FEDERAL COURT OF AUSTRALIA

Rahman v Commonwealth of Australia as Represented by the Australian Taxation Office [2014] FCA 1356

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    Any application for costs be made within 14 days supported by written submissions and any necessary evidence.

3.    Any submissions (and/or evidence) in response be filed within 14 days.

4.    Any question of costs be determined on the papers.

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

REASONS FOR JUDGMENT

1    On 2 May 2011 the appellant commenced proceedings in the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia) (“the FCCA”) under the Fair Work Act 2009 (Cth) (“the FW Act”).

2    He alleged contraventions of numerous provisions of the FW Act and breach of an “implied term of trust and confidence” in his contract of employment.

3    The alleged statutory contraventions concerned a suggested failure to observe “general protections” given by the FW Act. The factual particulars in support referred to allegations of discrimination and harassment in employment over a period of time from the beginning of the appellant’s employment in the Australian Taxation Office (“the ATO”) in 2008 until shortly before the proceedings commenced. No separate particulars were provided concerning the alleged breach of contract.

4    The general nature of the claims made in the original application may be seen from the following extracts:

(c)    The Applicant contends that his Director has intentionally and continuously discriminated against him since he joined the ATO in mid 2008. This discrimination commenced at or after the Applicant joined the Community and Public Sector Union in mid 2008.

(d)    The Applicant is being discriminated against because of his ethnic background or for some other reason unspecified reason. The most significant matter of discrimination is the fact that due to the actions of the Director all attempts by the Applicant to achieve promotion have been frustrated and rendered nugatory.

(e)    The Applicant has been employed by the Respondent since 28 February 2008. He has not been able to obtain a promotion, and contends that his Director has been explicitly discriminating against him in relation to these efforts and using influence to negate his applications. Notwithstanding that the Applicant has made a number of applications for higher positions in the Respondent for which he is qualified; he has been unable to obtain any promotion, or even any transfer because of the actions of his Director.

5    Many more subsets of the same allegations were made, but they revolved around the proposition that the appellant was subject either to racial discrimination or adverse action because of his union membership, that the racial discrimination or adverse action was manifested by his failure to achieve promotion and that the instrument of the racial discrimination or adverse action was the appellant’s director, Mr Daren Glanville.

6    In due course the matter went to trial on the basis of a second further amended statement of claim (“the statement of claim”) – a circumstance which suggests that the appellant was afforded an adequate opportunity to formulate his case, having reflected upon it.

7    The second further amended statement of claim took an approach less focussed on the appellant’s particular grievances arising from his relationship with Mr Glanville. It complained that the respondent refused or failed to transfer the appellant from Brisbane to Sydney in late 2008 because of his union membership. It alleged breach of various obligations said to arise from asserted implied terms in the appellant’s contract of employment. It complained that various disciplinary procedures taken against the appellant were taken in bad faith and with a view to harassing him and injuring him in his employment. It alleged racial discrimination.

8    The appellant sought promotion, or damages. The damages sought were to reflect his expectations until the age of 67 and compensation for stress and humiliation. Civil penalties were sought.

9    The proceedings were heard over four days. The parties were each represented by counsel.

10    In a comprehensive judgment delivered on 28 February 2014 the FCCA (Judge Driver) rejected in detail the appellant’s claims. Judge Driver recorded (at [4]):

4.    The proceedings have since been before the Court many times. The case presented a case management challenge, both because of the very substantial amount of material filed, changes in Mr Rahman’s legal representation and the numerous iterations of his pleadings in the matter. …

11    Judge Driver accepted (as put by the respondent) that there were 20 issues arising from the statement of claim which required consideration. It is convenient here to set out how those issues were resolved, according to the summary provided at the end of the judgment:

Summary of the issues

424.    The answers to the issues described above are therefore as follows:

Workplace Relations Act claim

a)    Issue 1: the ATO did not neglect, fail or refuse to transfer Mr Rahman to Sydney because of his union membership contrary to ss.792 and 793(1)(a) of the Workplace Relations Act.

Fair Work Act claims

b)    Issue 2: the ATO did not neglect, fail or refuse to transfer Mr Rahman to Sydney because of union membership contrary to ss.342 and 346(a) of the Fair Work Act (noting he was already in Sydney when the Fair Work Act commenced).

c)    Issues 3, 4 and 5: The ATO did not contravene the Fair Work Act in bringing the Code of Conduct Charges.

d)    Issue 6: The ATO did not contravene the Fair Work Act by discriminating against Mr Rahman in relation to Mr Rahman’s applications for transfer and promotion.

e)    Issue 7: The ATO did not discriminate between Mr Rahman and other employees of the ATO on the ground of race.

Contract claims

f)    Issue 8: It is not necessary to determine whether there was a contract of employment between Mr Rahman and the ATO.

g)    Issue 9: Mr Rahman has not proved the term alleged to be incorporated into the alleged contract that the ATO would not prevent Mr Rahman from absenting himself from duty for periods of up to 1 hour notwithstanding the absence of prior approval by the ATO.

h)    Issue 10: Ms Balasubramaniam and Mr Biondi did not breach the terms of any contract of employment on 28 February 2011 by refusing to allow Mr Rahman to take leave for one hour.

i)    Issues 11, 13 and 14: Mr Rahman has not proved the term alleged to be implied into the alleged contract that the ATO would treat Mr Rahman with due courtesy and consideration and not subject Mr Rahman to undue harassment.

j)    Issues 12, 13 and 14: Mr Rahman has not proved the term alleged to be implied into the alleged contract that Mr Rahman could repose trust and confidence in the ATO that the ATO would not, without good cause, act so as to injure the ATO in his employment.

k)    Issue 15: It is inappropriate to decide whether Mr Biondi breached the terms of any such contract on 17 May 2012 by issuing a formal written direction and formal written warning to Mr Rahman.

l)    Issue 16: The bringing of the Code of Conduct charges issued to Mr Rahman on 22 December 2008, 27 July 2009, 16 December 2010 or 27 May 2011 did not breach the terms of any such contract as alleged by Mr Rahman.

m)    Issue 17: The ATO’s treatment of Mr Rahman in relation to Mr Rahman’s applications for transfer and promotion did not breach the terms of any such contract.

Public Service Act claims

n)    Issue 18: Mr Rahman was not denied procedural fairness, contrary to s.15 of the Public Service Act, in relation to the Code of Conduct charges issued to Mr Rahman on 22 December 2008, 27 July 2009, 16 December 2010 or 27 May 2011.

o)    Issue 19: The ATO did not victimise or discriminate against Mr Rahman, contrary to s.16 of the Public Service Act, by reason of his reporting of alleged breaches of the Code of Conduct by Mr Glanville on or about 21 January 2011.

p)    Issue 20: It is inappropriate to decide whether the ATO victimised or discriminated against Mr Rahman, contrary to s.16 of the Public Service Act, by reason of his reporting of alleged breaches of the Code of Conduct by Mr Glanville on or about 2 February 2012.

425.    The answers to these questions also mean, necessarily, that Mr Rahman has not been injured, or had his position altered by reason of the “course of conduct” pleaded at [21] of the statement of claim.

426.    Mr Rahman has not established the basis of any claim entitling him to relief sought in his statement of claim. Accordingly, Mr Rahman’s application should be dismissed.

12    The appellant appealed to this Court. That is the matter with which the present judgment deals.

13    The grounds of appeal initially filed were as follows:

1.    The learned judge erred in holding that the Appellant was not entitled to the benefit of a term of mutual trust and confidence in his contract of employment with the Respondent.

2.    The learned judge erred in finding that the implied term was not breached by the actions of Ms Subramaniam and in finding that the actions of Ms Subramaniam were in the nature of intrusiveness rather than in the nature of harassing and belittling conduct.

3.    The learned judge erred in finding that the various “code of conduct matters” raised against the Appellant by the Respondent were not raised in bad faith and that the Appellant had not:

a.    established that he was exercising a relevant workplace right, within the meaning of s.341 of the Fair Work Act;

b.    established that the processes constituted relevant adverse action within the meaning of the Act; and

c.    if the above be incorrect, that there was no causal nexus within the meaning of s.340(1) of the Fair Work Act between any workplace right and the injury to Mr Rahman.

4.    The learned judge erred in holding that the Appellant did not suffer injury by reason of the actions of the Respondent in not promoting the Appellant.

5.    The learned magistrate erred in holding that the Appellant’s right to a promotion was not a workplace right.

6.    The learned magistrate erred in holding that there was no causal connection between the failure to accord workplace rights to the Appellant and his failure to be promoted.

7.    The learned magistrate erred in holding that the Appellant was not wrongfully refused short leave on 28 February 2011.

8.    The learned judge erred in refusing to determine matters raised in the pleadings which had arisen after the commencement of the proceedings.

14    It is convenient to consider those initial grounds in five groups:

    those relating to a suggested breach of an implied term of contract (1 and 2)

    code of conduct matters (3)

    complaints about non-promotion (4 – 6)

    refusal of short leave (7)

    failure to deal with pleaded matters (8)

Additional matters – first application for leave to amend the appeal

15    The initial written submissions of the appellant went beyond the grounds of appeal in two substantive respects. The respondent protested but answered in writing. The appellant sought to regularise the position by seeking leave to amend the grounds of appeal to add three new grounds:

2A    The learned judge erred in finding that the implied term was not breached by the actions of Mr Biondi in issuing a warning to Mr Rahman on or about 22 March 2011 in circumstances where, at the time of the warning, Mr Rahman had done nothing wrong and nothing which on any view warranted a warning.

9.    The learned judge erred in failing to find that the Respondent initially refused to transfer the Appellant in his employment with the Respondent from Queensland to NSW for a prohibited reason, namely, membership of the employee organisation known as the Community and Public Sector Union.

10.    The learned judge erred in failing to conclude that the making of a “whistleblower’s report” by the Appellant in early 2011 was in part or whole a cause of a Code of Conduct charge made against the Appellant in May 2011.

Change of representation

16    About one week before the appeal was to be heard, the appellant changed his legal representation. I granted an adjournment to allow adequate time for new counsel to become familiar with the issues.

17    The case on appeal was then substantially refocussed. A further adjournment was required.

18    I am not being critical of the appellant’s new counsel. No doubt Dr Harper was doing his best to put the most effective case forward, after reviewing the history of the matter. However, the result is that finally three sets of written submissions were advanced on behalf of the appellant: one by previous counsel and two by the appellant’s new counsel. In addition, the grounds of appeal were again amended to raise two further new matters.

19    None of the earlier submissions were withdrawn. Three grounds of appeal (1, 2 and 2A) were abandoned, but that was made inevitable by the judgment of the High Court in Commonwealth Bank of Australia v Barker [2014] HCA 32 (“Barker”) which was delivered on 10 September 2014, after the present appeal commenced.

20    I allowed the amendments to the grounds of appeal sought by the appellant. I permitted reliance on all the additional submissions. The respondent was put to the burden of response. The resulting position lacks some coherence.

21    In the circumstances, I propose to deal with the appeal, as initially advanced, and then consider whether any of the new arguments advance (or further advance) the appellant’s case.

General observations

22    Very many of the submissions advanced in writing on behalf of the appellant invited a different view of the evidence than the view taken by the primary judge. Although the appeal to this Court is an appeal by way of “rehearing” that does not signify that the Court hears the case again; it does not. It is basic to success on the appeal that the appellant demonstrate that an error has occurred which would warrant either a different outcome or reconsideration of the matter at first instance (see Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 (“Branir”)).

23    In Branir, Allsop J (with whom Drummond J and Mansfield J agreed) referred (at [23]-[24]) to the judgment of a Full Court in Cabal v United Mexican States (2001) 108 FCR 311 (“Cabal”) decided earlier in the same year, to emphasise the advantage of a trial judge who hears the evidence “in its entirety, presented as it unfolded at the hearing”.

24    In Cabal, Hill, Weinberg and Dowsett JJ referred to principles established by a line of High Court authorities, as follows (at [223]):

223    The principles which govern the review by a Full Court of a primary judge’s findings of fact are as stated in Warren v Coombes (1979) 142 CLR 531. See also Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306; 160 ALR 588. In general on an appeal by way of rehearing from a judge sitting without a jury an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge. However, once having reached its own conclusion it will not shrink from giving effect to it.

25    It must be emphasised that the relevant statements of principle in the High Court and in this Court give little encouragement to the idea that an appeal court should attempt to make primary findings of fact to replace those of a trial judge, rather than draw inferences from undisputed facts, or those actually found by the trial judge.

26    It is not enough, and not appropriate, to simply invite different findings of primary fact on appeal. Error must be shown. If findings of facts (as opposed to inferences to be drawn from the facts as found) are challenged then error in the fact finding process must be demonstrated. It will become apparent, when I discuss particular grounds of appeal, that this basic requirement was not met in any relevant respect on the appeal.

27    The primary judge had the advantage of taking the evidence and assessing it in the context of the conduct of the trial. No basis has been shown upon which it might be concluded that the advantage was misused, or not used. No other objective material is apparent which might justify ignoring that advantage.

28    In Fox v Percy (2003) 214 CLR 118, Gleeson CJ, Gummow and Kirby JJ said (at [26]-[29]):

26    After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.

27    The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.

28    Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

29    That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.

(Footnotes omitted.) (Emphasis added.)

29    None of those “quite rare” circumstances exist in the present case which would justify an independent excursion into the primary fact finding process or an appellate conclusion that the decision at trial is glaringly improbable or contrary to compelling inferences. Indeed, in my respectful view, no basis has been shown to doubt the factual findings or final conclusions of the primary judge, or call them into question. Nor has there been identified a body of incontrovertible facts or uncontested testimony which contradicts the conclusions of the primary judge.

30    McHugh J, in Fox v Percy, said (at [90]):

90    It is a serious mistake to think that anything said in Abalos or Devries necessarily prevents an appellate court from reversing a trial judge’s finding when it is based, expressly or inferentially, on demeanour. Those cases recognise — in accordance with a long line of authority — that it may be done. But there must be something that points decisively and not merely persuasively to error on the part of the trial judge in acting on his or her impressions of the witness or witnesses. Recently in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq), for example, this Court held that undisputed and documentary evidence was so convincing that no reliance on the demeanour of witnesses could rebut it.

(Footnote omitted.) (Emphasis added.)

31    Nothing in the present case points decisively (or, with respect, persuasively) to error in the fact finding process undertaken by the primary judge, whether based on his acceptance or rejection of the evidence of particular witnesses or otherwise.

32    The failure of the appellant to establish any foundation from which to effectively challenge the factual findings made by the primary judge is a significant, and ultimately fatal, obstacle to the possibility of success on the appeal. The primary judge appears to have concluded that factually, and in other respects, the appellant’s case was without merit. I have seen nothing which would incline me to any different view of the merits of the appellant’s position.

33    In that context, much of the debate about the application of various statutory tests in the FW Act was of no significance for the outcome of the appeal. I do not propose to be unnecessarily diverted by it, or to deliver any form of advisory opinion about those issues.

34    There were also serious deficiencies in the formulation of the relief sought by the appellant.

35    The appellant’s principal complaint is that he was not promoted in his employment, as he believed he should have been. The principal relief sought was an order that he be promoted. In my view, this claim for relief was misconceived. It is not the function of the Court to stand in the shoes of the employer and select who should be promoted. If relief is available in a case of the present kind, it would not be an order for promotion.

36    The appellant sought alternative relief by way of damages or compensation and an order on the appeal that the Court, in effect, direct the expunging of his personnel file. I doubt that the Court could grant this latter order, even if it might in an appropriate case direct an employer to take no account of particular matters. The records of an employer are not directly within the province of the Court.

37    The claim for damages was also extravagant, but in view of the view I have come to about the appeal, it is unnecessary to say more about it.

38    At the hearing of the appeal, much more modest orders were sought but, again, it is unnecessary to address them.

Original Grounds 1, 2 and new Ground 2A

39    A large part of the appeal initially, and the case below, concerned the suggestion that the respondent had breached an implied term of “trust and confidence” in the appellant’s contract of employment. As relied upon in the present case it seemed to amount to a suggestion of a contractual obligation to treat the appellant fairly, or even civilly.

40    The High Court has now rejected the suggested implied term. This part of the argument on the appeal must therefore be rejected, and was, in any event, abandoned after the judgment in Barker.

Ground 3

41    The next part of the appeal related to allegations that certain “Code of Conduct” processes commenced against the appellant were “raised in bad faith”. The appellant’s case on appeal (as expressed in the grounds of appeal) depended on the argument that the primary judge was wrong not to so find.

42    An allegation of bad faith (like an allegation of racial discrimination) is a serious one. It might be expected to be based on a substantial footing. It is clear from the findings of the primary judge that he regarded the appellant’s accusations of bad faith as having no substance. The allegation received only passing attention in the appellant’s initial written submissions, and no attention thereafter. In oral submissions, the allegation of bad faith was not pressed. The later written submissions concentrate on what might constitute a “workplace right” or “adverse action”. The oral submissions sought to emphasise an obligation on the respondent arising under s 361 of the FW Act. Consideration of those more technical questions does not arise unless, first, the basic factual propositions upon which this part of the appellant’s case depended were made good. They were not.

43    Section 361(1) of the FW Act provides:

361    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.

44    Relevantly for the present discussion s 361 operates in conjunction with s 340(1) which states:

340    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.

Note:    This subsection is a civil remedy provision (see Part 4-1).

45    As ultimately refined, the allegation arising under this ground of the appeal appeared to be that certain disciplinary procedures (known as code of conduct charges) were instituted against the appellant (the adverse action) because he had applied for promotion (the exercise of the workplace right). By these allegations, it was argued, s 361 was engaged and the respondent came under an obligation to prove the contrary of the s 361 presumption. There is no part of this argument which I accept.

46    First, the allegation must appear in the “application”. Whether the application in the present case is the original application or the statement of claim, the allegation as ultimately refined does not appear in it.

47    Furthermore, the facts as found by the primary judge (which are now undisputed) leave no room for the appellant’s thesis to operate. As Moore J said in Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585; (2008) 177 IR 306, at [49]:

49    … it is important to note that s 809 [the forerunner to s 361] does not obviate the need for the applicant to prove the existence of objective facts which are said to provide a basis for the respondent's conduct. …

48    At the hearing of the appeal, particular emphasis was placed on the suggested interaction between the “second code of conduct process” and “promotion Applications 2 and 3”. These latter were applications for promotion made by the appellant for promotion to positions at the APS (Australian Public Service) 5 and APS 6 levels on 18 June 2010. The “second code of conduct process” was instituted by Mr Glanville on 27 July 2010. The appellant gave evidence that this occurred the day before an interview for one of the positions. He offered his opinion that Mr Glanville had done so “to harass and upset me”.

49    Mr Glanville gave evidence, which was accepted by the primary judge, that the two streams of events were unconnected, and that he had not known about the applications for the APS 6 position when he instituted the code of conduct process. The state of his knowledge about the APS 5 position was less clear.

50    The alleged connection, and the illustration of “adverse action”, was that reference was made to the code of conduct process in referee reports by both Mr Glanville and another officer. However, there was other evidence before the primary judge (upon which there was no cross-examination and which he accepted) that referee reports were not made available to an interviewing panel unless a candidate was assessed as suitable following the interview process. The appellant was not assessed as suitable for either position. There was no evidence in his case or otherwise, that the institution of the second code of conduct process had any impact, or could have had any impact, on the assessment of his suitability for either position.

51    To the extent that s 361 had any potential to operate in those circumstances, no connection (or even potential connection) was shown between the two circumstances on which the appellant relied. In any event, to the extent that any onus might conceivably have arisen to require the respondent to explain the position, or defend itself, it clearly did so.

52    This example was the high point of the appellant’s argument in support of Ground 3 of the appeal and it falls short of showing any form of error by a considerable margin.

53    The primary judge dealt (in over 100 paragraphs) with the factual circumstances concerning this and other code of conduct issues, with the meaning of “adverse action” and “workplace right”, with the need for a causal nexus between them, and with the need for the appellant to first show adverse action before s 361 is engaged. General findings, arising from that discussion, were made as follows:

241.    In summary, in relation to Mr Rahman’s claims under the Fair Work Act, the evidence in relation to the three relevant Code of Conduct Processes described above establishes that:

a)    Mr Rahman has not, in relation to any of the processes, established that he was exercising a relevant workplace right, within the meaning of s.341 of the Fair Work Act;

b)    Mr Rahman has not established that the processes constituted relevant adverse action, being injury or alteration of position or discrimination; and

c)    even assuming Mr Rahman was exercising a workplace right and that the processes were adverse action, there was no causal nexus within the meaning of s.340(1) of the Fair Work Act between any workplace right and the processes.

242.    As Mr Rahman has not discharged his onus in those three respects, the ATO submits and I accept that the onus does not shift to it under s.361 of the Fair Work Act to establish it did not take the adverse action for one of the prohibited reasons in the Fair Work Act.

243.    In any event, the evidence reveals the ATO brought none of the Code of Conduct Processes for a prohibited reason.

54    Those findings represent a comprehensive rejection of this part of the appellant’s case, including the matters raised by Ground 3 of the appeal. Paragraph 243 is a sufficiently clear statement that if s 361 was engaged at all (contrary to the earlier findings) the presumption it erects was displaced.

55    Ground 3 is rejected.

Grounds 4 to 6

56    The next aspects of the appeal concerned the appellant’s complaints that he was not promoted to a higher level within the ATO.

57    In the written submissions initially filed on behalf of the appellant this argument was advanced, in part, as follows:

4.    WHAT INJURY DID MR RAHMAN SUFFER AND HOW DOES IT IMPACT UPON THE CASE?

4.1    The court at first instance held that with respect to each of Mr Rahman’s claims relating to adverse action, “the assessment must be whether there has been an injury, alteration to position or discrimination on an objective basis”. His Honour, (paragraph 241) found that Mr Rahman had not established “adverse action, being injury or alteration of position or discrimination”.

4.2    That finding was incorrect – Mr Rahman’s principal complaint was that he had been denied promotion which was the fact. A failure to be promoted can be an injury in employment. As was noted in Jones v Queensland (2010) 186 FCR 22 at [119], “action” includes “inaction” and for the purposes of s.342 of the FWA, “would extend to a failure by an employer to do an act.”

…

58    The initial written submissions then argued that the ATO bore an onus to show why the appellant was not promoted and then contended:

7.3    When one party knows the answer and another does not, that is a matter to weigh in the balance: Ho v Powell (2001) 51 NSWLR 572 at [15] (per Hiodgson JA) [sic].

7.4    His Honour appears to have treated Mr Rahman’s incapacity to affirmatively prove something which only the ATO could know as fatal to his case.

59    The written submissions for the respondent answered the complaint, in part, by pointing out:

27.    Grounds of appeal 4, 5 and 6 concern the appellant’s applications for promotion. The SFASOC [Second Further Amended Statement of Claim] failed to identify any particular promotion application made by the appellant, nor did it particularise any fact, matter or circumstance that established that the appellant was discriminated against or victimised in respect of any application for promotion: at Decision [274]. Nevertheless, the appellant has described his ‘principal complaint’ as being that he had been ‘denied promotion’: Appellant’s Submissions [4.2].

28.    An earlier pleading, the appellant’s Further Amended Statement of Claim, particularised six job applications made by the applicant: at Decision [278]. At hearing the appellant confirmed he would rely on the last five applications: at Decision [279]. Four of the applications were considered by Judge Driver in relation to the appellant’s allegation that the respondent had contravened the FW Act in relation to the appellant’s applications for promotion. The fifth application post-dated the commencement of the proceedings …

29.    The background to these applications is set out in almost 100 paragraphs of the reasons for decision at Decision [289]-[387].

(Footnote omitted.)

and

32.    The appellant’s identification of Judge Driver’s purported error represents a simplistic view of his Honour’s reasons for decision. Significantly, the appellant’s proposition ignores Judge Driver’s findings that:

(a)    the ‘objective evidence’ did not disclose that the appellant was discriminated against because of his race or any other status with respect to promotions: at Decision [388];

(b)    there was ‘no evidence’ that the appellant was victimised in any of these applications: at Decision [389];

(c)    the appellant had not established with respect to any of these positions that he was qualified to perform the duties associated with the positions: at Decision [390];

(d)    the appellant had adduced ‘no evidence’ that he was the best qualified candidate for the positions: Decision [391]; and

(e)    the appellant had adduced ‘no evidence’ that the persons who were appointed to the positions were not better qualified or performed better at the interviews than him, that those persons who were successful did not have the same characteristics as him (ie, race, union memberships, disciplinary record, complaints about senior managers): at Decision [392].

33.    In Judge Driver’s opinion, this claim was ‘simply based upon [the appellant’s] own ruminations as to the reasons he was either not shortlisted for positions or did not advance beyond the interview stage’: at Decision [392]. …

60    The passages in the judgment to which reference is made were as follows:

Resolution of Issue 6 (Did the ATO contravene the Fair Work Act in relation to Mr Rahman’s applications for promotion or transfer?)

388.    The objective evidence does not disclose that Mr Rahman was discriminated against because of his race or any other status with respect to promotions.

389.    Further, there is no evidence that Mr Rahman was victimised in any of these applications.

390.    Mr Rahman has not established with respect to any of these positions that he was qualified to perform the duties associated with the positions.

391.    Mr Rahman has adduced no evidence that he was the best qualified candidate for the positions.

392.    Mr Rahman has not adduced any evidence that the persons who were appointed to the positions were not better qualified or performed better at the interviews than him. He has not demonstrated that the candidates who were successful for these positions did not have the same characteristics as him (ie race, union membership, disciplinary record, complaints about senior managers). Mr Rahman’s claim is simply based upon his own ruminations as to the reasons he was either not shortlisted for positions or did not advance beyond the interview stage.

393.    There is no basis for me to make a finding that the referee reports were the cause of Mr Rahman’s failure to be shortlisted or advance beyond the interviews.

394.    Conversely, I accept Ms Reid’s uncontested evidence. At pages 33-42 of exhibit JR1, the document identifies Mr Rahman was assessed as being unsuitable following the interview stage in each of the relevant application processes. Ms Reid states:

The [interview] panel members would generally not have access to [Mr Rahman’s] written application. They would not, under any circumstance, have access or reviewed any referee reports provided by [Mr Rahman] prior to or at the time the assessment of [unsuitable] was made. The assessment of [Mr Rahman] at the interview stage in each of the Six Application processes he applied for would have been based solely on his performance in the interview. This is demonstrated in each case in the record of [Mr Rahman’s] interview scores, a summary of which are included in the attached document.

(Footnote omitted.)

61    These clearly stated findings of fact, and conclusions about the content of the appellant’s case, were fatal for the appellant’s case at first instance.

62    It is clear, in my respectful view, that the complaints by the appellant that the primary judge wrongly cast an inappropriate onus upon him cannot be sustained. He could not avoid his obligation to make out the basic factual case upon which his complaint of non-promotion depended, but he did not do so. Furthermore, there was evidence from the respondent that addressed the question of the appellant’s suitability for positions for which he had applied. That evidence was accepted by the primary judge, who found it sufficiently answered the appellant’s complaints.

63    It is plain, in my view, that the primary judge concluded that the appellant fell well short of making out a case on the facts that he had suffered “adverse action” by refusal or failure of the respondent to promote him. The same observations I made earlier apply also to this factual assessment by the primary judge. The judgment is, with respect, a very comprehensive one. No criticism is available in this respect that the primary judge failed to deal in detail with the appellant’s case.

Ground 7

64    The only reference to this matter in the initial written submissions filed on behalf of the appellant appeared in relation to the complaint of a breach of the suggested implied terms of trust and confidence, in these terms:

Request for Leave on 28 February 2011

9.9    The incident relating to Mr Rahman’s application for leave on 28 February 2011 is, of itself, minor.

9.10    Yet it reflects the difficulties Mr Rahman faced.

65    This, with respect, is not an argument worthy of much attention. It is more of an aside.

66    The pleaded allegation was to the effect that the appellant was entitled to understand that he would absent himself from work, without prior approval, for periods of up to one hour and that, on 28 February 2011 he had been wrongly refused permission to do so.

67    The primary judge found that there was no substance to the pleaded allegation. The primary judge referred to the evidence about this issue and concluded:

96.    I find that Mr Rahman has not discharged his onus of establishing any of the matters necessary to support his allegations at [8] and [9] of the statement of claim in summary for the following reasons.

97.    First, there was not, in fact, any “policy” that the ATO would not prevent Mr Rahman from absenting himself from duty for periods of up to one hour notwithstanding the absence of prior approval by the ATO.

98.    Secondly, in any event, the ATO did not, in fact, refuse to allow Mr Rahman to take leave of 1 hour on 28 February 2011.

(Emphasis in original.)

68    No serious argument has been addressed to this issue on the appeal. Ground 7 should be rejected.

Ground 8

69    This final ground of appeal, as the appeal was originally framed, concerned complaints about matters which arose after the proceedings had been commenced on 2 May 2011. The appellant’s written submissions said:

1.7    This learned judge at first instance fell into error in not determining them. The matters having been pleaded his Honour was duty bound to deal with them. There was no basis for his finding that they exceeded the grant of leave to amend.

70    The ruling made by the primary judge should be seen in an appropriate procedural context. The primary judge referred to some of the procedural difficulties as follows:

4.    The proceedings have since been before the Court many times. The case presented a case management challenge, both because of the very substantial amount of material filed, changes in Mr Rahman’s legal representation and the numerous iterations of his pleadings in the matter. …

71    The appellant was permitted to amend his pleadings four times. Although the second further amended statement of claim (filed on 30 April 2013) referred to matters occurring after the commencement of proceedings on 2 May 2011, apparently the appellant did not formally seek leave to rely on matters occurring after 2 May 2011. The primary judge made a ruling early in his judgment, in the following terms:

Claims arising after the commencement of the proceedings

18.    Significant parts of the statement of claim make claims which arose after the commencement of the proceedings on 2 May 2011. The relevant issues are ATO Issues 5, 6 (in respect of applications for promotion made after 2 May 2011), 15, 16 and 18 (in respect of the Code of Conduct process commenced on 27 May 2011) and 20.

19.    The ATO submits that Mr Rahman should not be permitted to rely on alleged causes of action arising after the commencement of a proceeding on 2 May 2011, for the following reasons.

20.    First, the ATO contends that without statutory authority or the ATO’s consent, an applicant cannot amend the claim by adding a cause of action which has accrued since the commencement of the proceeding. Further, a cause of action arising after the commencement of a proceeding is not permitted to be adjudicated in that proceeding.

21.    Secondly, Mr Rahman was given the opportunity to amend his pleadings on four occasions. On none of those occasions did Mr Rahman seek leave to plead matters occurring after the commencement of the proceedings.

22.    I have concluded that, to the extent the amendments raise causes of action occurring after commencement of the proceedings on 2 May 2011, they were outside the scope of leave granted by the Court and should not be considered. Issues of continuing loss or damage after the commencement of proceedings can be considered, however, if liability is established.

(Footnotes omitted.)

72    At the time that the second further amended statement of claim was filed the Federal Circuit Court Rules 2001 (Cth) were in operation. Rule 7.01 provided:

7.01    Power to amend

(1)    At any stage in a proceeding, the Court or a Registrar may allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court or the Registrar thinks fit.

(2)    Subject to rule 7.03, the Court or a Registrar may allow an amendment even if the effect would be to include a cause of action arising after the proceeding was started.

(Rule 7.03 is not relevant to the general issue now being discussed).

73    The appellant’s initial written submissions contended:

1.7    This learned judge at first instance fell into error in not determining them. The matters having been pleaded his Honour was duty bound to deal with them. There was no basis for his finding that they exceeded the grant of leave to amend.

74    The respondent’s answer to this submission included the following:

47.    The appellant had, by the time of hearing, many opportunities to amend his pleadings. On none of those occasions did the appellant seek leave to plead matters occurring after commencement of the proceedings. The statutory authority to amend pleadings, including to allow an amendment even if the effect would be to include a cause of action arising after the proceeding was started, is contained in r 7.01 of the Federal Circuit Court Rules 2001 (Cth). That power is exercisable ‘by the Court or a Registrar’ allowing or directing an amendment ‘in the way and on the conditions the Court or Registrar thinks fit’.

and:

49.    In any event, and contrary to the Appellant’s Submissions at [1.6], Judge Driver dealt with both pleaded causes of action which arose after commencement of the proceedings in his reasons for decision.

75    I find the first answer to be, with respect, unpersuasive. The case went to trial some months after the second further amended statement of claim was filed. A defence to that pleading was filed by the respondent on 17 May 2013. It was not pleaded in defence that the second further amended statement of claim was defective because it pleaded matters after 2 May 2011.

76    Moreover, after the second further amended statement of claim was filed, the respondent sought an order for its costs thrown away by various amendments up to and including that one. The application was partially successful (Rahman v Commonwealth of Australia as represented by the Australian Taxation Office [2013] FCCA 388). Part of the respondent’s argument was recorded (at [16]) as follows:

16.    The ATO notes that the following new claims have been made in the second further amended statement of claim which were not included in the statement of claim filed on 1 August 2011 and these are matters which will require further evidence to be filed: …

77    The primary judge also observed (at [21]-[22]):

21.    … the more recent amendments of the statement of claim, while I accept that they have added some new claims, have assisted to clarify the dispute between the parties and have prudently abandoned the case which depended upon the asserted retrospective operation of the Fair Work Act.

22.    The ATO, in effect, conceded the positive impact of the most recent iteration of the statement of claim by electing not to pursue the Application in a Case it had made for the summary dismissal of the proceedings. …

78    It appears to me to be obvious that the appellant was entitled to expect that the second further amended statement of claim would represent the basis for the proceedings from that time.

79    In my respectful view, the appellant’s claims after 2 May 2011 should not have been defeated or deflected by a pleading point of the kind reflected in the ruling challenged in Ground 8 of the appeal.

80    The second answer by the respondent has greater substance, but is ultimately not a complete answer.

81    The primary judge identified the issues to which the ruling related as Issues 5 and 6, and Issues 15, 16, 18 and 20.

82    Notwithstanding the ruling, the primary judge did in fact deal with some Code of Conduct issues and applications for promotion occurring after 2 May 2011. It is clear that the primary judge dealt, on the facts and on their merits, with Issues 5, 15, 16 and 18.

83    Equally, however, it is clear that there were three matters which were, explicitly, not addressed. For example, the primary judge said (concerning a factual allegation connected with a possible breach of an implied term of trust and confidence):

Relevant factual background to the allegations involving Mr Biondi

119.    The ATO admits it issued Formal Written Warnings to Mr Rahman on or about 22 March 2011 and 17 May 2012 respectively, but otherwise denies the allegations at [13] of the statement of claim.

…

130.    Mr Rahman has adduced no evidence in chief of the Formal Written Direction and Formal Written Warning issued to him on 17 May 2012 (Second Written Warning).

131.    The Second Written Warning significantly postdates the commencement of the proceedings and, for the reasons identified above, I will not entertain this aspect of Mr Rahman’s claim. The only evidence from Mr Rahman relating to the Second Written Warning appears in the second Rahman affidavit. These all purport to be evidence in reply.

(Footnote omitted.)

84    However, it is clear that discussion of those, and other matters, occurred at this point in the judgment for more abundant caution. The primary judge had already found, for various reasons, that there was no implied term of trust and confidence in the appellant’s conduct of employment, assuming the existence in law of such a term in an appropriate case. Then the primary judge said:

107.    My finding that no terms such as those pleaded in [10] and [11] of the statement of claim should be implied into Mr Rahman’s contract of employment (if there was one) is sufficient to dispose of the allegations of harassment and belittling conduct contained in [12] and [13] of the statement of claim. However, in case I am wrong in that finding, I have considered the factual allegations in those paragraphs.

85    It follows that any failure to further discuss the “Second Written Warning” does not bear on the outcome of the appeal. I have already referred to the High Court’s recent clarification of the law in this area.

86    The second example of a matter which was not addressed factually concerns an application for promotion, described by the primary judge as “Application 6”, made on 9 October 2011. The primary judge said:

351.    This allegation post dates the commencement of the proceeding in this Court. Consistently with my earlier rulings, I will not consider this allegation in the present proceeding. It clearly raises new and different issues to those identified in the originating application. For completeness, however, I will set out the relevant facts.

87    The facts were then set out, including:

361.    Ms Reid provided extensive affidavit evidence of the circumstances leading up to the interview, and events afterwards. She was not cross examined on any of these matters.

…

365.    Ms Reid’s evidence also addressed the particular circumstances of this application.

88    It is clear, therefore, that any complaint about “Application 6” fell within the matters dealt by the primary judge at [388]-[394] (set out earlier) including his conclusion that on the uncontested evidence of Ms Reid, the appellant had not shown that there was any discrimination against him with respect to any of the applications for promotions.

89    Nevertheless, the issue of Application 6 was pursued on the appeal because of its particular circumstances. Those circumstances were set out in Ms Reid’s uncontested evidence. Although she was subject to some limited cross-examination, she was not cross-examined upon the matters of particular relevance to these issues.

90    The application was for a position at the APS 5 level. The appellant applied for the position on 9 October 2011 and was interviewed on 22 November 2011. Unbeknown to him, at the interview the interviewers introduced themselves to him using false names.

91    The background circumstances appear to be that the interviewers were advised that the appellant had wished to tape record the interview (a request which was denied), and that the appellant was involved (or had been) in both internal review processes and court challenges. The interviewers apparently acted on their own initiative.

92    When it became apparent what had happened, and before the appellant had any knowledge of it, he was informed that there would be a second interview because of a “potential procedural issue” with the first interview. Without knowing what had happened, and for reasons of his own, the appellant did not agree at that stage. After he learned what had happened he initially would not commit himself and then, finally, did not attend for a substitute interview. He was not selected for the position.

93    The central complaint about this issue is that the primary judge did not finally deal with it. I accept that it is unfortunate that the issue was put to one side, at least formally. However, attention must also be given to the part this particular issue played in the appellant’s pleaded case.

94    Paragraph 14 of the statement of claim pleaded:

14.    Between December 2008 and May 2011 the Respondent brought against the Applicant charges under the Respondent’s “Code of Conduct”, in circumstances where the said charges were brought in bad faith solely or principally with a view to harassing the Respondent and injuring him in his employment.

Particulars

(i)    Charges brought on 22 December 2008, 27 July 2009, 16 December 2010, 27 May 2011.

(ii)    The said charges were intended to and did injure the Applicant in his employment by prejudicing the prospects of the Applicant of obtaining promotion.

95    The “charges” were then pleaded (paragraph 15) to be “Prohibited Conduct”, as well as “adverse action”. The “Prohibited Conduct” and “adverse action” were pleaded (paragraph 21) to have injured the appellant in his employment and altered his position to his prejudice. Bound up in that allegation was the suggestion that the injury and prejudicial alteration were effected, in part, by (paragraph 21(ii)(c)):

(c)    the reduction in opportunities for promotion of the Applicant and the failure to promote the Applicant;

96    There was no satisfactory pleading which linked the fate of this particular application for promotion to any sustainable cause of action, much less showed that it was the result of the particular events upon which attention is now placed. At the trial, as I have said, Ms Reid gave a full explanation of the circumstances and was not cross-examined upon that evidence.

97    The primary judge recorded:

Issue 6: Discrimination and victimisation in respect of applications for transfer and promotion

Allegation

273.    Mr Rahman alleges that the ATO failed to promote him to either APS5 or APS6 positions because:

a)    the Code of Conduct “charges” were brought in bad faith;

b)    he made a complaint alleging Ms Furner discriminated against him;

c)    of the alleged Prohibited Conduct and the adverse action;

d)    the ATO discriminated against Mr Rahman compared to other employees who did not have a series of Code of Conduct charges, made reports against their senior manager and joined and used the services of the CPSU.

274.    These paragraphs of the statement of claim fail to identify any particular promotion application made by Mr Rahman. The statement of claim does not particularise any fact, matter or circumstance that establishes Mr Rahman was discriminated against or victimised on account of any application for transfer or promotion.

275.    With respect to the allegation concerning “transfers”, Mr Rahman provides no evidence of any applications for a transfer, other than the matters raised with respect to the Brisbane to Sydney transfer application in October 2008.

276.    It appears Mr Rahman applied for the “Mobility Register” in about April 2010. His Team Leader at the time, Mr Zamorano, was supportive of his move to another area of the ATO’s business.

277.    With respect to the promotions, the statement of claim does not particularise any specific promotions.

278.    Mr Rahman was required to particularise the promotions in issue following the aborted hearing in July 2012. Mr Rahman’s Further Amended Statement of Claim, particularised six job applications made by Mr Rahman, being:

a)    an APS6 position applied for on or about 24 June 2008 (which is no longer pressed by Mr Rahman and pre dates any Code of Conduct issue or Mr Rahman joining the CPSU in October 2008);

b)    an APS6 position applied for on or about 2 February 2010 (Application 1);

c)    an APS5 position applied for on or about 26 June 2010 (Application 2);

d)    an APS6 position applied for on or about 29 June 2010 (Application 3);

e)    an APS5 position applied for on or about 8 November 2010 (Application 4); and

f)    an APS5 position applied for on or about 22 October 2011 (Application 6).

279.    These particulars did not survive the redrafting that resulted in the current version of the statement of claim. Indeed, no particularisation of any particular job application appears in the statement of claim. Nevertheless, Mr Rahman confirmed he would rely on the last five applications particularised in the Further Amended Statement of Claim.

280.    Mr Rahman’s affidavit evidence refers only to three of the relevant applications for positions senior to an APS4 role following the imposition of a sanction under the Code of Conduct. Mr Rahman’s evidence refers to:

a)    an application for an APS6 position in July 2010;

b)    an application for an APS6 position in March 2011; and

c)    an application for an APS5 position in October 2011.

281.    With respect to applications for promotion, the gravamen of the allegation appears to be that Mr Glanville influenced the outcome of each of Mr Rahman’s applications. At [23] of the third Rahman affidavit he states:

I have been short listed three times for APS6 positions. In two of these occasions, I was the only member from my team to be short listed. I have also been short listed three times for APS5 positions. On every occasion, I believe Mr Glanville has exerted his influence to prevent my possible promotion by issuing Code of Conduct charges.

282.    Mr Rahman’s belief is inadmissible at least as to the truth of it. In any event, Mr Glanville refutes this allegation at [91] of his affidavit:

I have never contrived any charge against [Mr Rahman] or had any improper influence on [Mr Rahman’s] applications for promotion.

283.    Mr Glanville has played a very limited role in Mr Rahman’s applications for promotion, being to “provide the Executive Level 2 comments in relation to Referee reports provided to [Mr Rahman’s] Manager”.

284.    Ms Reid, a Project Officer in the ATO Recruitment & Workforce Delivery (R&WD) team gave evidence about the six shortlisted applications Mr Rahman has made. She also gave comprehensive, and useful, evidence about the ATO’s recruitment processes. She was subjected to minimal cross-examination and her evidence was not challenged. I accept her evidence.

285.    Mr Rahman’s complaints about three applications for promotion primarily concern referee reports which Mr Glanville was required to complete. Mr Rahman’s case appears to assume that Mr Glanville’s comments were adverse to Mr Rahman and in turn would have adversely influenced all persons dealing with his promotion.

286.    Ms Reid was not cross examined on any aspect of her evidence relating to the role of the referee reports in the recruitment process. Specifically, she gave evidence that the referee reports played no part in the initial stages and are considered after any interviews are conducted.

287.    Ms Reid explains how such reports fit into the ATO’s recruitment processes as follows:

[After interviews are conducted], referee reports for internal applicants which were requested at or around the time the interview invitation was sent out are reviewed. Myself or one of my colleagues will review the referee reports. We assign the reports into two groups: positive or adverse. If there is adverse information, and a candidate has scored sufficiently in the interview stage process, they will be provided a right of reply.

288.    Ms Reid also gives evidence to the effect that referee reports are not given any weighting, but are factored into whether a candidate will be assessed suitable or unsuitable.

(Footnotes omitted.)

98    Thereafter, the primary judge dealt with the circumstances of each of the applications for promotion, including a comprehensive account of the factual circumstances concerning Application 6 in October 2011. It should be noted that the appellant’s complaint in his own evidence was based on his suspicion that Mr Glanville had adversely affected his prospects by making adverse comments passed on to others dealing with his applications. That thesis was rejected.

99    The particular circumstances of Application 6 were not a particular focus of attention. To the extent that they were raised by the appellant’s case they fell clearly within the general findings which rejected that case, to which I have already referred.

100    The third matter about which there was no factual conclusion concerned the allegation of victimisation dealt with under Issue 20. Mr Rahman had made a “whistleblower report” on 2 February 2012. The primary judge recorded (at [271]-[272]):

271.    Mr Rahman conceded in cross-examination that he had not been told that his complaint would not be investigated.

272.    The APSC has not yet concluded its investigation into Mr Rahman’s whistleblower report.

(Footnotes omitted.)

101    Apart from the general complaint that none of the matters after 2 May 2011 should have been excluded from consideration no particular submission was addressed specifically to this issue. In light of the factual finding that the complaint was being considered and the investigation was not then complete it seems obvious that no cogent case of victimisation had by then emerged. There was no practical prejudice to Mr Rahman in this particular issue not being dealt with more conclusively.

102    Accordingly, in my view, none of the matters to which I have referred provides the occasion to consider even partial relief on the appeal, because there is no reasonable prospect of further, formal, consideration of those matters by the primary judge resulting in the grant of any relief.

Grounds 9 and 10 from the first amended appeal

103    I set those grounds out earlier.

104    The respondent initially made the following submissions about these two additional substantive matters which were advanced first in the appellant’s written submissions:

Additional matters in the appellant’s submissions not the subject of a ground of appeal

…

53.    First, the appellant appears to complain that the respondent refused to transfer him from Queensland to New South Wales in October 2008 for a prohibited reason within the meaning of ss 792 and 793(1)(a) of the Workplace Relations Act 1996 (Cth): Appellant’s Submissions, [2.1(i)], [5.2]-[5.4]. Contrary to those submissions at [5.2(iii)], it was not ‘common evidence’ that Mr Glanville complained at a meeting with the appellant on 2 December 2008 that the appellant ‘had taken matters to the union’. Mr Glanville denied this allegation in cross-examination: at Decision [40]. Judge Driver accepted Mr Glanville’s evidence in preference to the appellant’s evidence, for reasons which appear at Decision [48].

54.    Judge Driver’s ultimate conclusions on the allegation that the appellant was refused a transfer for a prohibited reason appear at Decision [71]-[72]. The appellant has not demonstrated any basis for disturbing these conclusions.

55.    Secondly, the appellant appears to take issue with an apparent ‘connection’ between his making a whistleblower’s report in February 2011 and the institution of a Code of Conduct process in May 2011: Appellant’s Submissions, [8.2]. This connection is not the subject of any allegation in the SFASOC. Nevertheless, the appellant submits this precipitated ‘caution’ on the part of Mr Glanville in light of the whistleblower’s report when completing the referee report: Appellant’s Submissions, [8.5]. That suggestion was not put to Mr Glanville in cross examination. Judge Driver set out the relevant evidence at Decision [354]-[359]. That evidence provides a sufficient basis for his Honour’s conclusion at [393] that there was no basis for a finding that the referee reports were the cause of the appellant’s failure to be promoted.

(Emphasis in original.)

105    Those submissions appear to me to adequately state the effect of the primary judge’s conclusions. Neither matter gives support to the appeal.

New Grounds 1 and 2

106    These grounds were advanced in the latest amendment, after new counsel had been briefed. They were as follows:

1.    The learned judge erred in failing to consider claims arising after the commencement of the proceedings below as follows:

a.    Issues 5 and 6 in respect of applications for promotion made after 2 May 2011

b.    Issues 15, 16, and 18 in respect of the Code of Conduct process commenced on 27 May 2011

(Judgment [18].

2.    The learned judge erred in failing to consider:

a.    whether the appellant:

i.    had a workplace right;

ii.    suffered adverse action by the respondent;

iii.    had established objective facts forming the basis of the respondent’s adverse action;

b.    whether the respondent, in the circumstances and by reason of s 361 of the Fair Work Act, 2009, bore the onus of proving the said adverse action was not taken for one of the reasons set forth in s 340

in respect of the appellant’s applications dated 18 June 2010 (applications 2 and 3) and dated 9 October 2011 for promotion (application 6)

107    New Ground 1 raises the same issues as earlier Ground 8. I have dealt with those issues.

108    New Ground 2 raises matters which were, in substance, initially raised in connection with Grounds 4 to 6. Those issues were addressed in the second set of written submissions (by new counsel) in support of Grounds 4 to 6 and 8. Similar issues were addressed in the third set of submissions which were addressed to Ground 3.

109    Each set of additional submissions argued that the appellant was exercising a “workplace right” at various times because he was entitled to participate in “recruitment processes” for promotion. It was then argued that the appellant was treated “adversely” by disappointment of his “expectations” or by an effect on his “standing or reputation in the workplace”. The “objective facts” having been made out, the argument continued, the onus fell upon the respondent to disprove that it was motivated by an impugned reason. The alleged error then identified is that the primary judge gave no consideration to the statutory effect of the reversal of onus under s 361 of the FW Act.

110    In my view, those further arguments cannot be accepted. Although cast in a different, and perhaps more sophisticated, fashion they cannot overcome the basic factual findings made against the appellant. Those factual findings were very comprehensive. They concerned the absence of any persuasive evidence from the appellant and they accepted the answering case by the respondent. It is unnecessary to descend into questions of reversal of onus. It is apparent that the primary judge found, in substance, both that no case to answer was advanced and that the respondent positively answered any charge that it was motivated by reasons impugned by s 340 of the FW Act.

Proposed relief

111    Had I accepted any element of the argument that the primary judge had failed, in substance, to deal with a necessary element in the appellant’s case at first instance, it would not have been appropriate simply to grant the appellant some form of substantive relief on the appeal. The issue would have required further attention at first instance. But that is neither necessary or appropriate as I am satisfied that there was no incorrect failure by the primary judge, in his comprehensive judgment, to deal with aspects of the appellant’s case of this kind.

Conclusion

112    None of the grounds of appeal have been established. The appeal should be dismissed.

Costs

113    As to costs, these are matters (including the appeal) to which s 570 of the FW Act applies. It well may be, despite the weak case for any relief, and the lack of apparent merit in the appellant’s factual assertions, that the conditions for an (exceptional) award of costs which are stated by that section have not been established. Nevertheless, the respondent has sought an opportunity to consider whether an application for costs should be made. I will grant that opportunity. That issue, if it arises, will be dealt with on the papers.

Associate:

Dated:    11 December 2014