FEDERAL COURT OF AUSTRALIA

Stephens v Australian Postal Corporation [2014] FCA 732

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

1        The Applicant (Mr Larry Stephens) was employed by the Respondent (the Australian Postal Corporation (the Corporation)) as a part-time driver/sorter in 2009 to early 2010.

2        Mr Stephens completed a truck (medium rigid) driving assessment in 2009 and thereupon became qualified to be a Postal Transport Officer.

3        His services with the Corporation were terminated in January 2010. He has been involved in a number of other proceedings separate from the present. One involved a claim for injury under the Safety Rehabilitation and Compensation Act 1988 (Cth) in proceedings in the Administrative Appeals Tribunal: Re Stephens and Australian Postal Corporation [2011] AATA 824. Another proceeding involved a claim seeking reinstatement and the imposition of penalties under the Fair Work Act 2009 (Cth) (“Fair Work Act”): Stephens v Australian Postal Corporation [2011] FMCA 448, (2011) 207 IR 405. Reinstatement was ordered. That decision, in turn, gave rise to an unsuccessful application for leave to appeal: Australian Postal Corporation v Stephens (No 2) [2011] FCA 992, (2011) 207 IR 454. Although these are proceedings separate from the present, they retain a continuing relevance on the case now advanced on behalf of Mr Stephens.

4        The dispute of present concern has its origins in October 2011 when the Corporation advertised positions for Public Transport Officers. Mr Stephens also maintained that positions had been advertised for driver/sorter positions. He tried to apply on-line but had difficulty in doing so. Those difficulties were addressed. Mr Stephens attempted to submit an application on 1 December 2011. But the information provided was incorrect. On 21 December 2011 he provided his updated personal information and his correct address.

5        On 22 December 2011, an officer of the Australian Postal Corporation, Mr Hinton, who held the position of Indigenous Employment Consultant, was informed that all Postal Transport Officer positions had been filled. Mr Hinton wrote to Mr Stephens informing him that his application had been unsuccessful.

6        Mr Stephens commenced proceedings in the Federal Magistrates Court of Australia (as it was then known). He claimed that the Corporation had contravened ss 340(1) and 351(1) of the Fair Work Act. He maintained that the respondent had contravened s 340(1) by its refusal to employ him because he had exercised a workplace right; the contravention of s 351(1) was founded upon a claimed physical disability. His Statement of Claim in that Court pleaded the only contravention relied upon was that which took place on 22 December 2011. No contravention was alleged which may have emerged from the events which took place between the initial advertisement and 21 December 2011.

7        The Federal Circuit Court Judge dismissed the application: Stephens v Australian Postal Corporation [2013] FCCA 1988.

8        Mr Stephens now appeals to this Court.

9        The appeal is to be dismissed. The reasons for so concluding may be briefly stated. There is no necessity to review the authorities in any great detail. The appeal is to be resolved, as correctly found by the Federal Circuit Court Judge, by reference to the facts.

The Fair Work Act

10        The provisions of the Fair Work Act which assume central relevance to the present appeal are ss 340, 342, 351 and 361.

11        Section 340 provides as follows:

Protection

(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.

(2)    A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.

The expression “adverse action” is relevantly defined in s 342(1) as follows:

The following table sets out circumstances in which a person takes adverse action against another person.

12        Section 351(1) provides as follows:

Discrimination

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.

13        Section 361 of the Fair Work Act provides as follows:

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.

(2)    Subsection (1) does not apply in relation to orders for an interim injunction.

Neither s 361 nor its predecessor provisions remove the need for an applicant to establish the “objective facts” which form the basis of the respondent’s conduct: Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531 at [162], (1999) 140 IR 131 at 167 per Branson J; Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585 at [49], (2008) 177 IR 306 at 321-322 per Moore J. Once those “objective facts” are made out by an applicant and where an allegation is made that a respondent has taken action for a particular reason or with a particular intent, s 361 then shifts the onus to the respondent to prove the contrary. The impact of s 361 “is simply to alleviate the evidentiary difficulty facing the applicant of providing proof of the intent or reason which motivated, or formed part of the motivation for, the respondent’s conduct…”: cf. Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531 at [162], (1999) 140 IR 131 at 167 per Branson J. When addressing the terms of s 361, French CJ and Crennan J in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, (2012) 248 CLR 500 at 517 observed:

[44]    … The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”

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

See also: Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) [2013] FCA 446 at [157] to [158], (2013) 232 IR 290 at 329 per Bromberg J.

14        No question arises in the present proceeding as to whether Mr Stephens was seeking to exercise a “workplace right”. That was not put in issue. The question of central relevance was whether the facts fell within Item 2 of the Table set forth in s 342(1).

15        The “adverse action” relied upon in the present proceeding was the “refusal” on 22 December 2011 on the part of the Corporation to employ Mr Stephens.

16        It was common ground that Mr Stephens bore an onus of proof and that it was only upon him discharging that onus that s 361 thereafter imposed an onus upon the Corporation. But what divided the parties was what it was that Mr Stephens had to prove to discharge his onus. Whatever it was that Mr Stephens had to prove, he maintained that he had discharged his onus. The Corporation, by way of contrast, maintained that Mr Stephens had to prove that there were no positions vacant at the time a decision was made in respect to his application for employment.

17        Given the facts, nothing much turns in the present appeal on which position is ultimately accepted. But this divergence of approach was the subject of some debate as to what constituted a “refusal to employ” and what each party had to prove.

18        There are general statements in support of the proposition that there can be no refusal to employ where there is no vacancy: e.g., Fraser v Fletcher Construction Australia Ltd (1996) 70 IR 117 at 119. Moore J there observed:

It is necessary to consider the expression “refuse to employ” in context. Its immediate context is one in which two aspects of an employer's conduct are identified in the prefatory words in s 334(2). The expression “refuse to employ” identifies the first. The remainder of the prefatory words identify the second. They concern conduct where an offer is made to employ a person on discriminatory terms. It is relatively clear, in my opinion, that the second aspect concerns conduct where an employer intends to employ someone, the person is offered employment and the employer does so on discriminatory terms. It concerns actual and not theoretical employment. That is, employment by an employer to perform work for the employer albeit on discriminatory terms or conditions. Thus the companion words to the expression “refuse to employ” concern actual employment and they constitute a fairly compelling pointer of the subject matter Parliament intended to address in s 334(2). They indicate that the expression “refuse to employ” deals with the same subject matter, that is, actual employment where there is a refusal to employ a person in circumstances where, apart from the refusal, employment might or would arise. I refer to situations where employment might arise to allow for circumstances where a vacant position exists and a refusal to employ arises before the employer has ascertained whether the person applying for the job or position, who is victimised for a prescribed reason, is qualified or equipped to do the job.

Similarly, in Construction, Forestry, Mining & Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008 Wilcox J observed:

[50]    A refusal to employ somebody involves discrimination or victimisation only if there was, at the relevant time, a vacancy or prospective vacancy….

See also: McIlwain v Ramsey Food Packaging Pty Ltd [2006] FCA 828 at [361] to [362], (2006) 154 IR 111 at 201 per Greenwood J. There may, however, be a refusal to employ a claimant in circumstances where there is in fact a vacant position and where another person is appointed in preference to the claimant: e.g., Maritime Union of Australia v Burnie Port Corporation Pty Ltd [2000] FCA 1189, (2000) 101 IR 435 (upheld on appeal: Burnie Port Corporation Pty Ltd v Maritime Union of Australia [2000] FCA 1768, (2000) 104 FCR 440.

19        But such statements have not gone unchallenged.

20        In Australasian Meat Industry Employees’ Union v Belandra Pty Ltd [2003] FCA 910, (2003) 126 IR 165 North J had to construe s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) which provided that an employer must not “for a prohibited reason … refuse to employ another person…”. His Honour outlined the two available constructions of that provision as follows:

[49]    There are at least two available constructions of the expression "refuse to employ" as used in s 298K(1)(d) in relation to vacancies. On one approach, it can be said that there is no refusal to do something if that result cannot be achieved. A person cannot refuse to do that which cannot be done. If there is no vacancy, then there can be no refusal to employ. The respondents argued for this approach (the former construction). Alternatively, it can be said that even if an outcome is not available, the decision not to provide it is nonetheless a refusal to provide the outcome. That is, whether the outcome can be achieved should be considered separately from whether there was a decision not to achieve the outcome. Thus, there can still be a refusal to employ even if there is found to be no available vacancy (the latter construction).

His Honour preferred the latter construction. One of the reasons for so concluding was expressed as follows:

[52]    Further, the difficulty with the former construction is that it allows an employer to circumvent the operation of s 298K(1)(d) by its own action. If an employer only refuses to employ where a vacancy exists, then, in order to avoid engaging a particular person for a prohibited reason, the employer can simply contrive to have no vacancy. Consider the situation where an employer has two vacancies. He has three applicants, A, B, and C. A and B are not union members and C is a union member. The employer engages A and B and rejects C. The reason for rejecting C is that he is a union member. Were it not for this fact, the employer would have preferred C to A and B. If C challenged this decision under s 298K(1)(d) it would be open to the employer to argue, if the former construction of the subsection applied, that there was no refusal to employ C because there was no longer a vacancy. However, it was the contravening act itself which caused there to be no vacancy. One would imagine that such a situation was precisely what the subsection was intended to guard against. The former construction thus allows an employer to escape liability by arranging for there to be no vacancies available to an applicant whom the employer wishes to reject for a prohibited reason: (2003) 126 IR 165 at 181 to 182.

His Honour found that “once the applicant has shown that the respondent refused to employ the applicant, irrespective of whether a vacancy exists or not, the applicant has discharged the onus of proof which rests on the applicant”: [2003] FCA 910 at [63], (2003) 126 IR 165 at 185. His Honour further went on to conclude:

[67]    … In this case there was a refusal to employ the Belandra employees when Belandra said, in September 2001, that it would not offer reemployment to the Belandra employees. The question whether there were any vacancies to be filled by the Belandra employees, then, is a matter which the respondent can raise in relation to the existence of a proscribed reason for the refusal, with a view to rebutting the presumption that the refusal was for a proscribed reason. However, if it is shown that Belandra contrived to have no vacancies through its decision not to employ, this argument might not succeed: (2003) 126 IR 165 at 186.

What his Honour’s comments make self-evident is that much depends upon the facts and circumstances to which the statutory language is sought to be applied. In these examples provided by his Honour there was in fact a vacant position which by a contrivance became unavailable and there was in fact a vacant position to which one or other of the employees A, B and C could have been appointed.

21        Lurking behind the phrase “refusal to employ” are questions as to whether the phrase means:

    a refusal to employ a person to a position which is in fact vacant – in which case, it may be the prospective employee who has the onus of proving that a position is vacant; or

    a failure to employ a person upon an application being made, whether or not a position has been advertised as being vacant and (perhaps) even where there is known to be no vacant position – in which case, s 361 would transfer the onus to the employer to explain the reason why the application was unsuccessful.

Even on such a simple approach to the analysis of the phrase, a further variant may be:

    if a position was once vacant, but is no longer vacant, the reason why a vacancy no longer exists – in which case, the onus may be upon the employer to explain why the vacancy no longer exists.

The decisions of Moore J in Fraser, supra and that of Wilcox J in BHP, supra, would support the first analysis; the decision of North J in Belandra, supra, would support the second and third analysis. Each of these variants is but a variant upon the one theme.

22        Given the infinite variety of factual circumstances in which the issue may arise for determination, it is considered prudent to confine attention to the facts of relevance in the present appeal.

A refusal to employ and the reasons relied upon

23        The Federal Circuit Court Judge found that there had been no refusal to employ Mr Stephens because there were no positions vacant at the relevant time. It was also concluded that any refusal to employ was not for a prohibited reason.

24        The particular findings relied upon by Mr Stephens, as evidencing appellable error, are as follows:

[65]    In circumstances where the applicant in the proceeding before this Court has not provided any evidence of any vacancy as at 22 December 2011 when the respondent wrote to him informing him that his employment application was not successful (that being the time at which the applicant alleges there was a refusal by the respondent to employ the applicant) and in light of the clear evidence of the respondent’s witnesses that there was no vacancy at all as at 22 December 2011, either in a driver/sorter role or as a PTO, I am not satisfied that there was a refusal to employ the applicant.

…

[73]    In the circumstances, as stated above, I am satisfied that any refusal to employ the applicant was not for a prohibited reason and was solely because there was no position available at the time for which the applicant had applied.

…

[79]    As stated above, I am satisfied that the only reason that the applicant’s job application was unsuccessful was because there was no relevant job available for which the applicant had applied as at 21 December 2011.

The Federal Circuit Court Judge also made findings relevant to s 361 of the Fair Work Act. When addressing the claimed contravention of s 341, the following findings were made:

[71]    In the circumstances, if s 361 of the FWA applies, as stated above, the respondent has provided rebutting evidence, being the direct testimony of Mr Ivin as the relevant decision maker’s reason for refusing to employ the applicant. I accept that any refusal to employ the applicant was not taken for a prohibited reason and that any burden that the first respondent bore by reason of s 361 of the FWA was discharged.

[72]    Accordingly, even if there was a refusal to employ the applicant, the clear evidence of the relevant decision maker, Mr Ivin, that as at 21 December 2011 when he cancelled the third vacancy, the other positions having been filled, he had no knowledge of the applicant’s prior proceedings in either the AAT, Federal Magistrates Court of Australia or the Federal Court of Australia.

In respect to Mr Stephen’s claim founded upon s 351 and the application to that claim of s 361, the following findings were made:

[77]    However, in light of the evidence of Mr Ivin as to the reasons why there was no vacancy as at 22 December 2011, I am also satisfied that any failure to employ the applicant was not because of any physical disability that the applicant may have had.

[78]    There is no evidence of any knowledge that Mr Ivin was aware of any such disability and it was not put to him in cross-examination that he had any knowledge of such a disability. Accordingly, I find that Mr Ivin, being the relevant decision-maker, was not aware of any disability that the applicant may have. In light of this finding, it is not necessary to determine finally whether the applicant had an existing physical disability.

25        The challenge to the findings that there had been no refusal to employ because there was no vacancy at the time, so it is said on behalf of Mr Stephens, fails to properly give effect to s 361. It is said that the findings – and, in particular, the reasoning at paragraph [65] as to Mr Stephens “not provid[ing] any evidence of any vacancy as at 22 December 2011” – exposes the error. Properly applied, it is said that s 361 places the onus – not upon Mr Stephens – but upon the Corporation.

26        The Corporation, for its part, maintained that the onus of proving that there was a vacancy as at 22 December 2011 was upon Ms Stephens. The written submissions filed on behalf of the Corporation maintained that it was for Mr Stephens “to first prove the existence of objective facts which were said to provide a basis for the alleged ‘adverse action’, before the onus shifted to the [Corporation] in respect of the prohibited reason”. Section 361, on this approach, did not operate in respect to the “reason” proffered by the Corporation as to the absence of any vacancy capable of being offered to Mr Stephens. Section 361, so it was submitted on behalf of the Corporation, only operated once Mr Stephens had established that there was a vacant position to which he could have been appointed.

27        The difficulties of proof that may be encountered on the approach of the Corporation are self-evident. It may be difficult for a prospective employee to prove the existence of a vacant position where there has been no vacant position advertised and where an application for employment is simply made and rejected. It may, nevertheless, be possible in some circumstances to prove a “refusal to employ” where a person merely unsuccessfully applies for employment. But, in circumstances where vacant positions have been advertised, a prospective employee may well be able to discharge an onus by reference to the contemporaneity between the advertisement and an application. If the approach of the Corporation be correct, considerable reservation is expressed as to whether the onus, in all circumstances, rests upon a potential employee to prove that not all of any advertised positions have been filled. Factual questions may arise where other persons have been appointed to a vacant position in preference to the claimant. Such knowledge is within the control or knowledge of the employer. Admittedly, evidence as to whether any vacancies remain unfilled could be proved (by way of example) by a notice to produce or a notice to admit. At least initially, such evidence may go some way to proving the absence of any extant vacancy. The reason why there may be no vacancy, however, resides with the employer. But a notice to produce may well prove ineffective in exposing reasons why for example, one employee was appointed in preference to another, or why a once vacant position is no longer vacant. Such difficulties, it may well be thought, are reasons for rejecting the Corporation’s submission and concluding that s 361 imposes an onus upon it to explain their reasoning once a claimant simply proves that an application for employment has been unsuccessful.

28        But it is unnecessary to pursue such musings further.

29        The appeal should be dismissed for either of two reasons.

30        First, if the reasoning of Moore J in Fraser, supra, and that of Wilcox J in BHP Steel, supra, be accepted without reservation, the fact is that as at 22 December 2011 there was no vacant position which Mr Stephens could have filled. On their Honours’ approach, there has been no “refusal to employ” for the purposes of Item 2 of s 342(1) of the Fair Work Act.

31        Wherever the onus of proof may ultimately have rested, the Federal Circuit Court Judge was correct in concluding that there was no refusal to employ Mr Stephens for the simple reason that there was no vacant position to which he could have been appointed. In addition to the finding made at paragraph [65] of the reasons for decision of the Federal Circuit Court Judge, the following finding was also made:

[66]    However, even if it be the fact that the respondent bears the onus from the outset, I accept the evidence of Mr Ivin as the relevant decision maker, that there were no PTO positions available as at 21 December 2011, being the date of the applicant’s application for a PTO position…

Whether or not it was Mr Stephens who bore the onus of proving that there was a vacant position at the time his application was unsuccessful, the fact that there was no such vacancy had in any event been established.

32        Second and assuming that Mr Stephens had discharged the onus placed upon him of proving the “objective facts” going to the proof of the “adverse action” relied upon by reference to:

    the fact that positions had been advertised;

    the fact that he had applied for employment; and

    the fact that his application was rejected

any onus thereafter imposed upon the Corporation by s 361 had been discharged.

33        It is considered that the Federal Circuit Court Judge was correct in concluding that “any refusal to employ [Mr Stephens] was not for a prohibited reason and was solely because there was no position available at the time for which [he] had applied”.

34        The principal challenge to the findings of the Federal Circuit Court Judge that the onus had in fact been discharged, so it is said on behalf of Mr Stephens, was that the Corporation did not call any evidence from any or all of Messrs John Craig, Tony Stavropolous and/or Sang Diep. The letter from Mr Hinton to Mr Stephens dated 22 December 2011 merely recorded, so it was said, information communicated to Mr Hinton by the “Recruitment Unit”. The Corporation called as witnesses in its case Mr Hinton, Mr Graham Ivin (the Postal Transport Coordinator) and Ms Jayne Turner. Ms Turner was the person responsible for remedying the difficulties encountered by Mr Stephens in seeking to apply on-line for the positions advertised.

35        The evidence of Mr Hinton, it may be accepted, did not immediately assist in identifying the reasons why Mr Stephens’ application was unsuccessful. In his affidavit, he stated that he had “no role in offering or refusing to offer employment to any applicant”. That responsibility, according to Mr Hinton, “rests with the relevant operational manager…”. Presumably in recognition of the absence of authority of Mr Hinton, the Corporation relied upon the affidavit of Mr Ivin. Mr Ivin described his role as “essentially an operations manager role…” and the person with “responsibility for the general day-to-day running of the depot including rostering, staffing, employee leave, fleet utilisation and people resourcing”. His affidavit set forth the interviews he conducted in respect to the positions which had been advertised. He addressed the factual situation in December 2011 and his knowledge of Mr Stephens as follows:

12.    On 12 December 2011, I received an email from Mr Diep advising me that one of the three new Postal Transport Officers had resigned. I immediately requested that Recruitment source more candidates for me to interview to fill this vacancy given the impending busy Christmas period…

13.    Mr Diep provided me with only one further candidate for interview, who I interviewed on or around 13 December 2013. He was not made an offer of employment due to failing his driving assessment.

14.    On 21 December 2011, I cancelled the third position as I believed it was too close to Christmas to be of any use to the Facility to address the temporary Christmas peak and it was also too busy at the Facility to train a new worker at this time of the year. I had a telephone discussion with Mr Diep about this, who then confirmed the cancellation of my request by email…

15.    When I was provided with applications from Mr Diep for candidates to be interviewed, I was not aware that Mr Larry Stephens had sought to make an application. I have been advised that Mr Stephens submitted his application for Postal Transport Officer on 21 December 2011, by which time all available positions had been filled or cancelled.

16.    When I made my decision on who the successful job applicants were I had not heard of Mr Stephens. When I instructed Mr Diep to cancel the third position I had not heard of Mr Stephens.

17.    Prior to being contacted to give evidence in these proceedings, I was not aware that Mr Stephens had participated in Administrative Appeals Tribunal proceedings or Federal Magistrate Court proceedings against Australia Post.

There was no cross-examination of Mr Ivin as to paragraph [14] of his affidavit.

36        It was, however, the evidence which was not called by the Corporation – rather than the evidence which it did call – which assumed relevance to Mr Stephens’ argument. The three witnesses not called occupied the following positions: Mr Craig, the Human Resources Consultant for the area; Mr Stavropolous, a Senior Workplace Relations Advisor; and Mr Diep, a Recruitment Consultant.

37        But what relevant evidence these three witnesses could have added to the case for the Corporation, or the manner in which any cross-examination of those witnesses could have assisted Mr Stephens’ case, was not adequately explained. The written submissions filed on behalf of Mr Stephens maintained that their evidence “would have been material to the claimed adverse action, particularly given their roles in the process as well as their involvement in the Appellant’s Federal Magistrates Court proceedings”. The earlier proceedings in which Mr Stephens has participated also involved Messrs Craig and Stavropoulos. When dealing with the Corporation’s reasons for the termination of Mr Stephens’ employment, in separate proceedings previously pursued by him, the Federal Magistrate had (for example) been critical of the evidence of the person who had made the decision (Mr Brennan) and its failure to call Mr Craig: Stephens v Australian Postal Corporation [2011] FMCA 448 at [78], (2011) 207 IR 405 at 437. Mr Brennan, it appears, had discussed with Mr Craig the proposal to dismiss Mr Stephens. When addressing “considerations” relevant to the decision to terminate Mr Stephens’ employment and the application of s 361 to the facts of that case, the Federal Magistrate thus observed:

[80]    The evidence presented by Australia Post omitted any explanations as to how these various considerations were identified and assessed, and were then either given weight or excluded in the final decision. It did not call Mr Craig, whose advice must have been influential on Mr Brennan’s decision, nor provide any evidence as to what that advice was, nor explain its relevant general policies and practices relevant to decisions of this type. I am far from satisfied on the evidence before me that considerations of Australia Post’s potential liabilities and possible future decision-making under the [Safety, Rehabilitation and Compensation Act], in particular, in relation to its potential obligations to provide restricted duties to an injured employee, were entirely segregated from the present decision-making. The evidence leaves me not satisfied that I am able to reach any conclusion on the balance of probabilities as to what were all the true reasons for terminating Mr Stephens’ employment in such a summary manner and in the circumstances shown in the evidence: (2011) 207 IR 405 at 438.

It is unnecessary to separately address the involvement of Mr Stavropoulos. In the circumstances of that case, these observations of the Federal Magistrate obviously assumed some importance to the conclusion there reached.

38        Whether or not any significance is to be attached to the fact that particular persons were not called, and the relevance of that fact to the application of s 361 of the Fair Work Act, must obviously depend upon the facts and circumstances of each individual case. Section 361 cannot be indiscriminately invoked by an unsuccessful applicant as the springboard for an argument that inferences should be drawn where persons within a respondent’s camp have not been called as witnesses. Those persons may have had little or no involvement in the ultimate decision-making process. Such persons could only potentially give speculative evidence as to the “intent or motivation” of the impugned “adverse action” relied upon. Much must obviously depend upon the circumstances of each individual case. An employer may (for example) deliberately refrain from calling a particular witness who has been intimately involved in the decision-making process and whose evidence may damn the employer’s case. The onus imposed by s 361, in such a case, may well be found not to have been discharged where that witness is not called. In other cases, however, other witnesses may not usefully add to – or detract from – the evidence relied upon by an employer. In those cases, s 361 cannot be indiscriminately invoked to “chisel away” at the employer’s professed reasons for its conduct.

39        In the present appeal, and unlike the position confronting the Federal Magistrate who expressed dissatisfaction with the evidence of Mr Brennan, no reservation was expressed in respect to the evidence of Mr Ivin. He was the decision-maker and his evidence was accepted. It was not suggested (for example) that the fact of there being no vacant position as at 22 December 2011 was but a “contrivance” to avoid employing Mr Stephens, or that other persons had previously been employed to the previously available positions to ensure that there would thereafter remain no position to which Mr Stephens could be employed. Mr Ivin’s affidavit makes no reference to any conversation with Mr Craig. And, as his affidavit makes clear, Mr Ivin had no knowledge of the earlier Tribunal or Court proceedings in which Mr Stephens participated. Prior to the hearing before the Federal Circuit Court, Mr Ivin maintained in his cross-examination that he had never “seen or met” Mr Stephens. The findings made by the Federal Circuit Court Judge whose decision is now under appeal were findings open to be made on the evidence then under consideration by that Court. Any involvement of Mr Craig in the decision-making process pursued by Mr Ivin, unlike the decision-making process pursued by Mr Brennan, was purely speculative. Nor was there any basis for believing that Mr Stavropoulos or Mr Diep could add to the explanation provided by Mr Ivin. Mr Stavropoulos could have done more to assist Mr Stephens – but that stops well short of assuming any present relevance.

40        In the absence of any relevant challenge to Mr Ivin’s evidence, the findings of the Federal Circuit Court Judge at paragraphs [71] to [72] would seem almost inevitable. In addition to those findings, Mr Ivin’s evidence (if accepted) also provides a certain factual foundation for a conclusion that any decision to refuse to offer Mr Stephens employment was not because Mr Stephens had exercised a “workplace right”. Mr Ivin simply had no knowledge of Mr Stephens’ prior experience in the Administrative Appeals Tribunal, the Federal Magistrates Court, or in this Court. So, too, would his evidence, support the conclusions of the Federal Circuit Court Judge at paragraphs [77] to [78] in respect to the claim for disability discrimination.

CONCLUSIONS

41        The present appeal, it is respectfully considered, does not require any close analysis of any onus of proof imposed upon Mr Stephens or the operation of s 361 of the Fair Work Act. Wherever the onus of proof may have ultimately rested, the Federal Circuit Court Judge concluded that:

    there had been no refusal to employ Mr Stephens because there was no vacant position to which he could have been employed;

and further concluded that:

    any refusal to employ Mr Stephens was not for a prohibited reason.

No appellable error, it is concluded, is exposed in the manner in which those findings were made.

42        However the facts be construed, be it either as a case requiring consideration of what constitutes a “refusal to employ” or as a case requiring consideration of the reasons why Mr Stephens’ application was unsuccessful, the Federal Circuit Court Judge was correct in dismissing the application before that Court.

43        To the extent that the Notice of Appeal asserted “actual bias” on the part of the Federal Circuit Court Judge, and to the extent that the written submissions filed on behalf of the Appellant maintained that Ground of Appeal, the argument is rejected. Such reference as was made to by the Judge to provisions of the Fair Work Act and costs, without more, provide no basis for any such argument. The argument, apparently, was founded upon statements made which it was said exposed “misconceptions and misinterpretation about section 361…”.

44        It follows that the appeal should be dismissed.

THE ORDER OF THE COURT IS:

The appeal is dismissed.

Associate:

Dated:    10 July 2014