FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Limited [2015] FCA 1014

REASONS FOR JUDGMENT

INTRODUCTION

1    Until November 2014, Mr Alan Scott was employed by Clermont Coal Pty Limited (Clermont Coal) at its coal mine located near Clermont in Central Queensland. On 14 October 2014, Clermont Coal delivered a written notice to Mr Scott advising him that it had declared his position redundant and, as a consequence, he was to be dismissed from his employment effective from 14 November 2014. This redundancy was compulsory.

2    At that time, Mr Scott was the President of the recently formed Clermont Open Cut Lodge (the Lodge) of the Construction, Forestry, Mining and Energy Union (CFMEU).

3    About a month after Mr Scott’s termination took effect, the CFMEU commenced this proceeding claiming that Clermont Coal’s decision to declare Mr Scott’s position redundant and to terminate his employment was made in breach of various provisions of the Fair Work Act 2009 (Cth) (the FWA). It sought relief based upon those alleged breaches. A short time later, the CFMEU obtained leave to amend its originating application to add Mr Scott as the second applicant and to add some further claims for relief on his behalf personally, the most significant of which was a claim that Clermont Coal had taken adverse action against him in breach of ss 340 and 346 of the FWA by dismissing him.

THE FACTUAL BACKGROUND TO MR SCOTT’S CLAIMS

4    Before identifying the main issues in this proceeding, it is convenient to outline the factual background to Mr Scott’s claims. In doing so, I make the following findings of fact. I should add that, for ease of reference in these reasons, unless the context requires otherwise, I will refer to the claims of both the CFMEU and Mr Scott as Mr Scott’s claims.

The Clermont Mine

5    Clermont is situated in the Bowen Basin in Central Queensland. It is a town of approximately 2,500 people. The Clermont open-cut coal mine (the Mine) is located about 12 kilometres from the township. It is a large-scale open-cut coal mine. Mining operations commenced at the Mine in mid-2008. At that time, it was managed by Rio Tinto Coal Australia Pty Ltd (Rio Tinto Coal) on behalf of Clermont Coal.

6    Prior to the restructuring of the workforce at the Mine in late 2014 (see at [29] below), there were approximately 730 employees and permanent contractors’ employees working there. After the restructuring, that number was reduced to approximately 616.

7    During 2012, Clermont Coal negotiated an enterprise agreement with its employees. That agreement was subsequently adopted. In early December 2012, it was approved by the Fair Work Commission. It came into operation on 12 December 2012. It is referred to throughout these reasons as the 2012 Enterprise Agreement.

8    The 2012 Enterprise Agreement applied to all the Clermont Mine employees who performed production and engineering roles at the Mine. Before the restructuring of the Mine’s workforce mentioned above, it applied to approximately 454 employees and, after the restructuring, that number was reduced to approximately 390.

9    In about October 2013, Rio Tinto Coal announced it intended to sell its interests in the Clermont Mine to Glencore Xstrata Plc and its joint venture partners. Approximately eight months later, in June 2014, the management of the Clermont Mine was transferred from Rio Tinto Coal to Glencore. However, despite this change in the managing corporation, the majority of the Clermont Mine’s management personnel remained the same.

Mr Scott’s employment history

10    Mr Scott had been working as an operator in coal mines in Central Queensland for about a decade before his dismissal in November 2014. From about 2004 to about mid-2008, he worked as an operator at the Blair Athol coal mine, which is also located a short distance from Clermont. That mine closed in about March/April 2008, at which time he applied for a position at the Clermont Mine. It was about to commence operations.

11    In July 2008, Mr Scott commenced employment at the Clermont Mine. Prior to commencing, he received a letter offering him a position as a Heavy Mobile Plant operator. Attached to that letter was a document entitled “Conditions of Employment Clermont Coal Pty Ltd”.

12    Mr Scott subsequently accepted this offer of employment and commenced work at the Mine on or about 28 July 2008. From that time onwards, he worked as an operator in differing roles, under various supervisors, and with varying shift arrangements. Initially, he worked on the Overburden Crew supervised by Mr Pat Stephens, the Overburden Supervisor. Thereafter, he worked on the Coal Crew supervised by Mr Casey Nona. In both these crews, he was operating items of heavy equipment, including dozers, loaders, trucks and graders. Then, from approximately February 2011, he worked as an operator in the water management section of the Mine on one of the two Pump Crew Panels, reporting to Mr Darren Bryant, the Supervisor – Coal Operations. He remained with Pump Crew Panel 2 until the time of his dismissal. Initially, in that position, his supervisor was Mr Luke Hincksman. This changed to Mr Kevin Fry from approximately mid-2012.

The CFMEU and Mr Scott’s involvement with it

13    The CFMEU is a registered organisation under the Fair Work (Registered Organisations) Act 2009 (Cth), and is an employee organisation and an industrial association as defined in s 12 of the FWA. As such, it is entitled to represent the industrial interests of employees of Clermont Coal. By about 2013, it had approximately 150 members at the Clermont Mine.

14    Mr Christopher Brodsky was the particular official of the CFMEU who had the most direct involvement with the restructuring process at the Clermont Mine. He is the District Vice-President of the CFMEU Mining and Energy Division, Queensland Branch.

15    Mr Scott became a member of the CFMEU in about December 2006 when he was employed at the Blair Athol mine. In late 2011, by which time he was working at Clermont Coal, he started attending union meetings. During 2012, he was appointed as a CFMEU delegate at the Clermont Mine. To carry out that role, he undertook training as a union delegate in late 2012.

16    As is already noted above, at the time of his termination, Mr Scott was the President of the Lodge of the CFMEU. He was elected to that position in August 2014. He was also a member of the Lodge Committee.

Mr Scott’s work performance reviews

17    Under both Mr Scott’s conditions of employment and the 2012 Enterprise Agreement, Mr Scott was required to take part in regular work performance reviews (WPR). These reviews occurred twice a year: a mid-year review and an end-of-year review. They were undertaken by Mr Scott’s supervisor from time to time.

18    In 2013, the mid-year WPR was the first review to be undertaken after the commencement of the 2012 Enterprise Agreement. That WPR was delayed because the training that was to be provided to both supervisors and employees under the 2012 Enterprise Agreement had not been provided. That training was eventually provided in late August/early September 2013. Coincidentally, there was a change in the practice that was followed in conducting a WPR. Under the new practice, the form that was used to conduct the WPR was first provided to each employee to allow them to make their comments on their work performance. Following that, the employee’s supervisor was to insert their comments on the form, and that was to be followed by a meeting between the supervisor and the employee to discuss any such comments and to carry out the performance review proper.

19    As his current supervisor, Mr Fry conducted Mr Scott’s mid-year and end-of-year WPRs in 2012 under the former practice. In 2013, he conducted both WPRs under the new practice. However, Mr Scott did not comment on his work performance during his mid-year 2013 WPR, as required by that practice, because of the lack of training mentioned above. It appears that this 2013 WPR form was not signed off by Mr Fry until 20 March 2014. Mr Scott signed it on or about 1 June 2014. Whilst the process had begun, neither WPR for 2014 appears to have been completed by the time Mr Scott’s employment was terminated.

Three work incidents involving Mr Scott

20    During Mr Scott’s employment with Clermont Coal, there were at least three incidents that took on some significance in this proceeding. They were:

(a)    In April 2013, Mr Scott was required to attend a meeting with Mr Andrew Christensen, the Superintendent Support Services; Mr Fry, his supervisor; and Ms Trudi Liekefett, a Human Resources Adviser at Clermont Coal. The purpose of that meeting was to discuss a perceived conflict between Mr Scott’s union duties and his duties as a member of the Pump Crew. One proposal raised for consideration during the meeting was to transfer Mr Scott from the Pump Crew, where his absence on union duties would not have the same impact. After that meeting, Mr Scott sent a letter dated 8 April 2013 to Mr Christensen complaining that he had “done nothing wrong” and that, when he was required to attend to his union duties, “I have always informed my supervisor as soon as practicable and will continue to do so now and into the future”. When Mr Scott did not receive a reply to this letter, he sent a follow-up letter, this time directing it to Mr Ben Myall, the Acting Mine Manager. Mr Scott subsequently attended a meeting with Mr Christensen, Mr Rossco Kumeroa (a union organiser) and Mr Myall, where the issue was resolved amicably. Thereafter Mr Scott remained employed as a member of the Pump Crew.

(b)    On 6 October 2013, Mr Scott, Mr Nicholas Bannerman and Mr Darren Cook, all members of the Pump Crew Panel 2, were involved in an incident at the Mine when a light pole was hit and damaged by a piece of equipment they were using. As a result of this incident, Mr Scott’s then supervisor, Mr Fry, had a formal discussion with him and a Record of Discussion was placed on his employee file.

(c)    In approximately June or July 2014, Mr Scott was approached to undertake the S1, S2, S3 training qualifications. Those qualifications would have allowed Mr Scott to act as a supervisor on the Pump Crew. Mr Scott declined to do so because he claimed that there would be a conflict with his union-related activities if he were to act as a supervisor.

Mr Scott’s union activities at the Clermont Mine

21    From the time he was appointed a CFMEU union delegate in 2012, Mr Scott became increasingly involved in a range of union activities at the Clermont Mine. In March 2012, he took responsibility for an issue relating to the Eurest Support Services camp (ESS camp) at the Mine. He gathered comments from employees about conditions at the ESS camp and the quality of the food served there. He submitted those complaints to the management at Clermont Coal and, as a result, improvements were made to the ESS camp facilities from about May 2012.

22    In 2012 and 2013, Mr Scott acted as a representative for various employees in connection with disputes they had with the management at the Mine. His representative activities included the following:

(a)    In September 2012, he acted for Mr Montse McMahon, who was under investigation. He made representations on his behalf to Mr Peter Dwyer, the then Superintendent of Haulage.

(b)    In December 2012, he acted for Ms Nicole Bancroft in relation to certain negative comments contained in her WPR. In that matter, he dealt with the Haulage Superintendent subsequent to Mr Dwyer (above).

(c)    In February 2013, he acted for Ms Danielle Huston, who had received a final warning. In that matter, he dealt with Mr Ryan Harnden, the then Manager of Operations.

(d)    In April 2013, he represented Ms Glynis Sabbo in relation to her proposed Performance Improvement Plan. In that matter, he dealt with Mr Joad Fardell, the Drill and Blast Supervisor, and Mr Dan Hartwig, the Superintendent of Drill and Blast.

(e)    Also in April 2013, he acted for Mr Peter Richardson in relation to allegations about an unacceptable level of risk in his health assessment. In that matter, he dealt with Mr Myall, the then Acting Manager of Operations, and Ms Katie McDermott, the then Manager of Human Resources at Clermont Mine.

(f)    In July 2013, he acted for Ms Peta Rovelli, who had received a final warning. In that matter, he dealt with Mr Harnden (above), and Mr Doug Vivian, the Superintendent of Haulage.

(g)    At an unspecified date in 2012 or 2013, he acted for Ms Alison Tobey regarding her return to work from a knee operation. In that matter, he dealt with Mr Wayne Fleming.

23    In addition to acting in a representative capacity as a CFMEU delegate, Mr Scott was involved in other union activities. In November 2012, he actively campaigned for a “no” vote on behalf of the union in the ballot to adopt Clermont Coal’s proposed Drug and Alcohol policy. His campaigning included erecting signage on trees in and around Clermont advocating a “no” vote.

24    During 2012, Mr Scott also campaigned for a “no” vote in the ballot to adopt the 2012 Enterprise Agreement. While the precise nature of his role is in dispute, it is not in dispute that he was actively involved in negotiations related to that Enterprise Agreement with various members of Clermont Coal’s management team, including Mr Harnden and Mr John Martin.

25    In about January 2013, Mr Scott was involved in a review of Clermont Coal’s Fitness for Work Alcohol and Other Drugs Fatigue Management policy. This review required him to meet with various representatives of Clermont Coal’s management team, including Mr Mark Currie, the Manager Plant and Services.

26    In September 2013, Clermont Coal announced that it would commence negotiations for a new enterprise agreement to replace the 2012 Enterprise Agreement. As with the 2012 Enterprise Agreement, while the exact nature of Mr Scott’s role is in dispute, it is not in dispute that he was actively involved in those negotiations. They commenced in early October 2013 and thereafter Mr Scott attended approximately 14 meetings as a part of the negotiation process. Mr Scott also acted as a scrutineer for the unsuccessful ballot for the adoption of that Enterprise Agreement, which was conducted in May 2014. Mr Dawid Pretorius, the General Manager of the Clermont Mine (see at [27] below), Mr Currie and others were present with Mr Scott during the scrutineering process.

Mr Dawid Pretorius – the General Manager of the Clermont Mine

27    Mr Pretorius is, as mentioned above, the General Manager of the Clermont Mine. He has held that position since 1 May 2011. Since February 2012, he has also been the designated Site Senior Executive at the Mine.

28    He was the person who made the ultimate decision to dismiss Mr Scott.

The restructuring of the workforce at the Clermont Mine

29    On 1 September 2014, Clermont Coal announced that it intended to conduct a restructuring of the workforce at the Mine, which would result in a reduction of approximately 100 of the number of full-time equivalent employees and subcontractors working at the Mine. At that time, the number of employees within the various sections of the Mine’s workforce who would be affected was estimated to be:

(a)    Operations (Mining and Plant) – 66;

(b)    Maintenance – 15;

(c)    Staff – 20.

30    The decision to undertake this restructuring was, according to Mr Pretorius, caused by a number of factors including the “historically strong Australia (sic) dollar, lower coal prices and a weak tonnage market”. As a result of these factors, Mr Pretorius said that the Mine was “experiencing a high level of operating cost pressure”.

31    On the day that the restructuring was announced, Clermont Coal issued a memorandum to its employees entitled “Clermont Open Cut Voluntary Redundancy 2014”. That memorandum offered the opportunity for any employee working in the mining or infrastructure departments of the Mine to take a voluntary redundancy. An “Application for Voluntary Redundancy” form was attached to the memorandum. The memorandum stated that that form was required to be completed and submitted by Friday, 12 September 2014.

32    As a part of the restructuring announcement, Mr Pretorius called a State of the Nation meeting at the Clermont Mine on 1 September 2014. During State of the Nation meetings, the practice was for production to cease at the Mine and for all employees to attend the meeting. At that meeting, Mr Pretorius announced, among other things, that the redundancy process would take place over the following four to six weeks and, as a first step in the process, voluntary redundancies would be offered to those who wished to accept them.

33    State of the Nation meetings were also held on 22 September 2014 and a series of such meetings was held between 9 and 14 October 2014. In addition, consultation meetings were held on 9 September, 19 September, 25 September and 1 October 2014 as a part of the redundancy process. Mr Scott attended each of these meetings, although he did not take on a significant role during them.

The redundancy selection criteria

34    After the announcement on 1 September 2014, Mr Brodsky, Mr Scott and others corresponded with Mr Pretorius and others in the management of Clermont Coal by email and memorandum. As a part of that exchange of correspondence, Mr Pretorius sent a letter to Mr Brodsky dated 23 September 2014 enclosing a memorandum entitled “Consultation and Information relating to Restructure”. That memorandum set out three steps that were to be taken in the redundancy process. Mr Pretorius said in his evidence that the redundancy selection criteria were finalised on about 19 September 2014, approximately four days before the date of this memorandum. The three steps were:

(a)    Step 1 – Assessment of Employees;

(b)    Step 2 – Ranking Employees;

(c)    Step 3 – Review of Result.

35    The memorandum also stated that Step 1 (Assessment of Employees) was to be undertaken by reference to the following hierarchy of criteria:

(a)    work performance review (WPR);

(b)    performance management history;

(c)    skills/competencies; and

(d)    attitude.

36    The WPR criterion above was, according to the memorandum, to be based on each employee’s 2013 WPR score. That score was to be rated on a scale of 1 to 5, as follows:

37    The performance management history criterion above was to be assessed based on each employee’s “performance management record within the last 12 months”. The memorandum stated that:

In doing so, the Company will take into consideration disciplinary actions as a result of unsatisfactory work performance, misconduct or unacceptable behaviour. This can include breaches of policies, standard operating procedures, behavioural standards, a pattern of inappropriate behaviour and multiple incidents over a period of time.

38    The skills/competencies criterion above was to be assessed by members of “the operations management team” in relation to each employee’s skills and competencies. That assessment was to be undertaken based upon the following criteria:

(a)    skills/licenses/tickets relevant to the role required;

(b)    proficiency in application of skills;

(c)    willingness to use skills; and

(d)    willingness and capacity to gain new skills.

39    Similarly, the attitude criterion above was to be assessed by the same persons, but by reference to the following criteria:

(a)    assists others to perform their work;

(b)    flexibility and adaptability to new methods of working, new situations or new role requirements;

(c)    brings positive attitude to the workplace – creating positive and harmonious team working environment; and

(d)    treating leaders and all team members with dignity and respect.

40    The two groups of criteria described above will be referred to hereafter as the assessment criteria.

41    As to Step 2 (Ranking Employees), the memorandum stated that all employees “will then be ranked according to the above criteria”. It went on to provide that, where two or more employees had the same ranking, “they will be categorised as required by the Company”.

42    Finally, in relation to Step 3 (Review of Result), the memorandum stated “the management team, including the General Manager, will review the result to ensure that the required number of each of the skills/competencies for the future needs of the business are retained”.

43    At this point in the chronology, it is convenient to record that the selection criteria described above were drafted during August 2014, some weeks before the redundancy process was announced on 1 September 2014. They were first adopted albeit, not in final form, it appears (see at [34] above), at a meeting held on 14 August 2014 which was attended by various members of Clermont Coal’s management team. This included Mr Pretorius, Mr Currie, Mr Vivian – the Acting Mine Manager, Ms Penny Washington – a Human Resources Adviser, and two solicitors from the firm Ashurst – Mr Ian Humphreys and Ms Katrina Anderson.

The implementation of the redundancy process

44    Ms Washington was the Human Resources Adviser at Clermont Coal who was most directly responsible for the implementation of the redundancy process. That was so because Ms Jessie Roberson, who is the Human Resources Superintendent at Clermont Coal, was on maternity leave until June 2014 and did not return to work on a full-time basis until September 2014.

45    As mentioned above, Ms Washington was present at the meeting of Clermont Coal’s management team on 14 August 2014 when the selection criteria were first adopted. At the same meeting, it appears the selection criteria hierarchy (described at [35] above) was adopted.

46    From about 18 August 2014, Ms Washington was responsible for gathering the information required to assess and rank all the relevant Clermont Coal employees according to the redundancy selection criteria hierarchy mentioned above. In her affidavit evidence, she described the steps she undertook in the following terms:

(a)    2013 WPR score- overall precedence was given to each employee’s 2013 WPR score. By that I mean, employees were firstly ranked according to their 2013 WPR score. Those employees with a 2013 WPR of 1 (‘unsatisfactory’), were to be ranked before those employees with a 2013 WPR score of 2 (‘needs improvement’). Those with a 2013 WPR score of 2 were to be ranked before those employees with a 2013 WPR score of 3 (‘meets expectations’), and so on. In the result, those employees in a group with the lowest 2013 WPR scores (‘1’ being the lowest/worst and ‘5’ being the highest/best) were to be the first group selected for redundancy, irrespective of their performance management history or assessed score for attitude and skills or competencies. 15 of the 29 employees selected for compulsory redundancy had a 2013 WPR score of 2, and none had a 2013 WPR score of 1. In respect of the employees with a WPR score of 2, it was strictly unnecessary for me to use any other part of the selection criteria to ascertain that those employees would be employees selected by Clermont Coal for redundancy. That is because all 15 employees with a WPR score of 2 (which excludes those employees who volunteered for redundancy) were to be selected before any employees with a WPR score of 3 or higher. However, in the ranking list that I prepared, I still applied the criteria in order to rank (as between themselves) the employees who had a 2013 WPR score of 2;

(b)    Performance management history (show cause / final written warning) - in order to differentiate between employees with the same 2013 WPR score, the next criteria was applied. At this stage of the application of the criteria, only performance management history that involved a ‘show cause’ or ‘final written warning’ was taken into account. Put simply, at this stage of the ranking process performance management history that did not involve a ‘show cause’ or ‘final written warning’ was not considered. A ‘show cause’ or ‘final written warning’ performance management history was given precedence over an employee’s assessed scores for attitude skills and competencies, as well as performance management history involving a ‘written warning’ or ‘record of discussion’. In the result, in the case of employees with the same 2013 WPR score, employees who had a performance management history involving a show cause or final written warning, were to be the first selected for redundancy, irrespective of their assessed scores for the attitude and skills and competencies criteria;

(c)    Attitude and skills and competencies- if it became necessary to differentiate between employees with the same 2013 WPR score who also had a disciplinary history involving a ‘show cause’ or ‘final written warning’, then the employees’ assessed total average scores for attitude and skills and competencies were used to rank them. In addition, in respect of employees with the same 2013 WPR score who had no performance management history (or a performance management history involving a ‘written warning’ or ‘record of discussion’ only), then the employees’ assessed total average scores for attitude and skills and competencies were used to rank them.

In the result, in the case of employees with the same 2013 WPR score:

(i)    those employees who had a performance management history involving a ‘show cause’ or ‘final written warning’, were to be selected for redundancy before those who didn’t have a performance management history involving a ‘show cause’ or ‘final written warning’, irrespective of their assessed total average scores for the skills and competencies and attitude criteria;

(ii)    those employees who had no performance management history (or a performance management history involving a ‘written warning’ or ‘record of discussion’ only) were to be the selected for redundancy according to their ranking using assessed total average scores for attitude and skills and competencies (with the lowest assessed scores being selected first).

There were a number of employees with the same 2013 WPR score, who had no performance management history, and who also had the same assessed average total scores for attitude and skills and competencies. I recall having a discussion in or about late September 2014 during a meeting with Ms Roberson and Mr Vivian (formerly the Acting Mine Manager) in relation to how to differentiate between these employees for the purpose of my ranking list. I was told by Ms Roberson that I should give precedence to the total average score given to the employees in relation to attitude (as distinct from skills and competencies).

(d)    Performance management history (‘written warning’ and ‘record of discussion’) - if it became necessary to differentiate between employees with the same 2013 WPR score, who did not have a disciplinary history involving a ‘show cause’ or ‘final written warning’, and who could not be differentiated using the skills, competencies and attitude criteria discussed above, then employees were ranked according to their performance management history involving (i) written warnings and then (ii) records of discussion. ‘Written warnings’ were given precedence over ‘records of discussion’, because written warnings were regarded by Clermont as a more serious disciplinary outcome than ‘records of discussion’.

(Emphasis in original)

47    At the end of the process described above, Ms Washington prepared a spreadsheet which showed the comparative rankings of all the employees concerned. According to that ranking spreadsheet, the first group of employees to be subject to compulsory redundancy were the 15 employees who had achieved a score of 2 in their 2013 WPR. Since 29 positions had to be made redundant, that meant 14 more employees had to be selected from those who had achieved a score of 3 or better on their 2013 WPR. None of those employees had any relevant performance management history. Thus, it was next necessary to consider the average scores gained by application of the assessment criteria. After following that process, the group of 14 employees selected for forced redundancy were as follows:

48    The average total score was gained by adding the scores of the two assessors together and dividing by 2.

49    During the course of undertaking the process described above, Ms Washington said that she had no need to, and did not, have any regard to the reasons given for any employee’s 2013 WPR score, or to the assessment scores they had achieved.

50    Ms Washington said in her evidence that, because Mr Scott was ranked at number 5 on the list above, with an average assessment score of 21.5, it was strictly unnecessary to take account of his performance management history. However, she said she did check the history and ascertained that Mr Scott had been counselled on 9 October 2013 and there was a Record of Discussion on his employee file (see the incident described at [20(b)] above).

51    For completeness, it should be noted that there were three employees ranked above Mr Scott with equal assessment scores of 24: Mr Nicholas Bannerman, Mr Damian Mason and Mr Craig Davidson. Ms Washington said in her evidence that the decision to include Mr Bannerman and Mr Mason on the list of forced redundancies (see at [47] above) and exclude Mr Davidson, was made during a meeting she attended with Ms Roberson and Mr Vivian, where Mr Vivian directed that Mr Davidson be excluded from that list.

52    Once she had finalised the process described above, Ms Washington prepared a final ranking spreadsheet (Exhibit A6), which she provided in hard copy form to Ms Roberson and Mr Currie. Mr Scott was ranked at 23 on the ‘Haulage, Load and Dump, and Mine Services’ part of that spreadsheet. That spreadsheet was then provided to Mr Pretorius and it was eventually returned to Ms Washington. Ms Washington said that no alterations had been made to it when it was returned to her.

53    Before leaving Ms Washington’s involvement in the process, it should be noted that, during the trial of this matter, an issue arose in relation to what, on the evidence, turned out to be the penultimate version of the final ranking spreadsheet mentioned above. That spreadsheet (Exhibit A11) was attached to an email Ms Washington sent to Ms Roberson on 16 September 2014. It showed Mr Scott with a ranking of 38. That ranking placed him outside the group of employees that was to be the subject of forced redundancies. As noted above, Mr Scott’s ranking on the final spreadsheet was 23, well within the group of 29 employees that were eventually dismissed. Clermont Coal’s counsel proffered an explanation for this spreadsheet in closing addresses. He claimed that it was necessary to remove from this earlier version of the final spreadsheet (Exhibit A11) those employees who had agreed to take voluntary redundancies and those who were to be made redundant, in any event, because they had a 2013 WPR score of 2. When that occurred, he claimed, Mr Scott would be ranked at number 23 as per the final ranking spreadsheet (Exhibit A6). I will return to this issue later in these reasons.

54    Mr Pretorius said in evidence that he received the final ranking spreadsheet in or about early October 2014. He said he reviewed that spreadsheet as required in Step 3 of the selection process (see at [42] above) to ensure that the Mine would retain “the skills/competencies for the future needs of the business” if the 29 employees listed for forced redundancy were to be removed from the Mine’s workforce. He claimed that he did not otherwise analyse the list of employees on the spreadsheet and he did not make any inquiries as to the reason why particular employees had been awarded particular scores in their 2013 WPR, nor the assessment scores they had received. He said he had “no reason to doubt that the list prepared by Ms Washington was prepared in accordance with the selection criteria that had been determined and communicated to employees and the CFMEU”.

55    Mr Pretorius said he decided to dismiss Mr Scott “because, in the application of the selection criteria, he was ranked in the bottom 29 employees”. He specifically denied that he made that decision because Mr Scott had, or had exercised, a workplace right or had engaged in any industrial activities.

56    On 8 October 2014, Clermont Coal issued a memorandum to all its employees asking them to attend individual meetings over the following week, at which they would be advised whether:

(a)    there was to be no change to their current employment;

(b)    there was to be a change to their current roster/crew pattern; or

(c)    their employment was to be terminated.

57    The final outcome of the redundancy process was that the following positions were made redundant, or deployed in the case of subcontractors:

(a)    26 voluntary redundancies;

(b)    30 forced redundancies made up of 29 production employees and 1 maintenance employee;

(c)    20 forced staff redundancies; and

(d)    25 subcontractors’ employees were removed from the Mine workforce.

58    The positions of two of the six operators within the Pump Crew were made redundant. They were: Mr Bannerman and Mr Scott, both of whom were in Pump Crew Panel 2. Accordingly, the two Pump Crew Panels were restructured so that Mr Christian Vershoor was moved from Panel 1 to join Mr Hincksman in Panel 2, leaving Mr Jamie Beale and Mr Reg Olzard in Panel 1.

Mr Scott’s forced redundancy

59    Mr Scott received a copy of Clermont Coal’s memorandum dated 1 September 2014 advising of the proposed restructuring of the workforce at the Mine and inviting applications for voluntary redundancy (see at [31] above). He was not interested in taking a voluntary redundancy and, accordingly, did not submit an application for such.

60    In his capacity as President of the Lodge, Mr Scott received an email dated 11 September 2014 from Mr Pretorius, attached to which was a document entitled “Consultative and Redundancy Meeting information”. That attachment contained Mr Pretorius’ responses to a number of matters that had been raised at the consultation meeting held on 9 September 2014. Among those responses, Mr Scott particularly noted the question and answer at item 16, as follows:

What criteria will be used to select employees and when will we be provided with the selection criteria?

In accordance with clause 7.5 of the Clermont Coal Enterprise Agreement 2012, the company will determine the method and criteria of selecting employees for redundancy.

The method and criteria for selecting employees for redundancy is yet to be finalised, but it will include WPRs, discipline records and other criteria such as skills and competencies. We will provide the selection criteria to you shortly, once we have had an opportunity to finalise it.

61    Mr Scott also received a copy of Clermont Coal’s memorandum dated 23 September 2014 (see at [34] above). While that document sets out the details of the redundancy selection criteria (see at [34]–[42] above), Mr Scott claimed that it was not until during the discovery process in this proceeding that he first became aware of the particular scores that had been allocated to him personally in the assessment process for each of the skills/competencies and attitude criteria, and who it was who undertook his assessment.

62    Mr Scott’s assessment was conducted by Mr Andrew Christensen and by Mr Wayne Fleming. In undertaking Mr Scott’s assessment, they each completed a scoring sheet for skills/competencies and for attitude.

63    Mr Christensen gave Mr Scott a total score of 24 made up as follows:

64    Mr Fleming gave him a total score of 19, made up as follows:

65    As a consequence, Mr Scott’s total average assessment score was 21.5 (see at [48] above).

66    On 14 October 2014, Mr Scott attended a meeting with Mr Pretorius, Ms Roberson and Mr Tony Galvin. At that meeting, Mr Scott was provided with a letter dated 14 October 2014 which notified him that his position had been made redundant. The letter also notified Mr Scott that his employment would be terminated with effect from 14 November 2014 and that, while he would not be required to present for work in the intervening period, he would remain on full pay. As well, the letter included details of certain redeployment opportunities that were available to him, the details of his redundancy pay and a statement to the effect that he was able to seek a review of the decision to declare his position redundant. This review was dependant upon him making a request for it by no later than 28 October 2014.

Mr Scott’s review meeting

67    Mr Scott sought the review and, as a consequence, he was invited to attend a review meeting on 6 November 2014. The attendees at that meeting were Mr Pretorius, Ms Roberson and Mr Currie, on behalf of Clermont Coal, and Mr Scott and Mr Brodsky. The meeting lasted for approximately 35 minutes. During it, Mr Scott and Mr Brodsky asked Mr Pretorius a series of questions.

68    Mr Pretorius began the meeting by informing those present that Mr Scott had received a score of 3 for his 2013 WPR, an average assessment score of 11.5 out of 20 for skills/competencies, an average assessment score of 10 out of 20 for attitude, and a total average assessment score of 21.5 out of 40. Mr Pretorius then stated that the site average assessment scores for skills/competencies were 15.57 and for attitude were 15.56, giving a total assessment score average of 31.11 out of 40.

69    In response to questioning from Mr Scott and Mr Brodsky, Mr Pretorius imparted the following information:

(a)    the rankings which were used to select employees for redundancy were finalised about a week before Clermont Coal’s memorandum dated 8 October 2014;

(b)    Mr Scott’s 2013 WPR recorded one 4 rating and three 3 ratings;

(c)    no weight had been attached to Mr Scott’s length of service with Clermont Coal; and

(d)    Mr Scott’s team leader/supervisor was not involved in his assessment because Mr Pretorius wanted a “holistic view and not a personal view of one supervisor”.

70    During the meeting, Mr Pretorius refused to engage in a comparison between Mr Scott’s assessment scores and the assessment scores obtained by any other individual employees. He also refused to provide Mr Scott with a copy of the document setting out the “skills definition”, or a copy of Mr Scott’s scoring sheets (see at [63]–[64] above), or any comments relied upon by his assessors to come to his assessment scores. As well, Mr Pretorius refused to provide to him the names of the persons who had undertaken his assessment.

71    Shortly after 14 November 2014, Mr Scott received a letter of that date from Mr Pretorius notifying him, among other things, that, following the review meeting, he had decided not to alter his decision to make his position redundant. In particular, Mr Pretorius stated in that letter:

During this review meeting, you provided no additional information for the Company to consider. The Company has considered the matters that you raised during the Review Meeting. However, after doing so, the Company is satisfied the matters which you raised do not materially alter the application of the redundancy selection criteria to you.

The letter also noted that, following discussions, Mr Scott had declined “opportunities for redeployment with Mt Isa Mines and Abbott Point Bulkcoal Terminal”. Accordingly, the letter confirmed that Mr Scott’s employment had been terminated effective 14 November 2014.

THE RELIEF CLAIMED

72    In the final amended form of their originating application, the CFMEU and Mr Scott claimed some 15 declarations and other orders, as follows:

1.    A declaration that the respondent contravened section 340(1) of the Fair Work Act 2009 (Cth) (FW Act) by taking adverse action against Alan John Scott within the meaning of item 1(a) of the table to section 342 of the FW Act, namely, the respondent dismissed the employee, because:

[The grounds were then set out.]

2.    A declaration that the respondent contravened section 346 of the FW Act by taking adverse action against Alan John Scott within the meaning of item 1(a) of the table to section 342, namely, the respondent dismissed the employee, because:

[The grounds were then set out.]

2A.    A declaration that the respondent contravened section 50 of the FW Act because the respondent failed to comply with clauses 10.1, 10.3.1(a), (c) and/or (d) of the Clermont Coal Enterprise Agreement 2012, in that in all or any of the formal Work Performance Review (WPR) for the Mid Year Review 2013 (including the Mid Year discussion and formal WPR document), the End of Year Review 2103 (including performance moderation involving Supervisors, Superintendent and Managers, the Outcome Discussion with the employee and formal WPR document) and the Mid Year Review 2014 (including the Mid Year discussion and formal WPR document), the respondent did not provide to Alan John Scott in any or all of these formal WPR processes “relevant, unbiased, fair and honest feedback and evaluations in .a timely manner” via that employee’s Leader Kevin Fry in respect of Mr Scott’s work performance, safety, behaviours, operational requirements and the respondent’s expectations of Mr Scott in the terms of the respondent’s allegations set out in Annexure A or Annexure B, or both, to this application.

2B.    A declaration that the respondent contravened section 50 of the FW Act because the respondent failed to comply with clauses 10.1 and 10.3.1(e) of the Clermont Coal Enterprise Agreement 2012, in that outside of any formal Work Performance Review (WPR) for the Mid Year Review 2013, the End of Year Review 2013 and the Mid Year Review 2014, including outside of any formal discussions, formal WPR document and/or formal End of Year Review and Moderation, Mr Kevin Fry or Mr Wayne Fleming, or both, as Leaders of the respondent, did not “provide regular feedback outside formal process” to Alan John Scott and/or “have regular discussions to review performance ... plan appropriate actions” in respect of Scott’s work performance, safety, behaviours, operational requirements and the respondent’s expectations of Mr Scott in the terms of the respondent’s allegations set out in Annexure A or Annexure B, or both, to this application.

2C.    A declaration that the respondent breached its employment contract with Alan John Scott, in that the Rio Tinto Coal Australia “Managing Performance Policy” was incorporated into that contract arising from condition “4 Policies, Procedures and Standards” and the respondent breached that policy by not undertaking any one or more of the following actions:

(a)    Informal coaching;

(b)    Performance improvement discussion(s);

(c)    A Performance improvement plan;

(d)    Feedback to the employee to guide Mr Scott to improve his performance;

(e)    A verbal warning(s); and/or

(f)    A written warning(s),

in respect of the respondent’s allegations set out in Annexure A or Annexure B, or both, to this application.

2D.    A declaration that the respondent breached its employment contract with Alan John Scott, in that the Rio Tinto Coal Australia “Guideline — Performance Improvement Discussion” was incorporated into that contract arising from condition ‘4 Policies, Procedures and Standards” and the respondent breached that guideline by not taking any or all of that guideline’s steps in respect of the respondent’s allegations set out in Annexure A or Annexure B, or both, to this application.

3.    A declaration that the respondent terminated the employment of Alan John Scott in breach of the general obligation to act in good faith in the performance of contracts.

4.    An order, pursuant to section 545(1) and (2)(c) of the FW Act, requiring that the respondent reinstate Alan John Scott in his employment to the position of Operator at the Clermont Open Cut Mine and treat as null and void its dismissal of him.

5.    Alternatively to 4, pursuant to section 545(1) and (2)(a) of the FW Act, a final injunction requiring the respondent to reinstate Alan John Scott to the position of Operator at the Clermont Open Cut Mine.

6.    An order, pursuant to section 545(1) and (2)(b) of the FW Act, that the respondent pay compensation to Alan John Scott for the loss of income and other entitlements and non-economic loss suffered as a result of the respondent’s contraventions of the FW Act.

7.    An order pursuant to section 547(2) of the FW Act for interest.

8.    The imposition of a pecuniary penalty or penalties on the respondent pursuant to section 546(1) of the FW Act for its contraventions of section 50, section 340(1)(a)(ii) and/or section 346 of the FW Act.

9.    An order pursuant to section 546(3)(b) of the FW Act that any penalty be paid to the first applicant.

9A.    A specific performance order in respect of the employment contract of Mr Alan John Scott in favour of the second applicant.

10.    Damages for economic loss and non-economic loss and interest arising from the respondent’s breach of its contract with Alan John Scott in favour of the second applicant.

11.    Such further or other orders as to the Court seem appropriate.

THE ISSUES THAT ARISE

73    During the final stages of the trial and prior to closing submissions, the parties were directed to, and did, agree upon a document outlining the issues to be determined. Seventeen issues were identified under three heads of claim, as follows:

General protections claims

(a)    What workplace rights did Mr Scott have or exercise?

(b)    What industrial activities did Mr Scott engage in?

(c)    Who made the decision to dismiss Mr Scott?

(d)    What was the reason for the dismissal?

(e)    Was Mr Scott dismissed in contravention of s 340 or s 346 of the FWA?

Enterprise agreement contraventions

(f)    What, if any, obligation is imposed on Clermont Coal by clauses 10.1, 10.3.1(a), (c), (d) and/or (e) of the Clermont Coal Enterprise Agreement 2012?

(g)    If clauses 10.1, 10.3.1(a), (c), (d) and/or (e) did impose obligations on Clermont Coal, have they been breached in the manner alleged in paragraphs [80] and [82] of the Further Amended Statement of Claim?

Employment contract breaches

(h)    Whether condition 4 “Policies, Procedures and Standards” of the employment contract incorporates by reference into the employment contract the ‘Rio Tinto Coal Australia Managing Performance Policy’?

(i)    Whether condition 4 “Policies, Procedures and Standards” of the employment contract incorporates by reference into the employment contract the ‘Rio Tinto Coal Australia – Guideline – Performance Improvement Discussion’?

(j)    Whether, if the ‘Rio Tinto Coal Australia Managing Performance Policy’ was incorporated by reference into Mr Scott’s employment contract, it was breached by Clermont Coal as alleged?

(k)    Whether, if the ‘Rio Tinto Coal Australia – Guideline – Performance Improvement Discussion’ was incorporated by reference into Mr Scott’s employment contract, it was breached by Clermont Coal as alleged?

(l)    Whether Mr Scott’s employment contract contained a term of good faith implied by law?

(m)    In the assessment process undertaken by Mr Christensen and Mr Fleming, was Mr Scott scored capriciously, perversely, using improper means, unreasonably or arbitrarily? If so, did it breach the implied term of good faith?

(n)    Did Clermont Coal rely on reasons contained in: (1) Mr Fleming’s evidence; and (2) Mr Christensen’s evidence? If so, did it breach the implied term of good faith?

(o)    Did Clermont Coal fail to comply with clauses 10.1, 10.3.1(a), (c), (d) and/or (e) of the 2012 Enterprise Agreement? If so, did it breach the implied term of good faith?

(p)    Did Clermont Coal fail to comply with the ‘Rio Tinto Coal Australia Guideline – Performance Improvement Discussion’? If so, did it breach the implied term of good faith?

(q)    Did Clermont Coal fail to comply with the ‘Rio Tinto Coal Australia Managing Performance Policy’? If so, did it breach the implied term of good faith?

74    Despite the length and complexity of Mr Scott’s claims for relief, and the overly long and detailed list of issues identified above, this matter essentially reduces to one main issue: was Mr Scott dismissed in contravention of ss 340 or 346 of the FWA (issue (e) in [73] above). As precursors to determining that issue, issues (a) to (d) in [73] above also have to be determined. However, if the main issue is determined in favour of Mr Scott, there is no purpose in determining the remaining 12 issues. As can be seen above, they relate to a series of allegations about pre-dismissal contractual breaches of various provisions of the 2012 Enterprise Agreement, the ‘Rio Tinto Coal Australia Managing Performance Policy’, the ‘Rio Tinto Coal Australia – Guideline – Performance Improvement Discussion’ (the terms of which Mr Scott claims were incorporated into his employment contract), and a term of good faith which Mr Scott alleges was implied by law into his employment contract.

75    It should also be recorded that the parties have agreed that, if Mr Scott and the CFMEU are successful on any of their claims, the parties should be allowed time to agree upon the form of the relief to be granted, including reinstatement, the quantum of any damages and the other related issues described in items 4 to 9A in [72] above or, failing such agreement, to make further submissions on those issues.

THE RELEVANT LEGISLATIVE PROVISIONS

76    As is apparent from the description of the main issue (e) in [73] above, ss 340 and 346 of the FWA are pivotal. Those sections relevantly provide:

340    Protection

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

(a)    because the other person:

(i)    has a workplace right; or

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

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

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

…

346    Protection

A person must not take adverse action against another person because the other person:

(a)    is or is not, or was or was not, an officer or member of an industrial association; or

(b)    engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or

(c)    does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).

(Emphasis in original)

77    The expression “workplace right” is defined in s 341 of the FWA (see at [85] below). How it is that a person “engages in industrial activity” is described in s 347 of the FWA (see at [99] below).

78    In an adverse action claim such as this, ss 360 and 361 of the FWA are of particular importance. The latter creates what is often described as a reverse onus, as follows:

361 Reason for action to be presumed unless proved otherwise

(1)    If:

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

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

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

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

(Emphasis in original)

79    The former makes it clear that it is sufficient if the “particular reason” is but one of a number of reasons for the employer’s action, as follows:

360 Multiple reasons for action

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

(Emphasis in original)

80    In National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139; [2013] FCA 451 (NTEU), Gray J made the following pertinent observations about the operation of these two provisions (at [20]):

A party seeking to rebut the presumption created by s 361(1) of the Fair Work Act that the action was taken for the reason, or with the intent, alleged by the opposite party, must grapple with the establishment of the negative proposition that the action was not taken for the alleged reason or with the alleged intent. Further, s 360 of the Fair Work Act recognises expressly that action may be taken for more than one reason. What the party seeking to rebut the presumption must do is to establish on the balance of probabilities that the alleged improper reason was not a reason for the taking of action ...

81    To similar effect a little later in his reasons, his Honour quoted from the judgment of Mason J in General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 (Bowling), about the equivalent provision to s 361(1) of the FWA in the prevailing legislation at the time (at 617):

Section 5(4) imposed the onus on the appellant of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the respondent, in order to succeed, was not bound to adduce evidence that the appellant was actuated by that reason, a matter peculiarly within the knowledge of the appellant. The respondent was entitled to succeed if the evidence was consistent with the hypothesis that the appellant was so actuated and that hypothesis was not displaced by the appellant. To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge.

THE PARTICULAR REASONS ALLEGED IN THIS PROCEEDING

82    Clermont Coal accepts that the dismissal of Mr Scott amounted to adverse action within the terms of ss 340 and 346 of the FWA. The critical question, therefore, is whether that adverse action was taken because of one of the reasons described above; broadly, because Mr Scott had, or had exercised, a workplace right, or had engaged in industrial activity. It can be seen that the expression “particular reason” is pivotal to both those provisions.

83    In their amended originating application and amended statement of claim, Mr Scott and the CFMEU alleged, by reference to ss 340 and 346 of the FWA, that there were 12 “particular reasons” that motivated Clermont Coal to dismiss Mr Scott. While some of those reasons were revised or abandoned during the course of the hearing, it is, nonetheless, worth setting them out in full at this juncture:

[Particular reason under s 340(1) of the FWA]

(a)    In and about 2012, Mr Scott had a workplace right within the meaning of sections 340(1)(a)(i) and 341(1)(a) of the FW Act in that he had a role or responsibility under a workplace law or workplace instrument arising from being a bargaining representative for the Clermont Coal Enterprise Agreement 2012, an enterprise agreement proposed to be made under the FW Act;

(b)    In and about 2012, Mr Scott exercised a workplace right within the meaning of sections 340(1)(a)(ii), 341(1)(b) and (2)(e) of the FW Act in that he participated in a process or proceedings under the FW Act as he was a bargaining representative for the Clermont Coal Enterprise Agreement 2012, an enterprise agreement proposed to be made under the FW Act;

(c)    After 12 December 2012, from time to time, Mr Scott had a workplace right within the meaning of sections 340(1)(a)(i) and 341(1)(a) of the FW Act in that he had a role or responsibility under a workplace law or workplace instrument arising from being the representative of choice of other employees under clause 4 Dispute Resolution of the Clermont Coal Enterprise Agreement 2012, an enterprise agreement made under the FW Act;

(d)    After 12 December 2012, from time to time, Mr Scott exercised a workplace right within the meaning of sections 340(1)(a)(ii), 341(1)(b) and (2)(j) of the FW Act in that he exercised a role or responsibility under a workplace law or workplace instrument arising from participating in dispute settlement proceedings by representing employees as the representative of their choice under clause 4 Dispute Resolution of the Clermont Coal Enterprise Agreement 2012, an enterprise agreement made under the FW Act;

(e)    From 10 September 2013 and continuing in 2014, Mr Scott had a workplace right within the meaning of sections 340(1)(a)(i) and 341(1)(a) of the FW Act in that he had a role or responsibility under a workplace law or workplace instrument arising from being a bargaining representative for the Clermont Coal Enterprise Agreement 2013, an enterprise agreement proposed to be made under the FW Act;

(f)    From 10 September 2013 and continuing in 2014, Mr Scott exercised a workplace right within the meaning of sections 340(1)(a)(ii), 341(1)(b) and (2)(e) of the FW Act in that he participated in a process or proceedings under the FW Act as he was a bargaining representative for the Clermont Coal Enterprise Agreement 2013, an enterprise agreement proposed to be made under the FW Act; and/or

(g)    On 22 September 2014, Mr Scott exercised a workplace right within the meaning of sections 340(1)(a)(ii) and 341(1)(c)(ii) of the FW Act in that he was able to and did make a complaint or an inquiry as an employee in relation to his employment with the respondent by making statements to the respondent's Mr Dawid Pretorius (General Manager — Operations Clermont Open Cut) at the respondent’s State of Nation meeting and at a subsequent meeting in the respondent’s Boardroom.

[Particular reason under s 346 of the FWA]

(a)    Mr Scott was an officer of an industrial association within the meaning of sections 12 and 346(a) of the FW Act, namely, he was a union delegate or other representative of the applicant which is an industrial association, the President of the applicant’s CFMEU Clermont Open Cut Lodge and a member of that Lodge Committee;

(b)    Mr Scott was a member of an industrial association within the meaning of section 346(a) of the FW Act, namely, he was a member of the applicant;

(c)    Mr Scott engaged in industrial activity within the meaning of section 346(b) and 347(a) of the FW Act, namely, he remained an officer of the applicant;

(d)    Mr Scott engaged in industrial activity within the meaning of section 346(b) and 347(a) of the FW Act, namely, he remained a member of the applicant; and/or

(e)    Mr Scott engaged in industrial activity within the meaning of section 346(b) and 347(b)(v) of the FW Act, namely, he represented or advanced the views, claims or interests of an industrial association, namely, that of the applicant and the applicant’s members.

(Emphasis added)

84    In essence, these reasons express in the terms used in the FWA, Mr Scott’s union activities at the Mine. They therefore encapsulate the findings about his union activities I have already made above (see at [21]–[26]) and the three disputed areas of activity I have resolved in Mr Scott’s favour below (see at [91], [98] and [100]).

WHAT WORKPLACE RIGHTS DID MR SCOTT HAVE OR EXERCISE (ISSUE (a) IN [73] ABOVE)?

85    This is the first of the subordinate issues identified in [73] and [74] above. It requires the identification of the “workplace right” Mr Scott had, or exercised within the terms of s 340(1)(a)(i) of the FWA (see at [76] above). As I have already noted above, that expression is defined in s 341 of the FWA. For present purposes, that definition provides as follows:

(1)    A person has a workplace right 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.

…

(2)    Each of the following is a process or proceedings under a workplace law or workplace instrument:

(a)    a conference conducted or hearing held by the FWC;

(b)    court proceedings under a workplace law or workplace instrument;

(c)    protected industrial action;

(d)    a protected action ballot;

(e)    making, varying or terminating an enterprise agreement;

(f)    appointing, or terminating the appointment of, a bargaining representative;

(g)    making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;

(h)    agreeing to cash out paid annual leave or paid personal/carer’s leave;

(i)    making a request under Division 4 of Part 2‑2 (which deals with requests for flexible working arrangements);

(j)    dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;

(k)    any other process or proceedings under a workplace law or workplace instrument.

(Emphasis in original)

86    It is not in dispute that Mr Scott:

(a)    was a member and officer of the CFMEU and engaged in “industrial activity” by representing employees as a union delegate and attending negotiating meetings for the 2012 and 2013/2014 Enterprise Agreements; and

(b)    exercised a workplace right in that he exercised a role or responsibility under a workplace law or a workplace instrument by participating in dispute settlement proceedings as an employee representative of choice.

87    The factual findings I have made at [21]–[26] above constitute the details of the industrial activity and union-related activities in which Mr Scott was involved.

88    There are, however, two disputes related to the workplace rights Mr Scott had, or exercised. They are whether:

(a)    Mr Scott’s role in connection with the negotiations for the 2012 Enterprise Agreement and/or the 2013/2014 Enterprise Agreement involved him having “a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body” (see s 341(1)(a) at [85] above); and

(b)    the statements Mr Scott made at, or shortly after, the State of the Nation meeting on 22 September 2014, involved him making a complaint or inquiry “in relation to his … employment” (see s 341(1)(c)(ii) at [85] above).

89    As to (a) above, Mr Scott now accepts that, contrary to the contents of the reasons described in [83(a)], [83(b)], [83(e)] and [83(f)] above, he had not been appointed as a “bargaining representative” under s 176 of the FWA. Relevantly, that section requires that such an appointment had to be “in writing”. There is no evidence that Mr Scott was appointed in writing.

90    However, Mr Scott now contends that, since the CFMEU was a non-natural person and therefore could only act through a natural person, such as himself, by participating in the negotiations for the two enterprise agreements in question, he thereby represented the CFMEU at those negotiations. It is undisputed that Mr Scott was actively involved in those negotiations (see at [24] and [26] above). He therefore contends that this involvement meant that he was “able to initiate, or participate in, a process or proceedings” within the terms of s 341(1)(b) of the FWA (see at [85] above). In this contention, he relies upon the decision in Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22; [2010] FCA 399 (Jones), where Collier J held (at [50] and [59]) that even though Ms Jones had not been duly appointed as the bargaining representative of the Queensland Tertiary Admissions Centre Ltd, “her role as spokesperson for QTAC in the enterprise agreement negotiations constituted her having an ability to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument”. For its part, while Clermont Coal accepts that, by analogy, Jones is authority for the proposition that, in acting as a representative of the CFMEU in the negotiations mentioned above, Mr Scott was thereby “able to initiate, or participate in, a process or proceeding” under the FWA, it does not accept that this constitutes him having a “role or responsibility under the FW Act”.

91    The contention of Clermont Coal on this issue is, in my view, misplaced. The expression “role or responsibility under the Act” arises under s 341(1)(a). Mr Scott has abandoned reliance on that provision and instead now seeks to rely upon s 341(1)(b) and his ability to “initiate, or participate in, a process or proceedings” under the FWA arising from his capacity as a representative of the CFMEU in the negotiations for the two enterprise agreements in question. Based upon the reasoning of Collier J in Jones at [50]–[59] (with which I respectfully agree) and the findings of fact I have made above (see at [24] and [26]), I consider Mr Scott falls squarely within the provisions of s 341(1)(b).

92    On the second dispute (described in [88(b)] above), it is not in dispute, as matters of fact, that:

(a)    at the State of the Nation Meeting on 22 September 2014 Mr Pretorius announced 26 employees had applied for voluntary redundancy and they had been accepted by [Clermont Coal];

(b)    Ms Bancroft asked a question to the effect of, ‘Are employees allowed to have a representative present when called in by management to discuss their voluntary redundancy as per section 3.1 and 3.2 of the agreement’;

(c)    Mr Currie responded to Ms Bancroft’s question to the effect of, ‘During the final stage you are not permitted to have a representative present but you can have a support person’; and

(d)    Mr Scott, as Lodge President, in response, said words to Mr Pretorius to the effect of, ‘I am putting you on notice and I will be seeking legal advice on the company’s position.’ …

93    While there is a factual dispute about what Mr Pretorius and Mr Scott said to each other immediately after the State of the Nation meeting mentioned above, it is unnecessary to resolve that dispute because I agree with Clermont Coal that whatever they said to each other in that conversation does not change the character of the statement set out at [92(d)] above. The question raised by this second dispute is, therefore, whether that statement is a complaint or inquiry within the terms of s 341(1)(c)(ii) above. Specifically, whether the words “in relation to his … employment” in that subsection are to be construed as requiring there to be a requisite relationship between the person making the complaint and his own employment.

94    Clermont Coal contends for that construction. It claims the inquiry Mr Scott proposed to make did not relate to Mr Scott’s employment because he did not intend to take a voluntary redundancy. It also contends that there is no evidence that Mr Scott proposed to make an inquiry, or obtain advice, other than in his capacity as the CFMEU Lodge President. Accordingly, so it contends, the proposed legal advice had no direct, or indirect, relationship at all with Mr Scott’s employment. For his part, Mr Scott agrees that he was acting in his capacity as the Lodge President, but he contends he also intended to make the inquiry in his capacity as an employee representative for Ms Bancroft. In that contention, he relies upon the decision of Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346; [2014] FCA 271 (Shea) per Dodds-Streeton J at [598] and [625], and Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 (Pilbara Iron) per Katzmann J at [70].

95    Before proceeding to consider those authorities, it is worth mentioning that in Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307; [2013] FCA 908, Jessup J held at [143] that s 341(1)(c)(ii) was expressed in sufficiently wide terms to include in the word “inquiry” the seeking of legal advice from an employee’s solicitor about some aspect of the employee’s employment.

96    In Pilbara Iron, Katzmann J found at [64] that “in s 341(1)(c)(ii) the requisite relationship between the complaint or inquiry with the employee’s employment may be direct or indirect”. And, while her Honour agreed with a submission that the words of that section “were not without limits”, she added that “the limits are to be found in the nature and purpose of the legislation, which includes the protection of workplace rights”. Three of the six matters relied upon by the employee in Pilbara Iron were found by her Honour to be directly related to his employment: see Pilbara Iron at [66], [67] and [71]. The remaining three complaints, however, were more indirectly related. The first involved a complaint the employee made about the seriousness with which his employer had treated a collision between two work vehicles. The employee was not involved in that collision in any way. However, her Honour reasoned (Pilbara Iron at [69]) that it was a complaint in relation to his employment because “the incident occurred at his place of work and the assessment of the safety risks that an investigation might have disclosed would have had potential implications for the safety of all employees who worked there”. The second complaint was made by the employee on behalf of a fellow employee and it related to the fact that the fellow employee had been required to return to work after a 10 hour break, instead of the usual 12 hour break. Her Honour also found (Pilbara Iron at [70]) that this complaint was in relation to the employee’s employment because the fellow employee “performed the same work on the same panel as [the employee]”. Accordingly, her Honour reasoned (at [70]) that “the conditions of her employment were also the conditions of his employment”. The final complaint involved an incident that the employee had witnessed where two fellow employees failed to place their maintenance tags as instructed by the employer. On this complaint, her Honour reasoned (Pilbara Iron at [72]) that the matters raised affected the safety of all employees in the yard and it was therefore a complaint that related to the employee’s employment.

97    In Shea, Dodds-Streeton J, having reviewed the authorities on the question, including Pilbara Iron, made the following observations about the nature of the relationship between the complaint and the person’s employment (at [631]):

The requirement that the complaint be in relation to the person’s employment includes both a direct and indirect nexus. Accordingly, a sufficient connection may exist between misconduct in the workplace and the employment of a person who is not a direct victim. For example, the employee may witness misconduct visited on a fellow employee or be exposed to its consequences, the threat of like mistreatment or related adversities in the working environment. Nevertheless, there can be no sufficient nexus between a complainant’s employment and mere rumours or baseless accusations of misconduct towards other persons in the workplace, which have come to the complainant’s attention.

98    It is apparent from the decisions in Pilbara Iron and Shea that the relationship between the complaint and the employee’s employment can be quite indirect, provided that there is some real nexus between the two. Clermont Coal is correct in its contention that Mr Scott’s employment was not directly affected by the subject matter of the complaint because he did not intend to take a voluntary redundancy. Nonetheless, I consider that the complaint indirectly related to his employment and there was, therefore, a sufficient nexus between the two. This is because, while the complaint was specifically directed to a voluntary redundancy, it involved the interpretation of clauses 3.1 and 3.2 of the 2012 Enterprise Agreement, which agreement applied to Mr Scott and approximately 450 other employees at the Mine (see at [8] above). For these reasons, I consider that the complaint or inquiry Mr Scott made at the State of the Nation meeting on 22 September 2014 was a complaint or inquiry “in relation to his … employment” within the terms of s 341(1)(c)(ii) of the FWA.

WHAT INDUSTRIAL ACTIVITIES DID MR SCOTT ENGAGE IN (ISSUE (b) IN [73] ABOVE)?

99    This is the second of the issues identified in [73] and [74] above. It requires the identification of the “industrial activity” mentioned in s 346 (see at [76] above). As I have already mentioned, that expression is defined in s 347 of the FWA. It provides:

A person engages in industrial activity if the person:

(a)    becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or

(b)    does, or does not:

(i)    become involved in establishing an industrial association; or

(ii)    organise or promote a lawful activity for, or on behalf of, an industrial association; or

(iii)    encourage, or participate in, a lawful activity organised or promoted by an industrial association; or

(iv)    comply with a lawful request made by, or requirement of, an industrial association; or

(v)    represent or advance the views, claims or interests of an industrial association; or

(vi)    pay a fee (however described) to an industrial association, or to someone in lieu of an industrial association; or

(vii)    seek to be represented by an industrial association; or

(c)    organises or promotes an unlawful activity for, or on behalf of, an industrial association; or

(d)    encourages, or participates in, an unlawful activity organised or promoted by an industrial association; or

(e)    complies with an unlawful request made by, or requirement of, an industrial association; or

(f)    takes part in industrial action; or

(g)    makes a payment:

(i)    that, because of Division 9 of Part 3‑3 (which deals with payments relating to periods of industrial action), an employer must not pay; or

(ii)    to which an employee is not entitled because of that Division.

(Emphasis in original)

100    It is not in dispute that Mr Scott was a member and office bearer of the CFMEU and that, after his appointment as a union delegate, he represented employees in that capacity and/or as an employee representative under clause 4.4 of the 2012 Enterprise Agreement. I have already made factual findings in relation to those activities and others at [21]–[26] above. It follows that I consider Mr Scott engaged in that broad range of union activities at the Mine during the period from 2012 until his dismissal in October 2014 and that all of those activities constitute “industrial activity” within the terms of s 346 of the FWA.

WHO MADE THE DECISION TO DISMISS MR SCOTT (ISSUE (c) IN [73] ABOVE)?

The contentions

101    This is the third issue identified in [73] and [74] above. There is a marked difference between the positions of Mr Scott and Clermont Coal on this issue. Clermont Coal contends that Mr Pretorius alone made the decision to dismiss Mr Scott and it is therefore the reasons that Mr Pretorius had for the dismissal that must be assessed to determine whether the dismissal was made for a proscribed reason, relying on the High Court’s judgment in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 (Barclay). Further, it contends the assessment does not involve an objective test, nor one that takes account of any unconscious reasons. It follows, so it contends, that those persons at Clermont Coal other than Mr Pretorius who had input in the reasoning process are not to be characterised as decision-makers because that approach would effectively mean that the reasons that motivated those persons “even if undisclosed” would be imputed to the decision-maker, Mr Pretorius. However, it accepts that Mr Pretorius’ decision was the culmination of a selection process involving the application of the redundancy selection criteria and, accordingly, the Court will examine the evidence about that process to evaluate whether Mr Pretorius’ evidence should be accepted.

102    For his part, Mr Scott contends that it was Clermont Coal, as a corporate employer, that made the decision to dismiss Mr Scott, not Mr Pretorius as one of a number of officers or employees of that corporate employer. In this contention, he relies, in part, on s 793 of the FWA. That section provides:

(1)    Any conduct engaged in on behalf of a body corporate:

(a)    by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or

(b)    by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;

is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.

…

(2)    If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:

(a)    that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and

(b)    that the person had that state of mind.

…

(3)    The state of mind of a person includes:

(a)    the knowledge, intention, opinion, belief or purpose of the person; and

(b)    the person’s reasons for the intention, opinion, belief or purpose.

(Emphasis in original)

103    Mr Scott therefore claims that there was a large and unspecified number of officers and employees of Clermont Coal who were relevantly involved as decision-makers and whose state of mind fell to be examined to ascertain whether his dismissal was made for a proscribed reason. He contends they comprised almost every person at Clermont Coal who was directly, or indirectly, involved in the process that led to his dismissal. This includes Ms Washington – who prepared the ranking spreadsheet based upon the application of the selection criteria, Mr Fry – who undertook Mr Scott’s 2013 WPR, and a number of unidentified employees of Clermont Coal who provided information about his conduct or attitude as an employee.

104    I do not consider either of these positions is entirely correct. In the first place, in the particular circumstances of this case, I do not consider the judgment in Barclay requires the relevant inquiry about the decision to dismiss Mr Scott to be confined to the reasoning process employed by Mr Pretorius alone.

The judgments in Barclay and BHP Coal

105    In this respect, it is important to note that both Barclay, and the more recent High Court judgment in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243; [2014] HCA 41 (BHP Coal), were judgments that involved a single decision-maker for the employer and where the decision was predicated upon a specific item of conduct on the part of the employee concerned. In Barclay, the decision in issue was made by Dr Louise Harvey, the Chief Executive Officer of the Bendigo Regional Institute of Technical and Further Education. The specific item of conduct related to an email that the employee in question, Mr Barclay, sent to all Australian Education Union members employed by the Institute. In it, he alleged that several staff members had been “asked to be part of producing false and fraudulent documents for the audit” being conducted for the purposes of the Institute’s reaccreditation: see Barclay at [7]–[14]. In BHP Coal, the decision in issue was made by Mr Geoff Brick, the General Manager of BHP’s Saraji Mine. It related to Mr Doevendans’ (the employee in question) conduct in waving a sign during a protest organised by the CFMEU which read “No principles SCABS No guts”: see BHP Coal at [2].

106    In these factual contexts, the decision in Barclay and BHP Coal make it clear that the focus of the inquiry is on the reasons the sole decision-maker had for her or his decision.

107    In Barclay, Heydon J expressed this ruling in the following terms (at [140]):

The word “because” [in s 346] requires an investigation of Dr Harvey’s reasons for her conduct. Section 360 provided that “a person takes action for a particular reason if the reasons for the action include that reason”. The Explanatory Memorandum makes it clear that to satisfy s 360 the particular reason must be an “operative or immediate reason for the action”. Under s 361 of the Act, it is presumed that action was taken for a prohibited reason, unless the employer proves otherwise. Examining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action.

(Footnote omitted)

108    French CJ and Kiefel J expressed it in BHP Coal in similar terms (at [7]) as follows:

The focus of the inquiry as to whether s 346(b) has been contravened is upon the reasons for Mr Brick taking the adverse action. This is evident from the word “because” in s 346, and from the terms of s 361. The inquiry involves a search for the reasoning actually employed by Mr Brick. The determination to be made by the court is one of fact, taking account of all the facts and circumstances of the case and available inferences.

(Footnotes omitted)

109    However, as the judgment of French CJ and Crennan J in Barclay also made clear, the Court is required to take account of all the relevant facts and circumstances of the case, established by the evidence. Their Honours said (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)

110    To similar effect, Gummow and Hayne JJ said (at [127]) that:

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.

111    Nonetheless, this case raises a different set of factual circumstances to those that arose in Barclay and BHP Coal. Here, Mr Pretorius relied heavily on the results of a selection process where the employees concerned were assessed for their skills and attitudes, and then ranked accordingly. Importantly, Mr Pretorius said in evidence that he could not have made his ultimate decision without reference to Ms Washington’s ranking spreadsheet and the assessment scores upon which it was based. So what is the focus and scope of the inquiry in these circumstances? That question was considered in a number of judgments of this Court, at least one of which was delivered after Barclay, and another of which was a Full Court decision that I think binds me in the answer.

The judgments in NTEU and Kodak

112    The former, NTEU, has already been mentioned above (see at [80]–[81]). In that judgment, after noting that Barclay was a case involving a single decision-maker, Gray J proceeded to examine the circumstance where there was “more than one person [involved] in the making of the decision”: see NTEU at [25]. His Honour then identified two such situations: where a committee or other deliberative body made the decision, and where the ultimate decision was the result of a collaboration between officers of an employer: see NTEU at [25]. Addressing the committee situation, his Honour observed (at [26]) that:

It is often the task of a court to make a finding as to the minds of which natural person or persons constitute the directing mind and will of a corporate body, for the purpose of determining the state of mind of that corporate body.

113    As to the collaboration situation, his Honour referred to a number of decisions of this Court involving local government bodies, including a decision of his own where he had identified the range of circumstances that may arise, in the following terms (see NTEU at [28] referring to Gibbs v Palmerston Town Council (unreported, Federal Court of Australia, Gray J, 21 December 1987) at 84–85):

… there is still a difficult question of the extent to which the improper purpose of one person may be a substantial operative factor in the decision of another. Clearly, if the actual decision maker simply “rubber stamps” a decision in fact made by another, the purpose of that other will be a substantial operative factor. At the other extreme, if the actual decision maker truly believes the false and innocent reasons advanced by the other person, the mind of the decision maker will not be tainted by the improper purpose of the other person. The problem assumes greater complexity when the decision is made by more than one person, as might be the case with the board of directors of a company, and as is often the case when the decision is made by a local government authority.

114    In this case, Mr Scott contends that Mr Pretorius was simply “rubber stamping” a decision that was, in fact, made by Mr Christensen and Mr Fleming, among others. However, I do not consider this accurately describes what occurred. Mr Pretorius was presented with the ranking spreadsheet showing the scores of all the employees of Clermont Coal concerned, including the bottom 29 employees whose positions were to be made forcibly redundant. However, he did not make his decision by simply “rubber stamping” that ranking spreadsheet. He said in evidence that, he took another important step, namely, he reviewed the results shown on that spreadsheet to ensure that, if the positions of the bottom 29 employees were made forcibly redundant, Clermont Coal would still retain the necessary range of skills for its future business needs. I do not therefore consider this was simply a “rubber stamp” decision of the kind described by Gray J above.

115    On the other hand, I do not consider this case involves “the other extreme” described by his Honour, where the actual decision-maker “truly believe[d] the false and innocent reasons” advanced by another person or persons. There is no evidence to suggest that Mr Pretorius relied upon any reasons advanced by anyone else apart from the rankings shown on the ranking spreadsheet prepared by Ms Washington.

116    Before leaving these observations of Gray J in NTEU, it is also worth noting that the more complex situation described by his Honour in his final sentence (see at [113] above) – a decision made by a board of directors of a company – is not far removed, on the facts, from what occurred in Bowling. There, two directors of the company situated in the respondent’s Melbourne office were involved in the decision to dismiss Mr Bowling. The failure of those two directors to give evidence resulted in the Court holding that General Motors Holden had not discharged its onus under an earlier equivalent provision to s 361(1). Bowling was cited with approval in all of the judgments in Barclay: see French CJ and Crennan J at [45], [50], [53] and [56]; Gummow and Hayne JJ at [126]; and Heydon J at [149].

117    The Full Court judgment I have mentioned above (see at [111]) was Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251, [2001] FCA 1804 (Kodak) per Lee, Madgwick and Gyles JJ. In that case, the Court dealt with a factual situation not dissimilar to the present. Kodak had adopted a redundancy process whereby two supervisors, Mr Lay and Mr Shannon, assessed Mr Elliott for redundancy by reference to certain criteria. A third person, Mr Walshe, the General Manager of Kodak, then made the ultimate decision to terminate Mr Elliott’s employment. The Court held that, if the assessment made by either Mr Lay or Mr Shannon was influenced by a prohibited reason, that would have impugned the decision of Mr Walshe even though it was not disclosed to him. The reasoning for this conclusion was as follows (at [37]):

The first difficulty with this argument is that Lay made an indispensable contribution to the rankings. He and Shannon co-operated in a joint assessment, with each giving an account of what influenced them individually. If it were the fact that Lay was influenced in giving a low mark by a prohibited reason, it can be assumed that if the ranking were done without having regard to that prohibited reason, it is likely that a different ranking would have been given by Lay. This, inevitably, would have affected the ranking process, whatever the views of Shannon. It would have been a different assessment process. Furthermore, whatever debate there might be about the extent of Walshe’s power or involvement in the decision, his evidence was that he took the Lay/Shannon assessment and worked from there. It follows that if the Lay/Shannon assessment is affected (or infected) by either Lay or Shannon having held an undisclosed prohibited reason, then he would have, in effect, inadvertently adopted it so that its force continued regardless of the lack of any express prohibited reason in the mind of Walshe.

118    The Court ordered that the matter be remitted to the trial judge to consider the whole of the evidence, including that called by Mr Elliott, to determine whether the dismissal had been made for a proscribed reason. Kodak has been followed recently in Pilbara Iron at [78] per Katzmann J and it was referred to with apparent approval in Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (No 2) [2015] FCA 265 at [99] per Collier J.

119    It should be noted that s 298V of the Workplace Relations Act 1996 (Cth), which was the relevant legislative provision under consideration in Kodak, is to substantially the same effect as s 361(1) of the FWA: see Barclay at [50] and [59].

Two parts to the inquiry

120    These authorities therefore place the focus on the reasoning process that led to the ultimate decision. Where the decision was made by one person and her or his reasoning for the decision was based on one incident involving the employee, the task is relatively straightforward. The judgments in Barclay and BHP Coal require a focus on the reasoning process employed by that person to determine whether the employer has discharged its onus under s 361(1) of the FWA to show that the reasoning process did not include, as a substantial and operative reason, the alleged prohibited reason or reasons. However, the employer is only required to show that none of those reasons was a “substantial and operative reason”. It does not need to negate every reason, however immaterial it was to the reasoning process underpinning the decision to dismiss the employee concerned: see Barclay at [104] and [127] per Gummow and Hayne JJ, and [140] per Heydon J.

121    On the other hand, where the reasoning process is dispersed through an assessment process involving a number of persons, the task is much more complicated. In that situation, I consider the judgment in Kodak requires me to examine the reasoning process employed by each person whose involvement had a material effect on the ultimate decision. This inquiry does not involve a roving search of the minds of the employees of the kind rejected by Heydon J in Barclay (at [146]). Nor does it involve an objective inquiry of the kind rejected in Barclay (at [44] and [126]), nor import some “unconscious” reasoning to the ultimate decision-maker that was also rejected in Barclay (at [124] per Gummow and Hayne JJ, and [146] per Heydon J). Instead, it focuses on the conscious reasoning processes of those who had a material effect on the ultimate outcome to determine whether their reasoning processes were free of the alleged prohibited reason or reasons. If one or more of the reasons employed by one or more of them was a prohibited reason, that will impugn the ultimate decision. This is what I consider the Full Court meant by “inadvertently” adopting an “undisclosed prohibited reason” in Kodak (see at [117] above).

122    I therefore consider the focus and scope of the inquiry in this matter should proceed in two parts. First, an inquiry to ascertain whose reasons had a material effect on the reasoning process that preceded Mr Pretorius’ ultimate decision to dismiss Mr Scott. And, secondly, an inquiry to examine the reasoning employed by those persons to ascertain whether it was affected by a prohibited reason or, to put it in the terms of s 360 of the FWA, whether Clermont Coal has established to the requisite standard that none of the alleged “particular reasons” was a substantial and operative reason for the decision to dismiss Mr Scott. I will proceed to undertake the first part of this inquiry under this issue and attend to the second part of it under the next issue. But first, I will review the evidence bearing upon both parts of the inquiry. In that review, it is unnecessary to further consider the evidence of Ms Washington because it is already sufficiently summarised above. I will therefore begin with the evidence of Mr Fry, Mr Scott’s supervisor, and then turn to the evidence of Mr Pretorius, Mr Christensen and, finally, Mr Fleming.

Mr Kevin Fry – Mr Scott’s supervisor

123    As noted a number of times above, from about 2012, Mr Fry was Mr Scott’s supervisor. In that capacity, he conducted Mr Scott’s 2013 WPR. The score from that WPR became the first in the hierarchy of selection criteria used in the redundancy process (see at [35] above).

124    Mr Fry gave evidence by affidavit and orally by videolink from Central Queensland. In his affidavit evidence, he said that he thought Mr Scott was the “least effective performer out of both Panel 1 and Panel 2 [of the Pump Crews]”. Nonetheless, he said that “[g]enerally speaking, [he] met the expectations of his role”. He also said that “I never had any real concerns with Mr Scott’s performance. I never had cause to make ‘allegations’ of poor performance against Mr Scott that necessitated the use of Clermont’s performance management policy”.

125    He said in his affidavit that Mr Scott “sometimes took longer than other Operators to complete tasks”, and initially repeated this observation in his oral evidence. However, he later qualified this in cross-examination by agreeing that, in the context of the WPRs he performed between 2012 and 2014, it would be “false to suggest [Mr Scott] took too long to perform pump crew work”.

126    Mr Fry confirmed that, in the end of year WPRs for 2012 and 2013, and the mid-year WPR for 2014, he had recorded observations to the following effect about Mr Scott (taken from the end of year WPR 2013):

Alan turns up for work early and fit for duty. Alan has good input into pre-start meetings. Alan contributes ideas and helps plan out tasks for the shift. Alan looks at the safety aspects of each task and communicates his views to his superior and team mates. … Alan has a good understanding of the dewatering process. Alan meets the expectations for this role.

127    Mr Fry said that he recalled asking Mr Scott if he was interested in doing the S1, S2, S3 supervisor’s course and him responding to the effect that he was not interested because he felt it would cause a conflict of interest with his union delegate duties (see the incident described in [20(c)] above). He agreed in cross-examination that, in his experience, this perceived conflict of duties was “notorious in the black coal industry”. Nonetheless, he said that he thought it was advantageous for an employee to complete the S1, S2, S3 supervisor’s course.

128    At the time he undertook the end of year 2013 WPR for Mr Scott, which was not finalised until mid-2014, Mr Fry said he did not know that the redundancy process was to be undertaken later that year.

129    In his affidavit evidence, Mr Fry said that he did not “specifically recall giving Mr Fleming feedback about Mr Scott”. However, he allowed for the possibility that he may have done so by saying: “in 2014, Mr Fleming performed work subject to a Monday to Friday roster. During this time, I saw Mr Fleming often and when I did so, I would have general work-related discussions with him.” He added that “I do not recall telling Mr Fleming that Mr Scott lacked initiative”. Curiously, he was not asked in his evidence-in-chief whether he had told Mr Fleming that he thought Mr Scott was “lazy”. This is curious because Mr Fleming gave this evidence in his affidavit, which was filed before the commencement of the trial. The statement in question is highlighted in Mr Fleming’s comment in support of his assessment score for the third skills criterion (see at [164] below).

130    Mr Fry said that he was involved in the discussions between Mr Christensen and Mr Fry in April 2013 when the issue of a perceived conflict between Mr Scott’s union duties and his role on the Pump Crew arose (see at [20(a)] above). He agreed that this issue was resolved amicably and that Mr Christensen had told him (Mr Fry) that he did not have a problem with Mr Scott leaving the Pump Crew to undertake his union duties. He also said that Mr Scott would obtain permission from his team leader before he did so.

Mr Dawid Pretorius – the ultimate decision-maker

131    Mr Pretorius’ role and involvement is already described in some detail above. However, in his written and oral evidence, he also addressed a large number of other matters, the more salient of which are as follows.

132    First, Mr Pretorius agreed in cross-examination that, as an employer, Clermont Coal had a preference for a two party relationship, or direct engagement, with its employees. However, he denied that this preference meant that Clermont Coal positively excluded the CFMEU, or other third parties. Mr Christensen gave evidence to similar effect. I accept their evidence on this point.

133    Secondly, Mr Pretorius denied that he had seen, or used, a ranking spreadsheet prepared by Ms Washington on, or shortly after, 16 September 2014, which became Exhibit A11 (see at [53] above). He said the only ranking spreadsheet he saw was the one provided to him in about early October 2014, upon which he based his ultimate decision as to which employees would be made redundant. Accordingly, he denied that he made, or was aware of, any decision some time after that date to engage Mr Fleming as a second assessor for Mr Scott. Further, Mr Pretorius said that he was unaware that Mr Scott was among the employees to be made forcibly redundant prior to his decision in early October 2014. Finally on this aspect, Mr Pretorius said that, prior to making his decision, he did not know what Mr Scott’s personal assessment score was, nor that of any other individual employee.

134    Thirdly, Mr Pretorius denied that his ultimate decision to carry out the forced redundancies was a “rubber stamp” decision. In this respect, he said it was important for him to be satisfied that the business was left with the skills base necessary to continue to operate efficiently if the 29 employees were to be made redundant. I have already dealt with this matter (see at [114] above).

135    Fourthly, and importantly, Mr Pretorius said in evidence that he could not have made his ultimate decision without reference to the ranking spreadsheet (Exhibit A6) and the assessment scores upon which it was based. I have already remarked on the importance of this evidence (see at [111] above).

136    Fifthly, Mr Pretorius said he did not consider that Mr Scott had a high profile as a result of his CFMEU-related or union activities. I am not inclined to accept this statement. I consider there is ample evidence to show Mr Scott assumed a high profile among the management and employees at the Clermont Mine as a result of his union activities and I think Mr Pretorius was quite aware of that. Included in this evidence are Mr Scott’s extensive union activities over the period from 2012 to 2014, which I have described above (see at [21]– [26]). In my view, Mr Pretorius must have been, at least generally, aware of these activities. In addition, Mr Pretorius was aware that Mr Scott had been elected President of the CFMEU Lodge.

137    Finally, and perhaps more significantly, there were the following two incidents where Mr Pretorius had terse exchanges with Mr Scott in connection with his union activities. The first occurred in May 2014 during the vote upon whether to adopt a new Enterprise Agreement to replace the 2012 Enterprise Agreement. Mr Pretorius was not asked about this exchange in his evidence. Despite this, Mr Fleming instanced it as one of the matters he took into account in assessing Mr Scott for the fourth attitude criterion score (see at [185] below). In his statement, Mr Scott gave the following account of the incident:

74.    In May 2014, during a vote count, I was standing in between Mark Currie and Dawid Pretorius. There were three ballot forms sitting on the table after the vote. The AEC representative advised that the forms were ineligible, but all three showed clear intent of what they wanted. They were ineligible because they had other writing on the forms. We all agreed the three votes could be counted. The first two showed a no vote, but on the ballot form, it had comments such “crap agreement”. Pointing at the third vote, I said words to the effect, “You can have this one, the vote is going south.” The vote was a “yes” vote. Dawid Pretorius then said words to the effect, “You don’t know what you’ve done, you are going to regret this, is this what you advised the workers to do?” I responded with words to the effect, “This is the opposite of what we advised the workers to do.” Dawid Pretorius then said words to the effect, “Glencore will be worse off to deal with, you are going to get nothing, you are going to regret this.”

...

76.    … At the following enterprise agreement meeting on 30 June 2014, Dawid Pretorius said words to the effect, “I am so disappointed in the last vote because the agreement was voted down.” Dawid Pretorius also said, “I am gutted that someone had turned it into a us and them vote.” This comment was not verbally directed at me by Dawid Pretorius mentioning my name, however, he was looking right at me when he made the statement.

138    The second incident occurred after the State of the Nation meeting on 22 September 2014. The agreed facts as to what occurred during that meeting are set out above (see at [92]). However, they do not include the exchange between Mr Scott and Mr Pretorius which occurred after that meeting (mentioned at [93] above).

139    In his statement, Mr Scott gave the following account of the incident:

77.    Shortly after this the meeting concluded, Joe Maw asked me if I would accompany Joe Maw while he spoke with Mark Currie regarding the issue of representation of employees during the voluntary redundancy process. On the way to catch Mark Currie, Dawid Pretorius asked me to the effect, Can I see you inside?" I understood that this meant that Dawid Pretorius wanted to see me in an office away from other employees. I replied, "Yes. Joe will you attend with me."

78.    When he started to walk away from us to find a room, he was walking in a hurry, and as he was going past rooms, he was trying to open doors. One door was locked, and he kept storming forward until we reached the Boardroom. Twice on the way to the meeting room, Dawid Pretorius turned around and told me, "I only want to talk to you, not Joe." Both times I replied, "Joe will be present."

79.    At approximately 2.40pm in the Boardroom, in the presence of Joe Maw and myself, Dawid Pretorius was clearly agitated and pointed his finger at me and said, ""Don't you ever put me on notice. You must know your place. You have your role to do on site but do not ever put me on notice in front of the employees. I am the General Manager."

80.    Mark Currie then entered the meeting. Dawid Pretorius still agitated pointed his finger at me and again said, "Don't you ever put me on notice." I replied, "Is that it?"

81.    The reasons I responded in this way is because I was shocked and thought that the way Dawid Pretorius was behaving was uncalled for and against company policy. I wanted to shut the conversation down. All I wanted to do was to let him know that we were going to seek legal advice, and after he responded in this way, I did not want it to escalate any further. During the exchanges, in both the State of Nation and the Boardroom, I did not get agitated or raise my voice.

82.    Joe Maw then asked Mark Currie, "Would you like to reschedule the meeting with Nicole Bancroft?"

83.    Mark Currie replied with words to the effect "I will reschedule the meeting. You will not be present as a representative, this is not a dispute. Nicole has approached the company for a voluntary redundancy, this is not a forced redundancy."

84.    I then said to Dawid Pretorius and Mark Currie words to the effect, "Even outside the consultation it is a work place right to have representation. The employees even at the final stage of the voluntary redundancy process, they are still an employee of the company and have the right to representation".

85.    Joe Maw said words to the effect, "You have your opinion and we have ours."

86.    Dawid Pretorius then said words to the effect, "You have your lawyers and we have ours."

140    Mr Pretorius challenged parts of this account in his affidavit as follows:

56.    With respect to paragraph 78 of the Scott affidavit, I deny that I “stormed forward” until Mr Scott, Joe Maw, CFMEU Secretary – Clermont Open Cut Lodge, and I reached the boardroom.

57.    With respect to paragraph 80 of the Scott affidavit, I deny that Mr Currie entered the boardroom at this point in time during my discussion with Mr Scott and Mr Maw. Mr Currie was with me at all times during this discussion.

Mr Andrew Christensen –Mr Scott’s first assessor

141    Mr Christensen’s role in the redundancy process is briefly touched on above (see at [62]–[63]). The following paragraphs contain more details of his role.

142    Like Mr Scott, Mr Christensen’s position at Clermont Coal was made redundant in late 2014. He gave his oral evidence in person, in Brisbane. By that time, he had returned to live in his home country, the United States of America. He had not retained any continuing links with Clermont Coal or any of its related entities.

143    In early September 2014, he attended a meeting with a number of other superintendents and managers at the Mine. Those present were informed that they were to be responsible for assessing the performance of the Mine’s employees in various work areas for the purpose of determining which employees were to be made compulsorily redundant. Shortly after that meeting, Mr Christensen said he attended a briefing session with Ms Washington, during which she provided him with a summary of the redundancy selection process and a document which described that process. As a result of that briefing, Mr Christensen understood that his role was to assess various employees and allocate each a score of 1 (the lowest) to 5 (the highest) for a set of skills and attitude criteria.

144    At the same meeting, Mr Christensen said Ms Washington described a list of matters that Mr Christensen was not to take into account in allocating scores to any employee. He was also provided with a second document outlining those matters. The list of matters included in that document, as provided to Mr Fleming, is set out below (see at [157]).

145    Mr Christensen said that he assessed and scored approximately 80 to 90 employees over a two day period. He said that he only provided assessment scores for employees with whom he was familiar. In his affidavit, he described his approach to his task in the following terms: “I knew that my decisions had the potential to affect employees’ livelihoods. In this respect, I wanted to make sure that I did it properly and that I did not take any irrelevant or unlawful matters into account.”

146    Mr Christensen said that he knew Mr Scott because, as the Mining Services Superintendent, he had overarching responsibility for the Pump Crew where Mr Scott was working. In that respect, he said that he considered Mr Scott’s performance was “acceptable.” In his evidence-in-chief, he was asked to compare Mr Scott’s work performance with that of the other members of the Pump Crews. In response, he said:

Mr Scott was on the level of being an acceptable member of the team. We viewed his work as good work, but in specific relativity to four of those other members, I did not view those [sic - him] as being as driven or as having as much initiative as some of those other team members did.

147    He added that this assessment was primarily associated with his attitude, but it also related to his skills.

148    He said that he dealt with Mr Scott in his capacity as a CFMEU representative on occasions. He said that he did not believe their relationship involved “any kind of animosity” and he claimed they always had a “good rapport”. However, in his oral evidence, he added that “at the same time I never quite felt or understood exactly where I stood with him … in terms of whether he was willingly accepting … of my direction or the direction of his supervisor”. Mr Christensen agreed that he had spoken to Mr Scott in April 2013 about a perceived conflict between his union activities and his duties on the Pump Crew (see the incident described at [20(a)] above). He said, at about that time, he had discovered for the first time that Mr Scott had permission for those absences from higher management.

149    The scores Mr Christensen gave Mr Scott are set out at [63] above. Mr Christensen said that he assessed and scored Mr Scott without consulting anyone else, although he did draw on his memory of comments that had been made during the normal course of business at the Mine. He said he assessed all of the employees he was required to assess in one sitting and he did not make any notes as to why he had allocated a particular score to a particular employee. He said if that were required, “it would have taken several weeks”. In his affidavit, which was compiled in late November 2014, Mr Christensen had inserted comments beside the scores he had allocated to Mr Scott. Those comments were as follows:

150    In cross-examination, Mr Christensen repeatedly denied that he gave a lower score to Mr Scott because of his union activities.

151    Mr Christensen said Mr Scott’s refusal to undertake the S1, S2, S3 supervisor’s training was one of the reasons why he gave him a score of 3 for the fourth skills criterion: willingness and capacity to gain new skills. He said Mr Fry had told him that Mr Scott had refused to undertake that training because he thought it involved a conflict of interest with his union duties. He explained “that was his personal choice. We provided him with that opportunity and we would have been happy for him to have that qualification.”

152    Mr Christensen also referred to other occasions when Mr Scott’s training had to be rescheduled to accommodate him. He said the training in question was undertaken in Mr Scott’s time, but Clermont Coal paid him. He said his recollection was that he required this rescheduling because he had to attend to some “mustering” activities. He denied that he knew it was because Mr Scott had to attend to any union duties.

153    Mr Christensen said there were several occasions when he told Mr Scott “that he needed to be careful about the words that he used or the way that he spoke to people”. He said his concern was that he thought Mr Scott was “sarcastic” on occasions. Asked why he did not take any steps to discipline Mr Scott for this conduct under the applicable Mine disciplinary policy, he said that the conduct did not justify that. He said one had to apply common sense and the disciplinary procedures were “situationally dependent”. For similar reasons, he said he did not take any steps to discipline Mr Scott for inappropriate language on the two-way radio back channel (see his comments on the second attitude criterion at [149] above). He said that he did not associate Mr Scott’s tendency to be sarcastic or blunt with his union activities.

Mr Wayne Fleming – Mr Scott’s second assessor

154    Mr Fleming commenced work at the Clermont Mine in July 2011. At the time of the restructuring process in late 2014, he was the Acting Haulage Superintendent. In that role, he was responsible for supervising up to 220 employees.

155    In his affidavit evidence, he stated that he took a period of annual leave in early September 2014. However, in his oral evidence he corrected this to “late August”.

156    In his affidavit evidence, he also said that, in early September, he received a request from Mr Vivian, the Acting Mine Manager, to assess employees for the purpose of determining who would be made compulsorily redundant. In his oral evidence, he also made a correction to this date. He said it should have been “early August”. When it was pointed out to him in cross-examination that the selection criteria were not adopted until a meeting of the Mine management on 14 August 2014, he said he did not keep any notes about these events, but he was “under the impression” the request was made in early August.

157    As was the case with Mr Christensen, before he began making any assessments, Mr Fleming was briefed by Ms Washington. This briefing included an explanation of the assessment criteria and an instruction not to assess any employee with whom he was not familiar. Ms Washington also provided Mr Fleming with a list of matters that he was not to take into account in making his assessments. Mr Fleming said in his affidavit those matters were:

(a)    discriminatory grounds (for example, sex, religion, impairment, union activity and race);

(b)    workplace rights (for example where an employee has had authorised absences on paid leave; where an employee has a benefit or role under a workplace law or enterprise agreement; where an employee has participated in a process or proceeding under a workplace law, enterprise agreement or award; where an employee has raised a dispute; where an employee has raised a complaint about their employment);

(c)    an employee's status or otherwise as a member or officer of a union; and

(d)    where an employee has engaged in industrial activities.

In addition to detailing these matters orally, Ms Washington provided Mr Fleming with a document listing them. At the end of the briefing, Mr Fleming said he understood the task he had to perform and the matters that he was not to take into account.

158    In mid-September 2014, Mr Fleming said that he assessed and allocated scores to approximately 180 employees from the haulage, load and dump, and mine services work areas of the Mine. He estimated that this process took approximately eight hours to complete. He said he only made assessments of those employees of whom he had a working knowledge. He said: “I genuinely turned my mind to each employee and how they were performing based on each of the criteria.” He added that he did not seek any feedback from any other persons at that time, although he did rely upon feedback he had previously received and his own observations. Once he had completed his assessments, he provided the results to Ms Washington.

159    In late September 2014, Mr Fleming said that he received a telephone call from someone within Clermont Coal’s management team (he could not recall who) asking him to assess a number of employees who, to that time, had only been assessed by one assessor. Mr Scott was among those employees and he agreed to assess him because he claimed he was familiar with his work. While he had never been Mr Scott’s direct supervisor or superintendent, he believed he had enough knowledge of him and his work to make the assessment. In his affidavit, he provided the following reasons for reaching that conclusion:

(a)    As part of my Superintendent role, I inspected the pits at least once or twice a week. During this time, I often had the opportunity to observe Mr Scott performing work.

(b)    Prior to being appointed as the Acting Haulage Superintendent, I was a Haulage Supervisor. This meant that I was in the pit almost every day. During this time, I often observed Mr Scott performing work. I also worked directly with Mr Scott's Supervisor, Kevin Fry, who at times provided feedback to me in relation to a number of members of his crew, including Mr Scott.

(c)    Mr Scott and I both performed work as part of A Crew. This meant that we worked the same day shift pattern, so I often had the opportunity to observe Mr Scott performing work.

(d)    On about two to three occasions, I have also dealt with Mr Scott in his capacity as a CFMEU representative. Our working relationship was manageable and was certainly no different to my working relationship with any other CFMEU representatives on site.

160    With respect to (d) above, Mr Fleming said in cross-examination that Mr Scott was one of the most active CFMEU representatives on the Mine site. He later described him as one of the “front line group, as in the top tier of the members of … the union group” and as one of “the leaders”.

161    There were 16 employees on the list for whom Mr Fleming was asked to act as a second assessor. Mr Scott was the only employee on that list employed in the Pump Crew. The other 15 employees were employed in the haulage section. It emerged during cross-examination that all of those 15 employees had recorded a score of 2 in their 2013 WPRs and they were therefore all to be made forcibly redundant, in any event, under the first of the selection criteria hierarchy (see at [36] and [46(a)] above). Mr Fleming agreed in cross-examination that he was aware that those 15 employees had all received that score and he was also aware that anyone with that score was to be made forcibly redundant. However, he claimed that he was unaware at that time what Mr Scott’s 2013 WPR score was. It also emerged during cross-examination that those 15 employees had not, in fact, been rated before and, accordingly, Mr Fleming was to be their first and only assessor. Mr Fleming said in cross-examination he became aware of this for the first time in the witness box. Despite these discrepancies, Mr Fleming repeatedly denied he had been introduced into the assessment process to target Mr Scott as a union official and to ensure he received a low rating score which would result in him being made redundant.

162    There is also an unexplained discrepancy in the evidence as to when it was that Mr Fleming undertook Mr Scott’s assessment. It is convenient to deal with that issue at this juncture. Mr Fleming’s scoring sheet for his assessment of Mr Scott is dated 10 September 2014. He confirmed this date once in his evidence-in-chief and twice in cross-examination. However, in his affidavit evidence, Mr Fleming said Mr Vivian asked him “in late September 2014” (see at [159] above) to act as a second assessor for Mr Scott and the 15 employees mentioned above. More importantly, Mr Fleming did not change this date as he did with a number of other dates in his affidavit (see at [155] and [156] above). Indeed, in his evidence-in-chief, he specifically confirmed it. This 10 September 2014 date is also inconsistent with another document in evidence: the ranking spreadsheet (Exhibit A11) (see at [53] above). Among other things, that spreadsheet shows that, as at 16 September 2014, Mr Scott had only been assessed by one assessor and he received a score of 24. This is consistent with the score Mr Christensen gave him. Significantly, as is already mentioned above (see at [53]), that spreadsheet also shows that, as at that date, Mr Scott was ranked at number 38, that is, nine ranks above the cut-off level for forced redundancies of 29 (see at [47] above). With that ranking, Mr Fleming agreed in cross-examination that at least four of the people ranked below Mr Scott on that spreadsheet were ultimately not subjected to forced redundancies: Mr Lucas Prior, Mr Chris Francis, Mr Craig Davidson and Mr Wayne Edwards. Mr Fleming was unsure whether or not a fifth employee, Mr Matt Cottle, was also included in this group.

163    Mr Fleming took approximately 30 minutes to assess Mr Scott’s performance. He said he took “a lot longer” to assess him than he did to assess the 15 employees from the haulage section. He explained in cross-examination that it took longer: “Because I probably wasn’t as familiar with Al Scott as I was with the haulage operators”. This explanation is not consistent with the reasons set out in [159] above. However, in cross-examination, he denied he had spent that amount of time so that he could manufacture reasons to “get rid of [Mr Scott]” as a CFMEU union official.

164    The scores Mr Fleming allocated to Mr Scott are already set out above (see at [64]). Similar to Mr Christensen, in his affidavit evidence, Mr Fleming had inserted comments beside each of the scores he had allocated to Mr Scott, as follows:

165    In his oral evidence, Mr Fleming was asked to expand on most, if not all, of these comments. Set out hereunder are the salient aspects of that evidence.

166    In his evidence-in-chief, Mr Fleming was asked to describe the circumstances in which he received the “feedback” from Mr Fry about Mr Scott being “lazy”. This related to the comment on his score for the third skills criterion above (willingness to use skills) where he gave Mr Scott a score of 2. The questions and answers about that topic were as follows:

Now, pausing there, are you able to tell the court when it was you took feedback from Mr Scott - - -?---No, unfortunately - - -

- - - sorry – in relation to Mr Scott from Mr Fry?---Unfortunately I can’t give a time or a date.

Are you able to tell the court when you received feedback from – I beg your pardon – where you received feedback from Mr Fry?---I do recall one instance. It was in the breezeway area between the haulage and the despatch offices.

And what were the circumstances that were prevailing when you obtained that feedback?---It was just a general conversation I had with Kevin concerning how things were going from the pump crews, and – and in relation to what – how things were going in the haulage crews, which I was running at this stage, and a few names had come up, and one of them was Al’s, Al Scott’s.

So was it a meeting that had been arranged in particular to discuss Mr Scott?---No.

How long did the discussion take?---I wouldn’t want to say. It wouldn’t have been any more than 10 minutes.

And did you have discussions with Mr Fry regularly about employees at the mine?---No.

Were you in particular seeking out from Mr Fry the feedback that you received in relation to Mr Scott?---No.

167    It should be noted that, in cross-examination, he gave the approximate date of this conversation as “late 2013”.

168    A short time later, in answer to a question seeking more details, Mr Fleming said:

… He said – I – honestly, I – I’m sorry – I can’t – explain to you how the conversation come up, but he said that he had had a few issues in his crew. The main issue for him was – was the attitude and the most – he was lazy – this is Al Scott in question – towards his work. But the biggest emphasis was on attitude.

Was anything else specifically said in relation to Mr Scott?---Not that I can remember, no.

169    In cross-examination, he was asked whether there was only one conversation with Mr Fry, or a number of conversations. That questioning proceeded as follows:

Do you remember when you were first called to give evidence late one day, all you did was describe a single conversation said to be in the breezeway involving you and Mr Fry?---That’s one conversation I can remember having and a specific place.

So your evidence was different in the witness box to what’s in the table because it changed from a number of occasions in the past to a single occasion in the breezeway. That’s right?---I have stated on a number of occasions in the past that I can remember the one specific conversation with Kevin in the breezeway.

170    It was then put to Mr Fleming that, in his evidence, Mr Fry did not say that he thought that Mr Scott was “lazy”, that he lacked initiative and that he would not do things unless he was asked to. It was put to him that he had invented this feedback from Mr Fry. Mr Fleming denied this, but when challenged to provide a specific example to support any of these allegations about Mr Scott’s conduct, he responded: “I have no written statements, no dates. No I can’t provide that.”

171    Mr Fry’s evidence on this topic is set out at [129] above.

172    Mr Fleming repeated his comments above about having no notes of any of these events on numerous occasions during his oral evidence.

173    Mr Fleming was also asked to describe the observations he had made that led him to conclude Mr Scott was unwilling to acquire new skills (see the fourth skills criterion at [164] above). He gave Mr Scott a score of 2 for this criterion. On this topic, in his evidence-in-chief, he said:

Now, can you tell the court what was it about how Mr Scott presented to you and what your observations were of Mr Scott that led you to the opinion you came to?---I think over a period of time of some small observations and some casual conversations I had had with some peers and mainly his supervisor – that, yes, a reluctance to use his willingness to gain new skills and his attitude towards helping others with them over a period of time. There wasn’t a lot of observations. It was more through ..... I had with his supervisor.

And are you able to recall any particular observations or discussions with supervisors or peers?---Observations are a bit tough because there was – I never recorded or ..... notes on observations I had with him in the pit, but I do remember one specific conversation I had with his supervisor on his – on his attitude and his way he held himself at work, and I suppose I come up with the assumption that his willingness to gain new skills was – was quite low, and that’s why I scored it that way, as a 2.

174    A little later, he added:

For me, I suppose, the willingness to gain new skills was probably a – more of a conversation I had had with his supervisor, with matters concerning his willingness to use his skills as well, and I suppose I have made a decision that based on those conversations I had with his supervisor – that his willingness to gain new skills was not of a high grade or high score.

175    In relation to the four skills criteria generally, Mr Fleming raised a matter not mentioned in his affidavit about Mr Scott spending a lot of time in the vicinity of the “go-line”. He described this in the following terms:

Was there anything else you wished to add in relation to your own observations or what you were told by others that led you to the opinion you’ve recorded there?---I think at times, when I made observations in the pit about working, it was never with much energy. I think that at times I saw him, he wasn’t actually working. For me, I observed Al Scott spending a lot of time up top at the go-line, and they weren’t crib times is something I did note. That was just some of the small observations I made.

Tell the court what it is about having made observations at the go-line that led you to the opinion you’ve expressed?---Well, I just think that to see someone that’s at work and spending a large amount of time at the go-line, the go-line being where the crib hut is, where the amenities are – that they are spending a lot of time up there instead of in the field. I suppose they are observations being made. There could have been a reason, but over a period of three years, you do pick these things up. Spending a large amount of time up at the go-line is not necessarily where he needs to be. You get two cribs a day. I would check the times. So that’s where I made my opinion that, you know, he should have been in the pit instead of up at the go-line.

Based on the times - - -?---Based on times.

- - - that you made the observations?---Cribs are normally between half past 9, 10 o’clock, half past 10 and later in the afternoon, around half past 2, 3 o’clock.

176    In cross-examination, Mr Fleming agreed that he had not at any time approached Mr Scott to ask him what he was doing in the “go-line” area, nor had he complained to anyone else in the Mine’s management about Mr Scott being there. He also agreed that the “go-line” area was located near the offices of various supervisors and superintendents, including Mr Fry, the supervisor of the Pump Crew. He then agreed that Mr Scott may have been in that area to speak with Mr Fry, his supervisor, and also to attend meetings with supervisors from other parts of the Mine in the course of his CFMEU duties.

177    In both his evidence-in-chief and in cross-examination, Mr Fleming was also asked about the observations, dealings and feedback variously mentioned in each of his comments for the scores he gave Mr Scott for the four attitude criteria (described at [164] above). First, he described the two-way radio incident mentioned in the comments for the second attitude criterion above in these terms:

I was told by a fellow supervisor, which – I can’t actually remember which supervisor it was – that he was called on the radio in the RT for something I’m not exactly sure of, asked to do another job for another crew, as in, another – I’m not – it might have been load and dump, which is another subsidiary at a mine – and was asked to perform a job and basically said on – on the back channel – to the words – I don’t know what the words are, sorry, but – “no, this won’t be happening”. We’ve always – have been great believers of flexibility in the workplace to help other crews out, and basically I was told that he said, “No, this will not be happening.”

Is that the only feedback upon which you relied to come to the - - -?---There have - - -

- - - opinion?---There have been other occasions, but I’m not a hundred per cent sure on them at all.

178    The statement “No, this won’t be happening” made during this two-way radio conversation was also, in part, used by Mr Fleming to support his comment in relation to the third attitude criterion – that on occasions Mr Scott would “push back”. He said that comment was based on conversations Mr Fleming claimed to have had with other supervisors, as follows:

The opinion is expressed in that column that he presented as someone who was unwilling to assist others outside his crew, because at times he would push back when asked to do work which was not for his crew. Do you have anything to say about observations you have made or feedback you have received relevant to the opinion there expressed?---I think more in line with what I brought up before about the fact, when he was asked once by another supervisor and he pushed back and said no, they won’t be doing that. Plus with other conversations I’ve had with other people concerning his attitude.

In relation to what aspect of his attitude?---His attitude is that I wouldn’t – well, it is an unwillingness to go outside the boundaries of his position and whereas we – at work we always, like I said, we try to go outside and help other departments.

When you talk about the boundaries of his position, what do you mean by the boundary?---As in working for the pump crew outside.

That is working for a crew other than the pump crew?---Yes.

179    In cross-examination, Mr Fleming said he was unaware that a direction had been given by Mr Fry (Mr Scott’s supervisor) and Mr Hincksman (as his team leader) that, if any members of the Pump Crew were asked to do any work for any other crews, they were to check first with either their team leader, or their supervisor, before agreeing to do so. He also said that he was unaware that problems had occurred in the past with other crews requesting the Pump Crew to place pumps in an area and then, a few hours later, remove them because they were hindering work activity. When it was put to him that Mr Scott was therefore acting on instructions by refusing to agree to do work for other sections, or “pushing back”, Mr Fleming said: “I wouldn’t have a problem with him pushing back, it’s the way he did it.” He explained: “I think it’s the smart way he – the way he says it over the radio, sarcasm in a way that it’s a smart response back on the radio.”

180    Mr Fleming also mentioned Mr Scott’s sarcastic language in his capacity as a member of the CFMEU executive (see his comments for the fourth attitude criterion at [164] above). His explanation as to who constituted this “executive” group is set out at [160] above. He described his concerns in this respect in the following terms:

In my capacity as the assistant – sorry – the superintendent haulage last year, I had to deal with Alan, probably two or three occasions. The attitude at times that Alan would bring, when he probably felt he wasn’t getting his way, was probably unacceptable for me.

What do you mean when you describe the attitude he displayed?---Well, the sarcasm and the raising of his voice.

Do you mean by that in conversation with you or with others?---Yes.

With you?---Well, dealing with union matters or support role matters.

181    He was then asked to give details of the particular occasions to which he was referring. In response, he described two occasions. The first he described in the following terms:

… There was two I can remember. One was, I received a phone call from Al – Al Scott on the way home from work in relation to an employee from Clermont Mine. This employee had been on long term sick leave and her sick leave had been – she had been told that day that she would no longer be receiving sick leave. She obviously made contact with her union rep, which was Al Scott, and I received a phone call in relation to this; why she was not receiving it. I said a decision had been made by management that she would no longer receive sick leave and with that, Al said, “Well, why isn’t she?” I said she has either used it and he asked me about, there’s compassionate leave or there was some other kind of leave that he was pushing for. I said, “Look, that won’t be happening, and with that he raised his voice and stated, “You will be hearing from the lawyers on Monday,” and I said, “Well, that’s fine, mate, we will talk about it on Monday.” I couldn’t understand why he raised his voice then to threaten me with lawyers on Monday, which I thought was way out of line.

(Emphasis added)

182    Then he described the second occasion as follows:

Yes. There was another one. There was a particular operator who had used Al Scott as a support person and brought Al Scott into my office. We sat down and I made it quite clear that Al is in here as a support person and as a support person they can’t actually say anything. They can leave the room and talk - discuss the issue, but they can’t – the support person can’t talk while in the meeting. And Al disputed that, Al Scott disputed that and I said, “Sorry, mate, but according to the EA, you are a support person at this stage and you are to either cease talking or leave the room and make contact with your representative then.” With that, Al decided that he was the support person, but at that stage they walked out of the room and the conversation was finished.

183    Mr Fleming confirmed that these were the only two occasions he could specifically recall.

184    In cross-examination, he agreed that he had raised these two occasions for the first time in his oral evidence.

185    He also raised another incident for the first time in his evidence-in-chief. This incident related to Mr Scott’s conduct in his capacity as a CFMEU official to support the comments he had made for the fourth attitude criterion (see at [164] above). It was first mentioned in response to a question during his evidence-in-chief about any particular feedback he had received from other supervisors. The incident he described appears to be the exchange between Mr Scott and Mr Pretorius set out at [137] above. Mr Fleming described that incident in these terms:

I’ve had numerous feedbacks over the years and I can no longer recall, unfortunately, which obviously contributed to my decision. I think one in particular was when there was an EA vote, I think it was mid last year or near the end of the year, I’m not 100 per cent sure, but it was - Al Scott was in the voting room and the SSE of the mine, Dawid Pretorius, was in the same room and there was a smart comment made towards the management – manager about the way the EA vote was going.

What do you mean by a smart comment?---A comment towards the fact that it looked like the EA vote was going to get voted down.

Now, is that what someone told you or what you observed?---Yes, that’s what I was told.

All right. And what you were told about that led you to the opinion that you have expressed about his attitude?---That was one of the feedbacks I can recall that determined my – yes.

Is there any other feedback that you can recall having been given, that you wish to give evidence about in respect of this subcriteria?---No.

186    Mr Fleming was cross-examined at some length about the disparity between the scores he had given to Mr Scott in his assessment of him, compared to those he had given to the other employees he had assessed and scored. This cross-examination focused on two assessment criteria in particular: the first skills criterion (skills/licences/tickets relevant to the role required) and the second attitude criterion (flexibility and adaptability to new methods of working, new situations or new role requirements).

187    Mr Fleming scored Mr Scott a 3 for the first skills criterion. As can be seen above (see at [164]), he said that “I awarded most, if not all employees, a 3 in relation to this criteria (sic)”. In his oral evidence, he said that a score of 3 “was about middle of the range”. However, in cross-examination he agreed that, of the 16 employees (including 15 haulage employees) he was asked to assess as a second assessor, only Mr Scott received a score of 3 and all the others received scores of 4 or 5. Furthermore, of the 119 employees he had earlier assessed, only three had received a score of 3 and the remainder received scores of 4 or 5. When asked to list the skills, licences and tickets Mr Scott held, he was unable to do so. He agreed that he could have obtained this information from Clermont Coal’s computer system, but he had neglected to do so. He also agreed that, as a group, the Pump Crew held a broader range of skills than other crews, such as operating chainsaws, using poly welding equipment and operating excavators. He also agreed that, by comparison, operators in the haulage section may have only one or two skills or competencies.

188    His cross-examination about the second attitude criterion returned to the topic of the two-way radio conversation that Mr Fleming had relied upon in his comments to support his score of 2 for Mr Scott on this criterion. Mr Fleming agreed in cross-examination that Mr Scott had not been disciplined in any way for the way he spoke during this conversation. Mr Fleming accepted that, of the 119 employees he had earlier rated, only five received a score of 2 for this criterion. He also accepted that one of those five was Mr Graham Anstis, who was also an active CFMEU union member. However, he denied that either Mr Scott’s score, or Mr Anstis’ score, was given because of their activities as CFMEU delegates or officials. He claimed it was because of their attitude.

189    Significantly, Mr Fleming also accepted that one of the employees to whom he had allocated a score of 3 for this attitude criterion, Mr John (Tim) Kelly, had been the subject of a recent behavioural breach for his language during a two-way radio communication. He sought to explain the difference between Mr Scott’s score of 2, having not been the subject of a behavioural breach, with Mr Kelly’s score of 3, having been breached. He did so in these terms:

For me, it was – for the Mr Kelly instance, it was just straight out swearing. He swore over the radio, not at anybody in particular. With Mr Scott, it was a response to a reasonable request.

Are you saying he refused duty?---I’m not saying he refused. It was just his response.

Well, what did his response mean to you, if it was ever given?---To me, it was inappropriate.

Because what, he refused you?---He didn’t refuse. It was just the way he said it.

What do you mean by the way he said it?---I’m not a hundred per cent sure, because it was second-hand from another supervisor.

Who from?---I can’t recall.

What was it about the manner that someone else told you second or third-hand?---It was first-hand from the supervisor who heard it.

And what was the manner of it then?---It was just the way he said it, the sarcasm and the smart response.

… Are you saying you were told he used sarcasm?---Yes.

You never said that last week in answer to Mr Meehan’s question, that added part of sarcasm, did you?---I can’t remember.

You just made that up in the witness box, didn’t you?---No.

The persons who had a material effect on the reasoning process

190    Having reviewed the salient parts of the evidence of the persons involved in the redundancy process at the Mine, I return to the first part of the inquiry identified above (see at [122]): who had a material effect on the reasoning process that led to Mr Pretorius’ ultimate decision to dismiss Mr Scott? Apart from Mr Pretorius himself, I consider that Mr Christensen and Mr Fleming were the only other employees who had such a material effect. I have reached that conclusion essentially because of Mr Pretorius’ concession that, in making his decision, he placed considerable weight on Ms Washington’s ranking spreadsheet and the assessment scores upon which it was based (see at [135] above). Clearly then, Mr Christensen and Mr Fleming’s assessment scores were central to the reasoning process that led inexorably to Mr Pretorius’ decision to dismiss Mr Scott. Their reasons for making their assessments therefore had a material effect on Mr Pretorius’ ultimate decision to dismiss Mr Scott.

191    Conversely, I do not consider that any of the other employees of Clermont Coal identified by Mr Scott fall into this category. That includes the following, for the reasons stated:

(a)    Mr Fry, who completed Mr Scott’s 2013 WPR. This is because, by the time the redundancy process was undertaken, the score of “3” that he gave Mr Scott was already an established and recorded fact. Accordingly, while that score was used as the first in the hierarchy of selection criteria, Mr Fry’s assessment of Mr Scott’s work performance in the 2013 WPR did not have a material effect on the subsequent reasoning process that led to the decision to dismiss Mr Scott. I have dealt with the “feedback” Mr Fleming claims Mr Fry provided to him below (see at [201]). Since Mr Fry does not recall providing this “feedback”, it could hardly be said that his reason for providing it, if it was provided, had a material effect on the reasoning process in question.

(b)    Ms Washington, who drafted the selection criteria and prepared the ranking spreadsheet. This is because I do not consider that any aspect of the selection criteria, nor the assessment criteria which were a central part of them, was, as Mr Scott contends, inherently biased against those Clermont Coal employees who engaged in union activities. Those criteria applied equally to all of the 450 (approximately) employees who were involved in the redundancy process, and they were based on two previously established and recorded facts (each employee’s 2013 WPR score and each employee’s performance management history), neither of which had any connection with any employee’s union activities. It is true that the four attitude criteria, which formed an essential part of the assessment criteria, had the potential to be applied to the disadvantage of an employee who had engaged in union activities. However, I do not consider that arose from the inherent nature of those criteria. For the same reason, I do not consider the ranking spreadsheets that Ms Washington prepared, which were based upon those selection criteria, were inherently biased. Putting that issue aside, I do not consider Ms Washington, nor anyone else involved in the drafting or adoption of the selection criteria, had a material effect on the reasoning process that led to Mr Scott’s dismissal because it was the use of those criteria, rather than their content, that was the pertinent material factor.

(c)    Any Clermont Coal employee who provided “feedback” to Mr Christensen or Mr Fleming. This is because, on the one hand, Mr Christensen said in evidence that he did not rely upon such feedback and, on the other hand, Mr Fleming was unable to identify any person, apart from Mr Fry, who provided him with that “feedback”. I have already addressed Mr Fry’s role in (a) above. Even if Mr Fleming were able to identify the sources of this feedback, that would not necessarily mean that those sources had a material effect on the reasoning process because, in the circumstances of this case, it was the identification (or lack thereof) and use of that feedback by Mr Fleming that was critical. This is not to say that in other circumstances the source of such feedback may not have a material effect on the reasoning process leading to a decision similar to the one under consideration here. On this aspect, I also reject Mr Scott’s contention that particular members of Clermont Coal’s management team, such as Mr Vivian, should have given evidence about their involvement in the redundancy process. I do so because I do not consider there is any evidence that any of them had a material effect on the reasoning process that led to Mr Scott’s dismissal. In this respect, I do not consider the unexplained discrepancies discussed below provide such evidence, although their existence has other consequences for Clermont Coal, as I have explained below (see at [209]).

(d)    Finally, I do not consider the review meeting had a material effect on the reasoning process that led to the decision to dismiss Mr Scott. This is because it occurred after that decision was made and it could not, therefore, have materially affected the reasoning process that led to it.

WHAT WAS THE REASON FOR THE DISMISSAL (ISSUE (d) IN [73] ABOVE)?

192    The second part of the inquiry identified above (see at [122]) requires a close examination of the reasoning process employed by the three persons I have identified (Mr Pretorius, Mr Christensen and Mr Fleming) to ascertain whether Clermont Coal has discharged its onus to show, on the balance of probabilities, that the decision to dismiss Mr Scott was not substantially and operatively affected by the particular reasons identified above. This requires it to establish that the reasoning process employed by all of these three men was not so affected. This is the fourth of the issues identified in [73]–[74] above. I will consider each of the three named persons, in turn, in the order identified above.

Mr Pretorius’ reasons

193    First, I do not consider Mr Pretorius’ reasons for his decision to dismiss Mr Scott were relevantly affected by any of the particular reasons. There were two components to Mr Pretorius’ reasoning process: the adoption of Ms Washington’s ranking spreadsheet and an assessment of the skills base of the Mine’s workforce to ensure it met the company’s future needs if the positions concerned were made redundant. I accept Mr Pretorius’ evidence that he was not involved in the first two steps of the redundancy process that preceded his involvement in the third, and final, step. I also accept his evidence that he was unaware that Mr Scott was one of the employees among those to be made forcibly redundant. For these reasons, I accept Mr Pretorius’ evidence that his decision was not made for, or substantially affected by, any of the particular reasons. I do not consider my disinclination to accept Mr Pretorius’ evidence about Mr Scott’s profile as a union official (see at [136] above) affects this conclusion. I therefore consider Clermont Coal has discharged its onus, insofar as Mr Pretorius’ reasoning process is concerned.