoing involvement with the Socialist Alliance. Ultimately, the applicant accepted it was a conscious choice. He explained it, both in cross-examination and in re-examination, by saying once he was told that links to Socialist Alliance were a problem for the respondent, he gave an untruthful account of when he left the party in order to try and distance himself from it. He admitted that having been untruthful, he had then “dug a hole for myself”.
The termination of the applicant’s employment on 26 July 2013
123 The applicant’s written response did nothing to assuage Mr Vickers. He discussed the matter with Mr Maher, and then in an email to Mr Maher and Mr Weise in the evening of 25 July 2013 he said “Nothing changes from my perspective”. The next day the applicant was informed by a letter from Mr Vickers that his employment was terminated “effective today”. Mr Vickers told the applicant the respondent would pay him for the balance of the fixed term for which he had been engaged (that is, until 11 October 2013) including any accrued leave entitlements. That is what occurred. As to the reason for the termination, Mr Vickers expressed it thus:
I further confirm that you are not being terminated for any reason other than the fact that I have come to the conclusion that you are not an appropriate “fit” for the role that we engaged you for.
124 I return to the issue of Mr Vickers’ reasons below. It is sufficient to note at this point that the formal notice of termination given by Mr Vickers did not nominate as the reason the lies Mr Vickers considered the applicant to have told, nor the offensive remarks Mr Vickers believed he had directed towards Mr Vickers and the respondent. Nor did it refer at all to the applicant’s links to the Socialist Alliance.
Evidence about loss, reinstatement and other remedies sought
125 There was little evidence of loss adduced on behalf of the applicant. There was no medical or other evidence about the effects of the termination of his employment. The applicant himself gave no evidence about the consequences at a personal level for him of his termination of employment. He said he was “put” on a flight back to Melbourne the day his employment was terminated. He said he looked for a lot of jobs since his employment was terminated but had not secured employment.
126 Belatedly, in re-examination the applicant was asked a question about his ability to work with the union should he be reinstated. Unsurprisingly, the respondent objected since there had been no evidence in chief about reinstatement, and no cross-examination about it either. The objection was upheld.
127 The applicant’s claim for loss of future income was put in two ways. Either the adverse action was the cause of the applicant not commencing work in the Pilbara and of the Pilbara contract never being concluded or, if the Pilbara contract was concluded, there was a breach of it by the respondent. The respondent contested both ways in which the claim was put, but there was no apparent dispute between the parties that if that claim succeeded the total loss of income suffered by the applicant to December 2014 would have been $120,188.77 plus superannuation.
DETERMINATION OF EACH OF THE APPLICANT’S CLAIMS
128 The parties each filed outlines of submissions prior to trial and comprehensive written submissions after the conclusion of the evidence. The Court reconvened for oral submissions on 31 October 2014. I do not recite all the submissions made by the parties, but I have given careful consideration to them.
129 By the time of final submissions, the applicant’s case under the Fair Work Act had narrowed somewhat. First, he identified four rather than five incidents of adverse action, namely:
The direction given on 16 July 2013 to attend the meeting in Sydney on 18 July 2013 (s 342(1), Items 1(c) and (d));
The decision made at the meeting on 18 July 2013 to redeploy the applicant from Western Australia where he was working on the alliance, to Queensland (s 342(1), Items 1(c) and (d));
The letter from Mr Vickers to the applicant on 23 July 2013 suspending him (s 342(1), Items 1(c) and (d)); and
The dismissal of the applicant on 26 July 2013 (s 342(1), Items 1(c) and (d)).
130 Second, there was no reliance in final submissions on Item 1(b) of s 342(1) — injury in employment.
131 The respondent admitted that the conduct in the last two dot points in [129] above constituted adverse action, but denied the action was taken for a prohibited reason. It denied the conduct in the first two dot points in [129] constituted adverse action at all, but, if it did, the respondent maintained the submission that the conduct was not undertaken for a prohibited reason.
132 Therefore, it is necessary to determine whether the conduct identified by the applicant in the first two dot points constitutes “adverse action” for the purposes of s 342(1) of the Fair Work Act.
Were the 16 July 2013 direction and the decision at the 18 July 2013 meeting adverse action for the purposes of section 342 of the Fair Work Act?
133 Item 1(c) in the table in s 342(1) uses the phrase “alters the position of the employee to the employee’s prejudice” in a way which involves a concept broader than effects on the legal rights of an employee. In its terms its focus is on the “position” occupied by the employee at the time of the alleged adverse action. The word “position” directs attention to the place occupied by an employee within the workplace and the organisational structure established by the employer, as well as to her or his employment generally. It includes a loss of security of employment, and a deterioration in the “advantages enjoyed by an employee”: see Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; [1998] HCA 30 at [4] per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ; Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93; [2001] FCA 267 at [17]-[20]. The applicant submitted there was authority to support the proposition that the commencement of an investigation by an employer into the conduct of an employee is within Item 1(c), relying on Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22; [2010] FCA 399 at [80]-[82] per Collier J. Her Honour there did not accept that amenability to a disciplinary investigation is a “normal” incident of employment, even if the investigation is commenced in good faith and on a proper evidentiary basis.
134 In contrast, in Police Federation of Australia v Nixon (2008) 168 FCR 340; [2008] FCA 467 at [48], Ryan J reached an apparently opposite conclusion. His Honour said:
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 …
(Emphasis added.)
135 In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) (2013) 216 FCR 70; [2013] FCA 525 at [103], Murphy J agreed with Collier J. His Honour emphasised that, bearing in mind the adverse action had to be undertaken for a prohibited reason before it would be unlawful:
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.
136 Other decisions, such as United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 123 IR 86; [2003] FCA 480 at [89] per Goldberg J, also support the proposition that at least some kinds of disciplinary action (in that case, the laying of charges against an employee) can constitute “prejudice”, in the sense that an employee is affected in her or his employment from the time a charge is laid, not only from when it is proven.
137 In CPSU 107 FCR 93; [2001] FCA 267, the Full Court recognised the application of Item 1(c) involved a question of degree. The Court interpreted the adjective “prejudicial” in the phrase as requiring an alteration that was “real and substantial” rather than “merely possible or hypothetical”: at [18]. On the facts before it, the Full Court found that the sending of an email by Telstra to its senior management, instructing that in a redundancy process preference be given to making redundant employees employed under awards or certified agreements, imposed an additional “detrimental criterion” (at [19]) on those employees in terms of their exposure to the risk of redundancy. That, the Full Court held, was sufficient to constitute a “prejudicial alteration” for the purposes of the then s 298K(1) of the Workplace Relations Act 1996 (Cth). In all the authorities it has been accepted there is no material difference between the approach that should be taken to s 342(1) Item 1(c) and that which has been taken to the same terms in s 298K(1) of the Workplace Relations Act.
138 Given the breadth with which the authorities contemplate the terms of Item 1(c) will be approached, there is no doubt that the redeployment decision made at the 18 July 2013 meeting was adverse action against the applicant. He was not permitted to return to Western Australia to prepare for the position both parties had intended he would perform — namely, that of organiser in the Pilbara alliance. He had moved to Western Australia but now was not permitted to return there. Instead, he was compelled to go back to Queensland if he wished to retain his employment at all. He was placed in a different organiser position which was not the position he had applied for, and had expected to commence in a matter of days from the time he was directed to attend the meeting in Sydney. He would clearly be subjected to greater scrutiny by Mr Weise and Mr Vickers. He was not trusted by them, especially by Mr Vickers. It seems likely the applicant only secured this reprieve at all because of Mr Kumeroa’s intervention, and because Mr Kumeroa would be supervising the applicant. That is indeed how Mr Vickers put it in his evidence — “We came to the decision that Ross will keep an eye on him”. Despite there being no change to his pay or his general conditions of employment, the fact that the applicant was directed away from the job he had applied for, had wished to do and had begun preparations for, and the obvious detriment that he now had to be supervised by Mr Kumeroa and work to his direction, was an alteration to the applicant’s position and in my opinion a prejudicial one to him. Inevitably, there would be a stigma attached to the fact that, despite being appointed to a six-month position for the sole reason of being available to take up the Pilbara contract, he would now not be permitted to do so. His security of employment was reduced to a definite end date of 11 October 2013, which was not the position he was in immediately before the 18 July meeting.
139 As to the direction that the applicant go to Sydney for the meeting on 18 July 2013, I am not prepared to find that constituted an alteration of the applicant’s position to his prejudice, the allegation of it being an injury in his employment having been abandoned. Of course, examining these issues in hindsight, taking into account subsequent events, tends to support such a characterisation. That would be an incorrect approach. The question is whether, in and of itself, the direction to attend the meeting in Sydney, given at the time and in the circumstances it was given, had the effect set out in Item 1(c). I consider the direction is closer in nature to the situation discussed by Ryan J in Nixon: it is a preliminary step designed to give the applicant an opportunity to deal with the complaints that had been made. It was not like the facts of United Firefighters where charges had been laid. Contrary to being prejudicial to his position, the opportunity to have complaints put and to be able to explain the position may well be beneficial to an employee. The employee may be able to assuage the concerns of the employer: no “charges” have been laid, no disciplinary process initiated. There is, at that stage, no threat of dismissal, nor any threat to the security of employment. Once a formal investigation has commenced, or charges are laid, or formal allegations are made, then the characterisation may change as a matter of fact, but in my respectful opinion characterising a direction to attend an initial meeting as a prejudicial alteration to an employee’s position is not warranted.
140 If I am wrong about the characterisation of the direction to attend the 18 July 2013 meeting, then on the assumption it was adverse action within the meaning of s 342(1) of the Fair Work Act, for the reasons I express below, the direction was given for reasons which involved a prohibited reason. In that sense, as I explain in more detail below, all of the conduct and decision-making towards the applicant on and from 16 July 2014 was for reasons which included a prohibited reason. I make this finding despite Mr Vickers’ express evidence that the appellant would still have been directed to attend the 18 July 2013 meeting even if Mr Vickers did not know anything about the applicant’s membership of the Socialist Alliance. That evidence was given in answer to a leading question, with the benefit of hindsight, in the context of a proceeding alleging that Mr Vickers acted unlawfully. It is a reconstruction, and a self-serving one for the respondent. That is not to suggest Mr Vickers gave dishonest evidence — rather, it is to find that it is not possible for Mr Vickers reliably to recreate circumstances in which he gave that direction, devoid of one of the central aspects — namely, the complaints by Mr Howes about the applicant’s membership of the Socialist Alliance and Mr Vickers’ very strong views about that political party and its methods of operation.
141 On the question whether the decision at the 18 July 2013 meeting constituted adverse action within s 342(1), the respondent made a further submission. It submitted that “redeployment” (which is what is pleaded by the applicant in relation to the decision at the 18 July 2013 meeting) was not an appropriate term. The respondent submitted an employee could not be “redeployed” before a contract had started. The Pilbara contract had not commenced, and therefore there could be no redeployment. The respondent submitted the only reason the applicant ended up in Queensland was because Mr Kumeroa asked for that to occur. It was not action taken by the employer — the employer merely acquiesced to a suggestion from the applicant’s representative. The respondent submitted this was important not only for liability but because that is where any loss would be incurred if the respondent’s submission about the prohibited reason were not accepted. In other words, it is this decision which deprives the applicant of the future benefit of the Pilbara contract. The last submission was correctly made, and is important.
142 I do not otherwise accept the respondent’s submissions about redeployment. The applicant was on a fixed-term six-month contract, the express purpose of which was to give time for the alliance with the AWU to be formalised and put in place. By 18 July 2013 the MOU had been signed, the alliance had been launched and the applicant had been “deployed” to Western Australia to prepare to start in the position by getting to know the way the AWU worked in Western Australia. After the 18 July 2013 meeting, in my opinion it is correct to describe what occurred as a “redeployment”, for the remainder of the applicant’s fixed-term contract. The choice for the respondent was what action it would take, Mr Vickers having decided to act on and accept the complaint from Mr Howes, and the allegations from the AWU officials in Western Australia. It was Mr Vickers’ decision, having consulted Mr Weise, that it was acceptable to the respondent for the applicant to move to Queensland for the remainder of his six-month contract. The evidence did not suggest, one way or the other, that Mr Vickers had made any decision on whether the applicant would, after 11 October 2013, continue as an employee of the respondent. What was clear as a result of Mr Vickers’ decision at the 18 July 2013 meeting, was that the applicant would not be working as an organiser in the alliance, but would be working as a general CFMEU organiser in Queensland. That was against the applicant’s wishes and all parties’ expectations since the time he had been employed. It is appropriate in my opinion to describe what occurred as a “redeployment”.
143 The redeployment constituted an alteration of the applicant’s position to his prejudice within the terms of Item 1(c) of s 342(1).
144 Mr Vickers’ decision also constitutes discrimination between the applicant and other employees of the respondent within the terms of Item 1(d) of s 342(1), in the sense I have explained that provision at [150] to [163] below.
145 The applicant was given two reasons for his attendance at the 18 July 2013 meeting — Mr Howes’ complaint that the applicant was a “Trot” and involved in the Socialist Alliance, and allegations that he had “bagged” AWU officials in Western Australia. One directly involves questioning his holding and manifestation of a political opinion, and in my opinion the other indirectly involves doing so, for the reasons I have explained at [199]-[240] below.
146 The inquiries made of the applicant at this meeting forced him to reveal, discuss, explain and justify the political opinions he had, in connection with the Socialist Alliance. As a party, the Socialist Alliance was subject to severe criticism by Mr Vickers at that meeting, in terms of its method of operation, and its aims in relation to unions. A new employee in the applicant’s position could not help but feel under siege by Mr Vickers because of the political opinions he had been discovered to hold, and to manifest by joining the Socialist Alliance, and maintaining an association with it. It is little wonder the applicant was defensive and not entirely forthcoming about how recently he had been involved with the party. His attempts to downgrade his involvement with the Socialist Alliance and distance himself from party activities, while not excusable in terms of being less than the truth, are somewhat understandable in context.
147 Mr Vickers’ evidence was clear that he would never generally question employees about their political affiliations. He sought to buttress this aspect of his evidence by proclaiming that he was himself a communist. Far from persuading me that his questioning the applicant in the way he did, deciding to remove him for the alliance and redeploying him to Queensland had nothing to do with the applicant’s political opinions, this evidence confirms for me that Mr Vickers did act for this reason. Mr Vickers was prepared to accept that the applicant had tendencies in opinion and behaviour which Mr Vickers identified with those affiliated with the Socialist Alliance, and what that party stood for. He may not have cared if the applicant proclaimed himself a communist, but that is not the point. The inquiry is not about what political opinions Mr Vickers would tolerate or accept, or himself identify with. It is about what political opinions, if any, he would not tolerate. The evidence clearly reveals Mr Vickers would not tolerate or accept any affiliation with the Socialist Alliance.
148 Based on Mr Vickers’ own evidence about the general irrelevance of the political opinions and allegiances of the respondent’s employees, and his adamant evidence that he would never usually question employees about their political affiliations, it is clear Mr Vickers treated the applicant differently than he treated other employees of the respondent. There is no evidence to suggest other employees would be redeployed because an affiliation with a particular political party had been identified, and Mr Vickers’ own evidence tended to confirm this would not occur. That it might be said Mr Vickers would have acted in the same way towards any employee allegedly involved with the Socialist Alliance does not take his decision outside the terms of Item 1(d) of s 342(1). Rather, it suggests the discrimination between employees would have extended, impermissibly, to the class of employees who had affiliations with the Socialist Alliance.
149 Accordingly I find Mr Vickers’ decision to redeploy the applicant to Queensland constituted adverse action within the terms of both Items 1(c) and 1(d) of s 342(1) of the Fair Work Act. I find that the direction to attend the 18 July 2013 meeting did not constitute adverse action within the terms of Item 1(c) of s 342(1) of the Fair Work Act.
The meaning of “discriminates” in section 342(1), Item 1(d)
150 Given the findings I have reached above in relation to the direction to move to Queensland, the principal relevance of Item 1(d) is in relation to the direction to attend the 18 July 2013 meeting. Unless Item 1(d) applies to the direction to attend the 18 July 2013 meeting, that direction will not constitute adverse action for the purposes of the Fair Work Act.
151 The question Item 1(d) asks in the context of the facts in this proceeding is whether, in giving that direction at the behest of Mr Vickers, Mr Weise (for the respondent) discriminated between the applicant and other employees of the respondent.
152 The “discriminates” term is not defined in the Fair Work Act. In s 351, the “discrimination” is the taking of adverse action as defined on one of the prohibited grounds. Since Item 1(d) is one of the four ways in which adverse action can be taken, there is some circularity in the statute.
153 Section 351 was contained in the Fair Work Act as introduced in 2009. The Explanatory Memorandum to the Bill states that it is “intended broadly to cover” s 659(2)(f) of the predecessor to the Fair Work Act, the Workplace Relations Act, which made it unlawful to dismiss an employee for certain discriminatory reasons. Section 659(1) of the Workplace Relations Act provided that the section was intended to assist in giving effect to Australia’s international obligations with respect to termination of employment including the Convention concerning Discrimination in respect of Employment and Occupation, the Family Responsibilities Convention, and the Termination of Employment Recommendation, 1982. The Explanatory Memorandum to the Fair Work Act makes clear that, by s 351, the protections set out in s 659(2)(f) of the Workplace Relations Act have been extended beyond termination of employment to prohibit any adverse action, as defined in s 342.
154 The respondent contended “discriminates” should be given the meaning which is attributed to it in anti-discrimination statutes — namely, less favourable treatment. It supports this submission contextually by pointing out, correctly, that Items 1(a)-(c) in s 342(1) all involve some form of less favourable treatment towards an employee. The respondent’s construction might also be assisted by the use of the adjective “adverse” in the key statutory phrase “adverse action”.
155 The respondent’s submissions did not grapple with indirect discrimination and how this would be encapsulated, given the rather tortured statutory definitions of that term: see, for example, s 6 of the Disability Discrimination Act 1992 (Cth) and s 5(2) of the Sex Discrimination Act 1984 (Cth). These statutory definitions go well beyond the approach of asking whether conduct is “facially neutral” but has a discriminatory effect, which was the original explanation of the concept of indirect discrimination: see Waters v Public Transport Corporation (1991) 173 CLR 349 at 358 per Mason CJ and Gaudron J. In indirect discrimination as statutorily defined, there is also the added layer of reasonableness, which is difficult to incorporate into ss 351 and 342 simply by implication. It is conceivable the Parliament sought not to incorporate concepts of indirect discrimination into ss 351 and 342, but that would be to impute to Parliament an intention to deal with only the most obvious and direct kinds of discrimination. For example, although termination of employment is clearly covered by Item 1(a), a situation such as that which arose in Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 may not be picked up by the respondent’s approach. That was a case where a “last on, first off” policy was applied to redundancies made by an employer. The evidence showed women were disproportionately represented and affected by that policy, because of their tendency for later entry or re-entry into the workforce after having children. The Court found there was indirect discrimination. It would be a significant omission from the protections otherwise intended to be offered by s 351, read with s 342, if indirect discrimination were not covered.
156 The respondent contends that the approach taken by Katzmann J in Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [40] supports its submission. It submits that a comparator (real or hypothetical) must be used to ascertain whether there was less favourable treatment. Here, the respondent submits for the purposes of Item 1(d) the comparator would be another employee against whom similar allegations of “bagging” another union’s officials had been made, but without any allegations about connections with the Socialist Alliance. The respondent submits such an employee would have been treated in precisely the same way and there is therefore no “discrimination” for the purposes of Item 1(d).
157 In Pilbara Iron, Katzmann J observed (at [40]) that Item 1(d) speaks of discrimination occurring “between employees” and not “against” an employee, but concludes that, especially given the presence in Item 2 of the word “against”, there is no material difference. In the matter before her Honour, both parties accepted that “discriminate” should be construed as “treat less favourably”, so that her Honour did not have to decide this question. In contrast, the parties in this proceeding contended for different constructions. The construction issue is significant in this proceeding because, as I have found, the direction to attend the 18 July 2013 meeting did not alter the applicant’s position in his employment to his prejudice and if the direction is not within Item 1(d) it cannot constitute adverse action.
158 The applicant submits “discriminates” in Item 1(d) should simply be construed as treating people differently. In this way, the attributes set out in s 351 then prohibit such different treatment by reference to a consideration irrelevant to the performance of an employee’s work. The applicant relies on the analysis given by Gaudron J in Street v Queensland Bar Association (1989) 168 CLR 461 at 570-571. Her Honour there said:
Although in its primary sense “discrimination” refers to the process of differentiating between persons or things possessing different properties, in legal usage it signifies the process by which different treatment is accorded to persons or things by reference to considerations which are irrelevant to the object to be attained. The primary sense of the word is “discrimination between”; the legal sense is “discrimination against”.
Where protection is given by anti-discrimination legislation, the legislation usually proceeds by reference to an unexpressed declaration that certain characteristics are irrelevant within the areas in which discrimination is proscribed. Even so, the legislation frequently alIows for an exception in cases where the characteristic has a relevant bearing on the matter in issue. Thus, for example, the Anti-Discrimination Act 1977 (N.S.W.), whilst proscribing discrimination in employment on the grounds of race and sex, allows in ss. 14 and 31 that discrimination is not unlawful if sex or race is a genuine occupational qualification.
The framework of anti-discrimination legislation has, to a considerable extent, shaped our understanding of what is involved in discrimination. Because most anti-discrimination legislation tends to proceed by reference to an unexpressed declaration that a particular characteristic is irrelevant it is largely unnecessary to note that discrimination is confined to different treatment that is not appropriate to a relevant difference. It is often equalIy unnecessary to note that, if there is a relevant difference, a failure to accord different treatment appropriate to that difference also constitutes discrimination.
159 Thus, the applicant submits he was treated differently to other employees by being required to fly to Sydney to attend a meeting called to inquire into his involvement with the Socialist Alliance, and complaints about him “bagging” AWU officials. Other employees of the respondent, he submitted, were not directed to attend meetings so that inquiries into their allegiances with political parties could be investigated.
160 I accept the applicant’s submission as a matter of construction in relation to Item 1(d), but it does not assist him for the reasons I outline below. In my opinion, the language in Item 1(d), and its use of the word “between”, suggests the conduct which is to be examined is the way in which the employer targets the particular employee. Is that employee treated differently from other employees? By s 351, the “irrelevant” reasons for the different treatment (to adopt the concept used by Gaudron J in Street) are then specified. The inquiry is thus a straightforward one, to that point, and does look only for differential treatment, as the applicant submits.
161 However, the terms of s 351(2), read with subs (3), then must be applied. Those provisions expressly pick up the detailed regimes of each of the territory, state and federal anti-discrimination statutes. In other words, the requirements that there be “less favourable treatment”, the complicated requirements for indirect discrimination, and the exceptions for which each statute provides are, through these provisions, incorporated so as to limit the protections given by Div 5 of Part 3-1 of the Fair Work Act in a way which is intended to mirror the limits under those other legislative schemes. When read as a whole, s 351 and s 342(1) Item 1(d) will operate to render only conduct proscribed under other anti-discrimination regimes as conduct contravening s 351. That, in substance, is the outcome for which the respondent contended, although not because of the meaning of “discriminates” in Item 1(d) of s 342(1), but rather at the subsequent step of the application of the prohibition in s 351.
162 In being directed to attend the 18 July meeting in Sydney, I find the applicant was not treated differently to other employees of the respondent. In my opinion the sensitivity of the new alliance with the AWU, together with the evidence of Mr Vickers in particular about his determination to have nothing threaten the alliance, leads me to infer that any other employee against whom “bagging” allegations were made, especially by a person such as Mr Howes, would have been called to a meeting by Mr Vickers in the same peremptory fashion as the applicant was. The overlay of the allegations about the applicant’s political activities no doubt compounded the urgency and arbitrariness of the way the meeting was arranged, but in my opinion there is insufficient evidence for me to be satisfied that another employee of the respondent would not have been summoned to such a meeting.
163 Having identified the adverse action taken by the respondent for the purposes of s 351 as the 18 July 2013 decision to redeploy the applicant, the 23 July 2013 suspension decision and show cause letter, and the 26 July 2013 termination of employment, I turn now to consider the prohibited reason in s 351 on which the applicant relies: political opinion.
The meaning of “political opinion” in section 351
164 This term is not defined in s 351. The context in which it appears, especially the presence of ss 351(2) and (3) as central aspects of the determination of a contravention under s 351(1), means that the term should be given, insofar as it is possible, a meaning which is consistent with the interpretation it has been given in anti-discrimination law.
165 The manner in which s 342 relates with s 351 is, as the applicant submitted, that the particular adverse action is picked up and applied as part of s 351. Relevantly to this proceeding, and based on the findings I have made, there are therefore three questions of contravention to be addressed:
Whether the decision made at the meeting on 18 July 2013 to redeploy the applicant, from Western Australia where he was preparing to work on the alliance to Queensland, was because of the applicant’s political opinion;
Whether the show cause letter from Mr Vickers to the applicant on 23 July 2013, in which the applicant was suspended, was because of the applicant’s political opinion; and
Whether the dismissal of the applicant on 26 July 2013 was because of the applicant’s political opinion.
166 Treatment of a person because of the holding, and or alternatively the manifestation, of a political belief or opinion is a circumstance which is addressed in extradition and refugee law as well as anti-discrimination law. The commission of offences characterised as political did not generally expose a fugitive to extradition, and were considered an exception to a state’s mutual obligations to extradite fugitives from justice. The development of political opinion as a protected attribute in anti-discrimination law needs to be seen in this wider context. The construction question centres on the meaning and interpretation of the adjective “political”, whether the noun to which it is attached is “offence”, or “opinion” or “belief”.
167 In the extradition context, Viscount Radcliffe described some of the characteristics of a “political” offence in R v Governor of Brixton Prison; Ex parte Schtraks [1964] AC 556 at 591-592. His Lordship said:
In my opinion the idea that lies behind the phrase “offence of a political character” is that the fugitive is at odds with the State that applies for his extradition on some issue connected with the political control or government of the country. The analogy of “political” in this context is with “political” in such phrases as “political refugee,” “political asylum” or “political prisoner.” It does indicate, I think, that the requesting State is after him for reasons other than the enforcement of the criminal law in its ordinary, what I may call its common or international, aspect. It is this idea that the judges were seeking to express in the two early cases of In re Castioni and In re Meunier when they connected the political offence with an uprising, a disturbance, an insurrection, a civil war or struggle for power: and in my opinion it is still necessary to maintain the idea of that connection. It is not departed from by taking a liberal view as to what is meant by disturbance or these other words, provided that the idea of political opposition as between fugitive and requesting State is not lost sight of: but it would be lost sight of, I think, if one were to say that all offences were political offences, so long as they could be shown to have been committed for a political object or with a political motive or for the furtherance of some political cause or campaign. There may, for instance, be all sorts of contending political organisations or forces in a country and members of them may commit all sorts of infractions of the criminal law in the belief that by so doing they will further their political ends: but if the central government stands apart and is concerned only to enforce the criminal law that has been violated by these contestants, I see no reason why fugitives should be protected by this country from its jurisdiction on the ground that they are political offenders.
168 Australian law recognises that the term “political offence” (and its usual definition of an offence of a “political character”) in extradition law included conduct which is “directed against the political order” either in a direct sense (with offences such as treason) or an indirect or relative sense (for common law offences such as murder, where carried out for political purposes): see Dutton v O’Shane (2003) 132 FCR 352; [2003] FCAFC 195 at [185]-[186] per Finn and Dowsett JJ.
169 In R v Governor of Pentonville Prison; Ex parte Cheng [1973] AC 931 at 943-945, Lord Diplock traced the history of the political offence exception, and at 945 emphasised the need for a connection between the impugned conduct and changes to government or government policy:
My Lords, the noun that is qualified by the adjectival phrase “of a political character,” is “offence.” One must, therefore, consider what are the juristic elements in an offence, particularly one which is an extradition crime, to which the epithet “political” can apply. I would accept that it applies to the mental element: the state of mind of the accused when he did the act which constitutes the physical element in the offence with which he is charged. I would accept, too, that the relevant state of mind is not restricted to the intent necessary to constitute the offence with which he is charged, for in the case of none of the extradition crimes can this properly be described as being political. The relevant mental element must involve some less immediate object which the accused sought to achieve by doing the physical act. It is unnecessary for the purposes of the present appeal, and would, in my view, be unwise, to attempt to define how remote that object might be. If the accused had robbed a bank in order to obtain funds to support a political party, the object would, in my view, clearly be too remote to constitute a political offence. But if the accused had killed a dictator in the hope of changing the government of the country, his object would be sufficiently immediate to justify the epithet “political.” For politics are about government. “Political” as descriptive of an object to be achieved must, in my view, be confined to the object of overthrowing or changing the government of a state or inducing it to change its policy or escaping from its territory the better so to do. No doubt any act done with any of these objects would be a “political act,” whether or not it was done within the territory of the government against whom it was aimed. But the question is not simply whether it is political qua “act” but whether it is political qua “offence.”
170 It is well established in refugee law that the Convention ground of “political opinion” may encompass “any opinion on any matter in which the machinery of state, government and policy may be engaged”: see Canada (Attorney-General) v Ward [1993] 2 SCR 689 at 746 per La Forest J (for the Court).
171 In V v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 355; [1999] FCA 428, Hill J said (at [33]):
It is not necessary in this case to attempt a comprehensive definition of what constitutes “political opinion” within the meaning of the Convention. It clearly is not limited to party politics in the sense that expression is understood in a parliamentary democracy. It is probably narrower than the usage of the word in connection with the science of politics, where it may extend to almost every aspect of society. It suffices here to say that the holding of an opinion inconsistent with that held by the government of a country explicitly by reference to views contained in a political platform or implicitly by reference to acts (which where corruption is involved, either demonstrate that the government itself is corrupt or condones corruption) reflective of an unstated political agenda, will be the holding of a political opinion. With respect, I agree with the view expressed by Davies J in Minister for Immigration & Ethnic Affairs v Y (unreported, Federal Court, Davies J, 15 May 1998) that views antithetical to instrumentalities of government such as the Armed Forces, security institutions and the police can constitute political opinions for the purposes of the Convention. Whether they do so will depend upon the facts of the particular case.
172 Recognising that it may be difficult to draw outer limits around the concept of “political opinion” (as many of the refugee cases dealing with opposition to corrupt government activities highlight: see Zheng v Minister for Immigration and Multicultural Affairs [2000] FCA 670 at [32]-[34] per Merkel J; see also VNAY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 96 at [18]), there is no doubt at all that membership of a political party, and engaging in activities associated with a political party, is one of the clearest examples of the holding and manifestation of a political opinion, such membership and involvement being one of the quintessential ways in which people seek to bring about change to governments, and to government policies and priorities: cf Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533; [2002] HCA 7 at [22] per Gleeson CJ. At its simplest that is because the nature and existence of political parties is closely connected to advocacy for changes in government, and the formulation of government policies.
173 Indeed, in refugee law, much of the debate about whether a person falls within or outside the Convention reason of “political opinion” occurs where a person is not a member of, or associated with, a particular political party: see the series of cases discussed in Hathaway JC and Foster M, The Law of Refugee Status (2nd ed, Cambridge University Press, 2014) pp 405-406. In such cases, generally the Convention attribute of political opinion has still been found to be applicable, based on a person’s conduct and beliefs as expressed. However, membership, and involvement in the activities, of a political party has always been the clearest of examples of the holding and expression of the political opinion.
174 Although cases concerning discrimination on the basis of political opinion are rare, a similar approach has been taken: see Nestle Australia Ltd v Equal Opportunity Board [1990] VR 805 at 815 per Vincent J; Lindisfarne R & S L A Sub-Branch and Citizen’s Club Inc v Buchanan (2004) 80 ALD 122; [2004] TASSC 73 at [10].
175 The respondent did not dispute the nature and extent of the applicant’s involvement in the Socialist Alliance as described in the evidence (as opposed to what the applicant initially told Mr Vickers), nor was there any challenge to the way he expressed his political beliefs and explained why he had joined the Socialist Alliance.
176 To the extent the respondent submitted that membership of a political party is “not the same thing” as the holding and manifestation of a political opinion, if that submission was intended to apply to circumstances where the evidence demonstrated a person was a member of a party without any evidence the person shared the beliefs, policies and aims of that party, then further consideration may need to be given to whether a person in such a situation could be said to have a political opinion for the purposes of s 351 of the Fair Work Act. The example is hypothetical and is not the situation on the evidence in this proceeding. It need not be further considered. I note in any event that the situation posited by the respondent does not purport to deal with the imputations which might be made (relevantly, by an employer) out of an employee’s “mere” membership of a political party. In that sense, bare or “mere” membership may still be sufficient to attract the protection of s 351, but these matters are inherently fact dependent.
177 Whatever may be the full extent of the meaning of “political opinion”, there is no doubt that the applicant’s membership of, and involvement in the activities of, the Socialist Alliance constituted the holding and manifestation of a political opinion within the meaning of that phrase in s 351 of the Fair Work Act.
Reasons for conduct: the relevance of Board of Bendigo Regional Institute of Technical and Further Education v Barclay
178 Before I turn to my findings on contravention it is necessary to address the respondent’s reliance on Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32, and the subsequent decision of the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 88 ALJR 980; [2014] HCA 41. In particular, the respondent relied on the passage in BHP Coal from the judgment of French CJ and Kiefel J where their Honours said (at [20]):
In Bendigo French CJ and Crennan J pointed out that it is erroneous to treat the onus imposed on the employer by s 361 as being heavier, or different, if adverse action is taken while an employee happens to be engaged in industrial activity. Their Honours said that it is incorrect to conclude that, because the employee’s union position and activities were inextricably entwined with the adverse action, the employee was therefore immune, and protected, from the adverse action. Such an approach would destroy the balance between employers and employees which the Act seeks to attain and which is central to s 361.
179 The High Court’s decision in Barclay clarified a number of matters, in particular about the operation of the statutory presumption in s 361 of the Fair Work Act. In their reasons, members of the Court emphasised that such a presumption, combined with the nature of the inquiry being one as to the “particular reason” of the decision-maker and involving an assessment of the state of mind of the decision-maker (rather than a wholly objective inquiry), meant that the presumption would rarely be effectively rebutted without direct testimony from the decision-maker: at [42]-[45] per French CJ and Crennan J, at [101], [127] per Gummow and Hayne JJ, at [146] per Heydon J. As French CJ and Crennan J observe at [50] (see also Gummow and Hayne J at [86] and Heydon J at [149]), citing General Motors-Holden’s Pty Ltd v Bowling (1976) 12 ALR 605 at 617 per Mason J, the rationale for the presumption (and the correlative reverse onus) is that the burden should fall on the person whose own knowledge might best explain the reason for her or his conduct or decision.
180 Evidence from the decision-maker, if given, may not be conclusive. As Hayne J (in dissent) observed in BHP Coal 88 ALJR 980; [2014] HCA 41 at [38]:
Bendigo did not decide that accepting the decision-maker’s evidence of why adverse action was taken necessarily concluded the issue in a case where the employee was engaged in industrial activity. As counsel for the Minister, intervening, rightly submitted in Bendigo, “[i]t is an error to reduce the question to a binary choice between believing or rejecting the evidence” of the relevant decision-maker.
181 French CJ and Kiefel J made a similar point in BHP Coal at [8]. These observations have particular relevance in the light of my findings about Mr Vickers’ reasons.
182 This focus on the state of mind of the decision-maker, and the importance of her or his evidence to the working out of the statutory presumption, led the Court in Barclay 248 CLR 500; [2012] HCA 32 also to emphasise the operation of the link which arises through the use of the word “because” in the text of a provision such as s 351. Referring to the Court’s earlier decision in Bowling 12 ALR 605, French CJ and Crennan J (at [62]) said that the fact that an individual happens to be a union representative, or engaged in industrial activities at the time adverse action is taken against her or him, leads to no presumption that status was the reason for the adverse action, rather than just a surrounding circumstance. Gummow and Hayne JJ (at [85] and [104]) also refer to and apply Mason J’s approach in Bowling 12 ALR 605 at 616, 619, where his Honour said:
The protection of trade unions and their representatives from discrimination and victimisation by employers does not require an interpretation as extreme as that favoured by Isaacs J. It would unduly and unfairly inhibit the dismissal of a union representative in circumstances where other employees would be dismissed and thereby confer on the union representative an advantage not enjoyed by other workers, to penalize a dismissal merely because the prohibited factor entered into the employer’s reasons for dismissal though it was not a substantial and operative factor in those reasons.
… [Section] 5(1) does not proscribe the circumstances which it lists as the sole or predominant reasons for dismissal. It is sufficient if the circumstance is a substantial and operative factor. And it does not cease to be such a factor because it is coupled with other circumstances or because regard is had to it in association with other circumstances not mentioned in the section.
183 It appears there is thus a majority in Barclay which endorses the approach of asking whether the employer had proven that the prohibited reason was not a substantial or operative factor. It is helpful to recall the terms in which Mason J in Bowling 12 ALR 605 applied this approach to the facts in that case (at 617-618):
Once it is said that the appellant dismissed [the respondent] because he was deliberately disrupting production and was setting a bad example it is not easy to say without more that this had nothing to do with his being a shop steward. Although the activities in question did not fall within his responsibilities as a shop steward his office gave him a status in the work force and a capacity to lead or influence other employees, a circumstance of which the appellant could not have been unaware. It would be mere surmise or speculation, unsupported by evidence, to suppose that the appellant’s management, if concerned as to the bad example he was setting, divorced that consideration from the circumstance that he was a shop steward.
184 Although the language in Bowling of “substantial and operative factor” is not the language of s 360 of the Fair Work Act, as Gummow and Hayne JJ pointed out in Barclay 248 CLR 500; [2012] HCA 32 at [103], the extrinsic material in relation to s 360 did refer to the intention to incorporate earlier jurisprudence from the former provision (s 792 of the Workplace Relations Act) and summarised the effect of that jurisprudence as being that the reason must be “an operative and immediate reason for the action”, but not the “sole or dominant” reason.
185 The relationship between the role played by the protected attribute in an employer’s decision-making and the reverse onus was examined again in BHP Coal. At [14], French CJ and Kiefel J referred with approval to the reasons for judgment of Kenny J in the Full Court below (BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2013) 219 FCR 245; [2013] FCAFC 132 at [57]):
Her Honour pointed out that this court in Bendigo rejected the proposition that an employer must establish that the reasons for the adverse action were entirely dissociated from the employee’s union activities, in order to discharge the onus of proof. Her Honour added that an employee’s activity is not insulated from adverse action by an employer because it happens to be done in the course of an otherwise lawful industrial activity.
186 In BHP Coal, French CJ and Kiefel J go on to state (at [19]):
Section 346 does not direct a court to enquire whether the adverse action can be characterised as connected with the industrial activities which are protected by the Act. It requires a determination of fact as to the reasons which motivated the person who took the adverse action.
187 It was on this basis that French CJ and Kiefel J concluded (at [22]) that the trial judge had erred in finding that because the respondent held up a sign during the conduct of an industrial protest, there was a connection between that industrial activity and the disciplinary conduct taken against him sufficient to support a finding that the adverse action was taken because of the respondent’s industrial activity. Their Honours emphasised that a “connection” was not enough.
188 This difference between a “connection” and a “reason” may, with respect, be elusive. Possession of a protected attribute is clearly insufficient, and it may also be accepted that if the occasion for adverse action happens to coincide with manifestation of a protected attribute (such as political opinion or industrial activity), that is insufficient. If, however, more than this is meant by the use of the term “connection” then it seems to me as a matter of fact in a given case there may well be an overlap with a “reason” for the adverse action. So too the distinction between an employer not having to prove adverse action was “entirely disassociated” from a prohibited reason, but having to prove the prohibited reason was not a “substantive and operative” reason. Repeating that these will be questions of fact to be determined on the evidence in a particular case does not remove the difficulty of the somewhat fine distinctions being drawn in the authorities. With respect, they also illustrate the difficulties in paraphrasing, or moving away from, the statutory language which here relevantly requires that an employer prove action was not taken for reasons which “included” a prohibited reason.
189 BHP Coal is a difficult case, not the least because of the divergent approaches taken by the justices. All reasons emphasise the factual nature of the task of ascertaining why adverse action was taken against a person. All reasons recognise this generally involves an inquiry about the state of mind of the decision-maker, although it is not limited to that inquiry.
190 Seeking to rely on Barclay and BHP Coal, the respondent submitted that the allegations about the applicant “bagging” AWU officials were independent of the allegations about the Socialist Alliance, and that an employee gains no special protection or immunity simply because he or she happens to have a protected attribute if the reason for the adverse action is independent of that attribute. So much may be accepted; that submission is simply another way of expressing the underlying proposition that the reason for adverse action is a question of fact. If, in fact, possession of a protected attribute is coincidental, or simply part of the surrounding circumstances, then as a matter of fact the adverse action has not been taken because of that protected attribute.
191 The core question for the Court is whether, as a matter of fact, the respondent’s characterisation of the role played by the applicant’s political opinion in Mr Vickers’ decision-making as “coincidental” or “part of the context or surrounding circumstances” or some such description, is correct.
192 The task being as fact dependent as it is, there will always be limited assistance to be gained from comparisons with other decisions. Neither Barclay nor BHP Coal provide in my opinion the kind of watershed moment suggested by the respondent, so that one might erect a “pre-Barclay” and “post-Barclay” dichotomy as counsel for the respondent sought to do. The applicant has not submitted there is a “connection” between the applicant’s membership and involvement in the Socialist Alliance and the adverse action. He has submitted those matters, indicia of the protected attribute of political opinion, were a reason for the adverse action. Whether or not that is so is a question of fact, but there is nothing in the applicant’s claims which results in the outcome of this case turning on the kinds of matters discussed in Barclay, nor in BHP Coal. The difference is highlighted, as the applicant submitted, by the fact that in the present case, the adverse action was taken predominantly because of the tendencies Mr Vickers attributed to members of the Socialist Alliance, rather than because of any actual conduct of the applicant as a member of the Socialist Alliance.
193 The respondent’s submissions also sought to separate out Mr Vickers’ apprehensions that the Socialist Alliance might undermine or infiltrate the respondent from the holding of a political opinion as a member of the Socialist Alliance. It was, the respondent submitted, akin to the offensive sign held up during an industrial protest in the BHP Coal case — the reason for the adverse action was the offensiveness of the sign, not the industrial activity. Here, at least, if the remainder of the respondent’s submissions were rejected, the respondent submitted that the reason for the adverse action was the apprehension of undermining and infiltration, not the political beliefs of the Socialist Alliance.
194 As I set out below, on the facts I reject this submission. I doubt, in any event, at a level of premise or principle, that such a distinction can be drawn. The respondent seeks to separate a protected attribute from characteristics either associated with it, or perceived by the decision-maker to be associated with it. In the days before pregnancy became a distinctly protected attribute in anti-discrimination law, becoming pregnant was seen as a characteristic associated with women, or perceived to be associated with women. An employer might say: I refused to give the female applicant the job because she might become pregnant, not because she was a woman. As it has been found, that is still sex discrimination: see, eg, Wardley v Ansett Transport Industries (Operations) Pty Ltd (1984) EOC 92-002. This approach was not the subject of appeal. Ansett’s appeal of that decision to the Supreme Court of Victoria had a constitutional focus: namely an asserted inconsistency between a Commonwealth instrument and the relevant state anti-discrimination law, pursuant to s 109 of the Commonwealth Constitution. This argument was rejected by the High Court: see Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237.
195 At base, distinctions between protected attributes and real or perceived characteristics associated with those attributes permits the kind of stereotyping which anti-discrimination laws are designed to prevent. If there is an apprehension about what an individual might do, or how she or he might act, because of views or behaviour attributed to people with the protected attribute of that individual, acting on such an apprehension is just as discriminatory as treatment because of what the individual has done, or how the individual has acted.
The existence of more than one reason for Mr Vickers’ conduct
196 There was no dispute between the parties that the person whose conduct needed to be assessed for the purposes of determining a contravention of s 351 was Mr Vickers. It was he who, on learning of the complaint from Mr Howes, directed the applicant attend the 18 July 2013 meeting in Sydney. It was he who was the principal decision-maker at that meeting. It was he who wrote the show cause and suspension letter to the applicant on 23 July 2013, and it was he who terminated the applicant’s employment on 26 July 2013. The respondent correctly accepted liability for the conduct of Mr Vickers.
197 As the respondent conceded, the determination of whether there was a contravention of s 351 turns fundamentally on the facts, and on the Court’s finding as to what “moved” Mr Vickers, bearing in mind the reverse onus in s 361.
198 By s 360, a prohibited reason need not be the sole reason for the impugned conduct, so long as it is “included” in the particular reasons for the adverse action. The findings in this proceeding turn on an application of this provision, because there is no doubt Mr Vickers acted for more than one reason in relation to each of the three events which I have found constituted adverse action. In my opinion, there is, in any event, a connection between the prohibited reason and the reason asserted to be permissible (the “bagging” allegations), so that the latter is also a prohibited reason. I return to that at [239] below.
The correct characterisation of Mr Vickers’ reasons for the adverse action
199 The respondent submits that the “substantial and operative factor” in Mr Vickers’ decision-making was his view that the applicant was not suited to working with the AWU, in part because of his views about that union. Any employee who voiced that level of disapproval about a union with which the respondent was trying to build an alliance, after years of acrimonious relations, would have been treated in the same way. This submission reflects the wording of the termination of employment letter sent by Mr Vickers.
200 The evidence does reveal Mr Vickers’ concern at the applicant’s apparent critical approach to the practices and operation of the AWU. However, the applicant had been hired specifically for the alliance position; indeed he had been offered a six-month contract in order to keep him available for this position. He was a very new employee, and new to the union movement. Yet, in a matter of a couple of weeks, he went from embarking on one of the respondent’s most important alliance projects to having his employment terminated. The swiftness and inflexibility of Mr Vickers’ decision-making was, in my opinion, not because of the applicant’s criticisms of the AWU but because of his association with the Socialist Alliance. Mr Vickers did not trust him, and did not want him anywhere near the embryonic alliance.
201 This attitude was, I find, substantially informed and driven by Mr Vickers’ own views about the Socialist Alliance, the party’s agenda and its mode of operation.
202 Although Mr Vickers played down in his evidence the fact that it was Mr Howes who was the originator of the complaints against the applicant, and it was Mr Howes who was concerned about the applicant’s associations with the Socialist Alliance, I find that the fact it was Mr Howes making the complaint did have some influence over the course of events. The speed with which Mr Maher and Mr Vickers reacted once Mr Howes complained is indicative of his influence. No doubt it was of serious concern to Mr Maher and Mr Vickers that the Secretary of the AWU had made such complaints, and was disturbed by the applicant’s apparent political allegiances.
203 These circumstances were capable of threatening the progress of the alliance — but that was at least in part because of how seriously Mr Howes had taken what the applicant was alleged to have done, and how adversely he viewed the applicant’s political connections. The complaints by Mr Howes triggered a direction to the applicant to attend a meeting with the two most senior members of the Mining and Energy Division — namely Mr Maher and Mr Vickers. Mr Vickers accepted it was “generally” the position of the AWU (and therefore of Mr Howes) that it had no tolerance for people who were members, or had associations with, the Socialist Alliance.
204 Mr Vickers’ real concerns emerged early in his evidence in chief, when he was describing how he heard about the complaints from Mr Howes. He was asked about this reaction to them, and said:
When Mr Maher told you about the complaints, what was you reaction to that? How did – what did you think?---Well, I won’t repeat the exact words that I said but I thought, you know, what else can go wrong? You know, is – is someone trying to ensure that this alliance never works and we never get another crack at re-unionising the Pilbara. So I – I was a bit frustrated.
205 When Mr Vickers referred to “someone”, it became apparent that the combination of allegations — that the applicant was involved with the Socialist Alliance and was also bagging AWU officials — had particular resonance with Mr Vickers and, as far as he was concerned, meant only one thing — infiltration. He confirmed this subsequently in his evidence in chief, when explaining the substance of the complaint from Mr Howes:
Mr Maher in fact continued with, “And Paul Howes should know, given his background.” And I do know that Mr Howes, like many other trade union officials, have a view that people with the political persuasion who we would refer to as “Trots” have a history of seeking to infiltrate and undermine trade union activity.
206 It became apparent Mr Vickers had done his own research about the applicant prior to the 18 July 2013 meeting:
What did you put to him?---I put to him that, based on Paul Howes’ comments and concerns, I did some searching of the Socialist Alliance website, and I told Mr Sayed that I couldn’t find any reference of him being active in the Socialist Alliance past about March 2010, I think was the date. To which he almost immediately responded that, “That’s because I resigned about then, because I had serious internal differences with the organisation.”
…
why did you do some searches?---I did some searches because Mr Howes, a key partner in the alliance, had raised a concern, and if I needed to tell him that the CFMEU didn’t care whether our organiser was a communist, a socialist, a Trot, or a callithumpian – I would tell him that to his face – I wanted to be sure of my facts.
207 The latter part of this answer by Mr Vickers is one which I do not accept in its entirety. I find he conducted the internet searches so that he had some independent sources with which to confront the applicant, and to assist him in discovering the real extent of the applicant’s association with the Socialist Alliance. I do not consider it was for the purpose of “defending” the applicant against the allegation by Mr Howes, or going back to Mr Howes and saying it didn’t matter. This, in my opinion, is a reconstruction by Mr Vickers.
208 The applicant’s evidence that he realised he was “in trouble” because of his Socialist Alliance connections was in my opinion an accurate description of his situation. Mr Vickers’ evidence was that it “can’t be correct and it’s not correct” the applicant was redeployed to Queensland because he was a member of the Socialist Alliance, given that Mr Vickers had put to him and the applicant had agreed that he resigned in about March 2010, and the falsity of this was not known to Mr Vickers until a few days later. Mr Vickers’ proposition can be accepted, to that limited extent. In my opinion, the reason for Mr Vickers’ conduct was not confined to concerns about the currency of the applicant’s membership of the Socialist Alliance, it was the applicant’s involvement and association with that party at all which caused Mr Vickers considerable disquiet. After all, even when the applicant’s employment was terminated and the true version about the length of his involvement emerged, the applicant was not at that time a member of the Socialist Alliance. Current membership was neither the trigger nor the central issue. Especially since the applicant had made it clear he did not leave the Socialist Alliance because of differences in political opinion or belief, but rather a difference in emphasis in terms of campaigns and strategies. What was critical to Mr Vickers was the applicant had an association at all with the Socialist Alliance, together with his concern about future infiltration and undermining within the respondent by the Socialist Alliance if the applicant remained employed as an organiser.
209 On discovering the applicant had posted the message extracted at [35] above on Facebook, and had been untruthful about when he ceased his involvement with the Socialist Alliance, Mr Vickers drafted a letter to be sent to the applicant. In his evidence, he described passing the letter on to the union’s legal officer in Sydney to have a look at it and suggest any modifications. I infer from this that the version of the letter in evidence before the Court is a version which has been examined by the respondent’s legal officer.
210 Mr Vickers explained the immediate suspension on the basis that he did not want the applicant working for the union in any capacity after discovering he was a “blatant liar”. Some attention was paid in the oral evidence to that part of the letter where Mr Vickers speaks of the “assurance” given to him, Mr Maher and Mr Weise by the applicant, and Mr Vickers’ subsequent description of those assurances as being inaccurate. Mr Vickers maintained this part of his letter concerned the “bagging” allegations. I do not accept that explanation. I find this part of the letter is a reference to the applicant’s assurance at the 18 July 2013 meeting about when he had ceased involvement with the Socialist Alliance. Mr Vickers also refers to “another matter” in the same sentence. This, I find, is a reference to the Facebook post. Mr Vickers deals with the Facebook post after having dealt with the applicant’s lack of truthfulness about the length of his association with the Socialist Alliance. Mr Vickers turns first to the Socialist Alliance issue, and that supports the interpretation I place on what is meant by “assurances”.
211 The potential consequences of the applicant’s affiliation with the Socialist Alliance were clearly actuating Mr Vickers at the time he wrote the suspension letter. When asked about his use of the word “agnostic” in the show cause letter extracted at [119] above, Mr Vickers said:
I’m sorry, but my concern is not their [ie Socialist Alliance members’] affiliation. My concern is what they do.
212 In re-examination Mr Vickers expanded on what he meant by “what they do” and his use of the terms “infiltrating and undermining”:
MS HOWELL: What do you mean when you use the word “infiltrating”, Mr Vickers?---Well, infiltrate, from my - my use of the term and - is where people, for reasons which are inconsistent with that - and at odds with the intended employment arrangement, for example, actively seek to - to get in there - to get into an employment arrangement, either inside a union, or through leadership of a union, where they can then utilise or pursue the political ideologies, as opposed to doing the job that they’re – they’ve been employed to do. That’s my concept of infiltration and the purpose that I use the term “infiltration”, and indeed “undermining” as conjunctive words, or whatever the grammatical term is, your Honour. I’m a coal miner. I apologise.
213 Although this may have been a distinction in Mr Vickers’ mind it is not material for the purposes of the operation of s 351 of the Fair Work Act. This evidence reveals Mr Vickers’ heightened apprehension about what he perceived those affiliated with the Socialist Alliance would “do” within the CFMEU. This led him to ascribe that apprehension to the applicant, which involved treating the applicant differently because of his association with the Socialist Alliance, which is an aspect of the applicant’s political opinion.
214 I accept the 23 July 2013 suspension letter also strongly reflects Mr Vickers’ anger at being lied to, and what might have been left of the applicant’s reputation in Mr Vickers’ eyes was destroyed by those lies.
215 It may be, as the respondent submitted in substance, that Mr Vickers would have taken the same approach had “assurances” been given at an earlier time about a person’s involvement in the Australian Labor Party, which then turned out to be false. The difference is, I find, questions about involvement in the ALP would never have been asked. In that sense, the applicant’s political opinion remains a reason which was “involved” in Mr Vickers’ decision to suspend the applicant immediately. The impermissible and unlawful questioning began the series of events which led to the applicant’s lies.
216 The applicant’s response, which I have extracted at [120] above, was predominantly concerned with his association with the Socialist Alliance, both in the past and in terms of reasserting that the beliefs of that party still represented his political views, and that he saw no inconsistency between those views and continuing as an organiser for the respondent.
217 As I have also observed, the response made no difference to Mr Vickers. At the meeting on 26 July 2013, when the applicant tried to engage Mr Vickers about the issues, Mr Vickers’ evidence was that he responded that there “is no role for you in this organisation past today”. The termination letter was written by Mr Vickers after this conversation. It stated:
Dear Ali Sayed
I write to confirm that the Union no longer has a requirement for your services, effective today.
I further confirm that you are not being terminated for any reason other than the fact that I have come to the conclusion that you are not an appropriate “fit” for the role that we had engaged you for.
The Union will pay you for the balance of the fixed term that you were engaged for, that being till 11th October 2013, including leave entitlements that you would have otherwised accrued.
I thank you for your efforts in your time with us, and reiterate my hope that you find a rewarding and appropriate role into the future.
218 The applicant had asked for a “non-derogatory” termination letter and this was what Mr Vickers provided. It is not in my opinion reliable evidence of the reasons for the termination of employment as it was expressly drafted to leave out the issues which had really caused the termination. The disavowal in this letter by Mr Vickers of any reason for termination other than the applicant’s “fit” at the CFMEU may be accepted as far as it goes. Whether this passage was inserted on legal advice or not was understandably not the subject of any evidence. Expressed in such general terms, it is one way of describing Mr Vickers’ views at the time. To describe the applicant as not an appropriate “fit” for the role says nothing about why the applicant is not an appropriate fit. Given the agreement about the drafting of the letter, and its general terms, I do not accept that the reason proffered in writing is a complete explanation of the true reasons for the applicant’s termination. It is not inconsistent with the true reasons, but neither is it complete.
219 In cross-examination, Mr Vickers described his concern as being with “the way that I knew Trots operated inside the trade union movement or sought to”. He accepted that Mr Howes would have called the applicant a “Trot” because he was a supporter of the political opinions or theories of Trotsky.
220 Mr Vickers explained he needed to address Mr Howes’ concerns by calling the applicant back from Perth for the “purpose of understanding precisely what Mr Howes’ concern was”. There was, however, no evidence that Mr Vickers explored this issue any further with Mr Howes, as opposed to the applicant. Having received the complaint — that the applicant was a “Trot” — I find Mr Vickers knew exactly what this meant, and exactly what Mr Howes’ concerns were, as Mr Vickers’ evidence later revealed. He had no need to “explore” Mr Howes’ concerns — what he needed to, and did, explore was whether the applicant was a “Trot”, and was a member of the Socialist Alliance. Mr Vickers accepted that “generally speaking” there was a relationship between describing someone as a “Trot” and as a member of the Socialist Alliance. In other words, the “Trots” which both Mr Howes and Mr Vickers saw as troublesome operated through the Socialist Alliance. Mr Vickers well knew, as he admitted in cross-examination, that the AWU had “no tolerance” for people who had any association with the Socialist Alliance.
221 In cross-examination, Mr Vickers said it was not membership of the Socialist Alliance which worried him, but rather that the activities of some Socialist Alliance members are “very concerning”. That is not what Mr Weise’s notes of the 18 July 2013 meeting record Mr Vickers saying. Those notes record Mr Vickers as saying to the applicant “Social Alliance affiliations is very concerning, is worrying, possible infiltrations”. Whether or not these are exactly the words used by Mr Vickers, there is a subtle but important difference in emphasis between what he is recorded as having said at the meeting and his recollection in evidence. This is in my opinion an example of Mr Vickers trying to downplay in his evidence the views he expressed about Socialist Alliance at the time to the applicant.
222 Mr Vickers did not shy away from the same characterisation of Socialist Alliance’s activities in his evidence. He admitted that the words he may have used were that the Socialist Alliance “infiltrated and undermined the leadership of trade unions”.
223 Mr Vickers’ focus on how the Socialist Alliance, in his view, undermines and infiltrates unions explains the relationship between the “bagging” allegations and the applicant’s involvement with Socialist Alliance. The “bagging” allegations fitted, in my opinion, with Mr Vickers’ entrenched understanding of how Socialist Alliance operated. It was the kind of behaviour he would expect from someone with Socialist Alliance affiliations — that he or she would set about undermining union officials, by running them down to their own members. Mr Vickers repeated on at least four occasions his description of “infiltrating and undermining” as his preferred description of what those with Socialist Alliance affiliations did inside trade unions. He was clear he would not see “the union put at risk by infiltration and undermining by Trots, yes”. He repeated a short time later in his evidence that he would not allow anyone to “undermine the integrity of the union” and that, in his opinion, a person with Socialist Alliance affiliations could “potentially” do this.
224 In his evidence Mr Vickers distinguished the remarks he made to the applicant about respecting the applicant’s beliefs. He confirmed this related to the applicant’s professed beliefs in socialism and communism, and his beliefs in “fairness and justice and all those things”. That evidence is consistent with Mr Vickers’ attitude to the Socialist Alliance: it is affiliation with that party which caused Mr Vickers great concern.
225 This brings me to Mr Vickers’ remark that the applicant was a “square peg in a round hole”. The use of this phrase assumed some importance in the parties’ respective arguments. The respondent submitted, and Mr Vickers gave evidence, that he meant by the use of this phrase the applicant’s views about the AWU, which he continued to expose at the 18 July 2013 meeting, and that he indicated he would not change. Therefore, so far as Mr Vickers was concerned, the applicant was not suited to the alliance job.
226 The applicant’s evidence was that Mr Vickers linked this phrase with the applicant’s association with the Socialist Alliance. The applicant’s evidence was:
Now, after that did Mr Vickers say anything about what was to then happen?---Yes. So this is where I guess I heard how – so what he said was that everything that I had said fitted with the complaint of CFMEU that this is exactly how Socialist Alliance members talk and I’m not – I’m a square peg in a round hole and I was not the right person for the job in Pilbara.
227 I do not find the applicant’s account sufficiently reliable. While this is not conclusive, Mr Weise’s notes do not record Mr Vickers expressly drawing any such link in the discussion. I accept Mr Vickers’ evidence that the “square peg in a round hole” remark was directed towards the way the applicant was interacting with the AWU, and his views about the AWU. That finding does not affect my confidence that operating at all material times on Mr Vickers’ decision-making was the applicant’s affiliations and associations with the Socialist Alliance. As I made clear at the outset, in my opinion there was more than one reason operating in Mr Vickers’ decision-making.
228 Mr Vickers denied a number of propositions put to him in cross-examination concerning whether he acted as he did against the applicant because of the applicant’s association with Socialist Alliance. For example, he said in his evidence in chief that “the association with the Socialist Alliance is irrelevant to me”, and he denied in cross-examination that a current and active association with the Socialist Alliance would have made the applicant unacceptable for the Pilbara job.
229 The respondent submitted the Court should accept those denials and, if it did so, it was clear Mr Vickers did not act for a prohibited reason.
230 The fact that Mr Vickers gave evidence of not knowing anything about the applicant’s political beliefs is not material. Questions were asked of Mr Vickers about whether he knew the applicant was a communist, or a socialist, and he said he did not until the applicant volunteered some information at the 18 July 2013 meeting. It was not the applicant’s beliefs in communism, or socialism, which were in issue. It was his affiliation and association with the Socialist Alliance. Mr Vickers knew about that association from the time Mr Howes’ complaint was conveyed to him.
231 The applicant submitted Mr Vickers’ denials were inconsistent with other parts of Mr Vickers’ evidence and with what he did and said at the time of the adverse action. I accept those submissions.
232 The inconsistencies in Mr Vickers’ evidence are irreconcilable. For Mr Vickers to answer in cross-examination that it has never been his practice to ask a candidate if they are a member of a political party and that it is the policy of the union not to ask such a question, is inconsistent with how Mr Vickers behaved towards the applicant. His subsequent evidence that he was not aware of any person within the respondent ever being called to a meeting to explain their membership of the Australian Labor Party, or any other political party, was similarly inconsistent with how he treated the applicant.
233 I find Mr Vickers’ denials in oral evidence, given in the context of this proceeding, were an attempt to reconstruct his reasoning process with the benefit of hindsight, affected by the fact that he, and the respondent, were under scrutiny for acting for a prohibited reason.
Summary of findings on Mr Vickers’ reasons
234 For these reasons, I find that Mr Vickers took each of the three identified adverse actions against the applicant because of the political opinion of the applicant. I accept that Mr Vickers took these three identified adverse actions for more than one reason. Mr Vickers’ reasons for the suspension and dismissal included his anger at being lied to, and this is not a prohibited reason in and of itself. I accept, however, as the applicant submitted, that the subject matter of the lie was critical to Mr Vickers. For a variety of reasons in a variety of circumstances, employees may be untruthful with their employers. Not all such untruths are capable of characterisation as serious misconduct. Like any other human behaviour, context is important: context may be exculpatory or it may be inculpatory. So, too, the subject matter of the untruth. Here, the subject of the applicant’s relationship with the Socialist Alliance was already a matter of grave concern to Mr Vickers. In my opinion, that the applicant had been untruthful about the nature and longevity of his relationship with the party only fuelled Mr Vickers’ suspicions that the applicant could not be trusted to work within the AWU and the CFMEU. If the untruth had been about a different subject matter (for example, the applicant’s experience before taking the organiser position) it cannot be said with confidence that Mr Vickers’ reaction would have been so virulent and immediate.
235 As Mr Vickers’ answers in cross-examination about how he would have dealt with an employee who lied about her or his sexuality reveal, the context and subject matter of a lie told by an employee may be critical to an employer’s decision-making. That was, I find, the case in relation to the applicant, adversely to his interests. In both the inquiry into the applicant’s affiliation with the Socialist Alliance, and the hypothetical example of an employee being questioned about her sexuality, the questioning itself was capable of contravening s 351, depending on what was identified as the adverse action. That, in answering questions which may in themselves be unlawful, an employee lies, will not provide any absolute justification for dismissal, nor relieve an employer of the potential application of s 351. Nor will proof of a lie by an employee necessarily discharge the onus imposed by s 361. I do not accept the respondent’s submission that anything said, whether by way of ratio or dicta, by the High Court in Barclay, or BHP Coal, precludes this approach. In the present case, the subject matter of the applicant’s lies means Mr Vickers’ reliance on the lies as part of the justification for dismissal does not assist the respondent to discharge its onus under s 361.
236 Mr Vickers’ reasons also included the post by the applicant on his Facebook page, which Mr Vickers, perhaps mistakenly but I accept genuinely, believed at the time to be a derogatory reference to him and other officials of the respondent. This is not a prohibited reason.
237 I find that Mr Vickers took each of the identified adverse actions because of the complaints from the AWU about the applicant “bagging” AWU officials to their members, and AWU complaints about the applicant’s interpersonal style and the way he related to AWU officials. I consider this in part also to be a prohibited reason, and in part not.
238 I accept that, on hearing the allegations about how the applicant had behaved to AWU officials, and on hearing the applicant’s explanation about his intention to adhere to his principles in identifying behaviour he did not agree with, Mr Vickers believed the applicant would not fit in as an organiser in the alliance. In my opinion Mr Vickers more readily believed and accepted the truth of those allegations because of what he learned about the applicant’s association with the Socialist Alliance. It was this prohibited reason which in my opinion explains why Mr Vickers was so ready to act against the applicant despite him denying any misconduct, and without any investigation into the truth of the AWU allegations. It would be artificial to try and dissect Mr Vickers’ reaction any further. People may act for a multiplicity of reasons: the way in which those reasons interact in the mind of a respondent cannot reliably be ascertained. It is not possible in hindsight for a Court to do more than identify, if the evidence supports such an identification, and taking into account where the burden of proof lies, that on the balance of probabilities one of the real reasons was a prohibited reason. That is the point of s 360.
239 A combination of matters caused Mr Vickers to act as he did in taking the three identified adverse actions against the applicant. This is well illustrated by the “bagging” allegations. I find that a significant part of Mr Vickers’ concern about the “bagging” allegations was inextricably linked to the applicant’s political opinion. His concern stemmed from his strong personal belief that people associated or affiliated with the Socialist Alliance tended to infiltrate and undermine unions in a way he considered destructive. The “bagging” allegations were consistent with Mr Vickers’ views about the kind of conduct in which those associated with the Socialist Alliance engaged, because they were, he considered, designed to undermine the workers’ confidence in their union organisers. That is, he saw in the way the applicant was alleged to have behaved signs of such infiltration and undermining which he considered typical of Socialist Alliance members, and he was determined to put a stop to it.
240 The question whether the respondent has proven that the applicant’s political opinion was not a substantive and operative factor in the taking of each of the three adverse actions against the applicant must be answered in the negative. In my opinion, the respondent has not discharged its burden and, more than that, I can be positively satisfied on the evidence that the applicant’s political opinion was a substantive and operative factor in each of the three adverse actions taken against the applicant.
Whether the decision made at the meeting on 18 July 2013 to redeploy the applicant from Western Australia, where he was working on the alliance, to Queensland contravened section 351(1) of the Fair Work Act
241 For the reasons I have set out above, the decision to redeploy the applicant was taken for reasons which included a prohibited reason: namely, the applicant’s political opinion. His political opinion was constituted by his identification with the opinions and beliefs of the Socialist Alliance, his membership of that political party, and his affiliation with that political party.
Whether the letter from Mr Vickers to the applicant on 23 July 2013 suspending him contravened section 351(1) of the Fair Work Act
242 As I have explained, it is clear the applicant was suspended by Mr Vickers for several reasons, including prohibited reasons.
243 Mr Vickers’ 23 July 2013 suspension letter to the applicant identified that it would be unacceptable to the respondent if the applicant allowed his “political views or activities” to interfere with or prejudice his role as a CFMEU organiser. As the applicant correctly submits, the assumption inherent in this statement is that the applicant had “outside political involvement” into which the respondent would see fit to inquire, and that the respondent would decide whether that “outside political involvement” was acceptable to it, or not.
244 The respondent, through Mr Vickers, made those inquiries without any real consideration of what the applicant in fact had done with the Socialist Alliance. It did so without inquiring whether the applicant would engage in the kind of behaviour Mr Vickers attributed to members of the Socialist Alliance. Rather, Mr Vickers assumed two things. First, that an affiliation with the Socialist Alliance meant the applicant was likely to engage in such behaviour (in other words, a stereotyping approach) and second, that the “bagging” allegations (and they were only allegations because no inquiry was ever conducted into their truth) were consistent with Mr Vickers’ own perceptions about the behaviour of members of the Socialist Alliance, in terms of the way they infiltrated and undermined union leadership.
Whether the dismissal of the applicant on 26 July 2013 contravened section 351(1) of the Fair Work Act
245 The respondent conceded, and I accept, that the issues about Mr Vickers’ reasons for dismissing the applicant are the same as those applicable to the 26 July 2013 letter and the suspension. For the reasons I have set out I find that Mr Vickers’ reasons for the applicant’s dismissal also included a prohibited reason: namely, his political opinion.
246 Some attention was paid in final submissions to Mr Vickers’ denials in cross-examination that he was concerned the applicant was, in July 2013, still involved in the Socialist Alliance and that was why he dismissed him. The respondent submitted these denials were clear evidence of no causal link between the applicant’s dismissal and his affiliation with the Socialist Alliance. The applicant submitted it was a “fair inference” that Mr Vickers believed the applicant’s involvement with the party remained current and this played a part in the dismissal.
247 I have addressed what I see as the unreliability of Mr Vickers’ denials at [233] above. The material discovered by Mr Vickers through Mr Dallas showed the applicant was campaigning for the Socialist Alliance party in November 2012. This was five months before he commenced working for the respondent and approximately eight months prior to the time he was alleged to have been “bagging” AWU officials.
248 In my opinion, the evidence clearly establishes that Mr Vickers did not trust the applicant, in terms of not only any ongoing affiliation with the Socialist Alliance, but also any sympathy for or alignment with the beliefs and practices of members of that party within the union movement, as Mr Vickers perceived them to be. He was determined to remove the applicant from the alliance and the CFMEU and thus remove any possibility of the “infiltration and undermining” of which he spoke so strongly in his evidence. The redeployment to Queensland for a few months until 11 October 2013 was, I find, a concession to the persuasive powers of Mr Kumeroa. In reality, Mr Vickers wanted the applicant out of the CFMEU. Whether Mr Vickers did or did not believe that the applicant was a current member of the Socialist Alliance as at 26 July 2013 was, in my opinion, not an issue that affected Mr Vickers’ reasons for dismissing the applicant, nor for taking the two earlier forms of adverse action.
The breach of contract claim
249 Little time was spent in evidence or argument concerning this claim. No authorities were referred to, and the argument about how the applicant said the Pilbara contract was concluded was not developed in final oral submissions. The applicant simply relied on his written submissions. Those written submissions were brief, and also not particularly developed. In them, the applicant submitted:
“around late June 2013” there was a binding employment agreement between the applicant and the respondent;
the terms were those set out in the Pilbara contract in the form tendered in evidence;
the termination of the Pilbara contract on the basis of complaints about the applicant, and involving his political opinion, was a breach of the Pilbara contract;
Even if the Pilbara contract contained (as it did on its face) clauses entitling the respondent to terminate the contract either without notice during the probation period or with notice outside it, those clauses did not entitle the respondent to terminate the contract on the grounds of the applicant’s political opinion. Relying on Walker v ANZ Banking Group (No 2) (2001) 39 ACSR 557; [2001] NSWSC 806 at [95]-[98] per Austin J, the applicant submitted there was an “equitable limitation” on any right of the respondent to terminate the contract and it would be unconscionable for such a right to be exercised in the circumstances revealed by the evidence.
The damage suffered by reason of the breach of contract is the loss of the income the applicant would have derived from employment under the contract, to at least 31 December 2014: namely, $120,188.77 plus superannuation.
250 This claim is attended by a number of difficulties, beginning with the assertion that there was a concluded contract between the parties “around late June 2013”.
251 The evidence discloses, and I find, that Mr Weise gave the applicant a copy of a document entitled “CFMEU Mining and Energy Division 2013 Western Australian Mining Alliance Employment Agreement”. It was an agreed fact that this occurred in “June 2013” but both parties’ evidence placed the date more precisely at around 19 June 2013. The applicant’s evidence about what occurred when Mr Weise gave him the document was:
… And did Mr Weise tell you anything about that document?---Well, he wanted me to go through it and sign it and give it to him there. I asked him if I could take it with me and have a read and see if – and actually show it to Ross Kumeroa because Ross Kumeroa, who was the lead organiser for Queensland district who I had working with, had asked me to make sure that given that CFMEU has an enterprise agreement for all the organisers that, you know, things match and I didn’t want to undermine any conditions for the separate contract that other CFMEU organisers had basically gained through negotiations at their enterprise bargaining.
252 It can be seen that, at this stage, the applicant wanted an opportunity to check all the terms of the contract with Mr Kumeroa, especially for their consistency with the relevant enterprise agreement. It is clear the applicant did not agree to be bound by the contract on this day.
253 The applicant’s evidence was that the next time he saw Mr Weise he “raised the question around probationary time period in the agreement”. The applicant suggested that the time he had served on the six-month fixed-term contract should be counted as part of the six-month probationary period in the Pilbara contract.
254 The applicant said Mr Weise told him he needed to discuss that issue with Mr Vickers. The applicant’s evidence was that subsequently — around the “end of June” — Mr Weise told the applicant
He agreed to it. He informed me that Mr Andrew Vickers has agreed to my probationary time to be counted into this agreement.
255 That evidence, although not especially clearly expressed, appears to be to the effect that the respondent, through Mr Vickers, agreed to an alteration to cl 14 so that the period of six months ran not from the commencement of the applicant’s employment under the Pilbara contract (which was expressed in the proposed version to commence on 22 July 2013) but from the date of the applicant’s commencement of employment with the respondent: namely, 11 April 2013.
256 The applicant also relies on the content of a meeting held on 26 June 2013, in which several operational aspects of the alliance were discussed and agreed, such as travel and accommodation arrangements, and who would report to whom. This was also the day on which the alliance was officially launched in Sydney by Mr Howes and Mr Maher, and the MOU in relation to the alliance was signed. No authorities were relied on, nor any submission developed, about how this conduct, which concerned the arrangements between the respondent and AWU at union level, could provide objective evidence one way or the other to prove that the applicant and the respondent had agreed to be bound by the terms of the Pilbara contract, with cl 14 allegedly verbally altered. I do not accept that the conduct of the respondent and the AWU on 26 June 2013, including the discussion about what role Mr Sayed would play, is sufficient evidence that the parties had agreed by that date to be bound by the terms of the Pilbara contract.
257 No contract was ever signed by either the applicant or the respondent. The contract in evidence is not expressed on its face to relate to the applicant. It is a generic contract, with the other contracting party identified as “Person or persons employed by the CFMEU Mining and Energy Division”. It does bear the applicant’s name at the end of the document.
258 No argument was put by the applicant that there was any preliminary agreement, in the sense set out in Masters v Cameron (1954) 91 CLR 353; see also Graham Evans Pty Ltd v Stencraft Pty Ltd [1999] FCA 1670 at [43]-[45] per Dowsett J (with whom French and Whitlam JJ agreed).
259 No attention was given to how the Court was to determine what the parties intended in terms of formation of the contract, in accordance with the approach set out by the High Court in Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 at [25]:
Because the search for the “intention to create contractual relations” requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word “intention” is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.
260 In final submissions, senior counsel for the applicant appeared to narrow the timeframe during which the applicant submitted the contract was concluded. He submitted this occurred from the date the alliance was officially launched in Sydney, and there was a meeting about the respective roles to be played by the applicant and Mr Kerley: namely, 26 June 2013. As I have observed above, all of this evidence relates to the way in which the alliance — as an arrangement between the CFMEU and the AWU — would function in its entirety. It is difficult in my opinion to see how evidence of what was said at this meeting could be used to prove that each of the applicant and the respondent had agreed to the specific terms in the proposed Pilbara contract, with an oral alteration about the commencement of the probation period.
261 Other than reference to this meeting, the applicant did not point to the evidence which he submitted proved that some time after 19 June 2013, but before the direction on 16 July 2013 to attend the Sydney meeting, the respondent and the applicant had agreed to immediately be bound by the terms of the Pilbara contract, despite the parties not having signed any formal agreement, although one was clearly contemplated. Nor did he identify the evidence which should lead the Court to decide what the “words and conduct” of the respondent would have led a reasonable person in the position of the applicant to believe, in respect of when the rights and liabilities contained in the Pilbara contract were to become binding on the parties.
262 I do not consider the applicant has discharged his burden of proof in relation to the allegation that the Pilbara contract bound the parties from “the end of June”, or from 26 June 2013. First, the date from which the parties are said to have treated the contract as binding is too vague. Identifying the date by reference to the launch of the alliance is unpersuasive. The way the applicant reconciled this contention with the commencement date in the proposed contract of 22 July 2013 was never explained. These inconsistencies about when the Pilbara contract was concluded, and when it was alleged to take effect, incline against a conclusion that the parties had bound themselves to any particular employment agreement before 16 July 2013. It was not contended by the applicant any agreement was made after that date.
263 Second, there is no evidence the parties (not even the applicant) sought to employ the dispute resolution clause in cl 17 of the Pilbara contract when allegations against the applicant were made in mid-July 2013. There is no evidence the applicant received the motor vehicle referred to in cl 6 of the Pilbara contract, or that steps were taken to procure one. There is no evidence the applicant received the housing referred to in cl 7, or that any arrangements were made to that effect: rather, what scant evidence there is suggests the applicant was living in hotels while in Western Australia.
264 On 16 July 2013, when the applicant was put on notice of complaints against him, he was in Perth familiarising himself with AWU operations, but had not commenced work as an organiser in the Pilbara.
265 The initial offer of employment to the applicant on 1 April 2013 expressly stated that “Full time employment with the CFMEU Mining and Energy Union on the West Australian alliance will be subject to you accepting the employment contract for this position”. This suggests the respondent never contemplated a binding agreement with the applicant unless and until a written employment contract was finalised and signed. No evidence was adduced by the applicant to prove that this position adopted by the respondent upon the applicant’s employment changed at some point in time.
266 In my opinion, what the evidence reveals is an advanced stage of negotiations between the parties about the terms of the applicant’s second employment contract, largely brought on by the applicant himself wishing to check the terms and then modify at least one of them. There was clearly an expectation in late June 2013 by both parties that a second employment contract would be finalised, but in my opinion that event did not occur. Nothing in Mr Weise’s answers in cross-examination suggests the respondent considered the contract binding on it before the events from 16-26 July 2013 which are the subject of this proceeding. Mr Vickers’ decision to pay the applicant out until 11 October 2013 is conduct objectively consistent with the six-month fixed-term contract being the contract which continued to bind the respondent.
267 If I am wrong in this finding, and there was a contract agreed between the parties as alleged by the applicant, in my opinion the respondent is correct to submit that the applicant’s termination of employment could have lawfully occurred pursuant to cl 14 of the Pilbara contract, without notice. Even if the applicant’s evidence is accepted and cl 14 was verbally altered so as to commence from 11 April 2013, on any view the events of 16-26 July 2013 remain within this six-month probationary period. The respondent did not breach the Pilbara contract by terminating the applicant’s employment. It was not alleged the other two forms of adverse action (aside from dismissal) constituted a breach of the Pilbara contract.
268 Finally, I accept the respondent’s submission that the applicant should not be permitted, in final submissions, to raise a new basis on which he asserts the termination of his employment was unlawful. The equitable argument briefly referred to in final submissions, but not developed in any way, is not pleaded by the applicant. Despite the respondent’s clear reliance in submissions filed before trial on cl 14 of the proposed Pilbara contract and its contention (in the alternative to its contention there was no contract) that it had a right to terminate without notice, the applicant did not identify any bar in equity to the respondent’s reliance on cl 14.
269 The respondent is also correct to point out that Walker is an interlocutory decision dealing with a commercial dispute rather than an employment situation, and that this kind of argument is likely to be affected by the decision of the High Court in Commonwealth Bank of Australia v Barker (2014) 88 ALJR 814; [2014] HCA 32 concerning the absence of any generally implied term of trust and confidence into an employment contract. It is some distance removed from the applicant’s contention that unreasonableness or unconscionability exists if there is a termination in accordance with the terms of the contract, but for a reason which includes the political opinion of the employee.
270 This argument constitutes a clear addition to the applicant’s pleaded case. There is generally no entitlement to relief outside a party’s pleaded case, given the denial of procedural fairness to the other party: Banque Commerciale SA, en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 per Mason CJ and Gaudron J. The applicant did not apply to amend his statement of claim to include such a claim. If this argument had been developed appropriately in submissions before trial, it may be that as a matter of practical effect there would be no procedural unfairness in allowing the argument to be made and considered, but that was not the case. The contention was raised, and then only by reference to an authority I consider has no obvious application. It was not developed at all.
271 It is not appropriate in those circumstances for the Court itself to develop in reasons for judgment possible contentions drawn from authorities not referred to, and embark on its own application of them, when neither the authorities nor their application was developed in submissions by the party who seeks to rely on them. The absence of such development illustrates why it is not in the interests of the administration of justice for a new argument, raised late and without notice, to be considered.
The consumer law claim
272 The representation which is pleaded to have been made by the respondent to the applicant, and to contravene ss 18 and 31 of the Australian Consumer Law, was that “when the Western Australian Mining Alliance was operational it would employ him at Tom Price in a full time capacity”. The second pleaded representation under the consumer law claim was abandoned by the applicant.
273 The representation is pleaded as having been made by Mr Weise in a telephone conversation on 28 March 2013, and in a letter from the respondent dated 1 April 2013 offering the applicant employment with the respondent.
274 The short answer to this claim is, as the respondent submits, that no such representation was in fact made.
275 The applicant’s evidence was not consistent with the pleaded allegation. He did not give evidence the alleged representation was made by Mr Weise at his interview on 28 March 2013. The applicant’s evidence was that there were “a number of discussions” with Mr Weise, and the second discussion occurred “a couple of weeks” after his 28 March 2013 interview, with a third conversation occurring “a couple of days” after the second one. This timing is inconsistent with the sending of the letter by the respondent on 1 April 2013, and the content of that letter. The applicant’s oral evidence was that in the third conversation Mr Weise told him that “some admin side of things … haven’t gone exactly to plan” and the respondent would offer the applicant a “stop gap”. His oral evidence was that Mr Weise said — in this third conversation — “ We will offer you this contract and as soon as everything is resolved on AWU’s side, then you will move to Pilbara”. This would place the representation some weeks after the 28 March 2013 interview and the 1 April 2013 letter.
276 Mr Weise’s evidence was that “as best he can remember” he told the applicant that:
the alliance was not finalised and that we did not want to lose him to, you know, if he picked up work elsewhere. So, in the meantime, if he would be happy enough I could guarantee him at least six months work with us on the east coast until such time as the alliance was finalised.
277 In cross-examination, Mr Weise adhered to his evidence that all he “guaranteed” the applicant was the six-month fixed-term contract, and that he couched his discussion about the Pilbara position in terms of an “expectation” that it would go ahead. Mr Weise agreed that he knew the applicant was relocating from Victoria to Queensland, and doing so in the context that the Pilbara position would be offered to him once formalities had been completed.
278 The letter from the respondent to the applicant on 1 April 2013 made a much more qualified statement. Having acknowledged the alliance was yet to be finalised as at the date of the letter “due to unforseen [sic] administration issue” and was “currently unable to be initiated”, Mr Weise on behalf of the respondent offered the applicant a fixed-term contract for six months with the respondent. Mr Weise then stated in the letter:
In the event that the alliance can be initiated during your fixed term contract, it is expected that you will transfer to the alliance project and be relocated to Tom Price.
279 The statement which I have extracted at [265] above was then made, indicating the requirement for a formal contract to be agreed before any such employment would commence.
280 As I have observed in relation to other issues, I do not find the applicant’s recollection to be particularly reliable, in terms of detail. His account of the time period over which the discussions occurred with Mr Weise was clearly wrong. Either he was too casual in his evidence, or he was reconstructing. This is not to doubt the general substance of the chronology as the applicant gave it, nor to find that he was being deliberately dishonest. However I do not find his recollection of the detail of what was said, or when it was said, to be reliable or persuasive.
281 Mr Weise, on the other hand, was the author of the 1 April 2013 letter. It was carefully expressed. As he said in oral evidence, no “guarantee” was given to the applicant. Nor, taking to account the whole of the evidence, could any sensibly or reasonably have been given at that stage — the alliance was somewhat precarious, and was between two unions with a long history of acrimony. The uncertainty was the reason for the six-month fixed-term contract.
282 I find that in his telephone conversations with the applicant, on the balance of probabilities Mr Weise made no representation of the kind alleged. Rather, he was cautious to couch his statements in terms of “expectation”. While it is true that the point of offering the applicant a six-month contract was, as Mr Weise agreed in cross-examination, because the respondent wanted to have him available for the Pilbara organiser position, the mechanism chosen to achieve that was a six-month fixed-term contract, in the expectation (but no more) that, during those six months, the problems with the alliance could be sorted out and the project could proceed. Indeed, the 1 April 2013 letter went as far as to point out, in the last sentence, that if the alliance could not be initiated, the applicant’s employment with the respondent “will cease on October 11th 2013”.
283 If, contrary to my finding, such a representation was made by Mr Weise on behalf of the respondent, then it was obviously a representation as to a future matter: namely, the prospect of the applicant securing a position as organiser for the respondent in the alliance. The effect of s 4 of the Australian Consumer Law is that if a representation is made as to a future matter, and the person making the representation has reasonable grounds to make it at the time it was made, it will not be misleading or deceptive within the meaning of s 18. The absence of reasonable grounds will mean that it is deemed to be misleading or deceptive: see SPAR Licensing Pty Ltd v MIS Qld Pty Ltd (2014) 314 ALR 35; [2014] FCAFC 50 at [16].
284 Without more, a promise or representation that is made but not fulfilled will not be misleading and deceptive: see SPAR Licensing 314 ALR 35; [2014] FCAFC 50 at [17]-[21] per Buchanan J, and the authorities there referred to.
285 Further, and contrary to the applicant’s submissions, s 4(3)(b) makes plain that the respondent bears no onus of establishing that it had reasonable grounds for making the alleged representation. In the absence of adducing any evidence of reasonable grounds, the deeming effect of s 4(2) will operate. Here, there was sufficient evidence adduced by both parties about the circumstances in which the applicant was offered the six-month fixed-term contract, and the parties’ expectations that the alliance would come to fruition, so that s 4(2) could have no application. Although the respondent has an evidential burden, the legal burden to prove the respondent did not have reasonable grounds remains with the applicant: see SPAR Licensing 314 ALR 35; [2014] FCAFC 50 at [74] per Foster J.
286 If, contrary to my finding of fact, such a representation was made, the respondent has discharged its evidential burden and the applicant has not discharged his legal burden of proving there were no reasonable grounds for the representation he alleges was made. The respondent had, through Mr Weise interviewing candidates for the advertised position of the alliance organiser role, decided that the applicant was the best candidate for that role. Negotiations on the alliance were advanced, and the evidence reveals most of the stumbling blocks in and around April 2013 were centred on AWU issues. Nothing in the evidence suggests that Mr Weise or Mr Vickers believed at the time of employing the applicant that the alliance was unlikely to proceed. Their expectation was that it would proceed — and they were sufficiently confident about that to commit funds to pay the applicant for a six-month position which was not entirely necessary, in order to ensure he was available for the alliance role.
287 There was no contravention of s 18 or s 31 of the Australian Consumer Law by the making of the alleged representation if, contrary to my finding, it was in fact made.
RELIEF
288 Having found the respondent contravened s 351 of the Fair Work Act in the redeployment, suspension and dismissal of the applicant, the question of appropriate relief must be addressed.
289 The parties jointly submitted that they be given an opportunity to make submissions on the application of the penalty provisions in s 546 of the Fair Work Act, should a contravention of s 351 be found. Accordingly, I have made directions giving the parties that opportunity, including the opportunity for a further oral hearing if they submit it is required. The question of penalty is independent from any orders in relation to compensation to the applicant, which should be made on the evidence before the Court, the applicant having had his opportunity at trial to tender whatever admissible material he wished to in respect of his loss and damage.
290 As I have noted, there was little if any such evidence, whether in documentary or oral form. The applicant pleaded he had suffered “distress, humiliation, pain and suffering” but this allegation was not supported by his oral evidence. He gave no express evidence to that effect. He appeared despondent at times about what had occurred. At other times he displayed some anger and disappointment. All those reactions are understandable in the circumstances but neither through his demeanour, nor through any express evidence he gave, did it appear that the contraventions had any significant and lasting effect on him at the level of “distress” or “humiliation” or “pain and suffering”.
291 Nor was any expert evidence called on his behalf to support the allegation in the pleading.
292 It is true he gave evidence that he was currently unemployed, and had not been employed since the respondent terminated his employment. His elaboration of this consisted of one statement: that he had “looked for a lot of jobs”. He gave no evidence about the nature and extent of the attempts he had made, despite having earlier given evidence that throughout his university course he had a range of jobs in property management and in the hospitality sector. He gave no evidence about whether had completed the necessary training to be admitted to practice as a barrister and solicitor, despite having given evidence that this was one of his plans before he applied for the position with the respondent.
293 I find the applicant has adduced insufficient evidence to persuade me on the balance of probabilities that the fact he has been without employment since 26 July 2013 to the date of trial was caused, directly or indirectly, by the termination of his employment. It appears he secured the position with the respondent relatively easily, in a short period after finishing his law degree. Without more evidence, there is no basis upon which any damages could be awarded for the period he has been without income after the termination of his employment. In any event, the applicant did not in his pleadings or in his submissions seek to quantify any such loss other than by a fixed sum calculated by reference to the Pilbara contract.
294 I have found no contract between the parties about the Pilbara alliance organiser position was ever concluded, and that, even if there was, there was no breach of that contract. Accordingly the applicant’s claim for loss of income pursuant to that contract must fail.
295 The applicant also submitted that he was entitled to the loss of the benefit of the Pilbara contract because that benefit was lost to him on 18 July 2013 when he was redeployed to Queensland as a result of the decision of Mr Vickers. He submits the loss of the benefit of the Pilbara contract flowed from the adverse action taken by the respondent in contravention of s 351, and did so independently of whether the Pilbara contract had been concluded by 18 July 2013.
296 The applicant submits there is no basis on which the Court could find that, absent the adverse action by the respondent, the applicant would have been dismissed from his employment before 31 December 2014, the date on which the Pilbara contract was to expire, and a renewal of that contract would be required. He submits that various incidents at a Queensland motel raised by the respondent in evidence and said to indicate misbehaviour by the applicant were not taken into account by Mr Vickers in his decision-making and their truth was never proved at trial, nor was evidence of them admitted for that purpose. I accept both those submissions.
297 He submitted the complaints which did form the basis of Mr Vickers’ decision-making all referred to the applicant’s working relationship with the AWU, not the respondent, and therefore were not probative of any likelihood he would have experienced problems in continuing to work for the respondent. I do not accept this submission, because it is based on an incorrect premise.
298 The premise is that, absent the adverse action, the applicant would have continued working for the respondent other than in contact with the AWU. That premise ignores the situation in which the adverse action occurred. In assessing what would have occurred in the absence of the adverse action it must be borne in mind that the position the applicant was expected to fill by the end of the July was as a CFMEU organiser working on the alliance at Tom Price. That is, working with Mr Kerley and the AWU officials in the alliance.
299 No submission was made that there was available to the respondent an ongoing position after 11 October 2013 to which the applicant could have been assigned, which did not involve working with the AWU. Nor was any evidence adduced on which such a submission could be based. The whole point of the redeployment was to strike a balance between giving effect to Mr Vickers’ views that the applicant shouldn’t continue working for the respondent at all, and the unfairness to the applicant of terminating his employment during his fixed-term six-month contract.
300 The respondent submitted that it was “inconceivable” the applicant would have been placed in the Pilbara position, given the complaints made about him, the attitudes he had expressed about the conduct of the AWU officials, his description of Mr Kerley as a “rat” and his determination to speak his mind about the shortcoming he perceived existed in the AWU mode of operation. This submission of course takes all three adverse actions together, although as the respondent’s counsel conceded in argument, it was in reality the redeployment which was the initial cause of the applicant losing the benefit of employment as an organiser for the respondent on the alliance.
301 In Dafallah v Fair Work Commission [2014] FCA 328 at [148]-[161] I set out what I consider to be the applicable principles and approach to an award of compensation pursuant to s 545 of the Fair Work Act. I need not repeat them, but it is important to recall the statutory criterion is what the Court considers “appropriate”, provided there is a causal connection between the contravention and the compensation awarded.
302 In my opinion, had Mr Vickers not taken into account the applicant’s association and affiliation with the Socialist Alliance in his decision-making, the course of events would have been quite different. I make that finding first on the basis that my impression of Mr Vickers was that he generally strove to take a fair approach to his decision-making, although he did seem to have a tendency to rush to judgment about matters, and people. From his answers in cross-examination he seemed aware of his responsibilities when acting on behalf of the respondent as an employer. Had he approached the complaints from the AWU without adopting the unlawful reasoning he did, in my opinion he would, like any reasonable manager in his position, have had the AWU complaints investigated to ascertain whether there was any foundation in fact for them. Having done that, and given the applicant a reasonable opportunity to be heard, he would have been required to form a view about whether the AWU complaints were made out and what should be done. He was required by the law to put the complaint from Mr Howes about the applicant being a “Trot” to one side, and not allow it to affect his decision-making.
303 Given the respondent did not seek in this trial to prove the truth of the AWU complaints, it is not possible for the Court to draw any inferences about which way Mr Vickers was likely to have decided. He may have found the AWU complaints were trivial, or falsified. Even if made out, he may have seen them as no more than “teething problems” in the alliance. He may have found them to be serious enough to warrant some disciplinary action against the applicant. It cannot be ruled out that Mr Vickers may have formed a view that the applicant’s behaviour and attitudes to the AWU posed a threat to the success of the alliance, even without the Socialist Alliance issues, but I find this would have been unlikely to lead to the summary dismissal of the applicant.
304 If Mr Vickers put to one side the complaint by Mr Howes (about the applicant being a “Trot”) and the applicant’s involvement with the Socialist Alliance, as the law required him to do, in my opinion there was a range of possible outcomes, none of which was likely to involve the immediate termination of the applicant’s employment. Without the impermissible questioning by Mr Vickers, the applicant would not have lied about the nature and extent of his association with the Socialist Alliance. Without the overlay of the Socialist Alliance issues (and the fact of a complaint from Mr Howes about those issues), I doubt Mr Vickers and Mr Weise would have acted with such speed and so adversely to the applicant in terms of their decision-making at the 18 July 2013 meeting about the need to remove or redeploy him. The applicant would not have felt so under siege and it is likely he would not have posted what he did on Facebook about Mr Kerley.
305 Accordingly, I find it is highly improbable that, absent the prohibited reasons, Mr Vickers’ decision-making would have followed the same course that it did. I find it improbable the applicant would have been so immediately precluded from taking up the organiser position in the Pilbara. Even if, upon proper investigation, Mr Vickers found the complaints made out in fact, I find it more likely the applicant would have been warned and counselled about how he should treat his AWU colleagues, and that Mr Weise would have more closely supervised him for some time after mid-July 2013. I find it is likely the Pilbara contract would have been concluded between the applicant and the respondent and the applicant would have moved to Tom Price and started work in the position Mr Weise had originally selected him for. It is likely he would have continued to be closely supervised by Mr Weise.
306 Even if the concluded contract had a term to the effect sought by the applicant, the probationary period on the Pilbara contract would not have expired until 11 October 2013 — some 11 weeks after the applicant would have commenced at Tom Price. During that period his employment could have been terminated without notice by the respondent. After that period, and drawing the inference that a clause in substance the same as cl 3 would have been inserted in the concluded contract, the applicant’s employment could have been terminated on one month’s notice by him, or by the respondent.
307 Consideration of the applicant’s own evidence persuades me it is likely the Pilbara position would not have been wholly successful for him. He was inexperienced in the union movement. He had no experience with miners, nor with their living and working conditions. He had no experience in remote areas of Australia, or of Western Australia at all. He was being placed into a volatile situation, needing to forge a productive working relationship between two unions with a long history of significant antagonism. He was required to do so in a mining environment which was hostile to union organisation generally, as the 26 June 2013 meeting agenda in evidence frankly admitted. He would be living in an unfamiliar and somewhat harsh environment, having come straight from law school in Melbourne. Although his evidence disclosed a determined adherence to principles and values he viewed as important, the applicant displayed considerable equivocation and diffidence in the witness box. He did not strike me as the kind of person who would cope well with being, or feeling as if he was, “on the outer” in a remote and strange living and working environment.
308 It is difficult to infer from the evidence how long the applicant may have lasted in the Pilbara before either he chose to resign, or further steps were taken to terminate his employment. For example, there was no evidence at all given about the fate of the alliance, what in fact did occur in the six to 12 months after July 2013, whether Mr Kerley stayed on, whether the respondent employed a new organiser and whether that person occupied the position successfully.
309 I find there is an insufficient evidentiary basis for me to infer, in the applicant’s favour, that he would have remained on the Pilbara contract for a substantial period of time. Balanced against this is the evidence given by Mr Weise about the nature of the complaints made to him, and the views he expressed to the applicant. Mr Weise gave evidence that Mr Kerley had complained the applicant was raising issues “like boat people and refugees in meetings with him”, that Mr Weise told the applicant such things were not really his concern and he should tone things down a bit. He agreed in cross-examination that he told the applicant he was “too passionate” in his views. Mr Weise agreed in cross-examination that he had told the applicant “you’re not there to solve all the problems”. Mr Weise gave evidence that, in his view, the working relationship between the applicant and Mr Kerley seemed to be deteriorating.
310 These answers by Mr Weise reflect, I find, his views about the applicant and the way he approached his work with the AWU in the short time he had been in Perth. They are consistent with the applicant’s own evidence that he did not agree with the AWU’s organisation practices, that he thought they did not engage sufficiently with the workers, they were too “rigid”, that the way the union officials had been operating at Tom Price for three years, on six-figure salaries, had not been working.
311 Taking into account my finding at [305] above that the applicant would have commenced working in the Pilbara alliance as the CFMEU organiser under a concluded version of the Pilbara contract, the only inference I am prepared to draw based on the evidence is that the relationship with Mr Kerley would have continued to deteriorate, the applicant would have continued to voice his criticism of the way the AWU was operating which would in turn have generated more complaints, the applicant would have continued to voice his opinions on social justice issues such as asylum seekers in ways that were not viewed by either the respondent or the AWU as part of his role and the working environment would have fairly rapidly become untenable, especially given the applicant’s lack of experience or preparation for the environment in which he would find himself, as I have outlined at [307] above. Whether this would have taken three or six months is difficult to say but I find it is probable it would not have taken longer than six months before the applicant would have moved out of the Pilbara position, either at his own instigation or that of the respondent. There is, as I have found, no evidentiary basis to find or infer that another position with the respondent would have been available to him on an ongoing basis.
312 As I have set out at [249] above, the applicant submitted the commencement date for the proposed Pilbara contract was 22 July 2013, and the evidence shows the applicant was scheduled to fly to Tom Price on that date. There is sufficient evidence for the Court to infer that, had the contravention not occurred, it is probable the applicant would not have remained employed under the Pilbara contract for longer than six months after 22 July 2013, that is, no longer than approximately 22 January 2014. It is appropriate that the applicant be compensated for loss of income during that period, because the adverse action of redeploying him denied him the benefit of working in that role, which is the role for which he applied and the role for which the respondent considered him to be the best candidate. The parties are in the best position to calculate that loss precisely, and will be directed to do so.
313 The applicant also sought reinstatement. There is authority for the proposition that reinstatement, “in the ordinary case”, is an appropriate order where an employment has been terminated for a prohibited reason: see Independent Education Union v Geelong Grammar School [2000] FCA 557 at [34] per Finkelstein J; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) (2012) 228 IR 195; [2012] FCA 1218 at [125] per Jessup J.
314 It was included as one form of relief in his application but not developed as a substantive claim until quite late in the trial, when the applicant was asked questions in re-examination. The respondent objected to it being developed in this way, but I consider it was open to the applicant to do so, given that relief was sought in the application and some of the cross-examination of the applicant. Nevertheless one consequence of its late development is that, again, there was an insufficient evidentiary foundation laid for the claim to be successful. There was no evidence at all about whether any position was available with the respondent for the applicant, let alone the position to which he sought reinstatement — that of organiser for the alliance in the Pilbara. There was no evidence about the current state of the alliance as at the date of trial. The one witness who might have been able to give some persuasive evidence about how the applicant’s reinstatement could be successful — his apparent supporter Mr Kumeroa — was not called as a witness by either party. I infer that neither party considered his evidence would be helpful to their respective cases.
315 In contrast, Mr Vickers remained clearly mistrustful of the applicant. Mr Weise, despite having been the person responsible for the decision to employ the applicant, showed no confidence in the applicant’s ability as an organiser having now experienced the applicant’s performance of that role. The applicant has engaged in litigation against the respondent and there will inevitably be resentment and tension between them. No evidence at all was given by anyone, including the applicant, to suggest this would not be the case. There was no evidence about the position the applicant should be reinstated to — no witness gave any evidence about whether the CFMEU Pilbara position still existed. Even if it did, an order for reinstatement would be inconsistent with my finding that it is probable the applicant would not have remained in the Pilbara alliance organiser position for longer than six months. Having made that finding, an order for reinstatement would not be an appropriate order, even if there was a proper evidentiary base for it, which there is not. I decline to order reinstatement.
316 I consider the respondent should be ordered to pay the applicant a modest amount of general compensation for the unlawful way in which it terminated his employment. Taking into account the absence of any probative evidence other than the applicant’s display of despondency, disappointment and anger, but recognising that he relocated from Melbourne to Queensland and then to Perth, and was dismissed summarily and placed directly on a plane back to Melbourne from Sydney, having been compelled to pack up and leave Perth at short notice, any reasonable person in the applicant’s position would find this humiliating and distressing. I propose to award the applicant $3000 in compensation for humiliation and distress.
I certify that the preceding three hundred and sixteen (316) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer. |
