What follows* is a small portion of a judgement by a member of the Federal Court dealing with the intricate legal and forensic issues which are involved when determining whether an employer has managed to rebut the statutory presumption (or reverse onus of proof) in a general protections case and the perilous tactical decisions which need to be made by an employer defending such a case as to which witnesses to call to meet this issue.
“……………………………………………………F.7.1 Relevance of the findings as to whether Mr Chatwin was the decision-maker
283 Mr Haley claimed that LOR had engaged in adverse action contrary to s 340(1)(a)(ii) of the FW Act by terminating his employment because he had exercised workplace rights by making various complaints in relation to his employment. Relevantly, s 340(1)(a)(ii) provides that:
Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
…
(ii) has, or has not, exercised a workplace right…
284 Section 342(1) of the FW Act defines “adverse action” to include dismissal from employment. There was no dispute that LOR had engaged in adverse action by dismissing Mr Haley from his employment, but LOR denied that it had done so because Mr Haley had exercised workplace rights.
285 Section 341(1) of the FW Act sets out the circumstances in which a person has a “workplace right”. Mr Haley had alleged that he had exercised various workplace rights. Although the primary judge did not accept every alleged exercise of a workplace right pleaded by Mr Haley, the primary judge found that Mr Haley had exercised some of the workplace rights that he had pleaded by making “three sets of” complaints and inquiries in relation to his employment: PJ [614]. It followed that Mr Haley had exercised workplace rights for the purpose of s 341(1)(c)(ii) of the FW Act: PJ [614]. It is unnecessary to set out these findings as LOR did not challenge them.
286 The effect of the primary judge’s findings that Mr Haley had exercised workplace rights in relation to his employment meant that the central issue before the primary judge in relation to the adverse action claim was whether the relevant adverse action (being Mr Haley’s dismissal) was taken because of the exercise of those workplace rights. The primary judge’s consideration of this causal question was informed by ss 360 and 361 of the FW Act which provide as follows:
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
287 The relevant question as to whether an employer has taken adverse action because of an exercise or proposed exercise of one or more workplace rights (as defined) is a question of fact. A respondent will often seek to rebut the statutory presumption in s 361(1) by calling evidence from the relevant “decision-maker(s)” as to the reason(s) for taking the action and denying that it was done so for reasons including the proscribed reason(s). In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 at [44]-[45], French CJ and Crennan J (with whom Gummow and Hayne JJ agreed at [71]) stated:
[44] … The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”.
[45] This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.
(Emphasis and additional emphasis added).
288 In Construction, Forestry Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243, Gageler J stated at [85]:
Where the adverse action taken is in consequence of a decision made by a responsible individual within a corporation, the existence or non-existence of a particular reason as an operative and immediate reason for taking that adverse action turns on an inquiry into the mental processes of that individual.
(Emphasis and additional emphasis added).
See also BHP Coal at [7] (French CJ and Kiefel J); Barclay at [146] (Heydon J).
289 The principles enunciated in Barclay and BHP Coal are not without complexity in their application to a body corporate in the context of one or more variants of decision-making processes that are often involved in the making of decisions pertaining to the employment of a person. Neither Barclay nor BHP Coal concerned the anatomy of corporate decision-making in such instances: Wong v National Australia Bank Ltd [2022] FCAFC 155; (2022) 318 IR 148 at [31] (Katzmann, Charlesworth and O’Sullivan JJ) (Wong FFC); Wong v National Australia Bank Ltd [2021] FCA 671 at [91] (Snaden J) (Wong 1). Both Barclay and BHP Coal were “bright-line” cases where it was either accepted or found that a single person was the relevant decision-maker on behalf of the respective corporations and whose states of mind were therefore dispositive of the “central question” in each case. The answer to the “central question” is more problematic where there is either no single decision-maker, or where the relevant acts or conduct are the product of a collaborative or other group-based decision-making process. Even where there is a single identifiable decision-maker, it may be “‘artificial to maintain any bright-line distinction’ between the decision-maker’s reasons, and contextual influences that might bear on it, being a fact-dependent analysis”: Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71; (2022) 292 FCR 34 at [201] (Bromberg, Bromwich and Rangiah JJ) (Qantas Airways FFC); Transport Workers’ Union of Australia v Qantas Airways Ltd [2021] FCA 873; (2021) 308 IR 244 at [223]-[233] (Lee J) (Qantas Airways 1).
290 The complicated and fact-dependent issues that can arise in these situations have been addressed in previous decisions of this Court and the Australian Industrial Court in the context of applications under Part 3-1 of the FW Act and similar provisions under earlier industrial enactments. These decisions include (without being exhaustive) Roberts v General Motors-Holden’s Employees’ Canteen Society Inc (1975) 172 CAR 1073; Wood v City of Melbourne Corporation [1979] FCA 42; (1979) 26 ALR 430; Voigtsberger v Pine Rivers Shire Council (1981) 1 IR 198; Elliot v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) 129 IR 251; National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; (2013) 234 IR 139 (RMIT); Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; (2015) 253 IR 166; Leahey v CSG Business Solutions (Aus) Pty Ltd [2017] FCA 1098; Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215; (2019) 273 FCR 332; Qantas Airways 1 and Qantas Airways FFC; Wong 1 and Wong FFC; and Pilbrow v University of Melbourne [2024] FCA 1140.
291 In Wong 1, Snaden J expressed reservations about reconciling the previous authorities of this Court including Kodak, RMIT, Clermont Coal and Australian Red Cross with the decisions of the High Court in Barclay and BHP Coal: at [88] and [91]. His Honour in substance considered that in seeking to interrogate a corporation’s decision-making processes, and the reasons that may have actuated different persons within a corporation, there was a risk that the Court would be embarking upon an examination of the “unconscious” reasons of the corporation. On this topic, Lee J in Qantas Airways 1 examined Snaden J’s reasons in Wong 1, and stated at [232]-[233]:
[232] If there is a case at Full Court level where the issue of whether a person who is involved in the process leading to the decision was a decision maker for the purpose of a proscribed purpose was decisive, and it was argued that the relevant reasoning in Kodak was plainly wrong, then it will no doubt be necessary for a Full Court to evaluate the points usefully raised by Snaden J. A formal submission was not made in this case that Kodak was wrongly decided (although it was sought to be distinguished) and, although I will make relevant findings, for reasons I will explain, the case does not ultimately fall to be decided only by whether a person other than Mr David, materially involved in the process leading to the outsourcing decision, was motivated by a proscribed purpose.
[233] It suffices to note, for my part, the point is not without difficulty but at least in some cases, it may be artificial to maintain any bright-line distinction between a person’s reasons for doing something and contextual influences that might bear upon the reasoning process and its result. This is not to suggest an objective test be adopted, nor the taking into account of any unconscious reasons (and hence detract from the principles explained in Barclay). But some decisions (like in Leahey) are the culmination of a long process involving the input of others. It is easy to conceive of cases where influences which may be characterised as “contextual” may matter, and subjectively bear upon a reasoning process. It all depends. Every decision is made in a context and is the work of a human actor; and decisions can be complex things involving the application of rational thought, but can also involve confusion and illogicality that are part of the human experience. In the end it is all a fact dependent analysis. In any event, it is unnecessary to explore these issues further.
(Emphasis added).
292 On appeal, the Full Court in Qantas Airways FFC dealt with a Notice of Contention raised by the Transport Workers’ Union which contended that Lee J ought to have applied Kodak in order to find that there were other persons who had made an indispensable contribution to the ultimate decision that was impugned in that litigation. In rejecting this contention, the Full Court considered whether there was any inconsistency between, on the one hand, the decisions in Barclay and BHP Coal and, on the other, Kodak and Australian Red Cross. The Full Court stated at [228]:
Properly considered, there is no necessary inconsistency between Kodak or Australian Red Cross on the one hand, and Barclay or BHP Coal on the other, with the High Court in the latter two cases dealing with a different issue pertaining to the acceptance of evidence adduced by an employer to discharge the onus in s 361(1). It remains, however, for the TWU to show that the primary judge erred in not applying Kodak-type reasoning to this case in relation to the proscribed reason found to be held by Mr Jones, and more equivocally by Mr Hughes.
293 More recently, the Full Court in Wong FFC considered the doubts that had been expressed by Snaden J in Wong 1 as to whether the earlier authorities of this Court could be reconciled with Barclay and BHP Coal, and found them to be unwarranted: at [29]-[41]. In so concluding, the Full Court observed that Snaden J had been correct to observe that both BHP Coal and Barclay illustrate the distinction between “a person’s reasons for doing something and the contextual influences that might bear in some way on those reasons”: at [32]. However, the Full Court reasoned that it was necessary to address the antecedent question as to whether the involvement of another person in the making of a decision was merely a contextual influence, or something more than that: at [32]. The Full Court examined the previous authorities of this Court and observed at [25]-[26]:
[25] … Where (as here) that person is a corporate entity, it will in all cases be necessary to examine the state of mind of the human actor or actors who (alone or together) caused the corporation to take the action that it did or, to adopt a phrase from Wood, who “played the decision-making part in the joint administrative activities” culminating in the actual act that constitutes the adverse action. It may be convenient to refer to the person whose conduct directly visited the adverse action on the employee as the “decision-maker” but his or her decision-making process may incorporate the state of mind of other people, including by adopting facts or opinions asserted by them.
[26] The authorities show that in asking whether an adverse action was taken by a corporate entity, the Court should remain alert to the possibility that the answer may reside in the mind of more than one natural person. The state of mind of the human actor who said or did the thing that bound the corporation to the action will of course be important, and in many cases determinative. However, the cases illustrate that a person who does the act or thing constituting the adverse action may act on information or advice the provision or content of which is actuated by a prohibited reason. The adoption of such information or advice may necessitate the conclusion that the corporation’s reasons for the adverse action include that prohibited reason. In such cases, it matters not that the person providing the information and advice does not formally possess the authority or power to effect the decision based on the information and advice. Whether the person performing the act constituting the adverse action is aware that he or she is acting on information or advice given for a prohibited reason may not be relevant in cases of that kind.
(Emphasis added).
294 As examined by the Full Court in Wong FFC, the previous decisions of this Court and the Australian Industrial Court applied different formulations in seeking to identify or determine the person or persons who were relevantly involved in an impugned decision including by identifying them as those who had made the “essential and material” decision (Voigtsberger at 205), those who had an influence on the ultimate decision, those who had made the effective decision by the making of a recommendation that had been rubber-stamped (General Motors-Holden at 1079), those who had made an “indispensable contribution” to the decision or whose contribution had been “inadvertently adopted” without “independent thought or analysis” (Kodak at [37]), or those who had a “a material effect on the ultimate outcome” (Clermont Coal at [121]): see also Pilbrow at [77]-[78]. Importantly, the Full Court in Wong FFC concluded at [37]-[40], as the Full Court had in Australian Red Cross, that it was unnecessary to adopt a single verbal formula or test.
295 It may be that these various formulations as expressed in previous authorities of this Court reflect fact dependent manifestations of an application of the rules of attribution and aggregation. It may further be the case that these formulations, as a whole, appeal to rules of attribution and aggregation as their central organising principle. However, if they are to be seen as such, it will become necessary to identify the process of construction, and divine the “statutory rule”, from the FW Act by which they are to be so organised: e.g., see Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; 249 FCR 421 at [98] (Edelman J; Allsop CJ and Besanko J concurring) and [63]-[66] (Allsop CJ); see also Reynolds D, “Corporate Knowledge: The Search for the Relevant Mind(s)” (2018) 92 ALJ 991 at 997-1004; and Eastwood A, “Corporations and the Aggregation of Knowledge” (2013) 87 ALJ 553. If they are not to be seen as being organised within those concepts and principles, it may become necessary to identify the other process of construction and/or statutory rule by which corporations are held liable under the FW Act by the attributed and aggregated acts and states of mind of particular officers, employees or agents. In this regard, it should be borne in mind that s 793 of the FW Act is facilitative and not normative. However, it is unnecessary to further consider these matters. In the present case, neither party contended that the earlier decisions of this Court were incorrectly decided, or should not be followed. Both parties contended that I should apply the law as expressed in Wong FFC. In those circumstances, it is these principles which need to be addressed in ascertaining whether the primary judge erred.
296 One further matter should be noted. It follows from the principles discussed in Wong FFC that it is not necessary for LOR to have called evidence from every person involved in the decision-making process(es). This approach to the operation of the onus in such cases was rejected by Lee J in Qantas Airways 1 at [234]-[236]. As Lee J reasoned there at [235], it is “important not to misunderstand Kodak and Clermont Coal”. Those earlier cases were ones where it was found that the involvement of others had “a material effect on the ultimate outcome” (Clermont at [121] (Reeves J)) or made an “indispensable contribution” to the outcome (Kodak at [37] (Lee, Madgwick and Gyles JJ)). Lee J explained at [236] that a requirement to call evidence from every person involved in the decision-making process “would also be contrary to principle and unworkable”.
297 I agree with the observations made by Lee J. An approach contrary to Lee J’s reasoning would lead to the application and operation of the onus cast by s 361 in a way that raises, in part, the concerns expressed by Snaden J in Wong 1. Such an approach would lead to a wide-ranging inquiry into the conduct and states of mind of persons within a corporation that could have no ultimate bearing upon the central question at hand as expressed in Barclay at [44]. To do so would involve straying well beyond ordinary principles of corporate attribution and aggregation in a way not justified by any statutory rule contained in the FW Act: see, generally, in a different statutory context, New South Wales – Sydney Trains v Annovazzi [2024] FCAFC 120 at [106]-[116] (Bromwich, Raper and Shariff JJ); see also, generally, Reynolds (2018); and Eastwood (2013).
F.7.2 The evidence called by LOR
298 In the present case, the onus fell upon LOR to establish that the reason or reasons for the termination of Mr Haley’s employment did not include any proscribed reason (being because Mr Haley had exercised one or more workplace rights).
299 LOR sought to discharge that burden by calling evidence from Mr Chatwin to the effect that he made the decision to terminate Mr Haley’s employment and that his reasons for so deciding did not include one or more of the proscribed reasons. In an initial affidavit filed on 28 June 2021 (First Chatwin Affidavit), Mr Chatwin gave the following evidence:
38. On 24 July 2020, I sent a letter to Mr Haley (termination letter) advising him that his employment with [LOR] had been terminated on the grounds of serious misconduct, with immediate effect…
39. I made the decision to terminate Mr Haley’s employment summarily for the following reasons.
40. First, I formed the view that Mr Haley’s conduct, as reflected in the findings made by the investigator regarding his behaviour during the incident on 2 and 3 July 2020 and the resulting breaches of the Code of Conduct and Travel Policy, constituted “conduct that causes imminent and serious risk to … the reputation” of Laing O’Rourke, for the purposes of section 4, clause 2(b) of Mr Haley’s contract of employment. The Bushfire Project and LORAC’s appointment as the lead contractor for the Project received a significant amount of publicity and media coverage. As a result, it was a very important project for the company. Moreover, many of the residents who lived in the areas in which the clean-up works were being undertaken had experienced significant trauma and hardship as a result of the fires. Mr Haley’s decision to use such offensive and profane language towards members of one such community reflected incredibly poorly, not only on himself but also on LORAMS and the Laing O’Rourke name and brand that he was representing. I thought it was likely that, having taken the time and effort to make a complaint to Laing O’Rourke regarding Mr Haley’s conduct and that of his colleagues, [Mr and Ms Pointon] had told others in their community about the events of 2 and 3 July 2020.
41. Second, it seemed clear to me that Mr Haley had not been candid and truthful in the information that he had provided to the investigator in the course of the investigation. For example:
(a) In his written and oral statements, Mr Haley had consistently denied that he had used offensive language towards [Mr and Ms Pointon], even though his voice could be heard on a sound recording that had been taken on the night of the incident. As stated in the termination letter, at the outset of the show cause meeting on 22 July 2020, Mr Haley admitted that he did in fact say the words that the investigator found had been directed to the complainants.
(b) Mr Haley’s admission indicated to me that his earlier statements to the investigator that the allegations against him were “false and malicious” and “untrue” were themselves false, and that Mr Haley knew those statements were false at the time that he made them.
(c) Similarly, Mr Haley had made statements to the investigator to the effect that he had been subjected to a serious physical assault by [Mr Pointon], for which [Mr Pointon] should face criminal charges. However, as stated in the termination letter, Mr Haley later admitted during the show cause meeting that he had not been physically attacked by [Mr Pointon] and that he did not consider [Mr Pointon’s] conduct to be sufficiently serious to warrant reporting the matter to the Police or to LORAMS.
42. In my view, Mr Haley’s conduct described in the preceding paragraph constituted “wilful or deliberate behaviour that [was] inconsistent with the continuation of [his] employment” within the meaning of section 1, clause 2(a) of his contract of employment, in at least two respects. First, it comprised a serious breach of trust, which meant that I could not have any confidence going forward that Mr Haley would discharge his duties as Commercial Leader in a transparent and honest manner. And second, it revealed that Mr Haley, as a senior manager within the company, was either unwilling or unable to set an example to his more junior colleagues by owning up to his errors and by demonstrating a proactive and constructive approach to resolving the problem.
300 Further, and importantly, in the First Chatwin Affidavit, Mr Chatwin addressed each workplace right that Mr Haley had alleged he had exercised, and denied that they played any part in his decision to terminate Mr Haley’s employment.
301 At some point after the First Chatwin Affidavit was served and in advance of the trial before the primary judge, Mr Haley made an application for leave to issue subpoenas directed to 13 persons to give evidence in the trial. The primary judge gave reasons for refusing to grant that application in the Subpoena Judgment. Mr Haley sought leave to issue the subpoenas because, amongst other things, he contended that the First Chatwin Affidavit disclosed that “there were more than 20 people involved in the ‘investigation and disciplinary process’ that led to [LOR]’s termination of Mr Haley’s contract of employment” and that there were “contradictions between Mr Chatwin’s affidavit and the contemporaneous evidence about the identity of the decision makers”: Subpoena Judgment at [15]. Mr Haley contended that, in particular, the credibility of Mr Chatwin needed to be “tested by questions being asked of those decision makers about their involvement in the decision to terminate Mr Haley’s contract of employment”: Subpoena Judgment at [15](c).
302 In opposing the grant of leave, LOR filed a further affidavit of Mr Chatwin dated 10 August 2022 (Second Chatwin Affidavit) in which he deposed as follows:
6. … shortly after the show cause meeting concluded, I discussed the matter with Mr Cashin and we agreed that, given the seriousness of the issue at stake, some time would need to be allocated to reflect and deliberate on the matter before coming to a decision. Given my responsibilities within the organisation as the Functional lead (while Mr Cashin was the Operations lead) and my direct involvement in the earlier written communications with Mr Haley in relation to the events after the incident on 2/3 July 2020, it was agreed that I would take on the role of sole decision maker, go away, reflect on all of the material referred to in the investigation report and subsequent discussions with Mr Haley, and form a view about what should, or should not, be done. Thereafter, Mr Cashin ceased to have any involvement in the outcome of the show cause process. As a consequence, in the period after the show cause meeting on 22 July 2020, it became my sole responsibility to determine, for and on behalf of the Respondent, what action would be taken in relation to Mr Haley, including whether he would remain employed or be terminated. The decision that I ultimately reached and the reasons for that decision are as set out in paragraph 38 – 42 of my First Affidavit.
7. It is accordingly not correct for Mr Haley to assert that Mr Cashin was a decision maker in relation to Mr Haley’s dismissal. It is also incorrect for Mr Haley to assert that Ms Fraser was a decision maker. In her role as General Manager, People, Ms Fraser exercised some oversight in relation to the conduct of the investigation, but she did not make the decision to dismiss Mr Haley and I did not have any communications with Ms Fraser regarding the action to be taken against Mr Haley prior to his dismissal.
8. It is also not correct for Mr Haley to assert that Mr Bates was a decision maker. In his role as the Respondent’s Head of Industrial Relations and Human Capital Operations, Mr Bates exercised some oversight in relation to Mr Curnow-Rose who was charged with undertaking the investigation, but he did not make the decision to dismiss Mr Haley.
9. I gave a great deal of thought and consideration to the various aspects of the matter when exercising my role as the decision maker. I was aware that my role as the sole decision maker carried a great deal of responsibility and that there might be serious consequences for Mr Haley and his family if I were to decide that Mr Haley’s employment should be terminated.
10. While some of the 13 persons referred to in paragraph 2 of this affidavit played either some part in investigation of the incident on 2 and 3 July 2020 or might otherwise have provided internal support services or performed some responsibility either as a support person or point of contact, none of the 13 played any role in the decision that I made to determine the outcome of the show cause meeting, and the decision that I made, for and on behalf of the Respondent, to terminate Mr Haley’s employment.
303 LOR read the Second Chatwin Evidence at the trial and relied upon Mr Chatwin’s evidence to establish that he was the sole decision-maker in relation to the dismissal of Mr Haley.
F.7.3 The primary judge’s findings
304 The primary judge’s findings and reasons as to why he was not satisfied that Mr Chatwin made the decision to terminate Mr Haley’s employment are recorded at various points throughout the primary judgment including at PJ [27], [503] and [615]. The primary judge’s findings and reasons in this regard were repetitive and, at times, not clear.
305 In essence, the primary judge concluded that the decision to summarily terminate Mr Haley’s employment was not Mr Chatwin’s to make and, instead, it was in the hands of Mr O’Rourke. To this end, at PJ [27] the primary judge stated:
Finally, just in case this may be lost in the mass of evidentiary material with which these reasons deal, it is necessary to note here that I find later in these reasons that the effect of the evidence Mr Chatwin gave under cross-examination is that LOA’s decision to summarily dismiss Mr Haley from his employment was not Mr Chatwin’s to make; the power to make that decision rested in the hands of LOA’s managing director, Mr Cathal O’Rourke. And LOA has not only not called Mr Cathal O’Rourke to give evidence; Mr Chatwin has not given any evidence that he had in fact met Mr Cathal O’Rourke after Mr Chatwin (as he says) made the decision that LOA should summarily dismiss Mr Haley from his employment.
(Emphasis and additional emphasis added).
306 At PJ [496] (under the heading “Conclusion on Mr Chatwin’s evidence”), the primary judge concluded:
I do not accept the evidence Mr Chatwin gave in either of his affidavits to the extent he there intends to depose that he, or that he alone, decided that LOA should summarily dismiss Mr Haley from his employment…
307 The reasons given by the primary judge at PJ [496](a)-(c) for this conclusion were that:
First, Mr Chatwin did not disclose in his affidavit evidence that it was within his knowledge to give that was relevant to the implied and then express assertions he made in his affidavits that he, and he alone, made the decision that LOA should summarily dismiss Mr Haley from his employment. That evidence was the conversations Mr Chatwin in the evidence he gave under cross-examination he said he had with Mr Cathal O’Rourke, and the role Mr Chatwin understood Mr Cathal O’Rourke played in relation to LOA’s decision to summarily dismiss Mr Haley from his employment. It would be convenient only to refer to one such item of evidence, namely, that Mr Chatwin considered he had “a duty to inform [Mr Cathal O’Rourke] of the decision”; and that Mr Cathal O’Rourke, “as the ultimate managing director of the business, of course, has the right of objection or the right to request more information”. Mr Chatwin’s unexplained omission of such relevant evidence to the assertions Mr Chatwin made in his affidavits prevent me from giving any credit to the assertions Mr Chatwin made in his affidavits.
Second, there is the email Ms Byrne sent at 5:07 pm on 22 July 2020, requesting a payment estimate for Mr Haley based on his employment being terminated without notice effective on 24 July 2020. Unexplained, and LOA has called no evidence to explain it, Ms Byrne’s email suggests that a person or persons within LOA, other than Mr Chatwin, had by then decided that Mr Haley would be summarily dismissed from his employment, effective on 24 July 2020. That is inconsistent with Mr Chatwin’s evidence that after the Show Cause Meeting he deliberated until the morning of 23 July 2020, at which point he made the decision that LOA should summarily dismiss Mr Haley from his employment.
Third, Mr Chatwin gives no evidence about the person or persons who prepared the Termination Letter; or whether Mr Chatwin had any role in providing information that found its way into the Termination Letter. The only evidence that relates to these matters is the Post Show Cause Meeting Documents. Unexplained, and LOA has not sought to explain them by adducing any evidence from Mr Chatwin, or from Ms Byrne, Mr Sleeman, Mr Bates, or Ms Fraser, the Post Show Cause Meeting Documents suggest the Termination Letter was drafted by Mr Sleeman on the basis of the CB Notes of Meeting, and Mr Chatwin became aware of the contents of the Termination Letter at 4:54 pm on 24 July 2020 when Mr Sleeman sent to Mr Chatwin an email attaching the Termination Letter, 15 or so minutes before 5:09 pm on 24 July 2020 when Mr Chatwin sent the Termination Letter to Mr Haley.
308 At PJ [499], the primary judge reasoned that it was “open to find” on the basis of evidence given by Mr Chatwin during his cross-examination that “the person in whose power it was to decide to summarily dismiss Mr Haley… was Mr Cathal O’Rourke [and] who so decided”.
309 At PJ [503], the primary judge again repeated his finding that Mr Chatwin was not the person who made, or who alone made, the decision that LOR summarily dismiss Mr Haley.
310 And, finally, at PJ [504] and [506], his Honour stated as follows:
If it were necessary to determine who, if not Mr Chatwin, made the decision to summarily dismiss Mr Haley from his employment, I would determine that it was Mr Cathal O’Rourke. Such a finding could hardly be surprising. Mr Haley was a senior executive on an annual salary of over $400,000. That means there was a high financial and possible reputational risk to LOA summarily dismissing Mr Haley because, as in fact occurred, that decision could be challenged, and moreover, if successfully challenged, could have potentially significant adverse financial consequences for LOA. Given these risks, it is improbable that the power to make such a decision would be conferred on a person in the position of Mr Chatwin; it is much more likely that the person wielding ultimate power within LOA would make that decision; and the person who on the evidence had that power was LOA’s managing director, Mr Cathal O’Rourke.
…
LOA had the opportunity to adduce evidence to prove Mr Chatwin had the power to summarily dismiss Mr Haley on behalf of LOA; but LOA did not do so. LOA went no further than filing two affidavits by Mr Chatwin, which I have not accepted to the extent that it deposes he was the person who decided that LOA should summarily dismiss Mr Haley from his employment, and to the extent it represents that the reasons for which he asserted he had decided that LOA summarily dismiss Mr Haley from his employment were reasons he himself had formulated.
(Emphasis added).
311 The primary judge’s conclusion was that he was not satisfied, on the evidence, that Mr Chatwin made the decision to terminate Mr Haley’s employment, or did so alone. However, there were two distinct findings wrapped up in the primary judge’s conclusion that it was not Mr Chatwin, or Mr Chatwin alone, who made the decision to terminate Mr Haley’s employment. The first was that it was not Mr Chatwin at all who made that decision. The second is that it was not Mr Chatwin alone who made the decision to terminate. The former characterisation finds support in the first sentence of the primary judge’s finding at PJ [497] that:
I am also not satisfied that Mr Chatwin jointly decided with another person or other persons that LOA should summarily dismiss Mr Haley from his employment. To the extent Mr Chatwin was involved in the decision to summarily dismiss Mr Haley from his employment, I would not accept that, at the time he was involved in any such decision, Mr Chatwin had formulated as his own reasons for doing so the reasons which, in his first affidavit, Mr Chatwin asserts were the reasons for which he decided to summarily dismiss Mr Haley’s employment.
(Emphasis added).
312 However, the second sentence of PJ [497] indicates that the primary judge considered that Mr Chatwin may have been involved in the decision to terminate Mr Haley’s employment. This characterisation also finds support in the primary judge’s reasons for rejecting a submission made by LOR that Mr Chatwin had not “simply assumed the truth of information that was provided to him by others” and had made that decision on an independent basis. The primary judge stated at PJ [502] that:
This submission assumes I have accepted Mr Chatwin alone decided that LOA should summarily dismiss Mr Haley from his employment. I have not accepted this proposition…
313 This passage indicates that the primary judge considered that Mr Chatwin had not made the decision alone, suggesting that the primary judge considered that Mr Chatwin was at least involved in making that decision.
314 Therefore, it appears that the primary judge’s ultimate conclusion was that Mr Chatwin: (a) did not make the decision to terminate Mr Haley’s employment; and (b) to the extent that he was involved in the decision, he was not the only person so involved.
315 The primary judge returned again to these findings in determining that LOR had not rebutted the statutory presumption contained in s 361 of the FW Act. It is necessary to set out the primary judge’s reasons at PJ [615]-[617]:
LOA submitted that Mr Chatwin, and Mr Chatwin alone, was the person who decided that LOA should summarily dismiss Mr Haley. For the reasons I have already given I have not accepted the evidence Mr Chatwin gave that he, or that he alone, decided that LOA should summarily dismiss Mr Haley from his employment. Further, to the extent Mr Chatwin did play any role in LOA’s decision to summarily dismiss Mr Haley from his employment, I am not satisfied that by the time LOA purported to terminate Mr Haley’s employment:
(a) Mr Chatwin had brought to his consciousness as the reasons for terminating Mr Haley’s employment:
(i) the reasons stated in the Termination Letter on which LOA purported to rely for purporting to terminate Mr Haley’s employment; or
(ii) the reasons on which, in his first affidavit, Mr Chatwin says he relied in deciding to summarily dismiss Mr Haley from his employment; or
(b) to the extent Mr Chatwin did bring to his consciousness any of the reasons referred to in (a), his having done so was the product of anything other than adopting the views another person or other persons had formulated.
It follows that LOA has not adduced evidence from the person or persons who made the decision, or who were involved in making the decision, that LOA should summarily dismiss Mr Haley from his employment; or, to the extent Mr Chatwin had any role in LOA’s decision to terminate Mr Haley’s employment, LOA has not adduced evidence from the person or persons who purported to formulate the reasons contained in the Termination Letter for LOA’s purporting to summarily dismiss Mr Haley from his employment, or from the person or persons who purported to formulate the reasons on which, in his first affidavit, Mr Chatwin says he relied in deciding to summarily dismiss Mr Haley from his employment. In those circumstances, I do not accept that LOA purported to terminate Mr Haley from his employment for the reasons on which, in his first affidavit, Mr Chatwin says he relied in deciding to summarily dismiss Mr Haley from his employment, or for the reasons stated in the Termination Letter.
LOA, therefore, has not proved that it did not decide to summarily dismiss Mr Haley from his employment because Mr Haley had made complaints and inquiries in relation to his employment and therefore had exercised his workplace rights; and LOA has otherwise not proved that it summarily dismissed Mr Haley from his employment for reasons that did not include as a substantial and operative factor Mr Haley’s having made complaints and inquiries in relation to his employment, and therefore having exercised his workplace rights. That means that, by purporting to summarily dismiss him from his employment on 24 July 2020, LOA took adverse action against Mr Haley, in contravention of s 340(1) of the FW Act.
(Emphasis added).
F.7.4 Consideration
(a) Error in reasoning and finding that the decision to terminate was not Mr Chatwin’s to make as the power to do so rested in the hands of Mr O’Rourke and that Mr O’Rourke made the decision
316 An essential pathway that the primary judge took in finding that Mr Chatwin did not make the decision to terminate Mr Haley’s employment, or did not make that decision alone, was his Honour’s conclusion that: (a) the decision to terminate was not Mr Chatwin’s to make as the “power” to do so rested in the hands of Mr O’Rourke; and (b) Mr O’Rourke in fact made that decision: PJ [27], [499], [501](b) and [504].
317 In making, and arriving at, these findings, the primary judge erred. That is because the primary judge conflated two separate but related issues as to, on the one hand, who in fact made the decision to terminate Mr Haley’s employment, and, on the other, who may have had the power or the overriding authority to make or alter that decision.
318 The statutory presumption in s 361 of the FW Act cast an onus on LOR to establish that the reason or reasons for Mr Haley’s dismissal did not include as a substantial and operative reason any of the proscribed reasons: Barclay at [44]-[45]. This raised questions of fact as to who made the decision, their reasons for doing so, and, most critically, whether those reasons excluded the proscribed reasons. These central questions of fact did not only turn upon which person had the power or authority to make or alter the decision (though those issues could be relevant), but required an assessment of which person or persons in fact made the decision to terminate Mr Haley’s employment: Wong FFC at [25]-[26]. This point was addressed recently by the Full Court in Dorsch v HEAD Oceania Pty Ltd [2024] FCAFC 133 (Snaden, Hatcher and Shariff JJ), where their Honours stated at [60]:
As the Full Court indicated in Wong v National Australia Bank Ltd [2022] FCAFC 155; (2022) 318 IR 148, to focus on where legal authority resides when determining whether an adverse action was taken by a corporate entity is apt to mislead. There, in the context of decision-making based on information or advice given by another person, the Court stated at [26], “it matters not that the person providing the information and advice does not formally possess the authority or power to effect the decision based on the information or advice”. Here, the general point is the same. Once it was accepted that Mr Skrobanek was the person who was determining whether Mr Dorsch’s employment should be terminated, and had such authority and exercised it, it was beside the point whether he had the legal authority to give effect to that decision by implementing it. In any event, as we have pointed out, there was no challenge to the fact that the termination was validly effected.
319 It followed that the question of fact as to who made the decision to terminate Mr Haley’s employment was a separate, though related, issue to who had the power or authority to do so.
320 Here, the primary judge concluded that he was not satisfied that LOR had discharged its onus of establishing that Mr Chatwin had made the decision to terminate Mr Haley’s employment, and did not accept Mr Chatwin’s evidence to that effect: PJ [498]. Although the primary judge framed the resolution of this factual question as one of onus, it is clear that an essential basis upon which the primary judge rejected LOR’s case was because his Honour concluded that it was Mr O’Rourke who had the power and authority to make the decision (PJ [27], [499], [504]) and that this decision “was not Mr Chatwin’s to make” (PJ [27]).
321 In my view, the evidence before the primary judge did not support the conclusion that, even if Mr O’Rourke had the power or authority to make or alter the decision to terminate Mr Haley’s employment, it thereby followed that Mr Chatwin had not, in fact, made that decision, and that the decision was made by Mr O’Rourke: cf PJ [499].”………………………………………..
Laing O’Rourke Australia Management Services Pty Ltd v Haley [2024] FCA 1323 per SHARIFF J delivered 15 Nov 2024
*
This is a summary of the decision (catchwords) published by Jade editors, a free subscription service of prominent Australian cases
“Catchwords INDUSTRIAL LAW – appeal from decision of Federal Circuit and Family Court of Australia (FCFCOA) in which primary judge found appellant liable for wrongful termination, adverse action contrary to s 340(1) of Fair Work Act 2009 (Cth) (FW Act) and a contravention of s 117(1) of FW Act – where appellant had summarily terminated employment of respondent for alleged serious misconduct arising from incident at after-hours gathering of work colleagues and subsequent investigation of incident – where primary judge found that appellant had not established serious misconduct on part of respondent – where primary judge found that respondent had exercised certain workplace rights and appellant failed to rebut presumption in s 361 of FW Act that appellant had terminated respondent’s employment “because of” exercise of those rights – where primary judge found that appellant had contravened s 117(1) of FW Act by failing to give respondent notice of termination in authorised manner – consideration of principles of appellate review and remitter – whether primary judge erred in making various findings of fact, including that person identified by appellant as having made decision to dismiss respondent was not, in fact, person who made that decision; and that, where person who primary judge found had made decision to dismiss respondent was not called to give evidence, appellant had failed to rebut presumption in s 361 of FW Act – HELD: majority of alleged factual errors rejected; however, primary judge erred in specified respects; questions as to who was materially involved in decision to terminate respondent’s employment and whether presumption in s 361 of FW Act rebutted to be remitted to different judge of FCFCOA – whether primary judge erred in deciding that respondent had not engaged in serious misconduct warranting summary dismissal – HELD: primary judge did not so err – whether primary judge erred in deciding that appellant took adverse action against respondent because it failed to call as witness person who primary judge determined had made decision to dismiss respondent – HELD: this question to be dealt with on remitter – whether primary judge erred in finding that appellant had contravened s 117(1) in way notice of termination was given to respondent – HELD: primary judge did not err in way contended for by appellant, but serious doubt expressed about correctness of finding of contravention for other reasons not advanced in appeal – whether primary judge denied appellant procedural fairness in proceedings below, including by reason of delay between proceedings and delivery of primary judgment – HELD: no denial of procedural fairness
PRACTICE AND PROCEDURE – where outcome of appeal in large measure turned on forensic choices made by appellant in way it conducted proceedings below and on appeal – where no witnesses of fact to incident called other than respondent – where witness accounts and investigation report concerning incident tendered for non-hearsay purpose and relied upon for both hearsay and non-hearsay purposes – where appellant primarily relied on audio recording of part of incident – where appellant failed to engage with other substantial evidence in witness accounts which shed light on context in which incident occurred – where appellant alleged that respondent had engaged in conduct that was deliberately dishonest – where appellant failed to make out its case as to serious misconduct as pleaded and run in proceedings below
PRACTICE AND PROCEDURE – application of Practice Note APP 2: Content of Appeal Books and Preparation for Hearing – expectations of parties in relation to compilation of Appeal Books”