Evidence issues in general protections’ cases

This is a decision of the Federal Court dealing with evidence issues in general protections’ cases.

“1    This is an appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2): Edgar v Norton Rose Fulbright Australia Services Pty Ltd [2022] FedCFamC2G 449 (J). The appellant, Ms Edgar, was employed by the respondent, NRFA Services, which provides secretarial and administrative services to Norton Rose Fulbright Australia (a legal firm), to undertake online digital marketing work for its marketing team. Ms Edgar made various complaints or inquiries regarding the conduct of her superiors, Messrs Boxsell (head of digital content and campaigns) and Melzer (chief marketing officer) in the period between August 2017 and March 2018. Between late March and early April 2018, Mr Cross, a workplace relations partner in the firm, conducted an investigation into Ms Edgar’s complaints and found them unsubstantiated. NRFA Services terminated Ms Edgar’s employment on 9 May 2018. Ms Edgar alleged that NRFA Services contravened ss 340 and 351 of the Fair Work Act 2009 (Cth). Ms Edgar also alleged that the second and third respondents, Messrs Boxsell and Melzer, were employees of NRFA Services and accessories to its claimed contraventions. The primary judge dismissed Ms Edgar’s application.

2    The appeal is limited to Ms Edgar’s claims that NRFA Services took adverse action against her, in breach of s 340(1) of the Act, in relation to her dismissal. On this issue, the primary judge had found that the presumption in s 361(1) of the Act was engaged, as Ms Edgar had established the relevant criteria under ss 341 and 342 of the Act: at J[753]–[754], [760]–[762], [777]. However, the primary judge found that NRFA Services had discharged its onus by proving that Ms Edgar was not terminated for a prohibited reason. The appeal’s success depends on the Court finding that Mr Cross was a decision-maker.

3    As helpfully articulated by the appellant, grounds one to four of the appeal involve the determination of two questions: Was the primary judge in error in finding that Mr Cross was not part of the decision-making process in respect of the dismissal of Ms Edgar? And, if Mr Cross was a decision-maker, was the primary judge in error by failing to hold that, on the evidence, NRFA Services contravened s 340 of the Act by not discharging the statutory presumption in s 361 of the Act or otherwise?

4    In summary form, Ms Edgar submitted that the primary judge was incorrect to find that Ms O’Rourke was the only decision-maker. Ms Edgar submitted that Mr Cross was a decision-maker and formed part of NRFA Services’ corporate mind in deciding to subject Ms Edgar to adverse action (by terminating her employment). In her submission, the primary judge misapplied the relevant case law when determining that Ms O’Rourke’s mind alone comprised NRFA Services’ state of mind and, in doing so, set up an artificial distinction between what he termed the “decision-making process” (in which Ms O’Rourke made the decision) and the “investigation process” (in which Mr Cross was the investigator), which was not based on authority. As a consequence, it was submitted that the primary judge did not thereafter take the “requisite step” to ascertain whether the statutory presumption was met (with respect to Mr Cross’s motivations for the relevant acts relied upon by Ms Edgar said to contribute to the adverse action). Ms Edgar submitted that NRFA Services put on no evidence from Mr Cross rebutting the statutory presumption (regarding his alleged involvement in the termination). As a consequence, she contended, if on appeal it is found that he was a decision-maker, there could be no alternative finding other than that there had been a failure by NRFA Services to discharge its onus in proving that none of its substantial and operative reasons for the adverse action were to prevent the exercise of workplace rights.

Outcome of the appeal

5    For the reasons which follow, Ms Edgar’s claim (as against NRFA Services by reason of the involvement of Mr Cross) was a narrow one. Ms Edgar’s claim that Mr Cross was a relevant participant in the adverse action (her dismissal) (not as pleaded but as argued at hearing) was: Mr Cross orchestrated a pre-determined investigation outcome to bring about the termination of Ms Edgar’s employment and his findings were relied upon by Ms O’Rourke in terminating Ms Edgar’s employment. This comprised the “allegation” in the application concerning Mr Cross that NRFA Services took the adverse action for the prescribed reason with the effect that this was presumed to be the case unless proved otherwise: s 361(1). I do not accept that the primary judge misapplied the relevant principles in determining that Mr Cross was not a decision-maker nor erred in fact in this regard.

6    The primary judge determined that Mr Cross did not orchestrate a pre-determined investigation. In the absence of any infection of the investigation by a prohibited animus, it matters not whether Ms O’Rourke took into account the investigation findings or not. In any event, the primary judge found that Ms O’Rourke’s reasons for terminating Ms Edgar’s employment were forward-looking and were not because of what Mr Cross had found, but because of what she observed to be an irretrievable breakdown in the relationship between Ms Edgar and her work colleagues and Ms Edgar’s failure to address satisfactorily the issues raised in the show-cause letter addressing this concern.

7    Central to the resolution of this appeal is understanding what the appellant’s claim (as pleaded and/or otherwise argued) was below regarding Mr Cross and what the primary judge found.

Consideration

What was alleged below as the basis for Mr Cross being part of the decision-making process?

8    Regardless of any dispute between the parties as to what is required to be alleged by an applicant in order for the statutory presumption to be enlivened (namely whether an applicant is required to identify the individuals said to comprise the corporate state of mind which took the adverse action), the primary judge accepted that Ms Edgar was able to allege that Mr Cross was a decision-maker (despite the absence of any express pleading to this effect). Accordingly, this is not an issue required to be determined on appeal. However, Ms Edgar is not able, on appeal, to allege a case as to why the statutory presumption was not discharged which was not run below. As will be apparent from the foregoing, Ms Edgar made specific allegations as to involvement or contribution by Mr Cross, Mr Boxsell and Mr Melzer in the decision. The primary judge made specific factual findings (all against Ms Edgar) in relation to the impugned conduct of each of those persons. Undertaking a consideration of Ms Edgar’s allegations as they evolved at hearing, together with a review of the primary judge’s extensive findings, provides the relevant context in which to consider the first appeal ground.

9    Ms Edgar’s case proceeded by way of pleadings: Ms Edgar’s statement of claim did not specify any human decision-maker whom she alleged was responsible for the adverse action relating to the termination of her employment. Her third amended statement of claim pleaded that “[t]he First Respondent [NRFA Services] took adverse action against the Applicant … by dismissing the Applicant because she made any one or more of the complaints or inquiries in regard to the Second Respondent and/or the Third Respondent as set out in the four five complaints/inquiries…”. The particulars given referred to a letter of termination provided to Ms Edgar on 9 May 2018 by Ms O’Rourke.

10    In this case, therefore, Ms Edgar identified the “relevant actor” to be NRFA Services as the corporate entity whose state of mind was under challenge. However, Ms Edgar’s pleaded “material facts necessary to establish that a corporation engaged in the relevant conduct and did so with an identified state of mind” (Monash Health v Singh [2023] FCAFC 166 at [116]), were limited to the following:

[11]    On 9 May 2018, the First Respondent terminated the Applicant’s employment.

[20]    The First Respondent took adverse action against the Applicant within the meaning of section 342(1) Item 1(a) by dismissing the Applicant because she made any one or more of the complaints or inquiries in regard to the Second Respondent and/or the Third Respondent as set out in the four five complaints/inquiries referred to in paragraphs 12-14 and 17 above.

Particulars

The Applicant was provided with a letter of termination on 9 May 2018 by Ms O’Rourke.

11    Of contextual significance, Ms Edgar’s earlier pleadings had made specific allegations of various forms of alleged adverse action relating to the investigation including a purported failure to investigate “fairly or impartially”. Those allegations relating to the investigation were withdrawn and did not reappear in the later amended statements of claim that Ms Edgar filed, including the final iteration of this document (her third amended statement of claim dated 18 September 2020).

12    In her opening submissions before the primary judge (but curiously filed after NRFA Services’ opening submissions), Ms Edgar described Mr Cross as being among the persons who were the mind of the company for the purpose of her termination, along with Ms O’Rourke and Mr Melzer. However, a qualification is made to this broad assertion, by reference to the evidence in the immediately following two paragraphs of her opening submissions:

33    The decision to remove Ms Edgar from the workplace (suspend her employment) occurred prior to the commencement of the investigation.

34    The following factors point to the fact that the investigation was not conducted by an independent person or in objective manner:

(a)    Mr Cross never interviewed Ms Edgar first to ascertain the nature and extent of her allegations before proceeding to speak to other parties against the complaint;

(b)    Mr Melzer had already had discussions with a recruiter to replace Ms Edgar’s position on or about 6 February 2018, being the same day she was invited by Mr Boxsell to attend her mid-year performance review;

(c)    The facts and matters relied upon by Mr Boxsell in the mid-year performance review were not bona fide. The fact that Ms Edgar had no idea there were any serious concerns with her performance is demonstrated by the fact that a recruiter called her in January 2018 to discuss another position and Ms Edgar did nothing about that at the time;

(d)    As set out in the evidence above, MYRs are informal, short processes providing informal feedback on performances. This is to be contrasted with the MYR for Ms Edgar which was formal and more akin to performance management than a review and was not finished after 2 hours and 45 minutes;

(e)    A decision was made to interview only three people, two of whom were the subject of the complaint and the other only recently employed and unable to shed any light on the facts and matters the subject of the allegations, and occurred well before the MYR;

(f)    The nature of the complaints as against Mr Boxsell (such as that he said Ms Edgar was disrespectful and unprofessional and unfit to be a manager, calling her emotional and walking out on her, telling her not to take lunch) had to be tested both for the reasonableness of Mr Boxsell’s assessment and whether he actually did and said what Ms Edgar alleged. The former required interviewing staff with whom she worked, including managers such as Mr Pratap. The latter required interviewing other staff present at the time of the meetings, or statements made, or that could shed light on responses provided. For example, Mr Boxsell’s assertion that he was invited to the same lunch as Ms Edgar on the day he commented she should not be going to lunch because he did not was easily tested as against the invitations issued, but that step was never taken. As a result, no confidence could be had in the response provided and it wasto [sic] be a matter going to his credibility; and

(g)    Similarly, there was no way to properly test the complaints as against Mr Melzer that he was spreading disparaging comments about Ms Edgar without asking other staff about those comments, a step that was never taken.

(Footnotes omitted.)

13    Accordingly, Ms Edgar’s claim against NRFA Services, at its highest, as articulated in opening, to the extent that Mr Cross’s conduct and state of mind could be attributed to its decision to dismiss, was by reason of the pre-determination of the outcome of the investigation.

14    In closing, mirroring her opening, Ms Edgar claimed that a finding that the termination was “caused by the complaints” (the purported exercises of workplace rights) arose “ineluctably” from the following facts:

  1. From February 2018, Mr Boxsell, Ms O’Reilly and Mr Melzer asserted the Applicant was a poor performer when her performance was satisfactory.
  2. That assessment was accepted without question by HR and despite the Third Complaint/Inquiry on 20 February 2018, which was focussed on Mr Boxsell’s behaviour towards the Applicant, directed all its ‘assistance’ towards the informal resolution of the matter by reference to the Applicant’s performance only.
  3. HR refused to deal with the complaint made by Ms Edgar other than on very narrow terms. Specifically, Ms Wetherall refused to countenance the broad range of remedies available for informal resolution contained in Norton Rose Policies that (in the main) did not require meetings directly between Ms Edgar and Mr Boxsell and instead insisted that Ms Edgar participate in a process that required her to meet directly with Mr Boxsell.
  4. Norton Rose engaged the services of Mr Cross, partner of Norton Rose with specialisation in employment law, to assist with managing the situation from 2 March 2018.
  5. Norton Rose never sought to appoint an independent and impartial investigator, but instead appointed that same partner, Mr Cross to investigate Ms Edgar’s formal complaint.
  6. The process in which Mr Cross engaged was as a decision-maker for Norton Rose and was clearly aimed at producing termination of the Applicant’s employment and no other outcome given the following facts.
  7. No one ever met with Ms Edgar to assist her with properly identifying the nature and extent of her complaints, as was required under the policies, which were never references [sic] in the investigation report nor the correct versions provided to Ms Edgar. This compounded the unfairness of the process which included Mr Cross speaking directly with those the subject of the complaint before Ms Edgar (being Mr Boxsell and Mr Melzer) giving primacy to their views and effectively making Ms Edgar a respondent to their allegations she was lying. He also had additional discussions with Mr Melzer and Mr Boxsell (it is not clear whether such discussions were within or outside the investigation process), being additional time he spoke with him that was not given to Ms Edgar.
  8. Mr Cross made clear and unequivocal statements at the commencement of the investigation that her complaints were “groundless” and about its trajectory and outcome which was always to “finesse” Ms Edgar “out the door”.

iii.    Mr Cross put legal review of his actions beyond reach of the Applicant and this Court when he destroyed evidence, being his notes of the investigation process. There is simply no evidence of what was actually said and by whom to Mr Cross as part of the investigation beyond his mere assertion that he had regard to those notes.

  1. Mr Cross’s findings reversed well accepted principles that contemporaneous written evidence is to be preferred over later oral evidence, to make a finding that was both contrary to logic and the case law that because Ms Edgar’s memory was not as good as what was set out in contemporaneous emails she was “working backwards” from the emails to make allegations later in time.
  2. Mr Cross entirely failed to investigate all the matters the subject of complaint.
  3. Mr Cross could not make any finding that the Applicant wrote the relevant emails exaggerating or seeking sympathy given she clearly denied exaggerating what she wrote or seeking sympathy at the time.
  4. Mr Boxsell and Mr Melzer either lied or misled Mr Cross on a number of crucial matters from the Applicant’s performance to whether they actually engaged in the relevant conduct. Their actions in doing so was aimed at procuring the termination of Ms Edgar’s employment. The extent to which Mr Cross did or did not rely on their honesty is a matter on which the Court cannot have any regard to his evidence given the steps he has taken to prevent the Court from properly assessing this case by reference to all the evidence.
  5. Ms O’Rourke relied entirely upon Mr Cross’s reasoning and accepted without question or further consideration his findings and recommend concerning Ms Edgar to recommend that her employment should be terminated, and Ms O’Rourke and Mr Cross’s recommendations were accepted without question or further consideration by Mr Spanner.
  6. Mr Boxsell, Mr Melzer, Mr Cross and Ms O’Rourke were each essential participants in the decision making.
  7. Mr Boxsell’s and Mr Melzer’s conduct in engaging with HR and with Mr Cross during the investigation, was motivated by Ms Edgar’s complaints – that is, the actual exercises of her workplace rights. Specifically, they were motivated to terminate the Applicant’s employment as was demonstrated by the following.
  8. Mr Melzer representing to HR and Mr Cross that he had only just become aware of the so called disparaging comments (made to Ms Panoiu) in or about February 2018, when he had in fact been aware of them since at least November 2017.
  9. Mr Melzer’s steps to obtain a replacement for Ms Edgar prior to any resolution of the investigation and from 6 February 2018. It is clear this was concealed from Mr Cross. The Applicant says Mr Boxsell conceded under cross-examination that it was possible he was aware of these matters.

iii.    Mr Melzer representing to HR, Mr Pratap, Mr Boxsell and Ms O’Reilly from at least 28 March 2018 that it was untenable for Ms Edgar to return to the team.

(Footnotes omitted.)

15    Ms Edgar submitted that “[t]he process in which Mr Cross engaged was as a decision-maker for Norton Rose and was clearly aimed at producing termination of the Applicant’s employment and no other outcome”. She also submitted that Ms O’Rourke “relied entirely upon Mr Cross’s reasoning” and “accepted without question or further consideration” his findings and recommendations when making a decision with respect to the termination of Ms Edgar’s employment. She then contended that:

(1)    Mr Cross’s (along with Mr Melzer’s and Mr Boxsell’s) recommendations were integral and essential to Ms O’Rourke’s view on whether Ms Edgar’s employment should be maintained and Ms O’Rourke had admitted as much in cross-examination;

(2)    all of Mr Cross’s decisions with respect to the investigation were “part and parcel of the decision-making chain that resulted in Ms Edgar’s termination”;

(3)    Mr Cross had an interest in upholding the denials of Ms Edgar’s allegations and it could be inferred that his reasons for doing so included that Ms Edgar had made a formal complaint and that he wished to shut that complaint down due to the risks it exposed his firm to;

(4)    Mr Cross was involved in giving advice about Ms Edgar’s employment before and after the investigation; and

(5)    Ms O’Rourke simply relied upon Mr Cross (and, necessarily, Mr Boxsell and Mr Melzer) to form the view that Ms Edgar’s employment should be terminated as a result of her complaints.

16    Ms Edgar’s submissions regarding Mr Cross’s evidence give primacy to his role as the investigator, as being “wholly responsible for the investigation” that was the subject of the challenge.

17    Ultimately, Ms Edgar contended in her closing submissions that Mr Cross’s involvement, along with that of Messrs Boxsell and Melzer was “critical” to the ultimate decision to terminate Ms Edgar by reason of the following:

Messrs Boxsell, Melzer and Cross’s involvement in the ultimate decision to terminate Ms Edgar was critical. Each applied their own reasoning process:

  1. Mr Boxsell’s was to provide Mr Cross with a series of denials concerning the conduct alleged against him by Ms Edgar. This was done in order to deflect the focus of Mr Cross’s enquiry away towards Ms Edgar. He did so for reasons that included Ms Edgar’s complaints about him.
  2. The same can be said of Mr Melzer.
  3. Mr Cross chose to accept the evidence of Mr Boxsell and Mr Melzer. He elected to speak with them before speaking with Ms Edgar. He elected not to pursue the leads that Ms Edgar invited him to pursue. He elected to accept the brief as independent investigator in circumstances where he had provided advice, and remained a partner of the firm. He had an interest in upholding the denials of Ms Edgar’s allegations – in doing so he protected senior staff, and (initially) minimised the risk that Norton Rose would be obliged to remedy (including monetarily) Ms Edgar for Mr Boxsell’s and Mr Melzer’s wrongful conduct. It can be readily inferred that Mr Cross’s reasons for doing so included the fact that Ms Edgar had made a formal complaint, and that he wished to shut such a complaint down before the firm was exposed to a significant risk.

18    Again, the allegation was that the investigation was pre-determined. This submission was made repeatedly in Ms Edgar’s closing oral submissions before the primary judge. It was Ms Edgar’s case that “Mr Melzer, Ms O’Reilly and Mr Boxsell and Mr Cross all took the view, for reasons some of which might have been shared and some of which perhaps were not, that the investigation was the means by which they could bring about the termination of Ms Edgar”.

19    In the respondents’ closing submissions before the primary judge, the respondents submitted that Mr Cross was not the decision-maker in respect of Ms Edgar’s termination, and that his advice was not even given on whether her employment should be terminated. The respondents contended that, by virtue of Mr Cross not being a decision-maker, it was immaterial whether the conclusion of Mr Cross’s investigation was right or wrong. They further submitted that Ms Edgar, in cross-examination of the respondents’ witnesses, had correctly recognised the distinction between the decision-makers and Mr Cross, who was the investigator and someone whose view was sought from time to time, and who expressed views on the process to be followed.

The primary judge’s reasons

20    The primary judge’s reasons were extensive, comprising 273 pages, structured in an orderly way, identifying first the issues arising from the pleadings (at J[3]–[24]), the legislative context (at J[25]), and summarising Ms Edgar’s evidence and that of her witnesses, with respect to the key events and for the purposes of relief (at J[26]–[269]) and then NRFA Services’ evidence in a similar fashion (at J[270]–[603]). Then, under the primary heading “Consideration”, the primary judge described Ms Edgar’s case as being capable of being separated into two parts – the first concerning her allegations of discriminatory behaviour on the part of Mr Boxsell in 2017 and on 14 February 2018, and the second concerning her allegations that she was suspended, disparaged, threatened with disciplinary action and dismissed because on 11 August 2017 and in 2018 she complained about that behaviour and other conduct (at J[604]), thereafter describing each of those parts in further detail (at J[605]–[616]).

21    Relevantly, the primary judge understood (consistent with how Ms Edgar had formulated her allegations) that:

611    Ms Edgar contended that by 6 February 2018, Mr Melzer and Ms O’Reilly had determined to get rid of her because she had complained, a contention said to be supported by the fact that a recruiter was briefed that day. Ms Edgar asserted that the matters later raised at the Midyear Review as shortcomings “were clearly unfair, unreasonable [and] designed to create a paper trail for performance management” and to put pressure on her to resign. Ms Edgar argued that the Human Resources department had been influenced (against her interests) by Mr Boxsell, Mr Melzer and Ms O’Reilly. She contended that from February 2018, Mr Boxsell, Mr Melzer and Ms O’Reilly asserted that she was a poor performer when in fact her performance had been satisfactory. That negative assessment was said to have been accepted without question by the Human Resources department and, despite Ms Edgar’s Third Complaint on 20 February 2018 which was focussed on Mr Boxsell’s behaviour towards her, it directed all its “assistance” towards the informal resolution of the matter by reference only to her performance. Ms Edgar described her interactions with Ms Williams and Ms Wetherall as dominated by dismissiveness, disbelief, lack of support or interest, curtness, impatience and deference to Mr Boxsell.

612    Ms Edgar contended that even though she had not yet made her complaint about Mr Melzer, his 5 March 2018 threat of disciplinary action was motivated by the knowledge that she was going to make a complaint. That conversation followed Mr Cross, Ms Wetherall, Ms Williams and Mr Melzer’s discussion at 4:00pm that day about her potential complaint, the notes of which included the phrases “finesse her out the door”, “point of departure” and “getting her out the door”. A “concerted conspiracy” was expressly not contended but it was submitted nonetheless that what occurred was to some extent “a shared enterprise” in that:

… Mr Melzer, Ms O’Reilly and Mr Boxsell and Mr Cross all took the view, for reasons some of which might have been shared and some of which perhaps were not, that the investigation was the means by which they could bring about the termination of Ms Edgar … [and] each participated in the process in such a way as to make sure no other outcome was possible.

613    It was submitted that Mr Boxsell and Mr Melzer had also let Mr Cross know their view that Ms Edgar was a poor performer and, even before he commenced his investigation, persuaded him that there was no proper basis for her complaint. Not long after, it was contended, Mr Melzer disparaged Ms Edgar by telling her co-workers that she had been suspended because she had made disparaging remarks, was inattentive and performing poorly at work.

614    Ms Edgar submitted that Mr Cross’s investigation was solely aimed at bringing about her dismissal. She advanced the following contentions in support of that argument:

(a)    Mr Cross made clear and unequivocal statements at the commencement of the investigation that her complaints were “groundless”;

(b)    Mr Cross put legal review of his actions beyond reach when he destroyed evidence;

(c)    Mr Cross’s findings reversed well accepted principles that contemporaneous written evidence is to be preferred over later oral evidence;

(d)    Mr Cross failed to investigate all the matters the subject of complaint; and

(e)    it was not open to Mr Cross to find that she wrote emails exaggerating or seeking sympathy, given she denied exaggerating or seeking sympathy.

615    Other matters supporting a conclusion that Mr Cross’s investigation was designed to lead to Ms Edgar’s dismissal were said to be:

(a)    no one ever met with Ms Edgar to assist her to properly identify the nature and extent of her complaints, as was required under NSFA Services’ policies, which were never referred to in the investigation;

(b)    Mr Boxsell and Mr Melzer either lied or misled Mr Cross on matters ranging from Ms Edgar’s performance to whether they had engaged in the conduct alleged against them;

(c)    Mr Boxsell and Mr Melzer’s conduct in engaging with the Human Resources department and with Mr Cross during the investigation was motivated by Ms Edgar’s complaints;

(d)    Mr Boxsell, Mr Melzer, Mr Cross and Ms O’Rourke were each essential participants in the decision making;

(e)    Ms O’Rourke relied entirely upon Mr Cross’s reasoning and accepted without question or further consideration his findings and recommendations concerning Ms Edgar to recommend to Mr Spanner that she be dismissed; and

(f)    Mr Spanner accepted Ms O’Rourke and Mr Cross’s recommendations without question or further consideration.

616    Ms Edgar pleaded that the suspension, disparagement and threat of disciplinary action and the dismissal were adverse action in that the suspension and disparagement altered her position to her prejudice, the threat of disciplinary action threatened unparticularised adverse action and the dismissal was a dismissal. The conduct was said to have been motivated by reasons prohibited by the FW Act, namely by the fact that she had made complaints about the conduct of Mr Boxsell and Mr Melzer, each of which said to have been an exercise of the workplace right, protected by the FW Act, to make a complaint or enquiry in relation to one’s employment

(Footnotes omitted.)

22    What is apparent from this summary of Ms Edgar’s claim, about which no issue was taken on appeal, is that the alleged conduct of Mr Cross, Mr Boxsell and Mr Melzer giving rise to her claim of a “shared enterprise” arises from the identified specific allegations against each of them.

23    The primary judge then expressed, in summary form, his view as to the credibility of witnesses, being that “the accounts of the respondents’ witnesses are to be preferred over those of Ms Edgar and her witnesses”, for the reasons which are thereafter set out: at J[617]. The primary judge then, immediately thereafter, proffers part of his reasoning for why he preferred the accounts of the respondents’ witnesses: His Honour lacked confidence, at times, that Ms Edgar was “an accurate historian or that she came away from the exchanges she described with a correct understanding of what had been discussed, determined or agreed”: at J[618]. His Honour then gave illustrations from the evidence of where it was evident from Ms Edgar’s lack of attention or inability to comprehend uncomplicated concepts that she misunderstood, misapprehended or misremembered numerous interactions with her work colleagues: For example, without being exhaustive, at J[619]–[625], [627], [640], [650], [653]–[654].

24    The primary judge then makes findings of fact in relation to critical events giving rise to the purported offending conduct. On each occasion, without exception, he prefers the evidence of the respondents’ witnesses over that of Ms Edgar. None of these findings are the subject of appeal. These findings underpinned the primary judge’s ultimate findings which are the subject of this appeal, namely that the primary judge did not accept that Mr Cross was a decision-maker and found that NRFA Services discharged its onus.

25    Ms Edgar’s focus on appeal is the portion of the primary judge’s deliberations, at the end of the judgment, where his Honour makes ultimate findings as to who made the decision to dismiss (at J[780]–[784]) and the reasons for dismissal (at J[785]–[791]). However, it is necessary to consider the multifarious subsidiary findings which precede and give rise to these ultimate findings.

26    Under the heading “Who made the decision to dismiss?”, at J[780], the primary judge, accepting that Ms Edgar was able to allege individual participants in this decision to dismiss (without pleading the same), identified a “preliminary issue”, namely the “participants” in the decision to dismiss, as being not only Ms O’Rourke and Mr Spanner, but also Messrs Boxsell, Metzer and Cross: at J[780]. His Honour stated (extracting a portion of Ms Edgar’s closing submission):

780    …In substance, Ms Edgar’s argument was that Messers Boxsell, Melzer and Cross were part of the decision-making process rather than simply part of the investigation process, She argued that all of Mr Cross’s:

… decisions as to the conduct of the investigation, the credibility of witnesses, and the recommendations he delivered were part and parcel of the decision making chain that resulted in Ms Edgar’s termination. So to [sic], were the decisions made by Mr Boxsell and Mr Melzer as to what information to provide Mr Cross.

Messrs Boxsell, Melzer and Cross’s involvement in the ultimate decision to terminate Ms Edgar was critical. Each applied their own reasoning process:

  1. Mr Boxsell’s was to provide Mr Cross with a series of denials concerning the conduct alleged against him by Ms Edgar. This was done in order to deflect the focus of Mr Cross’s enquiry away towards Ms Edgar. He did so for reasons that included Ms Edgar’s complaints about him.
  2. The same can be said of Mr Melzer.
  3. Mr Cross chose to accept the evidence of Mr Boxsell and Mr Melzer. … He had an interest in upholding the denials of Ms Edgar’s allegations – in doing so he protected senior staff, and (initially) minimised the risk that Norton Rose would be obliged to remedy (including monetarily) Ms Edgar for Mr Boxsell’s and Mr Melzer’s wrongful conduct. It can be readily inferred that Mr Cross’s reasons for doing so included the fact that Ms Edgar had made a formal complaint, and that he wished to shut such a complaint down before the firm was exposed to a significant risk.

781    Ms Edgar submitted that Ms O’Rourke simply relied upon Mr Cross (and necessarily, Mr Boxsell and Mr Melzer) to form the view that she should be dismissed as a consequence of her complaints, and Mr Spanner in turn relied upon Ms O’Rourke.

782    Although Mr Spanner presumably considered the merits of Ms O’Rourke’s recommendation that Ms Edgar be dismissed before authorising her to take that step, the evidence indicates that, of the two of them, the substantive decision-maker was Ms O’Rourke and that whatever views she had reached concerning Ms Edgar were accepted, and in substance adopted, by Mr Spanner. Consequently, Mr Spanner’s role need not be considered further.

(Footnotes omitted.)

27    It may be observed from the extract of Ms Edgar’s closing submissions contained in the primary judge’s reasons that a central element to Ms Edgar’s thesis against Mr Cross was his choice in accepting the evidence of Mr Boxsell and Mr Melzer as to their “denials” of Ms Edgar’s allegations against them.

28    It may be remembered that Mr Cross was charged with investigating Ms Edgar’s complaints about Mr Boxsell’s and Mr Melzer’s conduct towards her. Mr Cross found that her complaints were unsubstantiated. At hearing, both sides put on evidence about the circumstances giving rise to Ms Edgar’s allegations. The primary judge described, in a detailed way, the evidence of Ms Edgar, Mr Melzer and Mr Boxsell with respect to each of Ms Edgar’s allegations forming her complaint. Ultimately, the primary judge found, in essence, that he accepted their testimony over Ms Edgar’s. By way of illustration, his Honour preferred the accounts of the respondents’ witnesses over Ms Edgar in conversations or meetings, on ten occasions, between 14 February and 21 March 2018 (including preferring the evidence of Mr Boxsell, Mr Melzer and Mr Cross over Ms Edgar): at J[623]–[675]. The primary judge also made specific findings against her in relation to certain of her allegations against each of them. Without being exhaustive, the primary judge specifically rejected the majority of the 2017 allegations made by Ms Edgar which formed part of her complaint concerning Mr Boxsell (which were also relied upon by her as part of her general protections claim on the basis of her sex) and made the following findings:

725    The conclusions I expressed earlier in these reasons concerning Ms Edgar’s evidence regarding events in 2018, including my preference for the recollections of Mr Boxsell and Ms O’Reilly concerning the Mid-year Review to those of Ms Edgar, have relevance for how the Court should treat her evidence of the conversations in the period March 2017 to November 2017. That evidence is contradicted by the evidence of Mr Boxsell and lacks corroboration by other witnesses. I also note that Mr Pratap did not agree with Ms Edgar’s version of their August 2017 conversation and gave cogent reasons for that lack of concurrence.

726    In circumstances where I have concluded that Ms Edgar has misunderstood or misremembered what was said to her on other occasions important to this case and was generally not a reliable historian, I am not persuaded that her uncorroborated accounts of statements she says were made by Mr Boxsell in 2017 should be preferred over his versions of those interactions. I do not overlook the fact that Ms Edgar had set out her versions of events in documents that were created close to the time various events are said to have occurred but those documents are only as reliable as Ms Edgar’s original understanding and recollection of what was said and I am not persuaded that her understanding and recollection are reliable. As I said earlier, I have reached the conclusion in this case that the accounts of the respondents’ witnesses are to be preferred over Ms Edgar’s.

29    Ms Edgar had alleged that Mr Boxsell had behaved inappropriately during the Mid-Year Review on 14 February 2018. The primary judge preferred the evidence of Mr Boxsell and Ms O’Reilly as to what occurred over Ms Edgar: at J[624]. In relation to a meeting on 5 March 2018, the primary judge preferred the evidence of Mr Melzer, where he denied making a threat and demanding Ms Edgar apologise to Mr Boxsell for disparaging him: at J[667]. The primary judge rejected Ms Edgar’s claims that Mr Melzer had sought to replace Ms Edgar in early 2018 (at J[687]):

687    The second submission concerning Mr Melzer’s credit referred to the fact that he had contacted a recruitment agency in early February 2018, which was said to show that “he had already commenced on a course of conduct aimed at replacing Ms Edgar”. The argument seemed to be that the fact of that contact, and the inference Ms Edgar drew from it, was evidence supportive of the contention that Mr Melzer had lied about her November 2017 instant messenger exchange with Ms Panoiu and that it all pointed to him wanting to replace her. I do not agree that the conclusion propounded can safely be drawn from the thin material cited. In particular, the contention that there was a course of conduct aimed at replacing Ms Edgar is only unsupported supposition. It is contradicted by Mr Melzer’s evidence that in early February 2018 he wanted a staffing contingency plan because he was concerned that Ms Edgar might leave before the MAP was completed which was essentially corroborated by Ms O’Reilly, who said that at that time they thought Ms Edgar would resign because she did not seem happy in her role. I reject the inferences Ms Edgar draws from the fact that recruiters were approached in February 2018 and accept that Mr Melzer was not seeking to replace her.

(Footnotes omitted.)

30    Accordingly, when the primary judge came to deciding the question of “Who made the decision to dismiss?”, he did so in a context where he had already made substantial findings of fact in each of the purported decision-makers’ favour over Ms Edgar and had made no adverse findings against them.

31    Further, his Honour had already made a number of specific factual findings concerning Mr Cross’s evidence, rejecting Ms Edgar’s submission as to his pre-determination of the outcome and him being actuated by a prohibited reason. First, his Honour accepted Mr Cross’s account of the meeting with Ms Edgar during the investigation: at J[675]. Secondly, his Honour rejected the main bases of attack arising during Mr Cross’s cross-examination regarding whether Mr Cross was providing legal advice prior to his engagement as the investigator: at J[706]–[709]. Thirdly, his Honour dismissed Ms Edgar’s argument that Mr Cross had engaged with the merits of the issue before investigating it and expressly rejected the allegation of his prejudgment of the outcome before investigation: at J[710]. Fourthly, his Honour did not accept that Mr Cross had changed his evidence regarding his investigation’s treatment of emails: at J[711]–[713]. Fifthly, his Honour rejected Ms Edgar’s allegation of pre-determination based on the fact that Mr Cross did not interview Ms Edgar as “a first step”, accepting Mr Cross’s reasoning: at J[714]. Sixthly, his Honour rejected Ms Edgar’s claim, again purportedly about pre-determination, that Mr Cross had ignored part of her complaint: at J[715]. Seventhly, his Honour rejected Ms Edgar’s claim that any negative inference could be drawn from the fact that Mr Cross had destroyed his handwritten investigation notes after they had been incorporated into his report: at J[716]–[718].

32    As part of his Honour’s consideration of this last attack on Mr Cross’s credibility regarding the handwritten notes, his Honour found, at J[716]:

…Those criticisms are part of the wider contention that the outcome of Mr Cross’s investigation was pre-determined, which I do not accept. Not accepting that contention, I also do not accept that Mr Cross was motivated to destroy his handwritten notes to conceal a fixing of his investigation.

33    This finding is consistent with the earlier findings made by the primary judge where he did not accept that Mr Cross had pre-determined the outcome and provides the crucial decisional backdrop to his Honour’s consideration later in the judgment regarding who made the decision to dismiss. Given his Honour was satisfied that Mr Cross was not actuated by a prohibited reason, then whether he was a decision-maker or not became immaterial.

34    It is appropriate then for there to be a return of focus to the portion of the primary judge’s reasons which deals with the decision to dismiss.

35    The primary judge found that whether an adverse action was the product of the reasoning of more than one person was a factual question that depends on the circumstances of each case, which is entirely correct: Gibbs v Palmerston Town Council (unreported, Gray J, 21 December 1987) at 85–6 (citing Wood v Lord Mayor, Councillors & Citizens of the City of Melbourne (1979) 41 FLR 1 at 19–20); Wong v National Australia Bank Ltd [2022] FCAFC 155; 318 IR 148 at [25], [78]. Accordingly, at J[783] his Honour correctly countenanced the idea that adverse action could be the product of more than actor, and more than one decision-maker, citing Gibbs and Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; 253 IR 166. His Honour acknowledged these authorities had involved the ultimate decision-maker relying on the advice of others on issues that were material to the appropriateness of taking the adverse action, and that this group could also be expanded to those who make tendentious statements of fact or engage in fact-finding which affects the decision in a substantial or operative way: at J[783]. Simple reliance on another’s advice or statements as to matters of fact was not, his Honour concluded, sufficient to prove that the motivations of the other person “so affected” the ultimate decision-maker’s reasoning that they should be characterised as a decision-maker. One needs to dig deeper and decipher the relative involvement of actors highlighting, by way of illustration, the significance of circumstance and degree when attending to this factual, forensic task.

36    His Honour then extracted the following portion of Gibbs (at 84–5):

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 advised 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.

37    This extract continues on, by extension, with examples, on the spectrum where there is one decision-maker purportedly “affected” by others.

38    His Honour then considered, at J[784], whether Messrs Boxsell, Melzer and Cross, were, in effect, part of the decision-making process rather than simply part of the investigation process, citing his Honour’s earlier consideration in another case of the seminal authorities on this issue: Ibarra Campoverde v Regional Health Care Group Pty Ltd [2017] FCCA 1502 at [71]–[76]. His reference to the analogous reasoning in Ibarra is unsurprising. In Ibarra, Mr Ibarra contended that employees who had sent emails and made comments (about the incident which had precipitated Mr Ibarra’s dismissal) to the ultimate decision-maker, had made “material contributions to the ultimate decision” such that it could be characterised as a “collective undertaking”: at [71]. The referenced portions of Ibarra espoused the following propositions: the mind of the respondent corporation may be located in more than one person exercising the executive power of the corporation (at [72], citing Wood at 19); where a person who contributed to the ultimate decision was influenced by a prohibited reason, the ultimate adoption of that affected or infected contribution by another person unaware of the infection may nonetheless mean that the impugned decision is found to be for the prohibited reason (at [74], citing Clermont Coal at [121]); and whether a person will be a decision-maker as distinct from being part of the investigative process depends on what in fact the individuals did with that information (at [75]). For example, did they assess the information and provide a recommendation to the ultimate decision-maker (at [75], citing Gibbs)?

39    His Honour then concluded that there was no persuasive evidence that Messrs Boxsell, Melzer and Cross were part of the decision-making process. It is noteworthy to recall that the primary judge had found that Mr Cross’s report had not misrepresented the facts or expressed conclusions that lacked good faith because they were motivated by animus arising out of Ms Edgar’s complaints, for the reasons referred to above. This is noteworthy context: Absent there being a prohibited reason, it is immaterial whether they were part of the decision-making process.

40    His Honour then postulated a number of hypotheticals in the alternative at J[784]:

Even if Mr Cross’s report recounted evidence in a way that misrepresented the facts or expressed conclusions that lacked good faith because they were motivated by animus arising out of Ms Edgar’s complaints, there was no evidence that Ms O’Rourke was aware that the report was affected by such shortcomings. Further, the evidence did not support a conclusion that Ms O’Rourke doubted the accuracy of the investigation report and so her decision-making would not have been tainted by what Ms Edgar alleges were the improper purposes of Messrs Boxsell, Melzer and Cross: Gibbs v Palmerston Town Council at [114].

41    There is a certain infelicity in this aspect of the reasoning. It may be accepted that the ultimate adoption of that affected or infected contribution by another person unaware of the infection may nonetheless mean that the impugned decision is found to be for the prohibited reason: Wong at [26]. However, the infelicity arises in the context of considering a hypothetical that did not arise in this case because (a) Mr Cross was not found to have the requisite prohibited animus; and (b) Ms O’Rourke did not merely adopt his report as the basis for the dismissal. Accordingly, whilst not correct, the proposition was not applied to the facts of this case because the circumstance did not arise.

42    Whilst his Honour refers to Gibbs at [114] (using the Austlii paragraph numbering), it is clear from this reasoning that his Honour, having dismissed the conclusion that Mr Cross was part of the decision-making process, turns his focus to Ms O’Rourke’s motivations and whether they could have been tainted by what Ms Edgar alleges. His Honour noted at J[784]:

Moreover, as will be considered more fully shortly, it is apparent that Ms O’Rourke exercised independent judgment when deciding what was to be done in relation to Ms Edgar and based her decision and recommendation to Mr Spanner on objective evidence of Ms Edgar’s attitude to her more senior colleagues in the Marketing department and of conduct engaged in by her distinct in character from the making of complaints.

43    His Honour thereafter, in an expansive way, makes good this conclusionary finding as to the independence of Ms O’Rourke’s reasoning: Notation is made of the fact that Mr Cross’s conclusions were relevant to Ms Edgar’s dismissal “only to the extent that upon receipt of the investigation report” it was Ms O’Rourke who drew the rational conclusions regarding Ms Edgar not wanting to work with Mr Boxsell or Mr Melzer, highlighting this conclusion in her show cause letter to Ms Edgar and inviting Ms Edgar to show cause as to why her employment should not be brought to an end by reason of its untenability: at J[785]. There is express, repeated acceptance of Ms O’Rourke’s evidence that it was Ms Edgar’s failure to address satisfactorily the issues raised in the show-cause letter that led her to conclude that her employment had to be terminated (referring to Ms Edgar’s response to the same effect). His Honour also expressly rejected that the conclusion was anything other than an independent one, finding that it was independent from any supposed tendentiousness in the findings expressed by Mr Cross in his investigation report: at J[787]. His Honour found that Ms O’Rourke’s reasons were as she had deposed, including her express denial that they were based on Ms Edgar’s complaints about the workplace and her claimed medical conditions: at J[787]. These findings were fortified by the fact that Ms Edgar had made clear, repeatedly, that she did not want to work with Mr Boxsell or Mr Melzer, to which the primary judge made multiple references: at J[786], [788].

Did the primary judge err in not finding that Mr Cross was part of the decision-making process?

44    For the following reasons, and those stated above, this ground is not made out, and the primary judge did not err in not finding that Mr Cross was a decision-maker or part of the decision-making process.

45    As is evident from the above, the determination of whether Mr Cross was a decision-maker, or whether his purported affected or infected report formed some integral part in the ultimate decision made by NRFA Services to terminate Ms Edgar’s employment, is a question of fact.

46    There was no dispute between the parties as to the applicable legal principles, most recently elucidated by the Full Court in Wong at [26] per Katzmann, Charlesworth and O’Sullivan JJ. In Wong, the Full Court found that, where a corporate entity is alleged to have taken adverse action against an employee acting on information or advice actuated by a prohibited reason, that may necessitate the conclusion that the entity’s reasons included a prohibited reason, even where the person providing the information or advice does not formally possess the authority or power to make the decision. Ms Wong’s supervisor, Mr Arnott, was found to be a decision-maker. Analogising between this appeal and Wong, Ms Edgar submitted that, without the findings made by Mr Cross in his investigation report on Ms Edgar’s complaints, Ms O’Rourke would never have been called on to make a decision in relation to her ongoing employment. In Ms Edgar’s contention, Mr Cross’s evidence as to the reasons why he made the findings in his report was therefore crucial to NRFA Services discharging the reverse onus. Although the Full Court in Wong had found the employer not to have contravened the Act, that decision was on the basis that the first instance Court had made findings in relation to Mr Arnott’s state of mind assuming that its conclusion that he was not a decision-maker was wrong. The same is not true here, as the primary judge did not make findings in relation to Mr Cross’s state of mind in the context of the reverse onus.

47    The extent to which an analogy can be drawn between this case and Wong is, however, limited given the differences between the roles of Mr Cross in this case and Mr Arnott in Wong. In Wong, Ms MacLeod (the person with the power to terminate) acknowledged that Mr Arnott’s input into her decision to remove Ms Wong from her roles was “essential”: Wong at [71]. The Full Court noted (at [79]):

The case was not one in which Ms MacLeod received information from Mr Arnott the reasonableness, truth or accuracy of which she investigated for herself. Mr Arnott was not a mere informant or witness among many. Rather, in our view, he was an instigator of the process that led to the adverse actions being taken on the basis of his word, without reference to Ms Wong. Not only did he provide a large part of the information upon which Ms MacLeod acted, he also personally authored the reasons for the removal decision in dot points that reflected his own experiences with Ms Wong in the workplace. He accompanied Ms MacLeod in the seeking of advice as to whether the “case management history” (being an historical narrative largely provided by him) would form a sufficient basis to put in train a process for Ms Wong’s dismissal. He expressed the opinion that Ms Wong’s employment was untenable. That Ms MacLeod formed the same view is hardly surprising, given her acknowledgement that she accepted everything Mr Arnott said to be truthful (including the assertion that Ms Wong was to blame for his deteriorating emotional state).

48    In this case, Mr Cross investigated Ms Edgar’s complaints and produced a report, which made no recommendation about whether Ms Edgar’s employment should be terminated. It was never alleged, nor would be provable on the facts as found, that Mr Cross had any involvement or influence in the decision-making process save for the allegation of him pre-determining the outcome for a prohibited reason (the fact of Ms Edgar making the complaint), which was expressly rejected by the primary judge, and those findings then being relied upon by Ms O’Rourke. Therefore, the facts of this case are very different from those in Wong, where Mr Arnott: (a) was found to be “an instigator of the process”; (b) he “personally authored the reasons [for dismissal]”; and (c) accompanied Ms MacLeod in seeking advice and expressed his opinion of the employment being “untenable”: at [79].

49    Relying on the principles in Wong, Ms Edgar submitted that the primary judge was in error for the following reasons. First, his Honour purportedly treated Mr Cross’s conduct like that of Messrs Melzer and Boxsell, even though Mr Cross was responsible for conducting the investigation while Messrs Melzer and Boxsell were merely participants in it. I do not accept that this occurred. It is clear from his Honour’s reasoning that his Honour understood the different allegations made against each of the gentlemen. It is apparent, however, as set out in the extracted portion of Ms Edgar’s submissions regarding each of their alleged involvement at [26] above, that there was an intertwining of Ms Edgar’s allegations as they related to Mr Boxsell and Mr Melzer as participants and Mr Cross as investigator. This explains why his Honour dealt with them all together. It does not arise from error but rather is responsive to the way that Ms Edgar formulated her case.

50    It was Ms Edgar’s case that Messrs Boxsell and Melzer fed up to Mr Cross a series of denials (or lies) about their alleged conduct towards Ms Edgar which was the subject of her complaint. It was then alleged that Mr Cross chose to accept those lies because he wanted to “shut” down Ms Edgar’s complaint to protect his interests as a partner of the firm. As observed earlier, his Honour rejected Ms Edgar’s allegations as against Messrs Boxsell and Melzer, and therefore the allegation of them “lying” goes nowhere. Similarly, the allegation against Mr Cross of his having chosen to accept lies must fall away. Further, to the extent that the allegation was made against Mr Cross on the basis of the alleged animus (actuation by a prohibited reason) for his findings, this also was rejected and therefore any reliance on those findings per se by Ms O’Rourke would go nowhere without findings of animus for a prohibited reason on her part, independently of Mr Cross to the extent that there was such an allegation, it was that Ms O’Rourke was actuated by a prohibited reason given the dismissal letter included a heading that “the working relationship between you and Lex and Alex has been strained as a consequence of the unsustained complaint you made against them” (emphasis added). Ms Edgar submitted that this provided clear evidence that the decision to terminate was made because of the complaint. This was rejected by the primary judge: see J[790].

51    Relatedly, it was submitted that the primary judge created (erroneously) an artificial distinction between the decision-making and the investigative process. Whether such a distinction will be appropriate or artificial is fact-dependent. Further, in this case, the reference to the distinction was responsive to how Ms Edgar had framed her case (see for example an extract from her submissions at [26] above) rather than by the adoption of a principled conceptual line. If his Honour had approached the question from the perspective that only the person authorised to make the decision can be the decision-maker and that a material contributor (albeit one without the authorising power) cannot, then that approach would be erroneous, as was found in Wong. However, it is clear that the primary judge understood that the inquiry was a broader one: This can be seen from the fact that the primary judge posited the broad question “whether [the] adverse action was the product of the reasoning process of more than one person”: at J[783]. Immediately thereafter his Honour cites Gibbs and Clermont Coal, which both recognise the breadth of the inquiry and the capacity for material influencers to infect or affect the process, stating that more than one decision-maker has been found when there was “advice of others on issues material”, including those “who make tendentious statements of fact or fact-finding which affect in a substantial or operative way the decision”: at J[783]. It is clear that his Honour ultimately found that Messrs Boxsell, Melzer and Cross did not form part of the decision-making process. This was because his Honour makes three related findings: first, he preferred their evidence over Ms Edgar’s and made no finding that they exhibited any prohibited animus towards Ms Edgar; secondly, Mr Cross’s investigation and findings were not pre-determined or actuated by animus to Ms Edgar because she had made complaints; and thirdly, Ms O’Rourke had exercised independent judgment in making the final decision.

52    In support of her submission that the distinction between the investigative process and the decision-making process could not be maintained, Ms Edgar referred to emails between Ms Wetherall (Human Resources Manager) and Mr Cross dated 27 and 28 March 2018 sent while Mr Cross was in Dublin in which they discussed how to inform Ms Edgar of the results of Mr Cross’s investigation. Ms Wetherall outlined a proposed process with respect to next steps and attached a draft letter regarding the outcome of the investigation. Mr Cross responded by saying “[a]gree with the process and the letter”. It was never suggested that Mr Cross’s involvement in this process went further than this email, and Ms Wetherall’s 28 March email notes that she and Ms O’Rourke had spoken with another employment partner at the firm, Mr Noakes, about the issue in Mr Cross’s absence. Ms Edgar’s closing submissions below included a brief reference to Mr Cross’s involvement “in giving advice about Ms Edgar’s employment both before and after the investigation” in the context of distinguishing this case from Ibarra. To the extent that Mr Cross’s alleged involvement in the decision-making process following the conclusion of the investigation mirrors the pre-determination argument run below, I find that there was no error in his Honour’s rejection of this submission. To the extent that this was pursued on appeal as an additional, separate basis to the pre-determination argument run below, this argument is distinct from the argument run below and the primary judge cannot be criticised on appeal with respect to it.

53    The second attack was based on the primary judge purportedly finding that, because Ms O’Rourke was the decision-maker, her being unaware of any shortcomings in the report meant that Mr Cross’s evidence was not relevant to the determination of the reverse onus. This challenge appears to arise in relation to his Honour’s consideration of an alternative hypothetical referred to at [40] and [41] above. I do not accept that the primary judge’s reference to such a hypothetical constituted a finding with the claimed import. The infelicity arose in the context of considering a hypothetical that could not arise in this case.

54    Further, in any event, it is clear that his Honour was considering a distinction described by Gray J in Gibbs between where the actual decision-maker simply “rubber stamps” a decision in fact made by another and where the actual decision-maker exercises his or her mind independently. It is also apparent that his Honour was nevertheless aware that where a person, influenced by a prohibited reason, contributed to the ultimate decision, the ultimate adoption of that affected or infected contribution by another person unaware of the same may nonetheless mean that the impugned decision was so infected, given his reference to the reasoning in Ibarra, as referred to at [38] above.

55    The third to sixth bases upon which Ms Edgar submits that there was error arise with respect to the findings concerning Ms O’Rourke. Ms Edgar disputes the correctness of the finding that the termination decision was made only by Ms O’Rourke, rather than being made in reliance on Mr Cross’s findings. In addition, Ms Edgar alleges failure to find that the investigation of Ms Edgar’s complaints was a substantial and operative reason for Ms O’Rourke’s decision because it included factual findings by Mr Cross that Ms Edgar had made unsubstantiated disparaging comments about Mr Boxsell that were crucial to the finding that she could not continue to work with him, and noting Ms O’Rourke’s evidence that she relied entirely on Mr Cross to reach a conclusion about whether Ms Edgar’s complaints were proven. She also submitted that the primary judge’s failed to find that the termination letter relied on Mr Cross’s investigation of Ms Edgar’s complaints, noting that it mentioned the investigation in the context of explaining the reasons for termination. Finally, Ms Edgar asserts that his Honour did not give full effect to the plain meaning of Ms O’Rourke’s correspondence, which was that Mr Cross’s investigation was a substantial and operative part of her decision.

56    Each of these bases are related to the other challenges referred to above. For the reasons set out above, I can discern no error in his Honour’s ultimate findings regarding the position of Ms O’Rourke as the sole decision-maker and the separateness of her decision to dismiss from Mr Cross’s findings. Ultimately, this involved an assessment of fact based on the testimony of Ms O’Rourke and the contemporaneous documentation. As described above, the primary judge considered Ms Edgar’s challenges of Ms O’Rourke’s evidence and rejected them in a reasoned way. The primary judge’s ultimate conclusion that Ms O’Rourke was the sole decision-maker was made on the basis of a multitude of underlying, incremental factual findings both with respect to Mr Cross and Ms O’Rourke, as reasoned above. I do not accept that error has been established.

57    Given therefore that Ms Edgar has been unable to dislodge the primary judge’s finding that Mr Cross was not part of the decision-making process, it is not necessary for me to go on to consider what would have been the next necessary limb to the appeal – whether NRFA Services had rebutted the presumption that Mr Cross was motivated by a prohibited animus. However, even if I had been required to do so, as evident from the above reasoning, careful consideration needed to be given to how Ms Edgar had argued the case below as against Mr Cross. I am not satisfied, on the basis of how she had argued her claim with respect to Mr Cross, that NRFA Services would not have been able to discharge its onus. As observed above, the primary judge made substantial findings of fact that Mr Cross was not motivated by any prohibited animus.

58    Therefore, in the absence of overturning the factual findings of the primary judge that Mr Cross was not actuated by a prohibited animus in his conducting of and findings in the investigation, then even if the primary judge were incorrect to find that Ms O’Rourke’s decision did not rely on Mr Cross’s findings, such a finding would go no way to impugn the ultimate decision to dismiss.

59    Given my conclusions in this regard, there is no necessity to deal with the balance of the appeal.

Conclusion

60    For the foregoing reasons, the appeal must be dismissed. No application was made for costs and accordingly no orders are made in this regard.”

 

Edgar v Norton Rose Fulbright Australia Services Pty Ltd [2023] FCA 1573 per
 Raper J delivered 12 Dec 2023