FEDERAL COURT OF AUSTRALIA

RailPro Services Pty Ltd v Flavel [2015] FCA 504

THE COURT ORDERS THAT:

1.    The appeal is allowed in part.

2.    The cross-appeal is allowed.

3.    By 4pm on Friday 29 May 2015, the parties are to file and serve a joint minute of orders reflecting these reasons or, in the event of disagreement, a separate minute of orders with short written submissions in support thereof.

4.    Costs are reserved.

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

REASONS FOR JUDGMENT

1.    INTRODUCTION

1.1    Preliminary

1    The respondent, Mr Colin Flavel, was dismissed from his employment as a locomotive driver by the appellant, RailPro Services Pty Ltd (RailPro), by a written notice of dismissal dated 30 November 2011. This followed Mr Flavel’s refusal to undertake an assessment of his competence as a train driver by RailPro. He sought compensation and other relief on the grounds that he was dismissed in contravention of certain protective provisions in Chapter 3 of the Fair Work Act 2009 (Cth) (the FW Act), namely ss 340(1), 351(1) and 352.

2    It was not in issue in the Federal Circuit Court (the Court below) that Mr Flavel’s dismissal constituted an “adverse action” for the purposes of ss 340(1) and 351(1) of the FW Act. Nor was it in issue that Mr Flavel was suffering from post-traumatic stress disorder (PTSD) and moderately severe depression as a consequence of a train accident when he refused to undertake the driving assessment, and that this condition was not diagnosed until after his dismissal. Mr Flavel remained unable to operate a train at the time of trial in August 2012 and the medical evidence (which was wholly uncontested) indicated that that incapacity would continue for some time.

3    The central question at trial was RailPro’s reason or reasons for terminating Mr Flavel’s employment. That question was complicated by the fact that the decision to dismiss was held to be the joint decision of three persons acting together, only two of whom were called to give evidence. Based upon the evidence of those decision-makers who gave evidence, it was RailPro’s case that Mr Flavel had been lawfully dismissed because he was no longer competent to perform his duties of employment. Issues also arose as to whether or not Mr Flavel had suffered any loss by reason of a contravention of the FW Act, in the event that such a contravention was established.

4    The Court below accepted that Mr Flavel’s competency was a “matter of concern to the three decision-makers”, but found that it was not a reason for his dismissal: Flavel v RailPro Services Pty Ltd [2013] FCCA 1189 (Flavel (No. 1)). Rather, the Court below found that the decision-makers’ reason was that Mr Flavel’s health prevented him at that time from undertaking his duties. Given that finding, the primary judge found that Mr Flavel’s employment had been terminated in contravention of s 340(1)(a)(ii) of the FW Act because he had exercised a workplace right, being his responsibility under s 21 of the Occupational Health, Safety and Welfare Act 1986 (SA) (OHSW Act) to take reasonable care to protect his health and safety at work, and that of others, by not driving a train while physically and mentally ill. The Court below also found that his work had been terminated in breach of s 351 of the FW Act because of a physical and mental disability in contravention of s 15(2) of the Disability Discrimination Act 1992 (Cth) (Disability Discrimination Act). These findings were embodied in paragraphs 1 and 2 respectively of the declarations made on 29 August 2013. The application was, however, dismissed insofar as it alleged a contravention of s 352 of the FW Act. There is no cross-appeal against the dismissal of that part of the judgment below.

5    After a further hearing at which submissions were made but no further evidence was led, the Court below ordered that the respondent pay damages in the sum of $95,000 to the applicant: Flavel v RailPro Services Pty Ltd (No. 2) [2013] FCCA 1449 (Flavel (No. 2)). A penalty of $5,000 was also imposed for, according to the terms of the order made, the contravention of s 351 of the FW Act found proven in the second paragraph of the declarations. However, those orders do not correspond with his Honour’s reasons in Flavel (No. 2) at [4] where his Honour indicated that he proposed to provide relief only in relation to the s 340(1)(a)(ii) contravention, recognising that a party must not be punished twice for the same conduct (i.e. terminating Mr Flavel’s employment).

1.2    The issues on appeal

6    The grounds on which RailPro challenge the decision in Flavel (No. 1) may be summarised as follows.

a)    The primary judge erred in making findings under the Disability Discrimination Act given:

i)    the jurisdictional requirements in ss 725 and 732 of the FW Act; and/or

ii)    the express disavowal of any claim under that Act or any claim relating to that Act, including of any reliance on the expanded definition of a “disability” under the Disability Discrimination Act (notice of appeal grounds 1-2).

b)    The primary judge erred in finding that the alleged workplace right was the reason for terminating Mr Flavel’s employment rather than his failure to undertake the required test to determine his safe ability to operate a train and provide any legitimate explanation (appeal ground 2A).

c)    The primary judge erred in failing to consider the lack of Mr Flavel’s ability to meet the inherent requirements of the position as required by s 351(2) of the FW Act when the evidence was that he could not operate a train and it was unclear if he could ever do so (appeal ground 3).

d)    Various errors are also alleged in the primary judge’s application of the rule in Jones v Dunkel (1959) 101 CLR 298 (Jones v Dunkel) (appeal grounds 4-5), in inferring an ability to officers of RailPro to diagnose Mr Flavel’s mental state contrary to other findings and the evidence (appeal ground 6), and otherwise in his Honour’s treatment of the evidence as to the circumstances surrounding the dismissal of Mr Flavel (appeal ground 7(a)-(d)).

7    In addition, errors are also alleged in the decision in Flavel (No. 2) in the calculation of compensation and in the imposition of a pecuniary penalty (appeal grounds 8 and 9 respectively).

8    Finally, it is not in dispute, as Mr Flavel contends by his cross-appeal, that the penalty was wrongly calculated at the rate set for an individual, as opposed to a corporation, namely at $110 per unit to a maximum of 60 penalty units giving a total maximum of $6,600 whereas the penalty for a corporation is set at $550 per unit to a maximum of 60 penalty units giving a total maximum of $33,000. However the parties are not agreed as to the consequences which flow from that error. The respondent contends (on the assumption that the appeal is unsuccessful) that there is no error in the primary judge’s assessment of the seriousness of the breaches of the Act and that, the penalty having been imposed at 75% of the maximum penalty that could have been imposed if RailPro were an individual, the penalty should be imposed commensurate with that reasoning at approximately 75% of the maximum for a corporation, namely, $25,000.

1.3    Summary of conclusions

9    In my opinion, the appeal must be allowed in part on the following grounds.

a)    The primary judge erred in finding that there was a breach of s 351(1) of the FW Act by reason of a breach of the Disability Discrimination Act. In so finding, his Honour failed to ask the right question under s 351(1). The finding of such a breach and the making of a declaration to that effect was also in breach of the natural justice hearing rule.

b)    The finding of a breach of s 351(1) was in error in any event. The finding that the three decision-makers were aware that Mr Flavel had a physical or psychological condition prior to dismissal was glaringly improbable. The primary judge ought to have found that the statutory presumption in s 361 of the FW Act had been rebutted as, in the absence of such knowledge, the decision-makers could not be found to have dismissed Mr Flavel because of his disability.

c)    The primary judge’s finding that competence was a concern but not a reason for the dismissal failed to take account of the real strength of RailPro’s evidence, is based on evidence that is too slight and is contrary to compelling inferences. Nonetheless, there is no error in the primary judge’s finding that Mr Flavel was dismissed because of the exercise of a workplace right contrary to s 340(1) of the FW Act as the evidence was not sufficient to rebut the statutory presumption in s 361 and it is sufficient if the proscribed reason is a substantive and operative reason. It need not be the sole reason.

d)    The award of compensation was based upon an obvious mistake of fact, namely, that the medical evidence was that Mr Flavel would likely be able to return to work in or about January 2012 (i.e. three months from the date of the injury), whereas the medical evidence was that he would be able to return to work in about three to six months from July 2012. As a consequence, the matter must be remitted to the primary judge for an assessment of compensation. In this regard, I do not consider that no economic loss was suffered as a consequence of the dismissal given the unchallenged medical evidence that his condition deteriorated after his dismissal. However, I accept RailPro’s contention that the primary judge erred in failing to take into account workers compensation payments in calculating the loss occasioned by the dismissal.

e)    The primary judge’s reasons do not sufficiently disclose the reason for the award of $25,000 for distress, hurt and humiliation and, it is inferred, took into the account the wrong finding of fact that the decision-makers were aware that Mr Flavel had a disability. In all of the circumstances, an award in the sum of $7,500 for hurt and distress occasioned by the dismissal is made in substitution for the award below.

2.    RELEVANT PROVISIONS OF THE FAIR WORK ACT 2009

10    Part 3-1 of Chapter 3 of the FW Act provides general workplace protections. It was not in issue that Chapter 3 applied. The Act falls to be applied as at the date on which Mr Flavel’s employment was terminated on 30 November 2011.

11    The objects of Part 3-1 of Chapter 3 of the Act are set out in s 336, relevantly:

(a)    to protect workplace rights;

…

(c)    to provide protection from workplace discrimination;

(d)    to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part.

12    Section s 340(1) provides a key protection in proscribing the taking of adverse action by one person 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.

13    A person has a “workplace right” under s 341(1) if the person:

(a)    is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b)    is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

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

(i)    to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

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

14    It is not in dispute that s 21 of the OHSW Act (now repealed) was a “workplace law” within s 341(1) of the FW Act. Section 21 of the OHSW Act provided that:

(1)    An employee must take reasonable care to protect the employee's own health and safety at work.

Maximum penalty: Division 7 fine.

(1a)    An employee must take reasonable care to avoid adversely affecting the health or safety of any other person through an act or omission at work.

Maximum penalty: Division 6 fine.

15    A person takes “adverse action” in the circumstances set out in the table in s 342(1) of the FW Act, including relevantly where an employer dismisses the employee (item 1). It is not in dispute that the action here in terminating Mr Flavel’s employment was an adverse action.

16    Similarly, s 346 proscribes the taking of adverse action against another person because the other person is (or is not) an officer or member of an industrial association, or engages or does not engage, in industrial activity.

17    Finally, s 351(1) of the FW Act provides that:

An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

(Emphasis added.)

18    Section 351(2) excludes certain types of action from the prohibition in s 351(1), providing that:

(2)    However, subsection (1) does not apply to action that is:

(a)    not unlawful under any anti-discrimination law in force in the place where the action is taken; or

(b)    taken because of the inherent requirements of the particular position concerned; or

(c)    if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:

(i)    in good faith; and

(ii)    to avoid injury to the religious susceptibilities of adherents of that religion or creed.

19    Section 351(3) defines an “anti-discrimination law” to mean the Age Discrimination Act 2004 (Cth), the Disability Discrimination Act 1992 (Cth), the Racial Discrimination Act 1975 (Cth) and the Sex Discrimination Act 1984 (Cth), together with State and Territory equal opportunity and anti-discrimination laws.

20    Importantly for present purposes, s 360 of Part 3-1 of the FW Act provides that:

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

21    As later explained, this requires that the reason be “a substantial and operative factor” in the employer’s reasons for the adverse action.

22    Furthermore, s 361 reverses the onus of proof with respect to a contravention of Part 3-1 in providing that:

(1)    If:

(a)    in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)    taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

23    The rationale for this presumption is to cast upon the employer/respondent the onus of proving on the balance of probabilities that which lies peculiarly within her or his own knowledge: General Motors Holden Pty Ltd v Bowling (1977) 51 ALJR 235 (Bowling) at 241 (Mason J) (approved in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 (Barclay) at 520 [50] (French CJ and Crennan J), 527 [77] and 535-536 [105]-[106] (Gummow and Hayne JJ)). As the Explanatory Memorandum (HR) to the Fair Work Bill 2008 explained at 234 [1461], “[t]his has been a long-standing feature of the freedom of association and unlawful termination protections and recognises that, in the absence of such a clause, it would often be extremely difficult, if not impossible, for a complainant to establish that a person acted for an unlawful reason.”

24    As a consequence, it fell to RailPro to establish that it did not dismiss Mr Flavel because he had a workplace right, or a physical or mental disability, rather than for Mr Flavel to positively establish dismissal for one of those reasons. Furthermore it would not suffice for RailPro to establish that Mr Flavel was dismissed for another reason if the proscribed reason had not been disproved. It is sufficient by virtue of s 360 of the FW Act if one of the reasons for dismissing Mr Flavel was (with the assistance of the presumption in s 361) a proscribed reason under that Act. It follows that the obstacles which RailPro must overcome in order to succeed on the appeal are considerable, particularly where (as I later explain) certain critical findings against RailPro turned largely upon credibility findings.

3.    THE DECISION BELOW

3.1    The pleadings

25    The contraventions of the FW Act alleged by Mr Flavel were set out in Part G of his claim filed in the Court below relevantly as follows:

1.    Section 340(1)(a)(ii) and (iii)

A person must not take adverse action against another person;

Because the other person has exercised a work place right; or

Proposed to exercise a workplace right.

Section 341(1)(a) – Workplace Right Relied Upon by Applicant

A person has a workplace right if the person;

Is entitled to the benefit or has a role or responsibility of a workplace law or workplace instrument.

The applicant relies generally on the Occupation Health Safety and Welfare Act 1986 but also has regard to s21 – Duties of Worker in that Act.

The Applicant says it would have been unsafe to drive the train in the current state he was in therefore alerting his employer of his concern.

2.    Section 351(1)

An employer must not take adverse action against a person who is an employee of the employer because of persons physical or mental disability.

The Applicant says the respondent was aware he was unable to drive the train as a consequence of feeling violently ill’ and ‘anxious’. A disability can be a temporary or lasting disability and the respondent was alerted to this disability (that is, feeling violently ill and anxious) on at least two separate occasions yet proceeded to dismiss the applicant when they knew he was suffering from such a disability.

26    While originally Mr Flavel sought reinstatement, compensation and a pecuniary penalty, ultimately he pressed only the claims for compensation and a penalty.

27    RailPro provided the following grounds in opposition to the claims by Mr Flavel on 9 March 2012 which stated that:

1.    The Applicant was asked at a meeting on 29 November 2011 to explain why he had refused to undertake assessment and he explained that he was not ready for the assessment without the assistance of his notes.

2.    The Applicant did not inform those present at the meeting that his failure to undergo assessment was due to any occupational health and safety risk, illness or injury, and at the time the decision to terminate employment was taken those making the decision had no knowledge that the Applicant raised any occupational health and safety risk or that he had claimed to have suffered any illness or injury.

3.    Those persons who made the decision to terminate the Applicant’s employment were not aware the applicant had asserted any workplace right, and the decision to terminate employment was not in any way based on such workplace right being exercised or otherwise.

4.    The Applicant did not possess the necessary skills to carry out the inherent requirements of his position safely, including achieving necessary qualifications expected of all drivers.

3.2    RailPro and its operations

28    Specialised Bulk Rail Pty Ltd (SBR) undertakes the railway transportation of goods such as bulk iron ore over the Port Adelaide to Rankin Dam route, on the Darwin to Tarcoola railway line and Defined Interstate Network between Adelaide and Tarcoola. It operates approximately 300 rail services each year, consisting of two train sets of approximately 90 wagons each, with two locomotives on each service. Trains when loaded can be up to approximately 90 wagons long and 1300 metres in length and can carry weights of up to 8,500 tonnes. Trains can travel up to speeds of 110 kilometres per hour.

29    SBR contracts RailPro for the provision of train drivers. The SBR South Australian operations were primarily governed at the relevant time by the Rail Safety Act 2007 (SA) (Rail Safety Act) (repealed by the Rail Safety National Law (South Australia) Act 2012 (SA) with effect from 20 January 2013) and the Rail Safety (General) Regulations 2008 (SA) (Regulations) (revoked by the Rail Safety National Law (South Australia) (Drug and Alcohol Testing) Regulations 2012 (SA) with effect from 20 January 2013).

30    The Act places responsibility upon SBR to ensure that its operations are safe including that its drivers are competent and able to safely operate the trains. Section 28(1) of the Rail Safety Act imposed an obligation upon Specialised Bulk Rail Pty Ltd (SBR) to “ensure, so far as is reasonably practicable, the safety of the operator’s railway operations”. Subsection (2) further provided that:

Without limiting subsection (1), a rail transport operator contravenes that subsection if the operator fails to do any of the following:

(a)    develop and implement, so far as is reasonably practicable, safe systems for the carrying out of the operator's railway operations;

(b)    ensure, so far as is reasonably practicable, that each rail safety worker who is to perform rail safety work in relation to the operator's railway operations—

(i)    is of sufficient good health and fitness to carry out that work safely; and

(ii)    is competent to undertake that work;

…

(f)    provide, so far as is reasonably practicable—

(i)    such information and instruction to, and training and supervision of, rail safety workers as is necessary to enable those workers to perform rail safety work in relation to the operator's railway operations in a way that is safe; and

(ii)    such information to rail transport operators and other persons on railway premises under the control or management of the operator as is necessary to enable those persons to ensure their safety.

    (Emphasis added.)

31    Section 69 of that Act, in particular, obliged SBR to ensure that each rail safety worker who is to carry out rail safety work (including driving rolling stock (s 9(1)) has the competence to carry out that work. By subs (2), the competence of a rail safety worker to carry out rail safety work must be assessed:

(a)    by reference to any qualification or any units of competence recognised under the regulations applicable to the rail safety work to be carried out;

(b)    by reference to the knowledge and skills of the rail safety worker that would enable the worker to carry out the rail safety work safely.

32    Conversely, s 71(1) and (3) of the Rail Safety Act provided that:

(1)    A rail safety worker, when carrying out rail safety work must—

(a)    take reasonable care for his or her own safety; and

(b)    take reasonable care for the safety of persons who may be affected by the rail safety worker's acts or omissions; and

(c)    cooperate with the rail transport operator with respect to any action taken by the rail transport operator to comply with a requirement imposed by or under this Act or the regulations.

Maximum penalty: $10 000.

…

(3)    A rail safety worker, when carrying out rail safety work, must not wilfully or recklessly place the safety of another person on or in the immediate vicinity of rail infrastructure at risk.

Maximum penalty: $10 000.

33    RailPro employs the drivers and other employees who undertake work for SBR. SBR is a Rail Operator of which RailPro is a subsidiary.

3.3    Witnesses

34    Mr Flavel gave evidence by affidavit and also relied on the reports of a number of medical practitioners including Dr Marcus Bem who examined Mr Flavel on 20 March and 19 July 2012. The medical practitioners were not required for cross-examination and their evidence was not in dispute.

35    RailPro relied upon the evidence of two of the three decision-makers, namely Mr Brian David Stewart McNaught and Mr Joseph Pasquale Pastore. The third decision-maker, Mr Yates, did not give evidence. The findings by the primary judge at [27] of Flavel (No.1) that the adverse action to dismiss Mr Flavel was a joint decision of Messrs McNaught, Pastore and Yates, and that these three persons acting together were the decision-makers, are not challenged.

36    Mr McNaught had been employed by Twentieth Superpace Nominees Pty Ltd t/a SCT Logistics (SCT) as its National Rail Accreditation and Compliance Manager since commencing employment with SCT in November 2010 and was based in Melbourne. He was responsible for the operations of SBR and, in particular, for issues surrounding SBR, and RailPro as SBR’s contractor, for compliance with SBR’s “operating licence” or accreditation to be a rail operator. His duties involved safety management and ensuring compliance with the regulatory regime which “licences” or accredits SBR as a competent and safe rail operator.

37    Mr McNaught reported to Mr Noel Ramsey, General Manager of SBR, and advised the Operations Manager on safety matters in relation to the RailPro staff working for SBR. At the time of trial, his career in rail had spanned 28 years, with a significant portion managing safety and regulatory compliance.

38    Mr Pastore was employed by SCT as its National Human Resources Manager. He had responsibility for establishing and implementing human resources, industrial relations and safety policies and procedures, and ensuring compliance with those policies and procedures including State and Federal legislation.

39    RailPro also relied upon the evidence of Mr Rocco Depietro, who was employed by SCT as a train coordinator, and Mr Andrew Alexandrides who was employed by RailPro as a train driver. Mr Alexandrides was the supervising train driver tasked with undertaking the assessment of Mr Flavel’s competence on 27 November 2011.

40    All of the lay witnesses for each party were cross-examined.

3.4    Engagement of Mr Flavel and his initial period of employment

41    Mr Flavel was a qualified locomotive driver of 58 years of age who had worked in the railroad industry since 1974. He had extensive train driving experience in Western Australia which included driving heavy haulage bulk drains of 34,000 tonnes with a length of 2.4 kilometres (Flavel (No.1) at [28]).

42    Mr Flavel accepted a full-time permanent position as a locomotive driver based in Adelaide with RailPro. The position commenced on 23 April 2011 and became permanent on 23 July 2011.

43    While Mr Flavel had considerable railway experience, he was not familiar with the tracks and routes on which SBR operated or with the South Australian (DIRN) network operating rules. As a result, he was taken on as an assistant driver in training with a view to becoming a Level 4 Driver in Charge of a train (a trainee). This meant that he would drive trains under supervision and undertake work as a second person. RailPro provided Mr Flavel with induction training in local rules and regulations for various locations and he then commenced route knowledge training, being eventually assessed as competent for return trips on the line between Tarcoola to Manguri.

44    Mr Flavel gave evidence that, as a trainee driver, he took notes of “… points of reference of hills, turns, speed restrictions, … locomotive performance under load at certain parts of the track, and the length of climbs – when you should prepare for that. Those sorts of things.” Mr Flavel did not accept that he could not safely operate a train looking at notes. However, Mr McNaught’s evidence that, before being allowed to drive unsupervised, Mr Flavel (in common with other drivers) needed to satisfy RailPro that he was competent and had adequate route knowledge to drive the route to the company’s required standards without reference to notes, was not challenged.

3.5    The train accident on 11 October 2011

45    On Sunday 11 October 2011 shortly after 1:00am, the train that Mr Flavel was driving collided with another train at Dry Creek to the north of Adelaide. At the time of the accident, Mr Flavel was being trained in route knowledge under the supervision of Mr Wayne Fischer. The train was about 1300 metres long and, while no one was injured, the accident caused approximately $5 million damage. The primary judge found that Mr Flavel was not physically injured but was in shock after the accident (Flavel (No. 1) at [32]). The primary judge also accepted Mr Flavel’s evidence that he told Mr Yates, RailPro’s Train Crewing Supervisor based in Adelaide, that he was in shock (Flavel (No. 1) at [34]). The following day, Mr Yates drew on a white board the cycles of emotion that Mr Flavel would experience as a result of the accident, including anxiety and sleeplessness. Mr Flavel accepted that he was offered trauma counselling if he wanted it, but had declined because he did not consider that he needed counselling.

46    The accident was the subject of an investigation by RailPro undertaken by Mr McNaught. While the primary judge does not make a finding on the issue, it was not in issue that the investigation was required to be undertaken by the South Australian Rail Safety Regulator (the Regulator) under s 75 of the Rail Safety Act. Such investigations, must be conducted in a manner approved by the Regulator within the period specified by the Regulator, and must culminate in a report to the Regulator (s 75(3) and (4), Rail Safety Act).

47    In preparing the report, Mr McNaught interviewed witnesses including Mr Flavel and Mr Fischer. In order to achieve the “just culture” approach to ensuring the integrity of the investigation and the open and frank reporting required for such a report, Mr McNaught gave unchallenged evidence that RailPro does not investigate incidents in a punitive fashion, but encourages open and frank disclosure in a non-threatening manner to enable safety issues to be identified openly and corrected to prevent the likelihood of future incidents. This is consistent with the fact that the reports are not admissible in evidence against a person in proceedings for an offence or for the imposition of a penalty insofar as the report discloses information provided by the person for the purposes of the relevant investigation. (s 75(7), Rail Safety Act).

48    Mr McNaught concluded in his report that Mr Flavel was in charge of the controls of the train at the time of the accident, both drivers had failed to note the aspect of signal 135 showing caution because (on their own admission) they were distracted, when they realised they had missed signal 135 they took no action but had continued to travel at approximately 62 kilometres per hour, and, despite being the trainee driver, Mr Flavel had given instructions to Mr Fischer which Mr Fischer, as the supervising driver, had inappropriately followed. In explaining the significance of the errors leading to the accident, Mr McNaught gave evidence that “[a]n essential element of route knowledge training is to know where each signal is placed along the route on which the train travels and if you were to miss a signal, have appropriate recovery time to stop the train before being exposed to danger.”

49    Mr McNaught gave evidence that such an incident would have warranted the termination of both employees and that this option was discussed by him with Mr Pastore and Mr Ray Jenke, the National Operations Manager - Rail. However, Mr McNaught recommended instead that the employees be issued with the strongest of warnings to caution them and to also require each employee to be assessed for competence before allowing them to continue to drive trains.

3.6    Events following the accident

50    While the meeting is not referred to in the primary judge’s reasons, Mr McNaught gave evidence of a discussion with Mr Flavel on 18 November 2011 concerning the implementation of the findings of the investigation. It was Mr McNaught’s unchallenged evidence that in the course of that discussion, he and Mr Flavel had agreed upon an appropriate course of action to assist Mr Flavel in recommencing his train driving career. Specifically, Mr McNaught explained that:

    68.    This included a discussion on the need for him to demonstrate his competence and “rehabilitate” his credibility amongst the South Australian rail community. We agreed a training and assessment program which fitted best with Mr Flavel’s expectations. We agreed that Mr Flavel should also expeditiously as possible complete all his training and in particular finalise his route knowledge. We agreed that he would not be allowed to be at the controls of a train unsupervised until such time as he was assessed. We agreed that his first assessment should be on the Port Augusta to Tarcoola section of line, which was a line Mr Flavel had previously requested to be assessed over, prior to the incident, and agreed this was an assessment he felt confident to undertake. Thereafter, he would be progressively assessed all lines on which he was required to work, including those on which he had previously been assessed. He would also have to be re assessed [sic] on the various operating rules of the networks on which we travelled.

    69.    After the initial assessment, which was agreed to be in about 10 days from our discussion, allowing him time to prepare, we would prioritise his assessments with a trainer at reasonable intervals, as he was rostered on each section.

51    Mr Flavel acknowledged the meeting with Mr McNaught on 18 November 2011 in his evidence although he did not accept that he received the programme.

52    Mr McNaught also gave unchallenged evidence that, having regard to the knowledge and information that he had at the time, he considered it was appropriate to require Mr Flavel to undergo assessment, including that:

    78.    …I had presumed that Mr Flavel’s refusal of assistance through Trauma Counselling and consistent behaviours demonstrated that he had come to terms with the accident. At no point did Mr Flavel complain of suffering any ill effects, make any claim to sick leave, or make any claim for workers compensation.

    79.    In the course of my interviews with both employees into the cause of the accident I discussed with them their personal feelings and whether they had suffered any ill effects. Mr Fisher [sic] confirmed he was ok as did Mr Flavel. This is not necessarily a good indicator, but coupled with the observations of Mr Yates, whom I respect as a very experienced person in this area, I was confident that Mr Flavel was well and that Mr Fischer would recover.

53    He also took into account that Mr Flavel had been over the routes in accordance with RailPro’s Route Knowledge Procedure and had not expressed any concerns about being assessed. However, until he was assessed as competent, Mr McNaught could not be satisfied that he was competent in accordance with the SBR’s statutory obligations and he could not be permitted to take the controls of a train. The same requirements were imposed on Mr Fischer.

54    As to the assessment process, Mr McNaught gave evidence that:

96.    During an assessment the Driver is not able to use their driver route notes because they are expected to know and understand the route from memory. This is important because it is not appropriate for a driver to be distracted from their duties by reading notes whilst the train is in motion.

97.    The importance of drivers not being distracted by other duties or actions is highlighted in the report into the accident on 11 October 2011 where one driver was on the telephone, whilst the other was distracted by an oncoming train. That resulted in an accident. If a driver is utilising notes with any regularity that of itself could lead to signals being missed and accident’s occurring. This is an unacceptable safety risk.

98.    This is a requirement particularly important for assessment and is a requirement applied to everyone.

55    Mr Flavel disputed in his evidence the proposition that notes would distract the driver, but did not dispute Mr McNaught’s evidence as to RailPro’s policies and requirements.

56    On 19 November 2011, Mr Flavel’s wife sent an email to Mr Jenke, quoted in Flavel (No. 1) at [36], in which she said that her husband is punishing himself and overwhelmed with grief, and that every day he has to face the fact that he or Mr Fischer could have been killed or injured. She asked RailPro to help her husband and Mr Fischer keep their jobs.

57    On 21 November 2011, Mr Flavel attended a meeting at RailPro’s Regency Park office in Adelaide. Mr Yates was present and other representatives of RailPro attended on a teleconference call. The primary judge found in Flavel (No.1) that:

39.    The theme of the conversation was that the crash investigation had been completed and there was a finding that Mr Flavel was at fault. This was so even though Mr Flavel was under supervision at the time of the accident. Mr Flavel was further advised that it had been decided that mitigating circumstances prevailed and that he would not be sacked but would be given a final warning or words to that effect.

40.    Also discussed in the telephone conference was the further training that Mr Flavel was to receive as well as the fact that Mr Flavel would be required to undertake a competency based assessment. No date for the assessment was given at that time.

58    In late November, Mr Flavel received a letter signed by Mr Jenke advising that his competency would be assessed on 27 November 2011 whilst performing driver duties in the following terms:

Dear Colin

Assessment of competency

Since your commencement of employment with Rail Pro on 27th April 2011, you have been under training to enable you to achieve the level of competency that is required for drivers to perform their duties without supervision.

You have also had additional training and supervision since you were involved in an accident on 11 October 2011.

Rail Pro will now arrange for your competency to be formally assessed and this assessment will take place on 27th November 2011 and the 3rd December 2011.

You are required to pass all necessary elements of assessment in order to be able to perform the job for which you have been employed.

If you are not successful in this assessment we will discuss any shortcomings with you, but must make you aware that a failure to achieve the required competency standard may result in a decision being taken to terminate your employment.

This is an important assessment and if you have any questions about it please do not hesitate to contact me to discuss the process further.

I wish you the best of luck.

Yours Sincerely

Ray Jenke

National Operations Manager – Rail

59    On the same day, Mr Flavel received a letter giving him a final warning as a consequence of the findings of the investigation as follows:

Dear Colin

Final Written Warning

Following an accident on 11 October 2011 which caused substantial damage to SCT property an investigation has been carried out into the cause of the accident.

In summary the accident has been attributed solely to driver error and in particular the fact that you and another driver working on train 1901S on the day of the accident failed to observe and respond to a signal showing “caution”.

We met with you on 21 November 2011 at which time you were given an opportunity to explain how the accident occurred.

Having considered the information you have provided we are of the view that:

1.    there is no reasonable explanation for your failure to see the caution signal; and

2.    had you noted and abided by the signal this incident could have been avoided.

Your action has caused the Company considerable financial expense.

This incident also demonstrates that you were not performing your job to a standard that is required by RailPro and necessary for the safe execution of your duties.

In accordance with the recommendations of the report into this incident Rail Pro is issuing you with a final written warning.

If there is any repetition or similar incident in the future or if there is further example of you performing your job without adequate care a decision may be taken to terminate your employment.

Yours sincerely

Ray Jenke

National Operations Manager – Rail

60    After receiving the final warning letter, Mr Flavel said that he felt terrible, as it was the first time that he had been formally blamed for the accident, and really guilty (Flavel (No. 1) at [44]). On 25 November 2011, Mr Flavel sent an email to certain colleagues within RailPro in which he said how sincerely sorry he was for the events and actions which led to the costly accident and to thank his colleagues for their support.

61    The primary judge found after the accident Mr Flavel’s duties required two return trips to Rankin Dam, near Coober Pedy in the North of South Australia on which he was not permitted to operate the locomotive (Flavel (No. 1) at [46]). He also found at [46] that “[b]etween the time of the accident and the time of his assessment Mr Flavel had not been given any further practical experience or training in operating the IMX train. He had also not been told by his employer that they considered he was for any reason, not capable of performing his duties as a driver.”

3.7    The competency assessment on 27 November 2011

62    In the evening of Friday, 25 November 2011, Mr Flavel received a telephone call from a fellow employee, Ms Della Rodrigues, advising that he would be working on a relay service to Rankin Dam and return, commencing on Sunday, 27 November 2011, and that he was to be assessed on driver’s duties (Flavel (No. 1) at [47]).

63    Mr Flavel arrived at the main yard at Port Augusta where the train was kept in the early hours of Sunday morning on 27 November 2011, with the shift to start at 30 minutes after midnight. Mr Andrew Alexandrides and Mr Peter Courtney were also present. Messrs Alexandrides and Courtney were employed by RailPro as train drivers. The primary judge found that very little was said between the three men while they were preparing the train for departure (Flavel (No. 1) at [49]).

64    The primary judge’s findings as to what occurred at the commencement of the assessment are set out in the following passages of his reasons:

50.    Mr Flavel boarded the train and commenced to prepare to drive. He became extremely nervous and felt unwell. Mr Flavel says that he felt that the atmosphere in the cab was icy and not relaxed. He attributed this to the fact that he was feeling anxious. He says that his nervousness increased and that he started to feel sick. He wanted to vomit. He says that he drank some water but his condition worsened. He says that he could not bear to touch the controls and that he was confused about his condition. He set up his notes and diagram near the driver’s seat. He was then told by Mr Alexandrides that he could not use his notes. Mr Flavel told Mr Alexandrides that he could not drive without his notes. Mr Alexandrides again said that he could not use them.

51.    Mr Alexandrides asked Mr Flavel what he had been told about the assessment. Mr Flavel said that he was informed that he would be observed by Mr Alexandrides and a determination would then be made as to what further training would be needed before he would be assessed.

52.    Mr Flavel says that his condition did not improve. Mr Flavel told Mr Alexandrides that he could not drive as he was unwell and unable to operate the train safely. He told Mr Alexandrides that he felt violently ill. Mr Alexandrides queried him on this statement. Mr Flavel reaffirmed to Mr Alexandrides that he was sick, wanted to vomit and needed to be relieved from driving the train.

53.    Mr Alexandrides left the cabin for a short period. When he came back he told Mr Flavel that he had telephoned the SBR Controller and informed him of what he (Mr Flavel) had been saying. Mr Alexandrides then took up the driver’s position and Mr Flavel sat in the middle seat. Mr Alexandrides asked Mr Flavel if he wanted to return to the crew van. Mr Flavel indicated that he wished to stay on the locomotive and observe.

65    Mr Flavel also gave evidence that the symptoms from which he suffered included, in addition to the feeling that he was going to be violently ill, sweating and a massive headache but he did not tell his employer about these other symptoms so that the only information he gave to his employer was that he felt violently ill.

66    Following the telephone call from Mr Alexandrides, the SBR Controller, Mr Depietro, emailed Mr Ramsey at 2:10am that morning advising that:

Noel

I received a phone call at 01:50 (Vic time) from SBR driver Andy Alexandrides at Pt Augusta advising that Colin Flavel was supposed to have an assessment from Pt Augusta to Tarcoola this morning, Andy stated that Colin sat in the driver’s seat and was ready to go until Andy asked him to put his notes away Colin then said that he was not ready to be assessed and would be violently ill if he drove.

Kind regards,

Rocco Depietro – Train Coordinator

(Emphasis added.)

67    Mr Depietro had copied the email also to Mr Yates as well as Mr Ray Jenke, Mr Ronald Bury and a group entitled “Train Coordinators” comprised of Ms Della Rodrigues, Mr Dominic Lafferty and Mr Malcolm McCracken.

68    The sequence of events set out in the email from Mr Depietro accords with the primary judge’s findings. Specifically, while the primary judge found that Mr Flavel became unwell on boarding the train (Flavel (No. 1) at [50]), his Honour also found at [52] that it was not until he was refused permission to undertake the assessment with his notes that Mr Flavel told Mr Alexandrides that he felt sick and wanted to be relieved from driving the train.

69    Mr McNaught gave evidence that he spoke with Mr Depietro at about 6:00am that morning. He was informed then or perhaps later that day that Mr Flavel had refused to undertake the assessment because he was not allowed to use his driver notes. It was his evidence that he was not told that Mr Flavel was in any way ill. However, he also said that he recalled hearing from someone, although he did not remember who, that Mr Flavel had said to the assessor that he would become ill if he had to be assessed without his driver notes but that he had not become sick or accepted the offer from the assessor to go back to the crew van for relief.

70    Before deciding whether Mr Flavel’s employment should be terminated because of his failure to complete the assessment, Mr McNaught decided in consultation with Mr Pastore to hold a meeting with Mr Flavel when the train he was on returned to Adelaide in order to establish why he refused to participate in the assessment.

3.8    The meeting at the Regency Park office following the aborted assessment

71    On the return journey to Adelaide, Mr Alexandrides informed Mr Flavel that he was to be picked up by taxi at Bishops Loop and taken to the RailPro Office at Regency Park. No reason was given as to why he was required to go to the Regency Park office (Flavel (No. 1) at [54]).

72    Present at the meeting with Mr Flavel were Mr Pastore and Mr McNaught, both of whom had flown in from Melbourne that morning for the meeting. Also present was Mr Yates who, it will be recalled, was the Train Crewing Supervisor based in Adelaide (Flavel (No. 1) at [55]).

73    What was said at the meeting was in dispute. It was the evidence of Messrs McNaught and Pastore that Mr Flavel had said that he felt that he was not ready to be assessed without driver notes and that he had not mentioned anything about being ill.

74    The primary judge, however, preferred the evidence of Mr Flavel for reasons I later address and accordingly found that at the meeting:

58.    Mr McNaught said that Mr Flavel had placed them in a difficult position because he had refused to do the competency assessment. He asked Mr Flavel whether he had anything to say. Mr Flavel responded that he had not been confident that he could carry out the assessment as he had been feeling sick, dry in the mouth, highly anxious and wanted to vomit. He said that he considered that [sic] could not perform the driver’s duties safely and had therefore reluctantly elected to be relieved of the driving duties. He told those present that he had been unaware prior to getting onto the train and being put in the driving position that he would be ill.

59.    Mr Flavel informed those present at the meeting at Regency Park that he had only had two trips ‘over the corridor’ since the accident and had not received any training or practical experience since the accident. None of those present at the meeting responded to his comment.

60.    Mr Flavel was then told that the meeting would be adjourned for a short period. He was requested to leave the office and wait outside.

61.    While Mr Flavel was waiting outside, Mr Pastore left the meeting to speak briefly with him. He asked Mr Flavel if he wanted to add anything to what he had said inside. Mr Flavel told Mr Pastore that he saw little merit in arguing the point any further, as it appeared that a decision had already been made. Mr Flavel repeated his earlier statement that he had felt ill on the train and simply could not drive. Mr Pastore then returned to the meeting.

62.    Eventually Mr Flavel was called back into the office and again asked by those present whether he had anything further that he wished to add. Mr Flavel repeated his earlier statement about having been ill as a result of being asked to drive the train and that he had not had any further training. Mr Yates said words to the effect, “I’m not having this. It could go on for three years”.

63.    Mr McNaught repeated his earlier comment that the company had been put in a difficult position. He then said that Mr Flavel’s services were terminated.

75    Subsequently on 30 November 2011, Mr Pastore, in his capacity as National Human Resources Manager, sent Mr Flavel a letter confirming that his employment was terminated, which relevantly advised:

Further to our meeting yesterday I confirm that RailPro Services Pty have decided to terminate your employment.

The reasons for termination are:

•    On 21st November 2011, you were instructed to undergo assessment of competence, with such assessments to take place on 27th November 2011 and on the day of the assessment you refused to allow the assessment to be conducted without reasonable excuse.

•    You have failed to achieve the required level of competence to fulfil the inherent requirements of the role.

At our meeting you were asked to provide explanations in respect of the above and provided no explanations that are satisfactory to RailPro.

You are not presently competent to work independently and after 7 months of employment driving the routes against which you were to be assessed RailPro consider that you have had sufficient opportunity to become proficient.

As you have neither demonstrated proficiency and have refused to allow a formal and necessary assessment to be undertaken RailPro have no alternative but to terminate your employment.

4.    CONSIDERATION

4.1    Introduction

76    In order to address the substance of the appeal, it is necessary first to consider the circumstances in which primary judge’s findings can be set aside on an appeal and secondly the principles by which it is determined whether an employer took adverse action “because of” a proscribed reason in s 340(1) and 351(1) of the FW Act.

4.2    Principles governing circumstances in which primary judge’s findings can be set aside on appeal

77    This appeal is instituted from the Federal Circuit Court pursuant to s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) and is an appeal by way of rehearing (Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 (Ward) at 87 [70] (Gleeson CJ, Gaudron, Gummow and Hayne JJ)). As a result, this Court is bound on an appeal to “decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal” (Ward at 87 [70] (quoting CDJ v VAJ (1998) 197 CLR 172 at 202 [111] with approval in this context)).

78    The principles governing the circumstances in which this Court is entitled to set aside the primary judge’s findings are well settled and can be summarised as follows.

a)    A fundamental distinction is drawn between the approach of an appellate court in two different classes of cases - the drawing of inferences from admitted facts or facts found by the trial judge, on the one hand, and findings which depend upon the view taken of conflicting oral testimony, on the other hand (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (Fox v Percy) at 146 [88] (McHugh J); Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 at 844 (the Court); State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 (SRA v Earthline) at [93] (Kirby J)). This is so, notwithstanding that the distinction between a finding of a specific fact and an inference from such a fact may, at times, be elusive: Benmax v Austin Motor Co Ltd [1955] AC 370 at 373 (Viscount Simonds). The assessment of a witness’ state of mind has also been said to fall within the second category of cases: Bendigo at 544 [141] (Heydon J) (citing with approval Nocton v Lord Asburton [1914] AC 932 at 957 (Viscount Haldane LC)).

b)    With respect to cases falling within the first class, the principle is that expressed by Gibbs ACJ, Jacobs and Murphy JJ in Warren v Coombes (1979) 142 CLR 531 (Warren v Coombes) at 551, namely:

…the established principles are, we think, that in general 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, but, once having reached its own conclusion, will not shrink from giving effect to it.

In so holding, the High Court rejected the approach of judicial restraint adopted in some of the authorities which required that error be demonstrated in the decision of the primary judge before the appellate court would reverse findings of fact or inferences from fact provided that both inferences were open: see further the detailed and helpful analysis of the authorities by Dodds-Streeton JA in Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; (2007) 17 VR 592 (Kelso) at [65]-[95] (with whose reasons the remainder of the Court agreed).

c)    This trend away from strict judicial restraint was continued by the decision in Fox v Percy which concerned the second class of cases. In Fox v Percy, the majority held that, while account must be taken of the advantages enjoyed by the primary judge in resolving conflicting oral evidence, the mere fact that she or he resolved the conflict by findings as to credit does not immunise the conclusion from challenge. The approach to be applied where such findings are challenged on an appeal by way of rehearing is explained by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy at 128 [28]-[29] as follows:

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.

… 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.

(Emphasis added.)

See also: Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 at 479 (Brennan, Gaudron and McHugh JJ); and CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 (Della Maddalena) which reaffirmed the principles stated by the majority in Fox v Percy.

d)    It may also be the case that appealable error exists by reason of a failure at first instance to determine the case upon a proper consideration of the real strength of the body of evidence presented by the losing party and the basis upon which the evidence of a witness was found unreliable is too fragile or slight: SRA v Earthline at [63]-[64] (Gaudron, Gummow and Hayne JJ), [93]-[94] (Kirby J) and [148]-[155] (Callinan J); cf e.g. Hasler v Singtel Optus Pty Ltd [2014] NSWCA 266; (2014) 311 ALR 494 (Hasler) at 525 [157] (Leeming J (with whose reasons the remainder of the Court agreed)).

e)    Underpinning the authorities as to the second class of cases is a continuing appreciation of the advantage which the primary judge may enjoy despite the availability today of complete transcripts of evidence and argument, the trend to giving evidence in chief by affidavit, and a growing understanding of the fallibility of the judicial evaluation of credibility from the appearance and demeanour of witnesses, particularly in the stressful environment of the courtroom and in an increasingly culturally diverse society: SRA v Earthline at [87]-[88] (Kirby J). As Gleeson CJ, Gummow and Kirby  JJ held in Fox v Percy at 125-126 [23], there are nonetheless “natural limitations” in the appellate court proceeding wholly or substantially on the court record even though it is obliged to give the judgment which it considers ought to have been given at first instance. As their Honours continued:

These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.

See also SRA v Earthline at [90] (Kirby J).

f)    A finding that oral testimony is disbelieved will almost invariably be express. However, it cannot be assumed that every consideration influencing the primary judge’s assessment of credibility, including her or his impressions of the witness, will find expression in the reasons. In discharging the appellate function, account should also be taken for unexpressed considerations and impressions: Fox v Percy at 132 [41] (Gleeson CJ, Gummow and Kirby JJ). As Lord Hoffmann explained in Biogen Inc v Medeva PLC [1996] UKHL 18; [1997] RPC 1 at 45 [54] (Lord Goff of Chieveley, Lord Browne-Wilkinson, Lord Mustill and Lord Slynn of Hadley agreeing):

The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la vérité est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.

g)    Finally, the weight to be given to the advantage enjoyed by the primary judge must, of necessity, be affected to some degree by the circumstances of the individual case. For example, in Hasler the NSW Court of Appeal considered that considerable deference should be given to the primary judge’s findings as to the reaction of witnesses to cross-examination and his reasons disclosed “a careful evaluative weighing of the competing testimonial and documentary evidence”, including awareness of the fact that the weight of the documentary evidence supported the case of the party who was ultimately unsuccessful (at [161] and [164]-[165]). Other considerations such as whether the decision is given within a time when the impression made by the witnesses would have been fresh or clear in the primary judge’s mind may also affect the weight to be given to the primary judge’s findings on matters of credit (e.g. Fox v Percy at 132 [41]).

79    In short, as Dodds-Streeton JA explained in Kelso at [150]:

As Warren v Coombes, the authorities approved therein and subsequent High Court decisions such as Fox v Percy and Della Maddalena make clear, the appeal court must consider the record of the trial below and the judgment of the trial judge, together with any additional evidence admitted. It must reach an independent conclusion on all issues which it is as well placed as the trial judge to determine, such as the assessment of documents, expert reports which are independent of the credit of any witness seen by the trial judge and inferences from established fact. It must also independently determine matters in which the trial judge enjoyed a legitimate advantage, such as the observation of witnesses, physical demonstrations and other matters referred to in Fox v Percy and like cases, but must make appropriate allowance, without uncritical deference, for such an advantage. If it reaches a different conclusion, either on any specific issue or the ultimate outcome of the case, it must give effect to its own decision.

4.3    The principles by which it is determined whether an employer took adverse action “because of” a proscribed reason

80    The relevant principles by which it is determined whether an employer took adverse action against an employee for a proscribed reason under s 340(1) and 351(1) may be summarised as follows.

81    First, it follows from the use of the word “because” in (relevantly) ss 340(1) and 351(1) that the central question is “why was the adverse action taken?”: Barclay at 517 [44] (French CJ and Crennan J (with whose reasons Gummow and Hayne JJ were in general agreement at 525 [71])) and 534 [101] (Gummow and Hayne JJ); Construction , Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 88 ALJR 980 (CFMEU v BHP) at 982 [7] (French CJ and Kiefel J) and 993 [85] (Gageler J); see also by analogy Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 (Purvis) at 163 [236] (Gummow, Hayne and Heydon JJ).

82    Secondly, this is a question of fact which requires a consideration of the decision-maker’s “particular reason” for taking the adverse action by reason of s 361(1) of the FW Act (Barclay at [41]-[42] and [44]-[45] (French CJ and Crennan J)). The question therefore focuses upon the actual reason or reasons which motivated the decision-maker and not upon subconscious reasons or motivations.

83    As such, direct evidence of the decision-maker as to her or his reasons is relevant and, in general, necessary, to discharge the statutory presumption in s 361 of the FW Act although whether the presumption is in fact discharged will turn upon an assessment of all of the facts and circumstances and available inferences: CFMEU v BHP at 982-983 [7]-[8] (French CJ and Kiefel J). That is not to say that the task is to identify objectively ascertained reasons. That description would be misleading and risk the Court substituting its own view, rather than making a finding as to the true reason of the decision-maker: CFMEU v BHP at 983 [9] (French CJ and Kiefel J); Barclay at 540-541 [121] and 541 [126] (Gummow and Hayne JJ). Rather, as French CJ and Crennan J in Barclay explained at [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. (footnotes omitted)

84    Similarly, Gummow and Hayne JJ explained in Bendigo at 542 [127]:

In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.

85    Thirdly, the proscribed reason need not be the sole reason by virtue of s 360 of the FW Act. Nor need it be the dominant reason: Barclay at 535 [103]-[104] (Gummow and Hayne JJ). Conversely, it is not sufficient that the proscribed reason merely entered into the employer’s mind: Bowling at 239 (Gibbs J (concurring with Mason J)) and 241 (Mason J (with whose reasons Stephen and Jacobs JJ also agreed)), applied by analogy in Bendigo at 523 [62] (French CJ and Crennan J) and 535 [104] (Gummow and Hayne JJ).

86    Rather, the reason must be “a substantial and operative factor” in the employer’s reasons for the adverse action: ibid. It would seem to be in this sense that the RailPro submits that the question is one of causation. In this regard, the provisions of Part 3-1 of the FW Act stand in contrast to the position under s 10 of the Disability Discrimination Act, as Gummow and Hayne JJ pointed out in Barclay at 535 [102]. Section 10 of the Disability Discrimination Act provides that, where one of the reasons for which an act is done is the disability of the person, the act is taken to be done for that reason “whether or not it is the dominant or a substantial reason for doing the act”.

87    Fourthly, the High Court in Barclay and CFMEU v BHP rejected the proposition that the employer must prove that the reasons for the adverse action were entirely dissociated from the employee’s union activities in order to discharge the onus of proof under s 361 of the FW Act. Equally, it must follow that it is a mistake to reason that, if the adverse action was connected to a disability or illness, it must be taken to be a reason for the adverse action. The point is best illustrated by examples.

88    In Barclay, the employee who was also an officer of an industrial association, emailed other employee/members warning them not to participate in any attempt to create false/fraudulent documentation for a reaccreditation audit of the employer by the statutory authority responsible for accrediting providers of vocational education and training in Victoria. The email implied that such fraudulent conduct was taking place. The Chief Executive Officer (CEO) suspended the employee from duty and asked him to show cause why he should not be subject to disciplinary action for serious misconduct. The CEO gave evidence that her motivation for this course of conduct was that the employee had made serious allegations in the email without first having made any report or complaint to senior management about the alleged conduct. The primary judge accepted that evidence and found that the adverse action taken by her was not because of a proscribed reason, being the employee’s position as an officer of the industrial association or his engagement in industrial activity.

89    However, the majority of Full Court of the Federal Court reasoned that, because the sending of the email amounted to engagement in industrial activity and the CEO’s reasons for taking action against the employee/officer were “founded upon” the sending of the email, the CEO’s reasons for taking adverse action against the employee “included the fact that he was an officer of the AEU and the fact that he had engaged in industrial activity”. As French CJ and Kiefel J later explained in CFMEU v BHP at 984 [18], “[i]t is to be inferred that the majority considered that, so long as there was a connection between the industrial activity and the adverse action, it followed that the adverse action contravened s 346(b).”  

90    The High Court held that the approach of the majority of the Full Court had been in error. As French CJ and Crennan J held in Barclay at [60], it was wrong to treat the onus imposed on an employer by s 361 of the FW Act “as being made heavier (or rendered impossible to discharge) because an employee affected by adverse action happens to be an officer of an industrial association.” As their Honours further explained at [61], it was wrong to contend, as did the respondents, that the employee’s status as a union officer engaged in lawful industrial action when his employer took adverse action against him meant that his union position and activities were inextricably entwined with the adverse action and he was therefore immune and protected from that action. If accepted, their Honours held, “such a position would destroy the balance between employers and employees central to the operation of s 361…”.

91    Equally, the Honours held at [62] that:

…it is a related error to treat an employee's union position and activity as necessarily being a factor which must have something to do with adverse action, or which can never be dissociated from adverse action. It is a misunderstanding of, and contrary to, Bowling to require that the establishment of the reason for adverse action must be entirely dissociated from an employee's union position or activities. … The onus of proving that an employee's union position and activity was not an operative factor in taking adverse action is to be discharged on the balance of probabilities in the light of all the established evidence.

92    This approach was followed in CFMEU v BHP. In that case, the employee, who was a member of the CFMEU, had participated in a lawful protest organised by the CFMEU and had held a sign which read “No principles SCABS No guts”. The general manager of the mine, Mr Brick, gave evidence that the employee had been dismissed for offensive conduct in violation of BHP’s workplace conduct policy of which the employee was aware, that he had demonstrated arrogance when confronted with the objections to his conduct, and that Mr Brick regarded the conduct as antagonistic to the culture which he was endeavouring to develop at the mine. The High Court (in line with the Full Court) held that it was wrong to reason from the existence of a connection between the adverse action and the industrial activity, that the industrial activity must be taken to be a reason for the adverse action. As French CJ and Kiefel J explained at [19], “Section 346 does not direct a court to inquire whether the adverse action can be characterised as connected with the industrial activities which are protected by the Act. It requires a determination of fact as to the reasons which motivated the person who took the adverse action.” Similarly, as Gageler J succinctly explained in CFMEU v BHP at [90]:

… the totality of the operative and immediate reasons for BHP Coal having taken adverse action against Mr Doevendans were proved by the evidence of Mr Brick about his own process of reasoning. The fact that Mr Doevendans held and waived the signs while participating in the protest organised by the CFMEU was not an operative part of Mr Brick’s reasoning. Nor was the fact that the signs represented or advanced the views or interests of the CFMEU.

93    A further example may be found in Purvis. The issue in Purvis was whether the suspension and subsequent exclusion from a State school of a student who had repeatedly assaulted other students and teachers, and whose behaviour resulted from brain damage suffered in infancy, contravened the Disability Discrimination Act. The principal of the school decided to exclude the student referring to the student’s “very violent behaviour”, and to his responsibility for the health and safety of other students and members of staff. Notwithstanding that the violent conduct may constitute the disability, that did not entail that the decision to suspend and exclude the student was because of the disability. As Gleeson CJ held in Purvis at 102 [13]-[14]:

If one were to ask the pupil to explain, from his point of view, why he was expelled, it may be reasonable for him to say that his disability resulted in his expulsion. However, ss 5, 10 and 22 [of the Disability Discrimination Act] are concerned with the lawfulness of the conduct of the school authority, and with the true basis of the decision of the principal to suspend and later expel the pupil. In light of the school authority’s responsibilities to the other pupils, the basis of the decision cannot fairly be stated by observing that, but for the pupil’s disability, he would not have engaged in the conduct that resulted in his suspension and expulsion. The expressed and genuine basis of the principal’s decision was the danger to other pupils and staff constituted by the pupil’s violent conduct, and the principal’s responsibilities towards those people.

… Even though functional disorders may constitute a disability, and disturbed behaviour may be an aspect of a disability, it is not contrary to the scheme and objects of the [Disability Discrimination] Act to permit a decision-maker to identify a threat to the safety of other persons for whose welfare the decision-maker is responsible, resulting from the conduct of a person suffering from the disorder, as the basis of a decision.

4.4    Did the primary judge err in his application of the rule in Jones v Dunkel (grounds 4 and 5)

94    It is convenient first to consider the general objection to his Honour’s application of Jones v Dunkel as this is relevant to the challenges to the breaches of both ss 351 and 340 on the appeal.

95    The principle in Jones v Dunkel is that an unexplained failure by a party to call a witness may, in appropriate circumstances, base an inference that the witness’ evidence would not have assisted that party's case: Jones v Dunkel at 308 (Kitto J), 312 (Menzies J) and 320-321 (Windeyer J). However, while the principle may make certain evidence or the inferences which may be drawn from the evidence more probable, it does not permit any further inference that the untendered evidence would have been damaging to the party who might have been expected to tender the evidence; nor can the failure to lead the evidence fill gaps in the evidence, or convert conjecture and suspicion into inference: Jones v Dunkel, ibid; Schellenberg v Tunnel Holdings Pty Ltd ]2000] HCA 18; (2000) 200 CLR 121 at [53] (Gleeson CJ and McHugh J). As for example, Newton and Norris JJ held in O’Donnell v Reichard [1975] VR 916 at 929 in explaining the proper manner in which the principle may be applied:

…where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person’s evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person’s evidence would not have helped that party’s case; if the jury draw that inference, then they may properly take it into account against the party in question for two purposes, namely:

(a) in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; and (b) in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken. (emphasis in the original)

96    As earlier mentioned, the third decision-maker, Mr Yates, did not give evidence notwithstanding the fact that he was an important witness that the primary judge considered would have been expected to be called. In his reasons, the primary judge “consider[ed] it appropriate to draw the inference that Mr Yates’ evidence would not have assisted [RailPro’s] case” (Flavel (No.1) at [69]).

97    In the notice of appeal, RailPro contends that:

4.    The learned Judge purported to apply the rule in Jones v Dunkel, but provided no reasons for its application, or the impact that its application had upon his decision.

5.    The learned Judge erred in finding that all persons involved in the decision to dismiss needed to be called to give evidence to satisfy the reversal of the onus of proof pursuant to section 661 [sic] of the Fair Work Act 2009, or at all.

98    I do not consider that there is any force in ground 5 of the notice of appeal. In my view, nothing in the primary judge’s reasons indicates that he considered that all decision-makers were required to be called before the statutory reverse onus could be rebutted. His Honour approached the issue in terms of the principle in Jones v Dunkel.

99    The real issue is, therefore, that raised by ground 4. In this regard, Mr McNaught gave uncontested evidence that Mr Yates’ father-in-law died and Mr Yates was at the funeral the day before the trial commenced on 16 August 2012, so that it had been a difficult time for him. However, the parties had filed their affidavit evidence-in-chief in advance of the hearing in accordance with orders made by the primary judge on 14 June 2012, albeit that the evidence on which RailPro wished to rely was filed 2 weeks before trial and not 3 weeks in advance as required by the orders. Furthermore, Mr Flavel’s affidavit filed on 13 July 2012 gave evidence of what was said at the dismissal meeting which contradicted in potentially significant respects the account of that meeting given subsequently by Mr McNaught and Mr Pastore. In particular, in his affidavit, Mr Flavel said that at the dismissal meeting he had explained he was sick and felt that he could not perform his duties safely as a result of which he elected to be relieved of driving duties. Mr Flavel also deposed that after a short break when he spoke with Mr Pastore, he had repeated at the meeting his earlier point on being ill and the lack of further training, at which point Mr Yates was alleged to have said “I’m not having this, it could go on for three years.” Furthermore, Mr Yates was copied in on the email sent by Mr Depietro to Mr Ramsey on 28 November 2011 at 2:10am (which was annexed to the affidavit from Mr Depietro sworn on 1 August 2012) on the morning of Mr Flavel’s assessment. That email stated that when he was asked to put his notes away, Mr Flavel said that he was not ready to be assessed and would be violently ill if he drove: Flavel (No. 1) at [50]. Yet despite the obvious significance of Mr Yates’ evidence to critical issues between the parties, there was no evidence explaining why no affidavit of Mr Yates was filed in advance of the hearing.

100    There is some force in the complaint that the primary judge did not explain the specific way in which he had gained assistance in making findings from the failure to call Mr Yates. While it would have been preferable if the reasons had been more transparent on the issue, I consider that it is fair in the circumstances to infer that his Honour took into account Mr Yates’ failure to give evidence in finding on the balance of probabilities that Mr Yates was aware that Mr Flavel had said he would not undertake the assessment because he felt ill. It is also fair to infer that his Honour inferred that Mr Yates’ evidence generally about what was said at the dismissal meeting would not have assisted RailPro, including that Mr Yates had made the statement attributed to him by Mr Flavel, and was taken into account by his Honour in preferring Mr Flavel’s account of the meeting over that of Messrs McNaught and Pastore.

101    In those circumstances I do not consider that the ground of appeal is made out.

4.5    The challenge to the findings and declaration based on the Disability Discrimination Act (grounds 1, 2, 3, 6 and 7)

4.5.1    The issues

102    Three grounds of the notice of appeal challenge the primary judge’s findings that there was a contravention of the FW Act by reason of a contravention of s 15(2) of the Disability Discrimination Act, namely:

1.    The learned Judge failed to apply the mandatory jurisdictional requirements of section 725 of the Fair Work Act 2009 and section 732 of the Fair Work Act 2009 by making findings under the Disability Discrimination Act 1992 as well as the Fair Work Act 2009.

2.    The learned Judge erred in law in using the same definition of “disability” when considering the claim pursuant to section 351 of the Fair Work Act 2009 as in the Disability Discrimination Act 1992, when the definitions in the respective legislation are fundamentally different.

…

3.    The learned Judge erred in law and fact in failing to consider the lack of ability of the Respondent to meet the inherent requirements of the position, as required by section 351 (2) of the Fair Work Act 2009 when the evidence was that he could not operate a train and it was unclear if he could ever do so.

103    In developing the second ground in submissions, RailPro submitted that the primary judge was in breach of the requirements of the natural justice hearing rule by indicating at the hearing that the Court would not be dealing with the Disability Discrimination Act while ultimately proceeding to declare that RailPro had contravened s 351 of the FW Act by unlawfully terminating Mr Flavel’s employment because of his physical and mental disability in contravention of s 15(2) of the Disability Discrimination Act. No objection was raised to that submission notwithstanding that it was not expressly raised by the grounds of appeal.

104    Section 15(2) of the Disability Discrimination Act relevantly provides that:

It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability:

…

(c)    by dismissing the employee; or

(d)    by subjecting the employee to any other detriment.

105    The term “disability” in relation to a person is defined in s 4(1) of that Act to mean:

(a)    total or partial loss of the person’s bodily or mental functions; or

(b)    total or partial loss of a part of the body; or

(c)    the presence in the body of organisms causing disease or illness; or

(d)    the presence in the body of organisms capable of causing disease or illness; or

(e)    the malfunction, malformation or disfigurement of a part of the person’s body; or

(f)    a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

(g)    a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;

and includes a disability that:

(h)    presently exists; or

(i)    previously existed but no longer exists; or

(j)    may exist in the future (including because of a genetic predisposition to that disability); or

(k)    is imputed to a person.

To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.

106    As is apparent, paragraphs (a) to (g) of the definition of a disability are not necessarily exclusive of each other and may overlap.

107    Discrimination is defined in ss 5 and 6 of the Disability Discrimination Act which distinguish between direct and indirect disability discrimination respectively as follows:

5 Direct disability discrimination

(1)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

(2)    For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

(b)    the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

(3)    For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.

6 Indirect disability discrimination

(1)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)    because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and

(c)    the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

(2)    For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)    because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and

(c)    the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.

(3)    Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.

(4)    For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.

108    The essential difference between the two concepts was explained by Dawson and Toohey JJ in Waters v Public Transport Corporation (1991) 173 CLR 349 at 392:

Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such “equal” treatment is that the former is in fact treated less favourably than the latter. … Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable.

4.5.2    The primary judge erred in finding a contravention of s 351(1) of the FW Act by reason of a contravention of s 15(2) of the Disability Discrimination Act

109    The only finding by the primary judge in relation to s 15(2) of the Disability Discrimination Act is the conclusion set out in Flavel (No. 1) at [88] which simply states that:

…I find that the respondent’s termination of Mr Flavel’s employment was because of Mr Flavel’s mental and physical disability which reason for dismissal is unlawful pursuant to s.15(2) of the Disability Discrimination Act 1992 (Cth) (“DD Act”). This reason for dismissal is in breach of s.351 of the Act.

110    This finding was embodied in the terms of the second declaration namely that:

The respondent had contravened s.351 of the Fair Work Act 2009 on 29 November 2011 by unlawfully terminating the applicant’s employment because of his physical and mental disability in contravention of s.15(2) of the Disability Discrimination Act 1992 (Cth).

111    In approaching the matter in this way, the primary judge erred in a number of significant respects, quite apart in my view from the failure to provide adequate reasons.

112    First, it is true that s 351(2) of the FW Act provides that s 351(1) does not apply to an action that is, relevantly, not unlawful under any anti-discrimination law, including the Disability Discrimination Act. However, the primary judge at [88] of Flavel (No.1) has effectively substituted the “carve-out” in s 351(2) for the test to be applied under s 351(1). However, the question under subs (1) is simply “why did RailPro dismiss Mr Flavel?”: see at [81] above. Thus, if the dismissal was “because of” Mr Flavel’s mental disability, s 351(1) is breached unless the dismissal falls with one of the “carve-outs” in s 351(2)(a), (b) or (c). Save therefore where the adverse action is that defined in column 2, para (d) of item 1 of the table in s 342(1) (i.e. that the employer “discriminates between the employee and other employees of the employer”), s 351(1) does not require that any comparison be undertaken between the treatment of the employee in question and any other employee(s): Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14; (2011) 191 FCR 212 at [35] (Gray and Bromberg JJ (overruled on appeal but not on this point)); Stephens v Australian Postal Corp [2011] FMCA 448; (2011) 207 IR 405 (Stephens v APC) at 439 [83]-[84] (Smith FM). As such, s 351(1) relevantly prohibits specific conduct which the Parliament has adjudged to be discriminatory in a general sense, in contrast to s 15(2) of the Disability Discrimination Act where the comparison must still be made in the particular case in order to determine whether there has been a breach of that Act. Moreover under the Disability Discrimination Act, it suffices if an act is done for a proscribed reason even if it is not a “substantial reason” in contrast to the need to establish that the proscribed reason is a substantial and operative reason under the FW Act (see at [86] above). Moreover it is sufficient under the Disability Discrimination Act if the discrimination is referrable to a perceived, as opposed to actual, disability or a disability of an associate (see “disability” defined in s 4(1) of the Disability Discrimination Act). That is not the case again under the FW Act.

113    Understood in its context, therefore, the purpose of the “carveout” is simply to ensure that conduct which would not contravene the general anti-discrimination laws, including relevantly the Disability Discrimination Act, equally does not contravene the FW Act and thereby avoids a result whereby the FW Act imposed more onerous obligations upon an employer than those already imposed upon her or him under general anti-discrimination laws.   It is, in other words, a limitation or a check upon the scope of the prohibition in s 351(1). In effect s 351 proscribes a “subset” of that which is proscribed under the Disability Discrimination Act.

114    The converse is not, however, true. It does not follow that conduct which contravenes the Disability Discrimination Act thereby also contravenes s 351(1) of the FW Act contrary to the assumption apparently made by the primary judge: Hodkinson v Commonwealth [2011] FMCA 171; (2011) 207 IR 129 (Hodkinson) at 165 [143] (Cameron FM).

115    Secondly, I agree with RailPro that the finding of a contravention of the FW Act by reason of a contravention of the Disability Discrimination Act and the grant of a declaration to that effect was also made in breach of the natural justice hearing rule. No declaratory relief for a contravention of the Disability Discrimination Act was sought in the prayer for relief or in the written or oral submissions for Mr Flavel. Nor did the written submissions for Mr Flavel in closing seek to establish the alleged contravention of s 351(1) on the ground that there had been a breach of the Disability Discrimination Act. To the contrary, any reliance on the Disability Discrimination Act, including upon the definition of disability in that Act, was expressly disavowed at the commencement of the trial, as RailPro contends. Specifically, at the end of the applicant’s opening, the following exchange took place between counsel and the Bench:

MR MANUEL [counsel for RailPro]: Your Honour, before my learned friend proceeds, there is one matter of clarification. In my learned friend’s opening, he referred to temporary absence as a factor, which we’re not particularly concerned about.

HIS HONOUR: Yes.

MR MANUEL: But he did refer to the Disability Discrimination Act. Now, I’ve unfortunately misplaced my pleadings, but I’ve looked in my friend’s opening, and there’s no reference of Disability Discrimination Act.

HIS HONOUR: Well, I – let me just have a look at that, because I thought there was something in the application that dealt with it. Let me just have look. I might be mistaken about that, Mr Manuel.

MR MANUEL: Your Honour, in any event, you made an order that my learned friend and I file outlines.

HIS HONOUR: Yes.

MR MANUEL: And I’ve responded to his outline. The problem with including the Disability Act – Disability Discrimination Act 1992, is that the Federal Court has made it clear that the definition of disability in the Fair Work Act is different to the expanded definition of disability in the Disability Discrimination Act, and so that fundamentally changes the basis of my learned friend’s case, and I haven’t been given an opportunity to respond to it or to consider it, which makes it extremely difficult for me to cross-examine Mr Flavel.

HIS HONOUR: Right. Well, how do you want me to resolve that, Mr Manuel?

MR MANUEL: Well, I think my learned friend needs to commit to the – that if he’s going to seek to effectively amend his application or statement of claim, and I can’t recall the basis of whether it was points or claim or a statement, your Honour, but if he’s going to amend, then he needs to fairly put that on the table.

HIS HONOUR: Yes.

MR MANUEL: And then I need to be in a position to consider that. And, your Honour, I am prepared to do that as quickly as possible, but I think I’m entitled to know actually what the case my client faces.

HIS HONOUR: Yes, I think you are. Mr Wright, you will have – you will consider that and consider your position in relation to that.

MR WRIGHT [Counsel for Mr Flavel]: Yes, your Honour. Just – I mean, just looking at the outline of submissions, it does state in 51:

The second contravention giving rise to workplace rights relates to the adverse action the respondent took after they were made aware the applicant was suffering a physical and mental disability and then discriminated against him as a consequence of that disability.

MR MANUEL: Well, I don’t disagree with that. That is the case that I’ve come here to meet.

HIS HONOUR: Yes. Okay. Right.

MR MANUEL: I’m happy with that, but insofar as it goes to the Disability Discrimination Act, that’s a fundamentally different claim.

HIS HONOUR: There’s no claim under the Disability Discrimination Act, by the sound of it. Okay. Look, before we embark on the evidence, Mr Wright and Mr Manual ---

MR WRIGHT: Yes.

MR MANUEL: Your Honour ---

HIS HONOUR: --- we might take a short break.

(Emphasis added.)

116    After the break, the following exchange occurred:

MR WRIGHT: Yes, your Honour. Now, in regards to section 351(1), we only rely on that on the basis that’s outlined in our application and nothing more, so we don’t object to what the respondent has stated.

HIS HONOUR: Okay. Nothing further?

MR WRIGHT: No, thank you.

(Emphasis added.)

117    I do not consider that it is in dispute that the parties therefore ran their respective cases on the basis that the claim was of a contravention of s 351(1) and not that there was a contravention of that provision because there was a breach of the Disability Discrimination Act.

118    Thirdly, and related to this, I accept RailPro’s contention that, in finding a contravention of s 351(1), the primary judge with respect omitted to deal with the defence raised by RailPro under s 351(2)(b) that the action was taken because of the inherent requirements of Mr Flavel’s position. This is so notwithstanding RailPro having raised the matter from the outset in its pleadings and having made submissions in support of the ground.

119    However, I do not agree with the submissions by RailPro that the primary judge erred in “fail[ing] to apply the mandatory jurisdictional requirements” of ss 725 and 732 of the FW Act. Section 725 provides that a person who has been dismissed must not make an application or complaint of a kind referred to, relevantly, in s 732 in relation to the dismissal. Section 732, in turn, provides that:

(1)    This section applies if:

(a)    an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and

(b)    the application or complaint has not:

(i)    been withdrawn by the person who made the application; or

(ii)    failed for want of jurisdiction.

(2)    An application or complaint under another law is an application or complaint made under:

(a)    a law of the Commonwealth (other than this Act); or

(b)    a law of a State or Territory.

(3)    For the purposes of this Subdivision, if a complaint under the Australian Human Rights Commission Act 1986 relates to a dismissal only as a result of an amendment of the complaint, the complaint is taken to be made when the complaint is amended.

120    As is apparent from s 732(3), subsection (2) will apply where (among other things) a complaint has been made under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). That Act creates a statutory cause of action for redress for “unlawful discrimination”, subject to the jurisdictional precondition that a complaint has been made to the Australian Human Rights Commission (AHRC) and terminated. “Unlawful discrimination” is defined relevantly to mean any acts, omissions or practices that are unlawful under Part 2 of the Disability Discrimination Act (s 3, AHRC Act).

121    The effect of ss 725 and 732 is to ensure that only one application in relation to the dismissal can be entertained, that is, relevantly, an application under AHRC Act or an application under the FW Act: see by analogy Hill v Compass Ten Pty Ltd [2012] FCA 761; (2012) 205 FCR 94 (Cowdroy J). However, as Mr Flavel submits, it is not suggested that any application or complaint had been made under another law. As such, ss 725 and 732 do not apply.

122    Nonetheless, it is well established that the regime under the AHRC Act for the making of complaints to the AHRC and conferring jurisdiction upon the Court to grant relief once a complaint has been terminated, is an exclusive one for remedying contraventions of, relevantly, the Disability Discrimination Act: see Picos v Australian Federal Police [2015] FCA 118 at [34]-[37] (Perry J) and the authorities referred to therein. The construction of s 351(1) and (2) which I prefer is consistent with an intention to maintain the exclusivity of the regime created by the AHRC Act while imposing (as I have said) a limitation upon the scope of s 351(1) so as to ensure that an employer will not contravene the Act where the adverse action would not contravene the Disability Discrimination Act.

4.5.3    The finding of a breach of s 351(1) of the FW Act was in error in any event (grounds 6 and 7)

123    Finally, in my view, there is a further reason as to why the finding of a breach of s 351(1) must in any event be overturned. In this regard, it was Mr Flavel’s case that RailPro had dismissed him in breach of s 351(1) of the FW Act on the ground that he had suffered from a disability in the ordinary sense of that term, i.e., a psychological injury (albeit then undiagnosed), as a consequence of the earlier train accident. This is the construction of the term adopted by Cameron FM in Hodkinson at 165-166 [145]-[146], namely, “a particular physical or mental weakness or incapacity and to include a condition which limits a person’s movements, activities or senses”. Smith FM in Stephens v APC agreed at 440 [86] that, in the absence of any statutory definition, the word should be construed by reference to its ordinary meaning. However, his Honour further considered at 440 [86]-[87] that:

… that meaning is to be considered in the context of the statutory objects of the provision, which is to proscribe adverse action when taken because the employee has one of a variety of personal attributes which are specified in the section. The section operates in a real world, where an employer might otherwise be tempted to take adverse action by reason of one of these attributes, motivated by a variety of considerations including irrational prejudices or a rational belief that the employer’s business would benefit materially by removing a person with that attribute from its workforce. …

Where it is intended that a ‘physical or mental disability’ may be one of these attributes, it would not, in my opinion, be a proper construction of the words to limit them in an overly refined way to the underlying diagnosed medical or physiological or psychological condition. Some of the inherent consequences of the underlying condition on the personal capacities of the disabled person, including some of the inherent consequences of the medical condition bearing on the employee’s presentation as a person and his or her work performance must be intended to be part of the employee’s ‘disability’. So much, in my opinion, would be consistent with the dictionary definitions’ references to ‘incapacity’ and ‘that limits a person’s movements, activities, or senses’.

124    I agree that the term “disability” cannot be limited to the “underlying diagnosed medical or physiological or psychological condition”. Unless the term included symptoms or manifestations of the disability, the Act may well fail to achieve its object. For example, it may permit adverse action because of its manifestation in an unsightly skin condition. That such manifestations or symptoms are embraced within the term is consistent with the existence of the defence, for example, in s 351(2)(b) of the FW Act excluding adverse action taken because of the inherent requirements of the job. Thus, as Smith FM explained in this regard in Stephens v APC at 441 [88], this “defence” permits adverse action by reason of a disability “where it can be shown that functional or practical effects of a disability are incompatible with the employment of the disabled person.” However, particularly close consideration needs to be given to the reasons of the employer for taking the adverse action where it may not be apparent that the symptom or manifestation is in fact a symptom or manifestation of a disability, as is the case here.

125    In the present case, Mr Flavel had suffered a post-traumatic stress disorder as a result of the train accident and this was the reason why he had felt violently ill at his assessment even though he was not in fact physically ill. There is no doubt that such a condition constitutes a disability under the FW Act. Consistently with the principles to which I have referred, the fact that this condition was not diagnosed before his dismissal is not necessarily an impediment to finding that Mr Flavel was dismissed because of his disability. Furthermore, the primary judge preferred Mr Flavel’s account of the meeting on 29 November 2011 and, in particular, that he had felt ill as a result of being asked to drive the train and considered that he could not safely drive. This being a finding as to the credit of witnesses subjected to cross-examination, the primary judge had an advantage which must be taken into account (see at [78] above). While less force may be given to the primary judge’s advantage in assessing the witnesses, given the delay of over 12 months between the trial and judgment, Mr Alexandrides said that Mr Flavel said that if he was forced to drive the train he would be violently ill and there was incontrovertible evidence that that information had been communicated to others within RailPro before the meeting via the email from Mr Depietro. Furthermore, in the absence of evidence from Mr Yates, I consider that the inference that Mr Yates, to whom the email was copied, was thereby made aware of Mr Flavel’s situation before the meeting could more confidently be drawn in line with the principle in Jones v Dunkel (see above at [95]-[101]). Certainly it was never suggested by RailPro that Mr Yates had not received the message before the meeting. There was therefore a compelling body of evidence which lent support to the primary judge’s finding. Furthermore, as the primary judge found in Flavel (No. 1) at [68], it is improbable that Mr Flavel would not have given the reason that he had declined to undertake the assessment because he felt ill at a meeting dealing with his possible dismissal after he refused to carry out the assessment.

126    However, as RailPro contended below, a disability “does not include ordinary human responses to particular circumstances, such as nervousness”, and knowledge by a lay person that a person feels nauseous and has other feelings typically related to nervousness in a stressful situation like an assessment is likely to fall short of amounting to knowledge of a disability. In this case, in my view the evidence went no higher than to suggest that the decision-makers were aware that Mr Flavel had had an “attack of nerves”.

127    Added to this, it was found by the primary judge or established by unchallenged evidence that:

a)    the statement by Mr Flavel that he felt violently ill when told he could not use his notes was the first manifestation of the disability;

b)    no other symptoms were communicated by Mr Flavel to RailPro;

c)    Mr Flavel elected to sit with the driver after refusing to undertake the assessment rather than take up his offer of retiring to the crew van;

d)    before feeling violently ill at the assessment, Mr Flavel made no claims in the six weeks following the accident to have suffered any ill effects to his employer, made no claims for sick leave or workers compensation, and did not take any days off;

e)    he also denied suffering any ill effects to Mr McNaught and Mr Yates, and had refused any counselling;

f)    nor, despite keeping a watchful eye on him as well as Mr Fischer, were any changes in his behaviour observed by Mr Yates or Mr McNaught.

128    Despite these matters, the primary judge found that the three decision-makers were aware that Mr Flavel had a physical or psychological condition, that resulted in him becoming violently ill when required to drive a train (Flavel (No. 1) at [81]). I consider that that finding was glaringly improbable given the matters to which I have referred and do not consider that the contextual matters to which the primary judge had regard were a sufficient foundation for the finding. Rather the findings and uncontested evidence were such that his Honour should have found that the statutory presumption in s 361 of the FW Act had been rebutted, as, in the absence of knowledge of a disability and, more particularly that Mr Flavel’s behaviour at his assessment was a symptom of a disability, the decision-makers could not be found to have dismissed Mr Flavel because of his disability.

129    As to the contextual matters to which the primary judge seems to have regard at [73]–[79] of his reasons in Flavel (No.1) I find as follows.

130    First, Mr McNaught’s evidence of his awareness through experience of the possibility that accidents may result in the individuals concerned suffering some adverse effects (Flavel (No. 1) at [73]) does not provide a basis for inferring that Mr Flavel had had such a response. Moreover, the examples to which Mr McNaught referred in his evidence were of accidents involving deaths.

131    Secondly, I do not consider that any such inference could be drawn from Mr McNaught’s evidence as to the steps taken with Mr Yates to watch out for possible ill-effects (Flavel (No. 1) at [73]). The primary judge accepted that no behavioural changes had been observed or reported in Mr Flavel’s behaviour in contrast to Mr Fischer (Flavel (No. 1) at [73]-[74]). Indeed, the primary judge found that Mr Flavel “was putting on a brave face after the train crash which he was able to hold onto until he was asked to undertake the test in the early hours of 27 November 2011” (Flavel (No. 1) at [72]).

132    With respect to Mr McNaught’s evidence that he interviewed both employees on a number of occasions about the cause of the accident and discussed with them their personal feelings and whether they suffered any other effects, the primary judge found at [74] of Flavel (No.1) that:

Perhaps not surprisingly, both men said they were okay. Mr McNaught acknowledged that what each of the men told him was not necessarily a good indicator of sound mental health but that, with Mr Yates’ observations, he was confident that both men would ‘recover’.

133    As to the latter, however, his Honour then found that “[i]n my opinion, neither Mr McNaught nor Mr Yates were qualified to give opinions about Mr Flavel’s psychological state” (emphasis added). Having so found, I accept RailPro’s submission that the finding at [81] of Flavel (No. 1) that they were aware of his psychological state is inconsistent with the finding at [74] of Flavel (No. 1). Moreover, the finding that neither were qualified to give such opinions ignores the fact that the question was not whether they were correct in their views of Mr Flavel’s psychological state, but whether the decision-makers were aware that he was suffering from a disability.

134    Equally, the letter from Mr Flavel’s wife may have shown a man under stress and grief, as did his apology, but that does not suffice in my view to establish that his employers were aware that he was suffering from a psychological injury. To infer, as did the primary judge at [76] of Flavel (No.1), that “[u]ndoubtedly, that letter warned the respondent of Mr Flavel’s fragile mental state” again assumes a capacity to differentiate between stress and a disability. Mr McNaught and Mr Yates were already watchful and concerned. Nor was it put to Mr McNaught and Mr Pastore in cross-examination that the letter alerted them to Mr Flavel’s state of mind. The same may be said of the primary judge’s findings that the final warning letter and assessment letter received together in late November 2011 increased that stress.

135    Moreover, the findings by the primary judge as to the pressure and anxiety caused by these letters, with respect, does not take account of the fact that the letters were the end of a process in which Mr Flavel had been kept involved and informed. Thus it was the unchallenged evidence of Mr McNaught that Mr Flavel had been interviewed in the course of the investigation and that such investigations were not conducted in a punitive manner. The assessment letter reflected discussions between Mr Flavel and Mr McNaught at the meeting on 18 November 2011 where Mr McNaught had discussed the findings of the report and they had agreed upon the appropriate course of action to assist him in recommencing his train driving career. That evidence was not challenged but not referred to by the primary judge. The final warning letter and assessment letter also accorded with the theme of the discussion at the meeting on 21 November 2011. It was not as if the correspondence had been received “out of the blue”.

136    In short, as RailPro submits, I do not consider that the evidence can sustain the finding that the decision-makers who lacked, as the primary judge found, qualifications to form a view as to Mr Flavel’s psychological state, were nonetheless aware that Mr Flavel was suffering from a disability at the time he commenced his assessment.

4.6    The challenge to the finding that Mr Flavel was dismissed because of the exercise of a workplace right in contravention of s 340(1)(a) of the FW Act (ground 2A)

137    RailPro contends that the primary judge erred in finding that Mr Flavel was dismissed for a workplace right and ought to have found that he was dismissed because he lacked the inherent ability to undertake his duties and provided no legitimate reason for his refusal to do so (ground 2A, notice of appeal). It relies upon the following matters in submitting that there was no “causal connection” between the exercise of the right to a safe workplace and the termination of employment:

a.    [The primary judge] failed to have regard to the positive treatment of Mr Flavel by Railpro after the first incident, despite the fact that $5 million in damages occurred.

b.    Instead, Mr Flavel was placed on a rehabilitation program and retraining.

c.    [The primary judge] failed to have regard to the lack of complaint by Mr Flavel as to any difficulties with the proposed approach or as to his capacity to perform his work.

d.    [The primary judge] made assumptions in the favour of Mr Flavel without any supporting evidence, but rather relying upon his assumptions.

e.    [The primary judge] failed to have regard to the fact that Mr Flavel was accompanied by two qualified train drivers.

f.    [The primary judge] failed to have regard to the fact that despite having claimed to have become aware of his illness on the day of the assessment he did not seek medical opinion or assistance until approximately one week following his dismissal and after being directed to a doctor by lawyer.

(references omitted; appellant and respondent substituted by party names)

138    In addition, the submissions placed reliance on the fact that Mr Flavel “took no time away from work due to illness between previous accident and the dismissal and the first medical evidence that may support his case was sought after he consulted a lawyer approximately a week after his dismissal. There was no way for [RailPro] to form a view as to safety in the absence of any cogent information.”

139    To a substantial degree, however, these submissions conflate the two contraventions found by the primary judge. The question of whether Mr Flavel suffered from a disability is plainly relevant to the question of whether he was dismissed for that reason. However, the finding that he was dismissed because he had exercised a workplace right, being his responsibility under s 21 of the OHSW Act to take reasonable care to protect his health and safety at work and that of others, does not rest on whether he had a disability or on whether the decision-makers considered that he had a disability.

140    Nor, in my view, do the submissions reflect the way in which RailPro put its case at trial. They also fail to grapple with the presumption in s 361 of the FW Act and the fact that it is sufficient under s 360 if the proscribed reason is one among a number of reasons.

141    In this regard, it will be recalled that the letter of termination gave two reasons for terminating Mr Flavel’s employment:

a)    Mr Flavel’s refusal to allow the assessment to be conducted “without reasonable excuse”; and

b)    his failure to achieve the required level of competence to fulfil the inherent requirements of the job.

142    Central to RailPro’s case in support of the first ground was acceptance of the evidence of Mr McNaught and Mr Pastore that Mr Flavel did not give the fact that he felt violently ill and did not consider it safe to drive as the reason for refusing to take the assessment at the meeting on 29 November 2011. In fact, they denied that there was any mention of these matters by Mr Flavel at the meeting. As counsel for RailPro submitted in closing address in the Court below:

We agree that dismissing Mr Flavel was adverse action. What we disagree about is the motivation. And the difficulty we have, of course, is that under section 361, there’s a reversal of the onus of proof, and we concede that Mr Flavel has met the test of putting up an assertion or an allegation that he has been subjected to an adverse action for a proper [sic] reason, and, therefore, on the balance of probabilities, we must establish that that’s not true.

… Our case is that Mr Flavel no doubt said that he was not feeling well or he was ill. There’s no doubt that’s communicated to some persons within the company. But when Mr Flavel has the clear opportunity and knows that his job is on the line, he doesn’t say headache, he doesn’t say sweating profusely, he doesn’t say violently ill, he says nothing. And if he won’t take the chance to save his job, that’s not the employer’s fault. The employer is not a doctor. If it had been – and this is the irony of this case, if you don’t mind me saying – if it had been that he gone in and said, ‘Look, I got into the cabin, I felt violently ill; I was sweating; I had a terrible headache,” then, yes, the employer would be well alerted that there’s a problem that needs to be dealt with other than by dismissing him.

But instead, he attended. He had two sets of interviews, including the discussion with Mr Pastore outside the building, and he raised nothing. Now, that’s a factual dispute, of course, between the parties. But on our evidence, he didn’t tell us enough information to give us any – any view – reason to think that he was suffering from a disability, and we dismissed him because he didn’t take the test, against the background of six weeks before causing $5 million damage.

143    The evidence of Mr McNaught, however, that “it would have made a difference” if Mr Flavel had told them at the meeting that he would be violently ill if required to drive implicitly accepted that this would have been a reasonable explanation. That evidence is consistent with the statutory obligations upon Mr Flavel under s 21 of the OHSW Act, and upon SBR and Mr Flavel under ss 28(2)(b)(i) and 71 of the Rail Safety Act (see at [14] and [30]-[32] above). It is also consistent with Mr McNaught’s evidence that employees were required under company policy to say if they were unfit for their duties whereupon they would be told to go home.

144    There was therefore no alternative case put by RailPro in support of the first ground for dismissal which could have rebutted the statutory presumption in s 361 of the FW Act. Accordingly, success on ground 2A of the notice of appeal challenging the finding that the dismissal contravened s 340(1) of the FW Act turns upon whether or not RailPro can successfully challenge the primary judge’s findings as to what was said at the meeting. It does not suffice to challenge the primary judge’s rejection of competency as a reason for the dismissal because it is sufficient if the proscribed reason is only one of a number of operative reasons (s 360, FW Act).

145    For the reasons I have earlier given, I do not consider that the primary judge erred in accepting Mr Flavel’s account. It follows that ground 2A of the notice of appeal must be dismissed.

4.7    The finding that competence was a concern but not a reason

146    Nonetheless, if the primary judge was wrong to find that competence was not a reason, that may be relevant to penalty. For this reason, I consider it appropriate to deal with the question of whether, as RailPro submits, the primary judge erred in failing to find that competence was a reason.

147    The primary judge did not accept Mr McNaught’s account of what happened at the dismissal meeting as the whole truth (Flavel (No. 1) at [83]). Rather, having found that the decision-makers were aware of the illness and that treatment may not cure the condition, his Honour found that, while competency was a concern, it was not a reason for Mr Flavel’s dismissal (Flavel (No. 1) at [85]).

148    The critical passages are at [83]-[84] of his Honour’s reasons in Flavel (No.1):

83.    ...If competence as a driver were the decisive factor in Mr McNaught’s mind in deciding whether or not to dismiss, it seems strange that Mr McNaught did not get to the bottom of why this man, who had been a train driver for some 37 years, was now indicating that he would (or could) not drive with or without his notes. It is to be remembered that Mr Flavel had been employed by the respondent on a permanent basis after a three month trial period. He had been working for the respondent for many months prior to the accident without the respondent apparently having any concerns about his performance. If the respondent had wanted, say a 12 month trial period for Mr Flavel, they should have raised that with him before he was employed.

84.    If Mr McNaught was saying that he wanted Mr Flavel to drive without his notes and that Mr Flavel said that he would not, I would have expected the respondent to have taken steps to teach Mr Flavel to be able to drive without notes. No explanation has been provided by the respondent as to why this would not have been the appropriate step to take. Such training does not appear to have been a topic discussed at the dismissal meeting. I would have expected it to be a major topic discussed if it really was a major concern for the respondent. The fact that it was not discussed lends support to the conclusion that the ability to drive without notes was not an important consideration in the context of whether or not Mr Flavel should be dismissed.

149    I consider that, in finding that Mr Flavel’s competency was not a reason for his dismissal, the primary judge failed to give a proper consideration to the strength of RailPro’s evidence and the evidence on which the finding rests is slight (see at [78](d)] above). In particular, as RailPro emphasises in its submissions:

a)    Mr Flavel and Mr Fischer were kept on after the accident in line with Mr McNaught’s recommendations despite Mr McNaught’s evidence that he considered that the findings in the report as to the causes of the accident would have constituted sufficient warrant to dismiss both employees and despite the extent of the loss caused by the accident;

b)    a process was put in place (also in line with Mr McNaught’s recommendations) in order to enable Mr Flavel to recommence his railway career and ensure that he was competent – a process which had been discussed with Mr Flavel and to which he agreed at the meeting on 18 November 2011, including that the route chosen for the assessment was the route which he felt confident to undertake; and

c)    both Mr Flavel and Mr Fischer were offered counselling and support by RailPro.

150    In relation to (b), it will also be recalled that the primary judge made no reference to the meeting on 18 November 2011.

151    Moreover, the primary judge made no reference to the unchallenged evidence of Mr McNaught as to the obligations upon SBR to ensure and assess the competence of the train drivers driving its locomotives under the Rail Safety Act and Regulations and Mr McNaught’s uncontested evidence of RailPro’s policies and procedures in compliance with those obligations. In this regard, the seriousness of the risk to RailPro and others if drivers in charge of heavy and lengthy locomotives are not competent was not in issue and is obvious. Mr McNaught also had very substantial experience in safety management and there is no reason to suggest that he and the other decision-makers would not have taken those duties very seriously.

152    Nor do I consider that the inferences drawn by his Honour in Flavel (No. 1) at [83]-[84] were correctly made. In particular, with respect, they do not take into account the fact that Mr Flavel was still engaged as a trainee driver because he was still learning the routes on which RailPro operated. It will be recalled that the notes which Mr Flavel described taking were of those kinds of features relevant to route knowledge, included how the train operated at particular locations on the track. The fact that he had been a driver for 37 years did not equip him with that knowledge. Moreover, the assessment process agreed with Mr Flavel was directed precisely towards training him in that knowledge by providing for him to continue to travel on the assessment route before being assessed. His Honour’s reasons also take no account of Mr McNaught’s evidence as to his concerns at Mr Flavel’s inability to operate without notes over a route that he had taken twenty-one times, as against his evidence that three trips was the minimum number before a driver was assessed and a reasonable number to learn the road. Furthermore, as I have earlier explained, while Mr Flavel clearly took issue with the need for the policy that drivers drive without notes and pointed to a different practice adopted by a different company, the evidence of RailPro that that was not its policy was not challenged (see at [54]-[55] above).

153    In those circumstances, the inference that the ability to drive without notes was not an important consideration in determining whether Mr Flavel should be dismissed was wrongly drawn.

154    It follows for these reasons that the finding that competence was not an operative reason for the dismissal failed to take account of the real strength of RailPro’s evidence, is based upon evidence that is too slight and is contrary to compelling inferences.

4.8    Errors alleged in the calculation of compensation (ground 8)

4.8.1    Background

155    Sections 340(1) and 351(1) of the FW Act are civil remedy provisions under Part 4-1 of the FW Act: see item 11 of the table in s 539(2). Those persons with standing to bring an action for a contravention of these provisions plainly extend to Mr Flavel (item 11, column 2). Orders which may be made by the Federal Circuit Court and the Federal Court under s 545(1) include an order awarding compensation for the loss suffered by the person because of the contravention (s 545(2)).

156    At the trial, Mr Flavel gave evidence that he still had no capacity to operate a train and was unable to say whether, if ever, he could do so. He was receiving various medications at the time of trial which had some side effects including headaches, dizzy spells and impacted on his memory. While he did not consider that the side effects were severe, he accepted that there were limitations on persons being allowed to operate trains who are taking medication.

157    In his written submissions at trial, Mr Flavel sought the sum of $61,321.21 for past economic loss for the period 30 November 2011 until 17 August 2012. He also sought future economic loss of $500,252.48 and general damages in the sum of $40,000.00. The total damages claimed was in the sum of $601,573.69.

158    RailPro, however, submitted that Mr Flavel “has no ability to demonstrate that anything has changed that would enable him to drive a train safely. Further, he states that he will never be able to drive a train again.” In the circumstances, RailPro submitted that he suffered no loss as he was incapable of carrying out the duties that would otherwise generate his income or that, at most, he would be entitled to the balance of his sick leave.

159    Judgment was reserved on 17 August 2012 and delivered on 29 August 2013. At that point, the primary judge declared that ss 340(1) and 351 had been contravened but otherwise considered that, as it had been some time since the matter was heard, further submissions on the question of relief should be heard. That occurred on 17 September 2013.

160    At that hearing, Mr Flavel’s counsel informed the Court below that reinstatement was no longer sought. In the course of the short hearing, counsel for RailPro said that:

MR MANUEL:… I don't think there's any need for further evidence, except perhaps – – –

HIS HONOUR: I wouldn’t be calling any further evidence.

MR MANUEL: I’m happy to take from the bar table my learned friend’s statements as to any income received since the hearing, because there has been workers compensation payments received.

HIS HONOUR: You haven’t been able to reach any agreement about that?

MR MANUEL: No. There have been attempts to do so, your Honour, as I understand. I haven’t personally been involved in them, but I understand Mr Wright and my instructors have been attempting to resolve it but it hasn’t got to that point I’m afraid.

161    Mr Wright for Mr Flavel then sought to lead a further psychiatric report from Dr Bem stating that “[t]he issue with this, your Honour, is the workers compensation and what portion of that – whether all or part should be taken into account for past economic loss.” However, the report was not tendered at trial, and the primary judge made it clear that he would not receive the report or any further evidence, but would decide the quantum of damages on the evidence before him at trial.

162    The topic of updating the evidence as to the making of workers compensation payments was not revisited during the course of the hearing.

4.8.2    The award of compensation in Flavel (No. 2)

163    In Flavel (No. 2), the primary judge found that the evidence shows that it is likely that Mr Flavel would have been able to return to work as a train driver (whether for RailPro or some other suitable employment) in or about January 2012. The primary judge took into account Mr Flavel’s duty to mitigate his loss by taking steps to obtain other suitable employment, finding that it would be likely to take some time for him to do so, and, on this basis, that Mr Flavel’s loss would be of the order of six months’ wages. Taking into account that Mr Flavel was receiving a salary of approximately $140,000 per year, the primary judge considered that $70,000 was an appropriate sum for Mr Flavel to receive for his economic loss.

4.8.3    The error in calculating compensation for economic loss

164    The evidence upon which the primary judge apparently relied in finding that it is likely that the applicant would have been able to return to work as a train driver in or about January 2012 is the report of Dr Bem to which he had referred to in the preceding paragraph (Flavel (No. 2) at [14]). However, Dr Bem’s report is stated to be based upon his review of Mr Flavel on 19 July 2012 and, while the report itself is undated, it was provided under cover of a letter dated 2 August 2012. As such, when Mr Bem stated in his report that he considered that “[w]ith assertive treatment I envisage him making a return to train driving duties within the next 3 to 6 months”, he was not speaking of a return to work at some date in the past in or about January 2012, but January 2013.

165     Mr Flavel submitted on the appeal that the reference in Flavel (No. 2) at [15] to the applicant being able to return to work “in or about January 2012” appears to be a typographical error and was intended to be January 2013. The difficulty with that submission, however, is that his Honour then calculates compensation for a six-month period commencing in November 2011 when Mr Flavel was dismissed. As such, it is apparent that the primary judge has calculated compensation on the mistaken view that Dr Bem’s opinion was that Mr Flavel would been able to return to work within 3-6 months of the accident occurring. It may be that the misunderstanding arose because Doctor Bem’s report features the date of injury, 11 October 2011, prominently on the first page of the report. Nonetheless, in the circumstances, there is no option but to remit the matter to the primary judge for reconsideration as to the compensation, if any, to be awarded.

166    Notwithstanding that the appeal must therefore be allowed on this ground, I make the following observations in relation to certain of the remaining grounds of appeal.

4.8.4    RailPro’s submission that Mr Flavel suffered no economic loss as a consequence of the alleged adverse action and that his losses were caused by the accident

167    RailPro contends that the primary judge erred in calculating compensation by failing to have regard to the need for connection between the adverse action and the loss. This submission is related to the contention at the trial that there was no loss suffered by Mr Flavel because he was incapable of discharging the inherent requirements of his position by reason of the illness suffered by him as a consequence of the accident.

168    Section 545(2)(b) of the FW Act provides that a court may make “an order awarding compensation for loss that a person has suffered because of the contravention” (emphasis added). It is apparent from the terms of the provision, and particularly the use of the words “because of the contravention”, that there must be a causal link between the loss and the contravention. In my view, the provision should be understood as picking up the common law practical or common-sense concept of causation as explained in March v E & M. H. Stramare Pty Limited (1991) 171 CLR 506; Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526 (ALAEA v IASA) at 592 [423] (Barker J); see also Wardley Australia Limited v Western Australia (1992) 175 CLR 514 at 525 where that concept was applied in the context of the statutory cause of action created by s 82(1) of the (now repealed) Trade Practices Act 1974 (Cth). The primary judge correctly recognised at [10] in Flavel (No. 2) that it was important to bear in mind that the applicant is to be paid compensation for the dismissal and not for the accident.

169    In my view, a consideration of the question of causation must take into account the unchallenged evidence of Dr Tingay, psychiatrist, in her report dated 21 February 2012. Specifically, Dr Tingay considered that:

His functioning has also deteriorated alarmingly since he was dismissed. If his WorkCover claim is successful, it would be important to see whether he can be rehabilitated back to work with this employer, optimally to driving trains, but he himself believes that politically this would not be possible. This may be a factor of his depression. However, looking at his work history, he has had other positions, including managerial ones. He needs hope that he will be held to work again. In any event, he seems to have excellent support from yourself and from his psychologist. He needs to now recover and deal with the process.

170    As such, Dr Tingay’s evidence supports the proposition that Mr Flavel suffered economic loss by reason of the dismissal because the dismissal itself contributed to the deterioration in his condition. That being so, it can be inferred that his mental condition may have improved, or at least not deteriorated to the same degree, if he had been kept on. The question of the extent of any such law will be a matter for the primary judge on the remittal.

4.8.5    The failure to take account of workers compensation payments in calculating loss

171    In the alternative, RailPro submit that if Mr Flavel suffered loss, he failed to lead appropriate evidence to prove that loss. In particular, RailPro submit that he was in receipt of workers compensation payments but no detail was provided after 27 June 2012 notwithstanding the obligation on Mr Flavel to demonstrate mitigation of his losses.

172    Mr Flavel gave evidence that he claimed workers compensation after he had been dismissed. More specifically, he gave evidence as follows:

And you’re receiving WorkCover payments; is that right? – – – Yes.

And I think I probably should, for the benefit of the court, just set out – have you been subjected to the new regime of your full payment, then after three months, reduced to – – –? – – – Yes.

– – – 90 per cent, then after three months, to 80 per cent? You’ve – that has been impacted upon you? – – – Yes.

Have you been in a position to apply for any other jobs, forgetting trains, just any other jobs at all? – – – No, my medical team have not cleared me for that at this point.

What about retraining, in the sense of a TAFE course, or something along those lines? – – – That is on the agenda in the plan for rehabilitation.

Right? – – – In the future, that may be considered. They’re still working towards that.

So I guess what we’re saying is obviously you want to be rehabilitated? – – – Yes.

But the timing of that rehabilitation is going to depend upon the condition? – – – Yes.

173    Evidence was also given by Mr Flavel of the receipt of weekly workers compensation payments and the amount of those payments for the period 24 December 2011 to 27 June 2012. That being so, in my opinion the primary judge clearly erred in failing to discount the award of damages by reference to these workers compensation payments which mitigated the loss suffered by Mr Flavel.

174    In addition, it is apparent from the transcript of the hearing on 17 September 2013 that the parties intended that the primary judge would act upon updated information on workers compensation even though they were unable to agree upon the amount prior to the hearing. While the parties did not ultimately provide the Court with updated details as to the amount of workers compensation, that would appear to be referrable to the fact that the primary judge made it clear at the hearing of submissions on quantum that he would not receive any further evidence. In those circumstances, given the delay between the trial and the delivery of judgment on liability, I consider that the refusal to permit further evidence to be led to this extent constituted a denial of natural justice.

4.8.6    The challenge to the award of damages for hurt and distress

175    The primary judge also allowed the sum of $25,000 for the non-economic component of Mr Flavel’s compensation, namely for the distress, hurt and humiliation suffered by Mr Flavel resulting from his dismissal. In reaching the view that this was an appropriate figure for this head of loss, his Honour held simply that “[b]earing in mind that the applicant was in a vulnerable state at the time that the dismissal occurred, I believe that the distress, hurt and humiliation would be felt more acutely than would otherwise have been the case.” (Flavel (No. 2) at [16]).

176    There was no issue between the parties that the Court has power to award damages in respect of hurt, distress and humiliation shown to be a direct consequence of a contravention: ALAEA v IASA at 594-596 [442]-[450] (Barker J). Such an award should have regard to confining compensation within reasonable limits: McIlwain v Ramsey Food Packaging Pty Ltd (No 4) [2006] FCA 1302; (2006) 158 IR 181 (McIlwain) at 213-214 [87] (Greenwood J). Consistently with this, something more than the usual element of distress accompanying most terminations must be shown, although the notion of “unusual and exacerbating circumstances” is not necessarily the test: ibid. What is reasonable should take account of the objects of the Act and may include compensation for mental distress or injured feelings caused by a harsh, unjust or unreasonable termination of employment: ibid.

177    RailPro contend that in so finding the primary judge erred. In particular it submitted that the primary judge failed to:

Rely on appropriate evidence, as opposed to his personal belief, in determining a noneconomic component well in excess of that ordinarily awarded in comparable matters;

i.    It is insufficient to complain of the type of distress that ordinarily accompanies most terminations [citing McIIwain and Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144].

ii.    There is an assumption that an employee will display some level of robustness, and not every matter will lead to compensation [citing Fair Work Ombudsman v Cleaners New South Wales Pty Ltd [2009] FMCA 683; (2009) 186 IR 467].

iii.    The personal belief related to a matter psychiatric impact, but arising not from the workplace right but the previous incident;

iv.    The personal belief was not a finding based on evidence, but on personal and non-expert understanding;

v.    Awarding $25,000 the higher level, with only superficial reasons, including the prior accident;

178    The reasons in Flavel (No. 2) set out at [175] above do not sufficiently expose the reasons for so high an award of $25,000 for distress, hurt and humiliation and, it can be inferred, took into account the finding that the decision-makers were aware of Mr Flavel’s mental illness. As such, I consider that the exercise of discretion erred in being based upon a wrong finding of fact and should be set aside.

179    Nonetheless I consider that the circumstances do warrant an award for distress, having regard to a number of factors. In particular, the dismissal meeting occurred without prior notice to Mr Flavel immediately upon his return to Adelaide from the trip on which he had, to the decision-makers’ knowledge, felt compelled to refuse to drive the train and undergo the assessment because he felt violently ill. It also occurred in circumstances in which it was not realistically possible for Mr Flavel to arrange for the presence of a support person at the meeting. The deterioration in his mental condition after his dismissal is also suggestive of the distress and hurt which he felt upon being dismissed, notwithstanding that RailPro were aware at the time from the letter from Mr Flavel’s wife and his letter of apology that he was upset about the accident. In those circumstances, I consider that an award of $7,500.00 is an appropriate award for distress and hurt consequential on his dismissal.

4.9    Error in imposing any pecuniary penalty (ground 9 and grounds in cross-appeal)

180    The Court may also order payment of a pecuniary penalty which the Court considers appropriate if satisfied of a contravention (s 546(1)). Under s 546(2), the pecuniary penalty “must not be more than”:

(a)    if the person is an individual—the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2); or

(b)    if the person is a body corporate—5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2).

181    The applicable penalty units here were 60 penalty units (s 539(2), item 11, FW Act) multiplied in accordance with s 546(2) of the FW Act.

182    As explained at [8] above, there is no issue that the primary judge erred in calculating the penalty as if RailPro were an individual. It is apparent from my findings that the basis on which the pecuniary penalty was imposed has changed. The orders purport to impose the penalty for the contravention of s 351(1) in respect of which I have allowed the appeal (albeit that the reasons refer to the penalty being imposed for the contravention of s 340). Furthermore, I have set aside the primary judge’s finding that competence was not a reason for the decision to dismiss Mr Flavel notwithstanding that I also consider that the presumption under s 360 of the FW Act that the exercise by Mr Flavel of a workplace right was a reason for dismissal was not rebutted and that reason must also be taken to have been a substantial and operative reason. In those circumstances, I consider that the question of the penalty to be imposed, if any, should be remitted to the primary judge.

5.    CONCLUSION    

183    For these reasons, the appeal is allowed in part and the cross-appeal is allowed. I have also reserved the question of costs in order to give the parties the opportunity to make submissions on costs, if they are not agreed. The parties are to prepare draft orders otherwise to give effect to these reasons.

Associate:

Dated:    22 May 2015