General protections’ cases; the causative link to be made out

One of the most frequent reasons that an applicant fails in a general protections case is that he or she is held to have failed to establish an arguable case to the effect that the action complained of (for example adverse action, say a demotion) was taken for a prohibited reason, in other words because of the protected attribute. As an example, if the case is about an allegation that the applicant suffered adverse action because he or she exercised a workplace right, the applicant must establish a coherent case to the effect that the two are linked before the reverse onus of proof is ac tivated.

The “because of” concept is explained in the following extract from a recent Federal Circuit Court case.

“Because the person has exercised a workplace right

Section 361(1) of the FWA provides, relevantly, that if the applicant has alleged that a person has taken action for a particular reason or with a particular intent, and taking that action for that reason or with that intent would constitute a contravention of Pt 3, it is presumed that the action was taken for that reason or with that intent, unless the person proves otherwise.

In order to take advantage of s 361(1), an applicant must precisely and distinctly plead the alleged reason for the contravening conduct and all the material facts concerning the contraventions alleged against the respondent: Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347 at [18]–[19].

A mental state, such as the reasons for the doing of an act, can only be attributed to a corporation by attributing it to one or more of the corporation’s officers or employees. Section s 793(2) of the FWA provides that if it is necessary to establish the state of mind of a body corporate, it is enough to show that the relevant conduct was engaged in by a person specified in s 793(1), and that the person had the required state of mind. The persons specified in s 793(1) are, relevantly, an officer, employee or agent (an “official”) engaged in conduct on behalf of the body corporate within the scope of his or her actual or apparent authority. In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 (CFMEU v BHP) at [62], the Full Court held that an applicant must plead or particularise the identity of the officials whose state of mind is relied upon. The Full Court found it unnecessary to decide whether the identity of the relevant officials is a material fact that must be pleaded, or merely evidence by which a material fact (the knowledge of the company) is to be proved and which must be particularised.

In my opinion, in order to engage s 793, it is necessary to plead that each individual whose state of mind is relied upon had the required state of mind, was an official of the company and engaged in the conduct on behalf of the body corporate within the scope of his or her actual or apparent authority. That suggests that the identity of the relevant individual or individuals should be pleaded and not merely particularised.

In State of Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441; [2014] FCAFC 184, Tracey and Buchanan JJ described at [32] the principles from Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 (BHP Coal) as follows:

Ÿ           The central question to be determined is one of fact. It is: “Why was the adverse action taken?”

Ÿ           That question is to be answered having regard to all the facts established in the proceeding.

Ÿ           The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.

Ÿ           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.”

Ÿ           Even if the decision-maker gives evidence that he or she acted solely for non proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.

Ÿ           If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.

In Hall, the Full Court held at [100]:

The orthodox approach to dealing with allegations of adverse action said to be engaged in “because” of a particular circumstance requires the party making such an allegation to establish the existence of the circumstance as an objective fact. If an applicant, on the whole of the evidence, establishes, to the Briginshaw standard, that the elements of a particular contravention (other than the reasons for the respondent taking action) exist and if the respondent wishes to avoid an adverse finding in respect of the alleged contravention the respondent will bear the onus to establish, on the balance of probabilities, that he or she had not acted for any proscribed reason. As has already been noted above, s 360 contemplates that there might be multiple reasons for a respondent taking action to the prejudice of the applicant. A reason will not be proscribed unless it is “a substantial and operative factor” in the respondents’ reasons for taking the adverse action.

(Citations omitted.)

In Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd, Jessup J (with whom I agreed) observed at [32] that while a party’s failure to lead particular evidence may tip the scales in favour of drawing an inference adverse to that party, the inference must still be fairly open on the evidence which has been called.

In the same case, I held at [132] that a mere causal nexus between the exercise of a workplace right and the adverse action is not enough. In Barclay at [104], Gummow and Hayne JJ considered that the word “because” in s 340(1) requires an enquiry as to the “substantial and operative” reason or reasons for the relevant action. In BHP Coal, Gageler J described the enquiry as being into the “operative and immediate” reason or reasons. The mere application of a “but for” test is insufficient. Otherwise, the outcomes in Barclay and BHP Coal would have been different. The closeness of the connection between the exercise of the workplace right and the adverse action must be examined. A qualitative judgment must be made as to whether the adverse action was taken because the employee exercised a workplace right.

Multiple decision-makers

In some cases, a decision that is alleged to constitute adverse action may have been made by more than one decision-maker, or may be contributed to by advice given by another person to the decision-maker.

In Gibbs v The Palmerston Town Council [1987] FCA 732, Gray J observed at 84–85:

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

In National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139; (2013) FCA 451, Gray J said:

[26]          It is often the task of a court to make a finding as to the minds of which natural person or persons constitute the directing mind and will of a corporate body, for the purpose of determining the state of mind of that corporate body. Sometimes, the question is as to the knowledge of the corporate body. As Brennan, Deane, Gaudron and McHugh JJ said in Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 583:

A division of function among officers of a corporation responsible for different aspects of the one transaction does not relieve the corporation from responsibility determined by reference to the knowledge possessed by each of them.

The same can be said of states of mind other than knowledge, such as reason or intent…

In Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd (2015) 253 IR 166; [2015] FCA 1014, Reeves J, having reviewed the authorities, concluded:

[121]        …[W]here the reasoning process is dispersed through an assessment process involving a number of persons, the task is much more complicated. In that situation, I consider the judgment in Kodak requires me to examine the reasoning process employed by each person whose involvement had a material effect on the ultimate decision. This inquiry…focuses on the conscious reasoning processes of those who had a material effect on the ultimate outcome to determine whether their reasoning processes were free of the alleged prohibited reason or reasons. If one or more of the reasons employed by one or more of them was a prohibited reason, that will impugn the ultimate decision…

[122]        I therefore consider the focus and scope of the inquiry in this matter should proceed in two parts. First, an inquiry to ascertain whose reasons had a material effect on the reasoning process that preceded Mr Pretorius’ ultimate decision to dismiss Mr Scott. And, secondly, an inquiry to examine the reasoning employed by those persons to ascertain whether it was affected by a prohibited reason or, to put it in the terms of s 360 of the FWA, whether Clermont Coal has established to the requisite standard that none of the alleged “particular reasons “was a substantial and operative reason” for the decision to dismiss Mr Scott…

The effect of the judgment in CFMEU v BHP at [62] is that the identity of each official of a body corporate whose state of mind is relied upon must be pleaded or particularised. Further, the presumption under s 361(1) will not be engaged unless the identity of the persons who took the relevant action for a particular reason is pleaded, or at least particularised: cf Hall at [18]–[19].”

 

Lamont v University of Queensland (No 2) [2020] FCA 720 delivered 28 May 2020 per Rangiah J