FEDERAL COURT OF AUSTRALIA

MH v Australian Capital Territory [2016] FCA 1355

ORDERS

THE ORDER OF THE COURT IS:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

1    The Appellant, known as MH, was formerly a case-worker with Care and Protection Services in the Australian Capital Territory.

2    Disciplinary proceedings were commenced against her on 17 December 2012. On 17 July 2014 she was advised of the “findings in relation to allegations of misconduct against you” and the proposed termination of her employment. She was invited to respond to the findings and the proposed course of action. She failed to respond.

3    On 1 August 2014 the Appellant filed an Application with the Fair Work Commission alleging (inter alia) that the disciplinary process “amounted to bullying”.

4    On 14 August 2014 a decision was taken by the then Director-General of the Community Services Directorate (Ms Chapman) to terminate the Appellant’s employment.

5    On 15 August 2014 the proceeding before the Fair Work Commission was discontinued.

6    The Appellant commenced proceedings in the Federal Circuit Court of Australia on 20 October 2014. The Respondents to that proceeding were the Australian Capital Territory, the Minister for Community Services and Children and Young People (ACT) and two further Respondents simply identified as AS and Jancsi. AS, the Third Respondent, was the supervisor of the Appellant. Jancsi is a child protection worker who had dealings with the Appellant. Contraventions of the Fair Work Act 2009 (Cth) (the “Fair Work Act”) were alleged. In very summary form, the Appellant claimed that her employment had been terminated because she had exercised a number of workplace rights and that Jancsi had “encouraged” the taking of action against her.

7    The primary Judge, in detailed reasons for decision, dismissed each of the claims made: MH  v Australian Capital Territory & Ors [2016] FCCA 563. At the outset, his Honour expressed his overall conclusion as follows:

[10]    For the reasons that follow, not only has the Applicant not made out the claims alleged in her Application, but the Respondents (collectively and individually), whose evidence I accept, have established, in my view, that the Applicant’s claims have no evidentiary base.

8    The Appellant now appeals from that decision. AS is not named as a party to the appeal.

9    The appeal is to be dismissed.

The claimed contravention of SECTIONs 340(1) & 362

10    In summary form, the now-Appellant claimed contraventions of s 340(1) and 362 of the Fair Work Act.

Section 340

11    Section 340(1) provides as follows:

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.

Reliance is placed upon sub-ss 340(1)(a)(i) and 340(1)(b).

12    The Appellant’s Outline of Submissions identified the contravention of s 340(1)(a)(i) as involving “a workplace right, specifically her role under a workplace law or participation in a process under a workplace law … being her role under or participation in a disciplinary process under the ACT Public Service Community Services Directorate Enterprise Agreement 2011-2013…”. The contravention of s 340(1)(b) was identified as involving an attempt “to prevent her exercise of a workplace right, specifically her Application for an order to stop bullying, made under s.789FC of the FW Act to the Fair Work Commission…”. The argument as to a contravention of s 340(1)(b) flowed from the Respondents’ submission advanced to the Commission that it lacked “jurisdiction” because the “Applicant worker does not meet the definition of a ‘worker’”. The Respondents further submitted to the Commission that the “alleged bullying behaviour was reasonable management action, carried out in a reasonable manner”. The Appellant submitted that reliance upon the “jurisdictional” objection was a sufficient “prevention” to fall within s 340(1)(b).

13    Section 361 of the Fair Work Act, it should be presently noted, provides as follows:

Reason for action to be presumed unless proved otherwise

(1)    If:

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

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

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

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

14    The substance of the now-Appellant’s allegation was that “adverse action” had been taken “by reason” of the exercise of a “workplace right” and that the Respondents had not “proved otherwise” for the purposes of s 361.

15    The primary Judge rejected the claimed contravention of s 340. In doing so, the Judge set forth in general terms his reasons for doing so as follows:

[24]    As is examined and explained in these reasons, I accept Ms Chapman’s evidence that her decision to terminate the Applicant’s employment was made (a) well before 1st August 2014 (when the Applicant’s bullying claim was lodged with the Fair Work Commission), and (b) without consideration or reference to any prohibited reason as set out in the Act. In my view, it is clear that the Applicant’s bullying claim played no part in Ms Chapman’s decision to terminate the Applicant’s employment.

As is stated in that paragraph, the reasons go on to set forth the factual basis upon which Ms Chapman proceeded in making her decision (at para [108]) and both her affidavit and oral evidence (at paras [98] and [116], and following).

16    On appeal Counsel for the Appellant submitted that the primary Judge failed to consider “whether the employer had proved otherwise than that the Appellant’s employment was terminated … for reasons including and which might properly be characterised as her role or responsibility under the Community Services Directorate Enterprise Agreement”.

Section 362

17    The Appellant’s case against Jancsi focussed upon s 362 of the Fair Work Act.

18    Before the Federal Circuit Court, the Appellant contended that the “Third and Fourth Respondents conspired with each other on 11 December 2012 following and as a result of the Applicant’s complaint about the Fourth Respondent’s conduct on 27 November 2012, and thereafter advised, encouraged and counselled the employer (and their agents) in the context of the disciplinary investigations conducted about the Applicant’s alleged conduct toward the Fourth Respondent”.

19    Section 362 provides as follows:

Advising, encouraging, inciting or coercing action

(1)    If:

(a)    for a particular reason (the first person's reason), a person advises, encourages or incites, or takes any action with intent to coerce, a second person to take action; and

(b)    the action, if taken by the second person for the first person's reason, would contravene a provision of this Part;

the first person is taken to have contravened the provision.

(2)    Subsection (1) does not limit section 550.

20    The case advanced before the primary Judge was that Jancsi had advised or encouraged Ms Chapman in the making of her decision to terminate the Appellant’s employment.

21    The factual substratum for this contention was to be found, so it was argued on behalf of the Appellant, in the fact that the Appellant had visited the mother of a child. Jancsi was the carer for the mother. Jancsi had made a recording of that meeting on his mobile phone. He made a complaint about the Appellant’s conduct. He maintained that the Appellant behaved in an aggressive and intimidating manner. AS, the Appellant’s supervisor, looked into the complaint and passed it on to management. CPM Reviews Pty Ltd conducted an investigation and prepared a report.

22    The primary Judge rejected this alleged contravention. In doing so, the primary Judge accepted the evidence of Ms Chapman in preference to that of the Appellant, finding as follows:

[140]    In relation to the contention that the Applicant’s employment was terminated because of her application to the Fair Work Commission, it was submitted (submissions: pars 7–11) that Ms Chapman’s [affidavit] evidence was (par 9) “equivocal”, and in particular, that the Applicant’s intention to commence legal proceedings was not a factor in the decision to terminate the Applicant’s employment was (par 10) “unreliable.”

[141]    For reasons already given, I cannot and do not accept these submissions. The evidence was clearly against the version of events given by the Applicant. The evidence of Ms Chapman, in my view, was anything but equivocal or unreliable. Her evidence was cogent and clear. I accept it.

The primary Judge further concluded:

[207]    … I also accept the evidence of Ms Chapman in relation to the Applicant’s claim under s 362 of the Act. In my view, in the light of the principles to which I have earlier referred from (a) Yorke v Lucas, (b) the Explanatory Memorandum in relation to s 362, and (c) the Full Court’s comments in Employment Advocate v Williamson, it is clear that neither the Third nor the Fourth Respondents’ conduct in any relevant or material respect influenced or otherwise affected the decision by Ms Chapman to terminate the Applicant’s employment. Nor is there any relevant evidence, and certainly none referred to by the Applicant, which could properly be taken to indicate let alone to confirm relevantly what the Third and Fourth Respondent’s “motivating reason” was that would attract the operation of s 362.

[208]    Further, there is nothing in the evidence before the Court that could causally be considered to be action by either the Third or the Fourth Respondent that could properly or reasonably be understood as coming within the requirements of s 362 to “advise, encourage, incite or to coerce” Ms Chapman to terminate the employment of the Applicant.

THE GROUNDS OF APPEAL

23    The Grounds sought to be advanced on appeal contended in outline that the primary Judge:

    erred in failing to make conclusive findings pursuant to s 340(1)(a) and (b), specifically the reasons for the termination of employment;

    erred “in reaching conclusions dependent upon credibility considerations or impressions when the case required an assessment of objective facts or inferences to be drawn from facts as found…”;

    erred in failing “to consider whether the Appellant’s employment was terminated for reasons including and which might be properly characterised as her role or responsibility under the ‘workplace behaviours’ process in the Enterprise Agreement”;

    erred in failing “to consider whether the Appellant’s employment was terminated for reasons including to prevent the Appellant’s application made to the Fair Work Commission … being dealt with”;

    erred “in construing and applying section 362 of the Fair Work Act in connection with the Fourth Respondent”;

    erred “in connection with the consideration of the Third Respondent’s substantive affidavit and documentary evidence” and erred “in applying Brown v Dunn [sic] to ‘the Appellant’s trial affidavit’”; and

    erred “in accepting comments made in Dahler v Australian Capital Territory…”.

Each of these Grounds of Appeal – other than the penultimate Ground affecting the Third Respondent – were further expanded upon in the Appellant’s written Outline of Submissions.

24    None of these Grounds, with respect, have any substance.

The findings as to the reasons for dismissal

25    The first Ground of Appeal is without substance.

26    The primary Judge carefully set forth the allegation as made by the then-Applicant in her Statement of Claim as to what she said were the reasons for termination of her employment ([2016] FCCA 563 at [53]). The primary Judge also set forth the evidence of Ms Chapman in both her affidavit and oral evidence. Consideration was also given to the need for a factual inquiry as to the reasons why action has been taken as set forth by the High Court in both Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 31, (2012) 248 CLR 500 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, (2014) 253 CLR 243.

27    The primary Judge was clearly aware of the case being advanced by the then-Applicant and the competing factual claims being advanced by Ms Chapman.

28    The factual conclusions reached by the primary Judge were expressed at paras [202] to [211] of the reasons for decision.

29    Those factual conclusions were clearly open to be made by the primary Judge. No appellable error is discernible in the analysis of the evidence, the factual conclusions reached or the reasons for decision. There is no reason to question the correctness of the findings made.

30    When entertaining an appeal from a decision where factual conclusions of a primary judge are challenged, it must necessarily be accepted that an appeal to this Court is in the nature of a re-hearing: Farrington v Deputy Commissioner of Taxation [2002] FCA 1013, (2002) 50 ATR 429 per Kenny J; Kowalski v Domestic Violence Crisis Service [2005] FCA 12 at [51] per Madgwick J. See also: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833, (2001) 117 FCR 424. But it must also be necessarily accepted that the jurisdiction being exercised is an appellate jurisdiction which is to be exercised for the correction of error: Construction, Forestry, Mining and Energy Union v Alfred [2011] FCAFC 13 at [88], (2011) 203 IR 78 at 99 per Flick J. In undertaking that task, it was there said:

[89]    … the Court is to determine whether the findings made are correct but it is not the function of the appellate court “merely to substitute its own view, as if it were again performing the function of the trial judge”: cf Wade v Australian Railway Historical Society (South Australian Division) (t/as Steamranger), [2000] SASC 233 at [38], 77 SASR 221 at 227 per Doyle CJ (Duggan and Lander JJ concurring). Nor is it appropriate to invite an appellate court “simply to revisit the relevant evidence … and then contend that the court should reach a different conclusion … In an appeal by way of rehearing, error must be demonstrated for the appellate court to be entitled to disturb the decision of the primary decision-maker …”: cf Tasmanian Sandstone Quarries Pty Ltd v Legalcom Pty Ltd [2010] SASFC 6 at [34] per Gray J (Nyland and Kourakis JJ agreeing).

See also: [2011] FCAFC 13 at [14] to [23], (2011) 203 IR at 82 to 84 per Buchanan J. And, when considering the circumstances in which an appellate court should upset factual conclusions made by a primary judge, French CJ, Bell, Keane, Nettle and Gordon JJ in Robinson Helicopter Co Inc v McDermott [2016] HCA 22, (2016) 90 ALJR 679 at 686 to 687 have more recently observed:

[43]    The fact that the judge and the majority of the Court of Appeal came to different conclusions is in itself unremarkable. A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”. In this case, they were not …

31    There is, with respect, no substance in the submission that the generalised finding at para [24] of the reasons for a decision may well be a finding as to what the reasons for the decision to terminate the employment did not include, but that a finding was required as to what in fact were the reasons for termination. It is a sufficient answer to a claim of “adverse action” to conclude what the reasons did not include. The reasons for decision of the primary Judge, in any event – and when read in their entirety – contain an acceptance of Ms Chapman’s evidence as to why that decision was made.

32    The first Ground of Appeal is rejected.

Conclusions dependent upon credibility

33    The second Ground of Appeal contends that the findings of the primary Judge are “dependent” upon credibility considerations or impressions and not upon an assessment of “objective facts or inferences to be drawn from facts as found”.

34    This Ground of Appeal is again, with respect, without substance. It should be rejected for either of at least two reasons.

35    First, the findings as made by the primary Judge are not solely “dependent” upon credibility considerations or impressions. A fair and balanced review of the reasons for decision of the primary Judge expose a careful consideration of both the affidavit and oral evidence and the submissions advanced before that Court.

36    Second, although the primary Judge did make comments as to the “emotional involvement” of the now-Appellant in his consideration of her evidence ([2016] FCCA 563 at [131]), no appellable error is exposed by the primary Judge preferring the evidence of the Respondents and Ms Chapman over that of the now-Appellant ([2016] FCCA 563 at [203]).

37    No appellable error is exposed merely by reason of a primary judge preferring the evidence of one witness to that of another. To employ the language of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22 at [29], (2003) 214 CLR 118 at 128, the findings of fact made by the primary Judge were not “glaringly improbable” or “contrary to compelling inferences”.

38    The second Ground of Appeal is rejected.

A failure to consider responsibility under the ‘workplace behaviours’ process

39    The third Ground of Appeal adds nothing to Ground 1.

40    This Ground is similarly rejected.

The complaint to the Fair Work Commission

41    The fourth Ground of Appeal similarly overlaps Ground 1 and should be likewise rejected.

42    It should, however, be further noted that Ground 4 asserts that the bullying application being a reason for the termination of the Appellant’s employment is “presumed by virtue of s 361”. That Ground places emphasis upon the reverse onus of proof imposed on the Respondents. It is nevertheless concluded that Ground 4 simply reiterates other Grounds and adds nothing of substance to those other Grounds.

The construction & application of s 362

43    The fifth Ground of Appeal asserts error on the part of the primary Judge in construing and applying s 362 of the Fair Work Act. The rejection of the first Ground of Appeal, and the acceptance of the evidence of Ms Chapman, dooms this Ground to failure.

44    The substance of the Ground of Appeal seems to be that Jancsi’s complaint about the conduct of the Appellant constituted “advice” or “encouragement” to Ms Chapman to bring about the termination of the Appellant’s employment.

45    The argument should be rejected for either of at least two reasons.

46    First, in addition to the findings of the primary Judge at para [208] of his reasons for decision, the primary Judge also made the following findings (without alteration):

[73]    Among other things, given the evidence of Ms Chapman (noted below) that (a) she set out in her letter of 14th August 2014 to the Applicant the [actual] reasons for her decision to terminate the Applicant’s employment, and (b) she did not know and had never met the Fourth Respondent, and would not know the Third Respondent if she “literally fell over her in the hallway” (and otherwise the actions of the Third Respondent had no bearing on the Director-General’s decision), the Applicant’s claim in relation to some sort of conspiracy or something that would attract the terms of s 362 of the Act, is impossible to sustain.

[74]    In the light of authorities discussed later in these reasons, at its highest, the Applicant’s attempt (and submission — which I confess to have found rather opaque) to link Ms Chapman’s decision to terminate the Applicant’s employment with the action(s) of the Third and Fourth Respondent, requires actual (and not constructive or implied) knowledge in order to attract the operation of s 362 — whereby they “advised, encouraged or incited, or took any action with intent to coerce” Ms Chapman (or either of the First or Second Respondents) to take adverse action against the Applicant. As explained below, the evidence to support such a claim is simply not available. Further, it is contradicted clearly by the evidence of Ms Chapman — whose evidence I accept unequivocally. It is also contradicted by the evidence of the Third and Fourth Respondents. At its highest, causally their action(s) were only relevant to the investigation undertaken by CPM Reviews.

….

[128]    I accept that Ms Chapman did not know (and does not know), and has had no dealings with, either the Third or Fourth Respondents. Accordingly, as a matter of fact, there is no evidence to support the Applicant’s claim regarding some form of “entrapment” or that might otherwise arise under or be caught by s 362 of the Act in relation to “advising, encouraging, inciting or coercing action.” There is no relevant link (or knowledge by Ms Chapman) between the conduct of the Third and Fourth Respondents and the decision-maker, Ms Chapman, that could or would attract the terms of s 362. I return to this provision later in these reasons.

Upon the facts as presented, it was open to the primary Judge to conclude that there was no “link” between the conduct of Jancsi and that of Ms Chapman. No appellable error is exposed in making that finding.

47    Second, and even assuming that Jancsi may potentially have acted for some unstated and uncommunicated motive of making the complaint for the purpose of “encouraging” Ms Chapman to terminate the employment of the Appellant, there was no identification before the primary Judge in the now-Appellant’s pleadings, or in this Court in the Grounds of Appeal, as to what his “motive” may have been. In the absence of any identifiable “reason” for making the complaint and any finding of fact as to that being the reason motivating Jancsi, the argument had to fail.

48    In the absence of any such reason, ss 360 and 361 were not enlivened.

The Third Respondent

49    The sixth Ground of Appeal contends that the primary Judge “erred in connection with the consideration of the Third Respondent’s substantive affidavit and documentary evidence”. Further error is alleged in respect to the application of “Brown v Dunn [sic] to ‘the Appellant’s trial affidavit’”.

50    No written submission was advanced by Counsel for the Appellant in her Outline of Submissions in respect to this Ground.

51    The Third Respondent to the proceeding before the primary Judge is not a party to the appeal. In her oral submissions, Counsel for the Appellant was understood to accept that “nothing” turns on this Ground. A subsequent submission which Counsel for the Appellant forwarded to Chambers without leave, and which accordingly should not have been made, contended that the Third Respondent was in London and that the “only option proposed” for her cross-examination was by telephone. It was in such circumstances that “the Appellant did not wish to proceed against the Third Respondent”. Whether or not cross-examination by telephone was “the only option proposed” matters not.

52    No error is, in any event, readily apparent in respect to the primary Judge’s application of the “rule” in Browne v Dunn (1893) 6 R 67. In the Federal Circuit Court the now-Appellant had filed only one affidavit of relevance to the issues to be decided. Criticisms were expressed by the primary Judge as to the form in which that affidavit had been expressed – including the criticism that “some of the matters set out in it are clearly ‘conclusions’ and are, in the circumstances, thereby formally inadmissible”: at [63]. But if attention is focussed upon Browne v Dunn, the primary Judge referred to what he called the Appellant’s “trial affidavit” and continued:

[56]    … Part of that affidavit (see especially pars 1–4) was a refutation of and commentary on matters set out in an affidavit from the Third Respondent, AS, filed 30th January 2015.

[57]    However, a singular difficulty with such a refutation, and the Court’s ability to have regard to it, was simply that the Third Respondent, AS, was not required for cross examination by the Applicant in which she could put to the Third Respondent her commentary on AS’s affidavit of 30th January 2015.8 Accordingly, both as to matters in issue, and as to issues of “credit”, other than by the relatively brief comments in her affidavit filed 27th October 2015, the Applicant did not otherwise challenge AS’s account of events and documents annexed to her January 2015 affidavit.

[58]    In the light of standard principles of evidence, I note the following procedural and evidentiary problem for the Applicant (and the Court) as a result of the course adopted by her in relation to the Third Respondent’s evidence. The primary principle in view is the rule in Browne v Dunn.

…

[62]    The Applicant’s decision not to cross examine the Third Respondent, and having regard to the principles to which I have just referred, lead me to the conclusion that AS’s evidence should be accepted in its entirety. The Applicant’s decision not to cross examine the Third Respondent meant that she was never given the opportunity to deal with the material relied upon by the Applicant in her October 2015 affidavit.

There is, with respect to any contrary submission, nothing untoward in the manner in which the rule in Browne v Dunn was applied. Certainly no appellable error is discernible.

53    The sixth Ground of Appeal is rejected.

Dahler

54    The final Ground of Appeal asserts error on the part of the primary Judge in his application of Dahler v Australian Capital Territory [2014] FCA 946.

55    The observations of the primary Judge which attracted this specific Ground of Appeal was the following:

[173]    The next part of the submissions dealt with the claims against the Second Respondent. The submissions here are both highly technical and very detailed. Among other things, they relate to the status of the ACT Government as an employing authority, and the significant difficulties in determining the function of administrative units established by the Chief Minister under the Public Sector Management Act 1994, and the interaction of that legislation with (among other things) the Fair Work Act (s 795 — public sector employer to act through employing authority). In my view it is sufficient simply to record — not for the first time — the comments by Katzmann J in Dahler v Australian Capital Territory, where her Honour said, at [63] (emphasis added):

I am far from convinced that s 795 has any bearing on who the employer is for present purposes or how the employer should be named in the present case. The section appears to deal with who has the authority to act on behalf of the employer and whose acts bind the employer. It does not appear to go any further. The Explanatory Memorandum to the Fair Work Bill (to which Ms Keys was referred by Ms Banks in her email of 7 November 2013) tends to support this view. But whether or not Ms Keys or the ACT Government Solicitor is correct need not be determined on this application. It is sufficient to say that I am not at all persuaded that the stance that was adopted by the respondents before the primary judge was not unreasonable.

The Appellant’s written Outline of Submissions maintained that she has “no interest in the interpretation of section 795 of the FW Act other than to identify her proper employer…”.

56    The rejection of any claim founded upon a contravention of s 340, in any event, necessarily means that this particular issue need not be resolved.

57    This final Ground of Appeal is also rejected.

CONCLUSIONS

58    To the extent that the Appellant’s case had merit at any stage, that merit was defeated by the findings of fact made by the primary Judge. And those findings of fact do not expose appellable error. The acceptance by the primary Judge of the evidence of the Respondents, and in particular that of Ms Chapman, necessarily led to the Appellant’s failure to make out contraventions of ss 340 and 362 of the Fair Work Act.

59    Notwithstanding that more general reason for dismissing the appeal, the further arguments sought to be pursued by Counsel for the Appellant have each been considered with a view to discerning whether some appellable error has been exposed. The more distinct aspects of her Outline of Submissions have been expressly addressed.

60    However it be approached, neither the Grounds of Appeal nor the Appellant’s Outline of Submissions expose any reason to set aside the decision of the primary Judge.

61    The appeal should be dismissed.

THE ORDER OF THE COURT IS:

1.    The appeal is dismissed.

Associate:     

Dated:    16 November 2016