FEDERAL COURT OF AUSTRALIA

Short v Ambulance Victoria [2015] FCAFC 55

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    In this proceeding the appellant, Darren Short, appeals from a judgment of this Court on 15 January 2014 (Short v Ambulance Victoria [2014] FCA 3). Mr Short alleged that in the course of his employment the respondent, Ambulance Victoria:

(a)    took adverse action against him in contravention of s 340(1) of the Fair Work Act 2009 (Cth) (“the Act”) by refusing to appoint him to perform higher duties; issuing him with a formal warning; standing him down from employment; and terminating his employment. Mr Short alleged that, in each case, the adverse action was taken for a prohibited reason, namely that that he had exercised a workplace right by making complaints or inquiries in relation to his employment;

(b)    took adverse action against him in contravention of s 351(1) of the Act by refusing to appoint him to perform higher duties because of his mental disability;

(c)    contravened s 50 of the Act by failing to refer a disciplinary dispute to Fair Work Australia (“FWA”) (as it then was) in accordance with cl 59.6 of the Ambulance Victoria Agreement 2009 (“the Enterprise Agreement”); and

(d)    contravened an implied term of mutual trust and confidence in Mr Short’s contract of employment by refusing to appoint him to perform higher duties, and by issuing him with a formal warning.

2    The primary judge held that Ambulance Victoria did not take adverse action against Mr Short because he had exercised a workplace right or because he had a mental disability, was not obliged under the Enterprise Agreement to refer the disciplinary dispute to FWA, and did not breach an implied term of mutual trust and confidence in Mr Short’s contract of employment. His Honour dismissed the application.

3    In broad summary Mr Short alleges in the appeal that the primary judge erred in:

(a)    the construction and application of the reverse onus in s 361 of the Act in relation to the claims of adverse action under ss 340 and 351;

(b)    failing to give sufficient weight to certain evidence;

(c)    failing to consider whether the reasons for refusing to appoint Mr Short to higher duties should have been disclosed contemporaneously;

(d)    finding that Ambulance Victoria did not breach an implied term of mutual trust and confidence; and

(e)    finding that Ambulance Victoria was not obliged under the Enterprise Agreement to refer the disciplinary dispute to FWA.

4    For the reasons we set out below we are not satisfied that the primary judge fell into error in respect of any of the appeal grounds alleged. Accordingly, the appeal must be dismissed.

THE FACTS

5    The essential facts are as follows.

6    Mr Short was employed by Ambulance Victoria from March 1999 until the termination of his employment on 14 July 2011. From late 2006 he was employed as an Ambulance Paramedic at the Lakes Entrance branch.

The Refusal of Higher Duties

7    On 5 February 2010 Robert Standfield, an Ambulance Victoria Team Manager at the Lakes Entrance branch, sought expressions of interest from officers at Lakes Entrance to act in the higher duties position of Team Manager from 2 August 2010 for nine weeks. On 19 February 2010 Mr Short emailed Mr Standfield to advise him that he was interested in doing so. On 23 February 2010 Mr Standfield provided him with a position description and indicated that if more than one person was interested in the position then splitting the higher duties between them could be considered.

8    On 15 April 2010 Mark Cooke, Gippsland Regional Manager, emailed a circular which requested any interested paramedic in the Gippsland region to lodge an expression of interest in performing higher duties for the remainder of 2010. The email stated that an expression of interest did not automatically entitle an employee to a higher duties position as final selection was based upon various criteria. Mr Short lodged an expression of interest on 9 May 2010.

9    In late May 2010 Mr Short discussed with Mr Standfield the possibility that he could undertake a period of higher duties to commence on 2 August 2010, and another paramedic could perform an earlier period of higher duties.

10    On 12 June 2010 Mr Short was involved in an altercation with the Acting Team Manager of the Bairnsdale branch, David Moors. Mr Moors informed Debra Ray, Group Manager for Gippsland, that he had seen Mr Short overfilling a dirty linen skip and that he told Mr Short to empty the skip rather than overfilling it (“the Linen Skip incident”). Mr Moors said that Mr Short refused to empty the skip, refused to discuss the issue, and walked off. Mr Moors followed him into other parts of the premises to discuss the issue but Mr Short continued to refuse to do so.

11    On 16 June 2010 Mr Short submitted a Workcover claim in which he asserted a psychological injury claimed to have arisen from his being pursued, intimidated and harassed by Mr Moors. The claim was supported by a medical certificate which stated that he was unfit for work until 30 June 2010 because of an “acute stress reaction”.

12    On 17 June 2010 Mr Standfield requested a meeting with Mr Short which took place the following day. Mr Short said that in the meeting Mr Standfield informed him that he assumed Mr Short would be unable to take up the higher duties role commencing on 2 August because he was off work on stress leave and was then scheduled to be on annual leave. Mr Short also said that he said he would be back at work before the higher duties commenced and he would be able to perform them.

13    Mr Standfield essentially accepted Mr Short’s account and stated that he informed Mr Short that it would be difficult to interview him for the higher duties position when he was likely to be on WorkCover and on annual leave. He also said that, in his view, it was not appropriate to engage Mr Short to perform higher duties when he was on WorkCover for stress related injuries as he may not be able to deal with the issues that may arise as a Team Manager. It is common ground that Mr Standfield told Mr Short that Shana Reid, an Ambulance Victoria Regional HR Partner Gippsland, had informed him that an interview process must be held for the higher duties position.

14    Mr Standfield stated that he raised the Linen Skip incident with Mr Short, but said that he did not want to discuss it while Mr Short was on sick leave for stress. He stated that when he raised that issue Mr Short started to leave and provided him with a copy of a letter of complaint about that incident addressed to Mr Cooke. The letter complained of inappropriate verbal and physical behaviour by Mr Moors on 12 June 2010, and also complained about Mr Standfield’s management of the issue over the following days.

15    On 21 June 2010 Mr Short lodged another complaint in which he alleged “continual long-term inappropriate behaviour” by Mr Standfield including intimidation, bullying, harassment and discrimination.

16    Mr Short was absent from work due to his acute stress reaction from 16 June 2010 to 26 July 2010.

17    On 8 July 2010 Mr Standfield emailed Mr Short informing him that he was not to be offered the higher duties position. The email stated:

Hi Darren,

I hope you are well on the way to recovery.

In reference to the upcoming 9 week higher duties opportunity for Acting Team Manager Lakes Entrance, I do not intend to proceed with the interview process as I proposed to you previously. I am now aware that a competitive process need only apply if the period is longer than 3 months, at which time the upward relief would be considered a secondment rather than higher duties.

As your sick leave/workcover is ongoing until at least the 26/7/10 and the period of higher duties is due to commence on 2/8/10, I feel that due to the timeframe on this occasion it is not suitable for you to perform the role.

I am proposing that when we are both back at work in October I would like to have a meeting with you to discuss future opportunities for higher duties into my position, which will include any areas for improvement or development that is required of you beforehand. It is also important that I make you fully aware of the responsibilities and functions of the Team Manager role, as it differs from the old Station Officer role, including who is available to support you whilst performing the role (ie Group Manager, HR Partner, OHS Advisor etc).

18    Ms Ray stated that she made the decision not to offer the higher duties role to Mr Short after she had discussed the matter with Mr Standfield and Ms Reid.

The Formal Warning

19    Matthew Luddington, an Ambulance Victoria Human Resources Advisor, was given the task of managing Mr Short’s complaints against Mr Moors and Mr Standfield. He met with Mr Short to discuss the complaints and then Ambulance Victoria engaged Susan Zeitz of Peacemaker ADR, as an external investigator to investigate the complaints.

20    Ms Zeitz interviewed a number of Ambulance Victoria employees including Mr Short and provided her report (“Zeitz report”) to Ambulance Victoria on 30 August 2010. In the report Ms Zeitz concluded that Mr Short’s complaints were unsubstantiated. She also described aspects of Mr Short’s behaviour and communication style as “inappropriate”, “aggressive”, “bullying” and “intimidating” and said that Mr Short showed an unwillingness to conduct himself in a manner that was consistent with his obligations as an employee. Ms Zeitz produced several drafts of the report, and in doing so took into account some comments by Ambulance Victoria management.

21    Mr Short was provided with a copy of the Zeitz report on 15 September 2010. On 30 September 2010 he wrote a letter to Margaret Pettitt, Acting General Manager People and Community, in which he reiterated his complaints about Mr Moors and Mr Standfield, and about Ambulance Victoria’s processes to deal with the complaints including the Zeitz investigation and report. He also requested that he be transferred from the Lakes Entrance branch of Ambulance Victoria.

22    On 3 November 2010 Mr Short was required to attend a counselling meeting to discuss the findings of the Zeitz report. Ms Ray outlined each element of Mr Short’s inappropriate behaviour as stated in the report, and he was given the opportunity to provide his response. At the end of the meeting Ms Ray informed Mr Short that he would be issued with a formal warning in relation to his behaviour and that she wished to meet with him regularly to address his behavioural issues.

23    On 9 November 2010 Ms Ray handed Mr Short a written warning (“Formal Warning”) which, omitting the formal and irrelevant parts, stated:

Re: Formal Warning

This letter is a first formal warning in relation to your work performance and follows the formal counselling session held on Wednesday 3 November…

As discussed at the meeting your level of work performance is unacceptable. Of particular concern is your behaviour towards management and staff performing management roles.

Expected standards of behaviour can be found on the Ambulance Victoria intranet/policies and procedures and [are] detailed in the Workplace Respect Policy and the Code of Conduct for Victorian public sector employees, a copy of which is included.

This unacceptable work performance with respect to your position as an Ambulance Paramedic is serious and must be addressed immediately as it negatively impacts on the efficiency and effectiveness of your team as well as the efficiency of the organisation as a whole.

As discussed at our meeting your ongoing performance will continue to be reviewed.

To assist you, as discussed, AV is prepared to offer assistance through regular mentoring and feedback sessions.

…

As explained to you at our meeting last week, failure to meet the above requirements will mean further disciplinary action will be taken which may include termination of your employment.

I sincerely hope you can address these problems and remain happy to assist you where possible. If anything contained in this letter is unclear to you, please speak to me about it immediately.

24    On 9 November Mr Short provided Ms Ray with a medical report of Dr J Greacen dated 2 November 2010 which supported his request for a transfer from the Lakes Entrance branch on medical grounds.

The grievance regarding the Formal Warning

25    In Mr Short’s view the process that Ms Zeitz followed in investigating his complaints was flawed and unfair and he did not accept the accuracy of the Zeitz report. On 26 November 2010 he lodged a formal grievance under the Enterprise Agreement seeking withdrawal of the Formal Warning. In the grievance he also complained that Ambulance Victoria had failed to properly consider his request for a transfer on medical grounds.

26    Ms Ray responded on 30 November 2010 stating that the Formal Warning would not be withdrawn, and advising Mr Short that his request for a transfer was subject to available vacancies and would be dealt with through Ambulance Victoria’s transfer policy.

27    Clause 59.6 of the Enterprise Agreement provided that the parties bound shall refer a dispute about disciplinary action to FWA for resolution, and provided that such a resolution shall be accepted by the parties as final. It is uncontentious that Ambulance Victoria did not refer the dispute to FWA, however it appears that Mr Short later did. That dispute was still on foot at the time of his dismissal.

The standing down of Mr Short

28    On 16 February 2011 Mr Short again complained to Ms Pettitt about Ms Zeitz’s investigation and report, asserting that Ambulance Victoria had failed to follow proper procedure and failed to provide procedural fairness. He reiterated his request for a transfer from the Lakes Entrance branch on medical grounds. In support of this request he again provided Dr Greacen’s report of 2 November 2010 and a more recent report dated 14 February 2011 by Mr Short's treating psychologist, Dr M Uebergang.

29    Omitting formal parts, Dr Uebergang’s report stated:

I have been supporting Mr Darren Short since the 17th June 2010, and in my opinion Mr Short is experiencing an acute stress reaction relating to a series of incidents in the workplace.

His ongoing symptoms include: disrupted sleeping patterns with early morning awakening, significant mood swings dependent on the status of the ongoing investigation, alternating between deeply depressive thoughts, a numbing or detachment of emotional responses, as well as at times very highly charged emotional responses. These symptoms are, of course, impacting on his family in a detrimental manner as they would for anyone undergoing such a trial in the workplace.

While Mr Short continues to work, he has withdrawn from colleagues whom he feels he is no longer able to trust, and feels isolated and alienated. He has also withdrawn socially.

In my opinion Mr Short and his family would benefit from being transferred to another location with his current employer.

If this could be arranged as soon as possible it would substantially benefit Mr Short’s psychological condition, and his family’s well-being.

30    On 22 February 2011 Ms Pettitt wrote to Mr Short advising him that Ambulance Victoria stood by the investigation conducted by Ms Zeitz in 2010 and by the follow-up actions of the Gippsland management team. She advised that the medical reports had been forwarded to the Gippsland management team who would be in contact to discuss the issue.

31    Susan Sadler, HR Partner Gippsland, states that when she read Dr Uebergang’s medical report she formed the view that it was unsafe to permit Mr Short to continue working as a Paramedic whilst he was suffering from an acute stress reaction. She raised these issues with Simon Jemmett, Acting Regional Manager Gippsland and, on her advice, Mr Jemmett decided to stand Mr Short down on full pay until an assessment of his psychological fitness for duty could be carried out.

32    On 22 February 2011 Mr Jemmett wrote to Mr Short advising that, given the symptoms outlined by Dr Uebergang, Ambulance Victoria had concerns regarding Mr Short’s mental health and ability to function at work, and stating that he was stood down from duty, on full pay, until Ambulance Victoria was satisfied that he was fit to return to duty. Mr Jemmett sought Mr Short’s permission to speak with Dr Uebergang regarding his symptoms and fitness for duty and to ask her to assist in supporting Mr Short’s return to work. Depending upon the outcome of those discussions, Mr Jemmett flagged the possibility that Ambulance Victoria could require Mr Short to undergo a medical assessment.

33    Mr Jemmett also telephoned Mr Short on 23 February 2011 and informed him that he was stood down from his employment, on full pay, pending a psychological assessment. Although Mr Short agreed to provide a written authority for Ambulance Victoria to speak to Dr Uebergang, he did not do so for some six weeks. In the meantime, Ambulance Victoria made an appointment for Mr Short to have a psychological assessment undertaken by Dr Hosking on 18 April 2011. Dr Hosking assessed Mr Short as fit to return to work and he was rostered to return to work on 27 April 2011.

The termination of employment

34    On 27 April 2011 Mr Short emailed Mr Standfield seeking to postpone some planned annual leave scheduled to be taken in May until August. Mr Short’s reason for the requested postponement was that he had only just returned to active duty. Mr Standfield requested that they meet to talk about it, although he appears to have had a positive attitude to the proposal. This is apparent from an email Mr Standfield sent to the rostering staff on 28 April and copied to Mr Short, which stated:

Darren’s proposal to postpone his A/L will probably suit all of us. The only thing I need to know is Darren’s A/L and ADO balance. If he is not going to accunulate [sic] to [sic] much leave I don’t see a problem.

I’ll let you know once I have talked to him.

35    Mr Short and Mr Standfield met on 1 May 2011. Mr Standfield stated that he told Mr Short that the proposed leave change would not be approved and that Mr Short then abused him, stating that Mr Standfield disgusted him, was a disgusting liar, made his skin crawl, had no honour, that Mr Standfield’s behaviour had affected his (Mr Short’s) wife’s health and made his children suffer, and that Mr Short would never be able to establish a working relationship with Mr Standfield because Mr Standfield was a liar.

36    On 18 May 2011 Mr Standfield made a formal complaint about Mr Short’s behaviour at the meeting. He said that he was traumatised by Mr Short’s behaviour which he described as extremely distressing and intimidating. He said that it had affected his confidence and his ability to manage the branch.

37    Following the complaint Mr Short was stood down on full pay pending an investigation. On 8 June 2011 Ms Ray wrote to Mr Short advising him of an investigation meeting to be conducted on 16 June 2011 to deal with allegations of serious misconduct made against him by Mr Standfield. Ms Ray, Ms Sadler and John Bradbury, an Ambulance Victoria Employee Relations Specialist, were to attend the meeting on behalf of Ambulance Victoria and Mr Short was required to attend together with any chosen representatives.

38    On 15 June 2011, the day before the investigation meeting, Mr Short wrote to Mr Standfield offering him an “apology” in the following terms. Omitting formal parts the letter stated:

I have been notified that you have submitted a formal complaint against me alleging I made some remarks that you deemed inappropriate as you received and interpreted these alleged remarks as offensive.

You state these alleged comments were made on Sunday 1st May 2011 when we met at the Lakes Entrance branch at your request to discuss a matter.

During our conversation I made some comments to you about how I felt. At no stage during a conversation did I make any comments about your character or that were intended to offend you.

Given you have submitted a complaint then you must have taken some offence to sections of my comments during the conversation.

If you have taken offence to any comments I made during this conversation then you have interpreted those comments in the wrong manner as that was not my intention. I am offering you an apology if you took offence to my comments as such offence was not intended.

I once again state that none of my comments were meant to be interpreted as offensive to you as I was merely expressing how I felt.

(Emphasis added.)

Understandably, given its terms, Mr Standfield did not accept the “apology”.

39    At the investigation meeting Mr Short was given an opportunity to respond to Mr Standfield’s allegations. He denied that he said that Mr Standfield made his skin crawl instead saying that it was the process that made his skin crawl. He denied making a personal attack on Mr Standfield, and denied that he said that Mr Standfield was a disgusting human being, that he was a liar, or that he blamed Mr Standfield for his wife being on medication and his children suffering. In fact, Mr Short sought to blame Mr Standfield for his behaviour at the meeting by saying that he had made some attacks on Mr Short’s character, integrity and abilities as well as some remarks about his family. He said that he could have put in a complaint about Mr Standfield’s behaviour at the meeting had he wanted to.

40    Part of the relevant conversation between Mr Short and Mr Standfield had been overheard by another paramedic, David Rowlings, who essentially confirmed Mr Standfield’s account. He stated to Ambulance Victoria that, contrary to Mr Short’s version, Mr Short had raised his voice in an angry manner and had said words similar to: “You’re a liar. You disgust me. You make my skin crawl. You have no honour.” He described Mr Short’s behaviour as being “way over the top, out of line” and “a vicious personal attack.” He said that Mr Standfield had sounded calm in the conversation.

41    Following the investigation meeting Ms Sadler prepared a “Business Case” which sought approval to terminate Mr Short’s employment. There were a number of drafts of the Business Case and other managers had input into its contents. It was finalised on about 1 July 2011 and forwarded to Greg Sassella, Chief Executive Officer, with copies to Ms Pettitt and Mr Cooke. The Business Case concluded, particularly in light of the witness statement provided by Mr Rowlings, that on the balance of probabilities Mr Short had acted as Mr Standfield had alleged. The Business Case noted that Mr Short had previously been subject to a Formal Warning for aggressive and intimidating behaviour to managers and that he had demonstrated a lack of insight into his inappropriate behaviour and the serious nature of his aggressive outbursts. It noted that Mr Short showed no genuine contrition or remorse and did not even recognise the seriousness of his behaviour, and said that there was a strong likelihood that Mr Short would repeat such behaviour.

42    Over the ensuing days Mr Sassella made the decision to terminate Mr Short’s employment after it been endorsed by Ms Pettitt and Tony Walker, General Manager Regional Services.

43    On 14 July 2011 Mr Short was required to attend a meeting with Ambulance Victoria at which he was told that Mr Standfield’s complaint had been wholly substantiated. He was then informed that his employment would be terminated for serious and wilful misconduct. The Ambulance Victoria notes of the meeting indicate that Mr Short continued to deny Mr Standfield’s allegations and called Mr Cooke a “most disgusting man” and called Mr Cooke, Ms Sadler and Ms Ray “liars”.

44    Ambulance Victoria confirmed the termination of Mr Short’s employment by letter of 18 July 2011 which stated:

Dear Darren

Re:    Notice of Termination of Employment

We confirm what was advised to you in the meeting on 14 July 2011 that, following an investigation into a complaint made against you by Paramedic Robert Standfield regarding an incident occurring on 1 May 2011, Ambulance Victoria (“AV”) has made the decision to terminate your employment on the basis of serious and wilful misconduct effective immediately.

The reasons for termination are as follows:

1.    AV has found that on 1 May 2011, you made an unprovoked and unreasonable personal attack on your Team Manager, Robert Standfield, in which you made statements to him such as:

•    Mr Standfield was a liar;

•    He was a disgusting human being;

•    He made your skin crawl;

•    You did not know how he could live with himself and that he was responsible for your wife being on medication and for your children suffering.

2.    That this behaviour was in breach of any reasonable workplace behaviour, and in breach of the Workplace Conduct Policy and Code of Conduct for Victorian Public Service Employees.

3.    That this behaviour has had a significant and profound impact on your colleague, Robert Standfield.

4.    That throughout the investigation you have refused to acknowledge what occurred and you have refused to show any genuine contrition or remorse regarding what has occurred. In this respect we note that:

a.    In your initial written response to the allegations dated 2 June 2011, you stated that any comments made by you to Mr. Standfield were about “how you felt” and “at no stage did you make any comments to Mr. Standfield that were directed towards him about his character.” These denials were again repeated at the meeting on 16 June. AV does not accept the truth of these statements.

b.     In your written response dated 2 June you alleged that during the meeting of 1 May Mr. Standfield made derogatory remarks “of a very personal and offending nature” about you and your family. You repeated these allegations again at the meeting on 16 June, however you have refused to substantiate these extremely serious allegations and AV does not accept that such statements were ever made.

5.    The incident of 1 May occurred despite a formal warning being given to you on 9 November 2010 concerning your behaviour towards management and staff performing management roles. At this time, a copy of the Workplace Respect Policy and Code of Conduct for Victorian Public Sector Employees was provided to you. We note that at the meeting of 16 June you denied you had problems with your temper or there had been previous problems with your behaviour.

Given the above, AV felt it was left with no option but to terminate your employment.

An AV representative will attend at your house on Monday 25 July 2011 at 12.00 pm to collect all AV property including your keys and identification card. Should this time not be suitable, please contact Susan Sadler immediately to arrange a mutually suitable time. Attached is an Employee Clearance Form. The form has been designed to assist you in returning all AV property issued to you during the course of your employment. Once the form has been completed and signed, the Payroll Office will provide your final payment.

To arrange collection of your belongings from Lakes Entrance Branch, please contact Debra Ray on [mobile number].

I take this opportunity to remind you that you are not permitted to enter any Ambulance Victoria premises or make unsolicited contact with Ambulance Victoria personnel.

If you have any queries, please contact Susan Sadler, HR Partner Gippsland directly on [telephone number].

Yours sincerely

MARK COOKE

Regional Manager Gippsland

45    Although it formed no part of Ambulance Victoria’s decision to terminate Mr Short’s employment (because it was not known at the time), it is worth noting that Mr Short secretly recorded his 1 May 2011 meeting with Mr Standfield. He later prepared a transcript of the meeting which he discovered in the proceeding and which Ambulance Victoria adduced in evidence. The transcript bears out Mr Standfield’s account of the meeting and it shows that Mr Short was not truthful in his responses at the 16 May 2011 investigation meeting, or in the meeting on 14 July 2011. In his evidence at trial he admitted that in the 1 May 2011 meeting with Mr Standfield he had behaved essentially as Mr Standfield had alleged.

The Legislative framework and relevant principles

46    Part 3-1 of the Act is headed “General Protections”. It provides employees and other persons with “general workplace protections”. The object of the Part is set out in s 336 and includes “to protect workplace rights”.

47    Section 340(1) of the Act relevantly provides:

(1)    A person must not take adverse action against another person:

(a)     because the other person:

(i)    has a workplace right; or

(ii)    has, or has not, exercised a workplace right; or

(iii)    proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)     to prevent the exercise of a workplace right by the other person.

48    Section 341(1)(c) relevantly provides:

(1)    A person has a workplace right if the person:

…

(c)    is able to make a complaint or inquiry:

            …

(ii)    if the person is an employee - in relation to his or her employment.

49    Section 351 of the Act provides:

(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 orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

…

(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.

50    Section 342(1) contains a table setting out the circumstances in which a person is treated as having taken “adverse action” against another person. Item 1 of the table provides that:

Adverse action is taken by an employer against an employee if 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.

51    In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia and Others (1998) 195 CLR 1 at [4] Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ said that the expression “injure an employee in his or her employment” used in a predecessor provision to s 342(1)(b) was intended to cover “injury of any compensable kind” and that an expression to the same effect as that now utilised by s 342(1)(c) encompassed:

…a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.

52    Sections 360 and 361 are significant to the operation of Part 3-1. Section 360 of the Act provides:

Multiple reasons for action

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

53    Section 361 provides:

Reason for action to be presumed unless proved otherwise

(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 that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

…

54    When an employee alleges that an employer has taken action against him or her because the employee exercised a workplace right s 361 casts the onus on the employer to “prove otherwise”. Under s 360, while there may be multiple reasons for an employer to have taken the adverse action, the employer takes action for a prohibited reason if the reasons for the action include that reason. The rationale for the presumption was explained by Mason J in General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 617 per Mason J as being to throw on to the employer the onus of proving that which lies peculiarly within its own knowledge (cited with approval in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [50] (French CJ and Crennan J)).

55    Where adverse action is taken by one person against another, the task of a court in a proceeding alleging contravention of s 340 or s 351 is to determine why the person took the adverse action and to ask whether it was for a prohibited reason or reasons which included a prohibited reason (Barclay at [5], [44] per French CJ and Crennan J). The question is whether a prohibited reason was a “substantial and operative” reason for the respondent’s action (Barclay at [104] per Gummow and Hayne JJ, see also [59] per French CJ and Crennan J). The relevant inquiry is therefore into the “particular reason” of the decision-maker for taking action (Barclay at [42] per French CJ and Crennan J, [102] per Gummow and Hayne JJ), which is a determination of fact to be made by the court taking account of all the facts and circumstances of the case and available inferences (Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 88 ALJR 980 at [7] per French CJ and Kiefel J, Barclay at [45] per French CJ and Crennan J, [79] per Gummow and Hayne JJ).

56    To displace the presumption created by s 361 in light of the effect of s 360, the respondent must prove that its conduct was not motivated in whole or in part by the prohibited reason alleged. A failure to displace the presumption enables the allegation by an applicant of adverse action for a prohibited reason to stand as sufficient proof of that fact: Davids Distribution Pty Ltd v National Union of Workers (1991) 91 FCR 463 at [109] per Wilcox and Cooper JJ.

57    Before the primary judge Mr Short claimed that Ambulance Victoria took adverse action against him for reasons that included that he had exercised a workplace right, and that he therefore had (and has) the benefit of the reverse onus in s 361.

THE DECISION OF THE PRIMARY JUDGE

The refusal of higher duties

The alleged contravention of s 340(1) of the Act

58    Mr Short alleged that Ambulance Victoria’s decision refusing to permit him to perform higher duties in the nine week period from 2 August 2010 was taken in part because Mr Short had made an inquiry about his application to perform higher duties. That inquiry was accepted by Ambulance Victoria to constitute the making of a complaint within the meaning of s 341(1)(c) of the Act.

59    Ambulance Victoria contended that there was no refusal to allow Mr Short to perform higher duties and that all that Ambulance Victoria had done was to withdraw an earlier proposal that Mr Short be interviewed for the higher duties position. This was said not to constitute “adverse action”.

60    The primary judge considered that Mr Short had no “right” to be interviewed for the relevant higher duties positions (at [22]), and he described the earlier offer of an interview as having been made in error (at [23]). We assume that was a reference to the fact that an interview for a higher duties position was only required when the position being filled was for a duration of at least three months.

61    His Honour held that the withdrawal of an opportunity to be interviewed for a higher duties position that Ambulance Victoria was not obliged to provide, did not constitute “adverse action” for the purposes of s 340 of the Act because it:

(a)    was not an injury to Mr Short in his employment under s 342(1)(b) not being an injury of a compensable kind (at [23]). His Honour said that “[i]t is difficult to see how the withdrawal of an offer for an interview which was not required but offered in error, can lead to a compensable injury. As there was no obligation on Ambulance Victoria to provide an interview, no injury of a compensable kind was occasioned by the withdrawal of an offer of an interview”;

(b)    did not alter Mr Short’s position to his prejudice under s 342(1)(c), as it did not constitute a deterioration in the advantages Mr Short enjoyed prior to that withdrawal (at [22]); and

(c)    did not discriminate between Mr Short and other employees under s 342(1)(d) as no other employees received an interview (at [24]).

62    However, in case he was in error as to whether the withdrawal of the offer of an interview constituted adverse action, his Honour went on to consider whether the decision not to appoint Mr Short to a higher duties position was taken because he had made a complaint or inquiry in relation to his employment.

63    His Honour accepted Ms Ray’s evidence (at [26]) that:

(a)    her decision not to offer Mr Short the higher duties role had nothing to do with his previous complaints or inquiries in relation to his employment; and

(b)    Mr Short’s mental disability played no role in the decision.

The primary judge accepted that Ms Ray considered Mr Short was not suitable for the Acting Team Manager role because he had been on sick leave, because of his often-explosive behaviour and because his communication style was a problem.

64    His Honour also accepted Mr Standfield’s evidence which he described as “credible, probative and uncontradicted” (at [25]) that:

(a)    Mr Short had been off work for a considerable period of time with a stress-related medical condition and that it would not have been wise to place him in a stressful role on his return to work;

(b)    having been away for a considerable period of time from the Lakes Entrance branch Mr Short would not be aware of the current situation at that location;

(c)    Mr Short’s previous complaints in relation to his employment played no role in his decision not to give him the higher duties role.

65    His Honour held that Ambulance Victoria had discharged the onus under s 361 by proving that its decision not to appoint Mr Short to the higher duties role was not taken for a reason which included the reason that Mr Short had made a complaint or inquiry in relation to his employment (at [27]).

The alleged breach of s 351 of the Act

66    Mr Short alleged that the withdrawal of the interview for the higher duties position and the failure to appoint him to that position was taken because of the psychological injury that he had suffered in his altercation with Mr Moors on 12 June 2010.

67    His Honour proceeded on the assumption that Mr Short had a “mental disability” within the meaning of s 351 of the Act, but accepted Mr Standfield’s evidence that he did not refuse to appoint Mr Short to the higher duties role because of that condition. His Honour accepted that Mr Standfield did so because he considered Mr Short needed time to recover from that injury before taking on a more stressful role as an Acting Team Manager, which might aggravate his condition (at [31]).

68    The primary judge also accepted Mr Standfield’s evidence that stress was an “inherent requirement” of the Acting Team Manager role because the position involved numerous tasks and responsibilities in addition to regular paramedic work (at [31]). His Honour held that, to the extent that Mr Standfield may have been influenced by Mr Short’s psychological condition, Ambulance Victoria did not breach s 351 because s 351(2)(b) provided that action taken because of the inherent requirements of the particular position is not action to which s 351(1) applies.

Breach of mutual trust and confidence

69    Mr Short alleged that Mr Standfield’s 8 July 2010 email was in breach of an implied term of mutual trust and confidence in his contract of employment with Ambulance Victoria. The primary judge rejected this contention (at [32]-[36]).

70    His Honour held that the email did not show that Ambulance Victoria was conducting itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between it and Mr Short (at [35]). In his Honour’s view the last paragraph of the email showed that Mr Standfield was prepared to assist Mr Short to get a future higher duties position. His Honour considered that sparing Mr Short from acting in a stressful higher duties position shortly after he had returned from sick leave due to stress was the opposite of acting in a manner likely to destroy or seriously damage the employer/employee relationship.

The Formal Warning

The breach of s 340 of the Act

71    Mr Short alleged that Ambulance Victoria’s decision to issue him with the Formal Warning on 9 November 2010 was a breach of s 340. He argued that the warning arose from his exercise of his workplace right to complain about the conduct of Mr Moors and Mr Standfield.

72    The primary judge accepted that the Formal Warning was adverse action within the meaning of s 342, and noted that it was issued after Mr Short made complaints in relation to his employment. His Honour said that the critical issue was whether Mr Short's complaints were an operative factor in Ambulance Victoria's decision to issue him with the warning (at [47]).

73    His Honour set out his view of the evidence (at [48-[55]). He accepted the evidence of Ms Ray and Mr Luddington that the fact that Mr Short had made complaints in relation to his employment had played no role in their view that the Formal Warning was justified (at [55]). The thrust of their evidence was that Mr Short’s behaviour, as identified in the Zeitz report, justified the warning.

74    His Honour concluded that the Formal Warning was given because of Mr Short’s conduct as identified in Ambulance Victoria’s letter of 9 November 2010, and for no other reason, and he dismissed Mr Short's claim that Ambulance Victoria contravened s 340 of the Act.

The breach of mutual trust and confidence

75    Mr Short alleged that the decision to issue him with the Formal Warning breached an implied term in his contract of employment that Ambulance Victoria would not conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between them.

76    The primary judge held that there was no basis for the proposition that the Formal Warning was issued without reasonable and proper cause (at [57]). In his Honour’s view, Mr Short had several altercations with managers, had been impertinent to supervisors, and his poor communication style needed to be addressed. His Honour considered that Ambulance Victoria would have been derelict in its duty to provide a safe system of work, free of bullying to all of its employees, if it had not paid attention to Mr Short’s behavioural deficits (at [58]). His Honour said that the Formal Warning sought to address Mr Short’s behavioural issues by offering regular monitoring and feedback sessions which would improve trust and confidence in the employer/employee relationship rather than destroying or seriously damaging it (at [59]). His Honour found no breach of an implied term of mutual trust and confidence.

The failure to refer the grievance to Fair Work Australia

77    It was common ground before the primary judge that Mr Short had lodged a grievance under the Enterprise Agreement in relation in relation to the Formal Warning, and that Ambulance Victoria had refused to withdraw the warning. It is uncontentious that Ambulance Victoria did not refer the dispute.

78    Mr Short alleged that Ambulance Victoria was in breach of the Enterprise Agreement by not referring the dispute, thereby contravening s 50 of the Act.

79    The primary judge noted (at [63]) that cl. 59.6 of the Enterprise Agreement, which appears under the heading “Disciplinary Process”, provides:

If a dispute should arise over the disciplinary action, other than termination of an employee who has not completed at least six months service with the employer, the course of action to be followed is that the matter shall be referred to Fair Work Australia for resolution. Such resolution shall be accepted by the parties as final.

80    His Honour held that cl. 59.6 did not oblige Ambulance Victoria to refer the dispute to FWA as, in his view, the clause assumes that the party dissatisfied with the outcome of a dispute would refer the matter. His Honour said there was nothing to stop Mr Short from referring the matter as he was the one who wished to challenge the Formal Warning.

The standing down of Mr Short

The alleged contravention of s 340(1) of the Act

81    Mr Short alleged that, in standing him down, Ambulance Victoria took adverse action against him because of his complaints in relation to his employment, in contravention of s 340(1). It was common ground the standing down constituted adverse action within s 342 of the Act and the question for the primary judge was whether Mr Short was stood down for a reason which included Mr Short’s exercise of his workplace right to make a complaint or inquiry in relation to his employment.

82    The thrust of Ms Sadler’s evidence was that upon reading Dr Uebergang’s report she formed the view that it was unsafe to permit Mr Short to continue working in a stressful environment while he was suffering from the acute stress reaction to which the report referred. She said that she raised the issue with Mr Jemmett and, on her advice, Mr Jemmett decided to stand down Mr Short on full pay until an assessment could be carried out as to his psychological fitness for duty. He so advised Mr Short on 22 February 2011.

83    The primary judge held (at [71]) that “[t]he better view of the evidence is that Ambulance Victoria stood down Mr Short on full pay because it had concerns about his capacity to deal with a stressful job while suffering from an acute stress reaction”. His Honour held that Mr Short’s complaints in relation to his employment formed no part of the reasons of Ambulance Victoria’s decision to stand him down.

The termination of employment

84    Mr Short alleged that, in terminating his employment, Ambulance Victoria took adverse action in contravention of s 340(1). He argued that the evidence supported a conclusion that at least part of the reason for his dismissal was his persistent exercise of his workplace right to enquire or complain in relation to his employment.

85    Contrary to his earlier denials and confronted as he was by the transcript of the meeting, at trial Mr Short admitted that his conduct on 1 May 2011 was essentially as Mr Standfield had said. He admitted that he said that Mr Standfield disgusted him, was a liar, made his skin crawl, had no honour, and had affected the health of Mr Short’s family. Counsel for Mr Short conceded that his behaviour was “appalling conduct”. The primary judge took a serious view of his behaviour describing it as “clearly inappropriate, aggressive behaviour directed to a person in a managerial role of the very kind identified in the Zeitz report and for which Mr Short had received a first written warning” (at [73]). His Honour noted the deleterious effects of Mr Short’s behaviour on Mr Standfield.

86    The primary judge held that the Chief Executive Officer, Mr Sassella, made the decision to terminate Mr Short’s employment after that decision was endorsed by Mr Walker and Ms Pettitt (at [87]). His Honour noted that Mr Sassella, Mr Walker and Ms Pettitt each gave evidence that they had independently considered the Business Case and, based on its contents, had independently decided to approve the termination of Mr Short’s employment (at [88]). His Honour considered that no other person participated as a decision-maker in that decision with the possible exception of Ms Sadler.

87    His Honour accepted the evidence of Mr Sassella, Mr Walker and Ms Pettitt (and insofar as was necessary Ms Sadler) that only one reason actuated them in terminating Mr Short’s employment, namely Mr Short’s unprovoked and unreasonable personal attack on Mr Standfield in circumstances where he had previously been given the Formal Warning for his unacceptable behaviour towards management (at [90]). Accordingly his Honour found no contravention of s 340 of the Act.

consideration

88    By his Amended Notice of Appeal, Mr Short raised 11 grounds of appeal. Those grounds lacked clarity, as did the submissions made in support of them. In relation to each ground we have attempted to distil from the grounds and Mr Short’s submissions the essence of the challenge to the findings of the primary judge.

Appeal grounds 1, 2 and 3: The refusal of higher duties

Ground 1

89    Under this ground of appeal Mr Short alleged that in finding that Ambulance Victoria’s decision not to appoint him to the higher duties role was not taken for a reason which included that he made a complaint or inquiry in relation to his employment, the primary judge erred by not properly construing or applying s 361 in relation to his claim that Ambulance Victoria had contravened s 340(1).

90    Mr Short contended, first, that contrary to the primary judge’s approach as revealed by his Honour’s reasons, he did not submit that Ambulance Victoria’s withdrawal of the offer of an interview was the adverse action on which he relied. He argued that by wrongly addressing that non-issue, the primary judge did not deal with his contention that the relevant adverse action was the decision not to appoint him to the higher duties role.

91    We do not agree. We accept that the primary judge unnecessarily considered the withdrawal of the offer of an interview. However, the primary judge also dealt with the allegation that the decision not to appoint Mr Short to the higher duties position was in contravention of s 340. His Honour made this clear when he said (at [25]):

… the next question which arises is whether the withdrawal of the interview and the decision not to appoint Mr Short to a higher duties position was taken because Mr Short had made a complaint or inquiry in relation to his employment.

(Emphasis added.)

92    Secondly, Mr Short contended that the primary judge’s failure to properly construe or apply s 361 can be seen in a number of matters, including that:

(a)    some Ambulance Victoria employees who were involved in the decision not to appoint him to the higher duties role were not called to give evidence;

(b)    he had performed higher duties at the Lakes Entrance branch previously;

(c)    Ambulance Victoria had failed to discover relevant documents;

(d)    no issues concerning his suitability to perform higher duties had been raised when he initially submitted his expression of interest for that role; and

(e)    when Ms Ray made the decision to refuse him higher duties there had been no negative findings about his behaviour, which is inconsistent with Ms Ray’s evidence that the reason for her decision was because of his behaviour and communication style.

93    Those submissions reveal that Mr Short’s real complaint is not about any misconstruction of s 361, but constitutes a challenge to the findings of fact made by the primary judge that underpinned his Honour’s conclusion that the decision not to appoint Mr Short to a higher duties position was not motivated by a prohibited reason. In that respect, Mr Short contended that the primary judge erred in accepting the evidence of Mr Standfield and Ms Ray as reliable in light of matters (a)-(e) and that, as a result, his Honour could not reasonably have been satisfied that Ambulance Victoria had discharged its onus.

94    In Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 248 CLR 500 at [45], French CJ and Crennan J said in relation to the onus under s 361:

This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity. (Emphasis added. Citations omitted.)

95    In support of his contention set out at [92](a) above, and placing particular reliance on the emphasised text in the passage just quoted, Mr Short noted that Ms Reid was not called as a witness. He argued that Ms Reid was deeply involved in the decision not to appoint him to the higher duties role, and he contended that without her testimony Ambulance Victoria could not have discharged its onus.

96    This contention is misconceived. The primary judge accepted Ms Ray’s evidence that, although she consulted with Ms Reid, she was the decision-maker rather than Ms Reid. Ms Ray gave direct testimony as to her reasons for not appointing Mr Short to the higher duties role. That evidence was accepted. In some circumstances, the failure to call corroborative evidence may lead to the non-acceptance of the primary evidence called in support of an issue. But that is not always so. In this case, the extent of Ms Reid’s involvement was not such that Ms Ray’s evidence could not have been accepted absent corroboration from Ms Reid.

97    Mr Short’s contention at [92](a) above, as well as [92](b), (d) and (e), are in essence complaints that the primary judge should not have accepted the evidence of Mr Standfield and Ms Ray. His Honour had the benefit of direct evidence from Ms Ray, the relevant decision-maker, and from Mr Standfield whom she consulted. Both were cross-examined as to the reasons for the decision, and Ms Ray's evidence included positive evidence that the decision not to appoint Mr Short to the higher duties role was taken because he had been off work with a stress condition and because of his often-explosive behaviour. None of the matters to which Mr Short points reveal any error on the part of the primary judge in accepting their evidence.

98    It was central to Mr Short’s case that the real reasons for the refusal to appoint him to higher duties were not as Mr Standfield and Ms Ray testified, and he attacked the credibility of their account. The authorities set a high bar for an appellant seeking to overturn credit findings. In Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 the majority per Brennan, Gaudron and McHugh JJ observed:

More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”. (Citations omitted.)

99    In Fox v Percy (2003) 214 CLR 118 at [26]-[31] Gleeson CJ, Gummow and Kirby JJ reiterated that a finding of fact by a trial judge, based on the credibility of a witness, will usually only be set aside upon appeal where incontrovertible facts or uncontested testimony demonstrate that the judge’s conclusions are erroneous, or where it is concluded that a decision was clearly improbable or contrary to compelling inferences.

100    Mr Short did not come close to establishing that the primary judge’s findings as to the reason for not appointing him to the higher duties role were inconsistent with facts incontrovertibly established, glaringly improbable, contrary to compelling inferences, or otherwise erroneous. In our view there was a firm basis in the evidence for his Honour’s findings.

101    Contrary to Mr Short’s contentions, the primary judge was plainly alive to the requirements of s 361 and the onus on Ambulance Victoria. His Honour said (at [27]):

Based on the above evidence, the court considers that Ambulance Victoria has discharged the onus placed on it by s 361 of the Act to show that its decision not to appoint Mr Short to the higher duties role was not taken for a reason which included the reason that Mr Short had made a complaint or inquiry in relation to his employment.

102    Finally, there is no substance to the contention at [92](c) above, concerning Ambulance Victoria’s alleged failure to discover certain documents concerning the decision to refuse Mr Short the higher duties role, which Mr Short contended are “proven to exist”. Mr Short did not seek or obtain a ruling from the primary judge in relation to the asserted inadequacy of Ambulance Victoria’s discovery and he was unable to offer an adequate explanation for that failure. While an appellate court may entertain a point on appeal that was not raised at trial it is not expedient or in the interests of justice for the Court to now consider whether discovery was adequate: see Water Board v Moustakas (1988) 180 CLR 491 (“Water Board”) at 497 per Mason CJ and Wilson, Brennan and Dawson JJ.

103    Ground 1 of the appeal must be rejected.

Ground 2

104    Under this ground Mr Short alleged by reference to the primary judge’s findings at [25] and [26] that his Honour erred in the construction of s 351(2) of the Act. He argued that the Court should find that s 351(2)(b) requires that the reason for any adverse action must be disclosed at the time the action is taken.

105    This ground of appeal is misconceived. The primary judge’s findings at [25] and [26] were his Honour’s assessment of the evidence of Mr Standfield and Ms Ray in relation to Mr Short’s claim under s 340(1), and did not relate to the alleged breach of s 351. His Honour dealt with that question later, at [28]-[31].

106    Nor is there anything in the plain words of s 351(2)(b) to indicate that an employer must provide the reason for any adverse action at the same time as the action is taken. Mr Short was unable to point to any basis for such an implication in the Act or in the authorities. This ground of appeal must fail.

Ground 3

107    Under this ground Mr Short alleges that in finding that Ambulance Victoria did not contravene s 351 when it refused to appoint Mr Short to the higher duties role, the primary judge erred by failing to give any or any sufficient weight to contradictions in the evidence of Mr Standfield. Mr Short noted that Mr Standfield gave evidence that he had no knowledge of the substance of Mr Short’s stress related WorkCover claim and argued that this contradicted Mr Stanfield’s other evidence that it was inappropriate for Mr Short to perform the higher duties role because the stress associated with that role might aggravate his condition.

108    We do not accept this contention. On a fair reading of Mr Standfield’s evidence, although he did not know of the substance of Mr Short’s WorkCover claim he was aware that he suffered from a stress related condition. There is no necessary contradiction in Mr Standfield’s evidence.

109    Second, even if a contradiction in Mr Standfield’s evidence could be established it would make no difference to the result. The primary judge accepted Ms Ray’s evidence that she rather than Mr Standfield made the decision not to offer the higher duties role to Mr Short (at [16]). His Honour accepted Ms Ray’s evidence that her refusal to permit Mr Short to perform higher duties was in no way motivated by any mental disability from which he suffered.

110    Finally, we note that s 351(2) provides that discriminatory action taken because of the inherent requirements of the particular position is not caught by s 351(1). The primary judge accepted Mr Standfield’s evidence that stress was an inherent requirement of the higher duties role of Acting Team Manager and there is no challenge to that decision. This ground of appeal must fail.

Appeal ground 4: The Formal Warning

111    Under this ground Mr Short alleged that, in finding that Ambulance Victoria’s decision to issue him with the Formal Warning was not taken for a reason which included that he made a complaint or inquiry in relation to his employment, the primary judge erred by not applying the reverse onus in s 361 of the Act to his claim that Ambulance Victoria contravened s 340(1).

112    Mr Short contended that the primary judge erred in holding that Ambulance Victoria discharged its onus because, amongst other things:

(a)    Ambulance Victoria had failed or refused to produce relevant documents including the draft and final statements of the witnesses involved in the investigation conducted by Ms Zeitz; and

(b)    the Ambulance Victoria employees who decided to issue the warning were also involved in the investigation by Ms Zeitz.

Mr Short contended that his complaints were not reasonably dealt with by the relevant Ambulance Victoria decision-makers, the whole process of investigation by Ms Zeitz lacked transparency, and the Formal Warning could not be justified. He argued that his Honour erred in saying that it was not the role of the Court to determine whether the warning was justified.

113    We do not agree. We note, first, that Mr Short did not seek or obtain a ruling from the primary judge in relation to Ambulance Victoria’s alleged failure to comply with its discovery obligations, and he offered no explanation in that regard. We have already addressed why it is not in the interests of justice for an appellate court to now grapple with the adequacy of Ambulance Victoria's discovery.

114    Secondly, we do not accept the contention that the primary judge should have decided whether the Formal Warning was justified. No such claim was pleaded. In relation to the Formal Warning the primary judge was only required to deal with the alleged contravention of s 340(1) and the alleged breach of an implied term of mutual trust and confidence.

115    Mr Short’s true complaint appears to be, again, that the primary judge should not have accepted the evidence of the relevant decision-makers. Ms Ray and Mr Luddington gave evidence, which the primary judge accepted, that the reason for the Formal Warning was Mr Short’s behaviour, as identified by Ms Zeitz. The primary judge accepted their evidence that Mr Short’s complaints and inquiries in relation to his employment played no part in the decision to issue the warning. There was a firm basis in the evidence for his Honour’s findings. There is no basis asserted by Mr Short for concluding that the primary judge’s findings as to the reasons of Ms Ray and Mr Luddington were glaringly improbable or inconsistent with facts incontrovertibly established by the evidence.

116    Furthermore, it is clear that the primary judge understood the reverse onus in s 361 and properly applied it. His Honour held at [55]:

The unchallenged evidence of Ms Ray and Mr Luddington supports a finding, which the Court makes, that the decision by Ambulance Victoria to issue a formal warning to Mr Short was not taken for a reason or reasons which include the reason that Mr Short had made a complaint or inquiry in relation to his employment. The Court is also satisfied on the basis of the evidence of Ms Ray and Mr Luddington that the formal warning related to the conduct of Mr Short identified in the letter of 9 November 2010 and for no other reason, including other complaints made by Mr Short in relation to his employment such as the linen skip incident.

117    This ground of appeal must also be rejected.

Appeal grounds 5 and 6: The alleged implied term of mutual trust and confidence

118    Under grounds five and six Mr Short alleged that, in issuing the Formal Warning, the primary judge erred in finding that Ambulance Victoria did not breach an implied term of mutual trust and confidence in Mr Short’s contract of employment.

119    These grounds rely on the decision of the Full Court in Commonwealth Bank of Australia v Barker (2013) 214 FCR 450 per Jacobson and Lander JJ (Jessup J dissenting) that a contract of employment includes an implied term of mutual trust and confidence so that a party to the contract must not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence. On appeal, the High Court overturned the Full Court decision and held that no such term is implied into a contract of employment as a matter of law: see Commonwealth Bank of Australia v Barker [2014] HCA 32 (“Barker”). It follows that no cause of action was available to Mr Short based upon a breach of an implied term of mutual trust and confidence, and these grounds of appeal must fail.

Appeal ground 7: Failure to refer Mr Short’s grievance regarding the Formal Warning to FWA

120    At the relevant time cl. 59.6 of the Enterprise Agreement provided:

If a dispute should arise over the disciplinary action, other than termination of an employee who has not completed at least six months service with the employer, the course of action to be followed is that the matter shall be referred to Fair Work Australia for resolution. Such resolution shall be accepted by the parties as final.

121    Ambulance Victoria also had an internal “Employee Relations Grievance Procedure Version 8” policy which relevantly provided:

In the case of a grievance relating to a matter arising out of an industrial Award or Agreement, until the grievance is determined, work shall continue as normal, except in the case of occupational health and safety matters. No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this procedure.

122    Under this ground Mr Short alleged that by failing to take the internal policy into account, the primary judge erred in finding that Ambulance Victoria did not breach cl. 59.6 of the Enterprise Agreement when it failed to refer Mr Short’s grievance about the Formal Warning to FWA for resolution.

123    We do not accept that Ambulance Victoria was required to refer the dispute to FWA. The Enterprise Agreement is to be construed by its terms and those terms make no by reference to the Ambulance Victoria policy. Even if Ambulance Victoria’s internal policy is to be treated as relevant to the construction of the Enterprise Agreement, it says nothing about any requirement to refer a grievance to FWA. It requires work to continue as normal until the grievance is determined, and in the present case it did.

124    Clause 59.6 allows a party to refer a dispute about disciplinary action to FWA for resolution, and s 739(6) of the Act provides that FWA may only deal with such a dispute on application by a party. The clause should not be read as mandating that all parties to an unresolved dispute must initiate a process of referral to FWA. The clause provides for a further step to be taken in a dispute resolution process designed to facilitate a grievance being resolved. It is for the aggrieved party that wishes FWA to deal with the dispute to refer it, and Mr Short did so.

125    This ground must also be rejected.

Appeal grounds 8 and 9: The standing down of Mr Short

126    Under these grounds Mr Short alleged that in finding that Ambulance Victoria did not stand down Mr Short because he had made complaints or inquiries in relation to his employment, the primary judge:

(a)    failed to properly construe or apply the onus under s 361; and

(b)    failed to give any or any sufficient weight to medical evidence that did not support other evidence that Ambulance Victoria stood down Mr Short because of his stress related medical condition.

The two grounds are closely related and we will deal with them together.

127    Mr Short contends that the primary judge’s failure to properly construe or apply s 361, and his failure to give any or any sufficient weight to the medical evidence, can be seen in a number of matters including:

(a)    alleged inconsistencies in the evidence of Ms Sadler as to when she knew Mr Short suffered from a stress-related condition;

(b)    an alleged inconsistency between the evidence of Ms Pettitt regarding the decision to suspend Mr Short in February 2011 and the advice provided to Mr Short by Ms Sadler in early March;

(c)    alleged inconsistencies in the evidence of Ms Pettitt as to when she first knew of Mr Short’s complaints;

(d)    an alleged failure by Ms Pettitt to take prudent action in relation to Mr Short’s complaints;

(e)    that Dr Uebergang’s report of 14 February 2011 raised no new medical condition beyond that identified in Dr Greacen’s report of 2 November 2010; and

(f)    that it was clear from Dr Uebergang’s report that Mr Short was fit for work as a paramedic with Ambulance Victoria, just not at the Lakes Entrance branch.

Mr Short argued that, in light of these matters, it was unlikely that he was stood down because of concerns about his capacity to deal with the stress of the job. He contended that his Honour erred in accepting the evidence of Ms Sadler and Mr Jemmett as reliable and could not reasonably have been satisfied that Ambulance Victoria had discharged its onus under s 361.

128    We do not accept these contentions. Again, Mr Short’s actual complaint is that the primary judge should not have accepted the evidence of the relevant decision-makers. Mr Jemmett and Ms Sadler gave evidence that Mr Short’s inquiries and complaints in relation to his employment played no role in the decision to stand him down pending an assessment of his psychological fitness for duty. They were cross-examined and they gave positive evidence that upon receiving Dr Uebergang’s report they formed the view that it was unsafe to permit Mr Short to continue the stressful work of a paramedic. In our view, none of the matters to which Mr Short points reveal any error on his Honour’s part in accepting their evidence.

129    There is nothing in the matters to which Mr Short points that indicates that his Honour’s findings as to the reason for standing him down were inconsistent with facts incontrovertibly established, glaringly improbable, contrary to compelling inferences, or otherwise erroneous. In our view there was a firm basis in the evidence for his Honour’s findings.

130    We note that Dr Uebergang’s report stated that Mr Short was experiencing an acute stress reaction and suffered from ongoing symptoms of disrupted sleeping patterns, significant mood swings alternating between deeply depressive thoughts and a numbing or detachment of emotional responses, and at times very highly charged emotional responses. Any responsible manager reading that report would have considered whether a person with those symptoms should be allowed to continue in stressful work until an assessment could be made that he was psychologically fit for duty.

131    We can see no substance to Mr Short’s contention that the primary judge did not give any or sufficient weight to the medical evidence. It is correct, as Mr Short contended, that Dr Uebergang advised that Mr Short should be transferred from the Lakes Entrance branch. But the report described Mr Short as quite psychologically unwell and his Honour’s finding as to the reason he was stood down was clearly open on the evidence.

132    Contrary to Mr Short’s contentions we are satisfied that the primary judge was alive to the requirements of s 361 and Ambulance Victoria’s onus. This ground of appeal must fail.

Appeal ground 10: The termination of Mr Short’s employment

133    Under this ground Mr Short alleged that, in finding that Ambulance Victoria’s decision to terminate Mr Short’s employment was not taken for a reason which included that he made complaints or inquiries in relation to his employment, the primary judge erred by not applying the reverse onus in s 361 of the Act to his claim that Ambulance Victoria had contravened s 340(1).

134    Mr Short contends that the primary judge’s failure to properly construe or apply s 361 can be seen in a number of matters, including:

(a)    Ms Sadler’s evidence that Mr Short persisted in making bullying complaints against management when he did not agree with management actions or decisions;

(b)    that some employees, including Mr Bradbury, were annoyed, frustrated and worried by Mr Short’s complaints in relation to his employment;

(c)    alleged inconsistencies in Ms Sadler’s evidence that Mr Short had acted inappropriately towards her during telephone conversations in February 2011, and her characterisation of Mr Short’s emails as aggressive when they were not in fact aggressive;

(d)    Ambulance Victoria’s failure to discover relevant documents, including transcripts of meetings regarding the Business Case; and

(e)    Ambulance Victoria’s failure to call Anthony Maher and Mick Cameron who contributed to the Business Case.

135    Mr Short essentially contended that, in light of these matters, the primary judge erred in accepting the evidence of Mr Sassella, Ms Pettitt and Mr Walker that Mr Short’s inquiries and complaints in relation to his employment played no part in the decision to terminate his employment. He argued that his Honour could not reasonably have been satisfied that Ambulance Victoria had discharged its onus.

136    We do not accept these contentions. First, there was no requirement for Ambulance Victoria to call every employee who contributed to the development of the Business Case in order to discharge its onus under s 361. Secondly, the fact that other employees had expressed the view that Mr Short was difficult to work with does not render it more likely that his employment was terminated for those reasons, rather than for his serious misconduct on 1 May 2011. Thirdly, again, if Mr Short had a complaint in relation to the adequacy of discovery he should have made an application to the primary judge and obtained a ruling in that regard, but he did not.

137    The evidence was that Mr Sassella made the decision to terminate Mr Short’s employment after a decision to do so was endorsed by Mr Walker and Ms Pettitt. Mr Sassella, Mr Walker and Ms Pettitt each testified that the decision to terminate Mr Short's employment was not because he persisted in exercising his workplace rights, but because of his unacceptable conduct in the 1 May 2011 meeting with Mr Standfield.

138    Once again Mr Short’s real complaint is that the primary judge should not have accepted the evidence of the relevant decision-makers. However, as his counsel conceded before the primary judge, Mr Short’s conduct on 1 May 2011 was appalling. His aggressive and intimidating behaviour was the same conduct for which he had previously been given the Formal Warning, and he displayed no genuine contrition or even recognition of the seriousness of his misbehaviour. There was a solid foundation for the primary judge to accept as credible the evidence given by Mr Walker and Ms Pettitt as to their reasons for dismissing Mr Short. Mr Short has failed to establish any basis upon which those findings should be overturned on an appeal

139    The primary judge did not misconstrue or misapply s 361 of the Act in dealing with Mr Short’s claim that Ambulance Victoria contravened s 340 when it terminated his employment. This ground of appeal must also fail.

Appeal ground 11

140    Mr Short claims that he was prejudiced because he was not allowed to embark upon an examination of the correctness of the Zeitz report, and yet its findings were cited against him by the primary judge. This ground was not developed before us but it appears to be a challenge directed at the primary judge’s procedural ruling on the first day of trial when his Honour excluded paragraphs 71 and 72 of Mr Short’s opening as being outside the pleadings. It appears that the primary judge accepted Ambulance Victoria’s submission that it would be prejudiced by Mr Short’s attempt to add a new claim.

141    No basis was raised for suggesting that the primary judge erred in making the ruling that he did. Nor do we accept that, notwithstanding his ruling, his Honour was wrong to refer to the Zeitz report in his reasons. The report had been adduced in evidence and formed part of the factual landscape. Its content was relied upon by the decision makers and was clearly capable of supporting their evidence that factors other than Mr Short’s inquiries or complaints motivated their decisions. This ground of appeal also fails.

CONCLUSION

142    For these reasons the appeal must be dismissed.

Associate:

Dated:    24 April 2015