Motive and intention in general protections explained; a technical post

A company has been found by the Federal Court to have taken unlawful adverse action against an employee who was dismissed after he exercised what the Court accepted was a workplace right to refuse to temporarily work in a higher classification, the Federal Court has ruled. The employee said that he declined to do so because he did not believe the employees who he would have been required to supervise had been properly trained. “I did not feel comfortable being responsible for staff who I don’t think can perform the job safely”.
North ACJ held that in the absence of a provision in the applicable award or enterprise agreement entitling it to require employees to work temporarily in higher duties’ classifications, the employee had a workplace right to do so which the dismissal contravened.
From a legal perspective the real interest in the case is the way in which the judge handled one of the company’s defences which was to the effect that the manager who made the decision to dismiss the employee held an erroneous view of the law, namely that the employee did not have the right to refuser the accept the higher duties direction and that consequently the company could not be held liable for adverse action because the employee had a workplace right since the manager did not believe that the employee had the workplace right.
That argument was put in this way “Then, counsel for Qube argued that if even Mr McMaster had a right to refuse to upgrade, he was not dismissed by Mr Sousa for the reasons that he exercised that right because Mr Sousa believed that Mr McMaster was obliged to upgrade and had no right to refuse. Even if Mr Sousa was mistaken about the law, his belief was critical to the reason for the dismissal for the purposes of s 340(1)(a)(ii) of the Act. Unless Mr Sousa appreciated that Mr McMaster was exercising a workplace right he could not be found to have acted for a prescribed reason’
The judge dealt with the argument by saying
“193. . There is an initial factual issue involved in this argument. Mr Sousa gave evidence that he believed that Qube had a right to direct Mr McMaster to upgrade. This evidence was as to his general understanding of the legal position concerning the power of an employer to direct an employee to upgrade. It was not evidence that he considered the question of the legality of his action on 23 July 2013. The evidence is silent on that issue. If an inference is to be drawn at all, then the inference would be that Mr Sousa did not consider or take into account the legality of Mr McMaster’s action. On either of these views of the evidence, the factual basis for the submission is not made out.
194. If it is assumed that Mr Sousa acted on a belief that Mr McMaster had no right to refuse to upgrade, but that his belief was founded on a mistaken view of the law, did Qube contravene s 340(1)(a)(ii)?
195. Counsel for Qube contended that s 340(1)(a)(ii) is concerned with the actual reason which motivated the person taking adverse action. If Mr Sousa had a wrong view of the law, and acted on it, that meant that he did not act because Mr McMaster had exercised a workplace right. Mr Sousa did not think that Mr McMaster had such a right so he could not have acted because Mr McMaster had exercised such a right. That approach was said to follow from Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 (Barclay), Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243; [2014] HCA 41 (BHP Coal), and Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150; [2015] FCAFC 76 (Endeavour Coal).
196. In Barclay it was alleged that the Bendigo TAFE had, contrary to s 346 of the Fair Work Act 2009 (Cth), taken disciplinary action against Mr Barclay because he was an officer of the Australian Education Union and because he had engaged in industrial activity. Mr Barclay was an employee of the Bendigo TAFE and President of the Sub-Branch of the Union comprised of union members employed by the Bendigo TAFE. He sent an email to members stating that some members had been asked to participate in producing false and fraudulent documentation in connection with the process of reaccreditation of the Bendigo TAFE and urging the members not to participate in the production of false or fraudulent documentation relating to the reaccreditation process. The CEO of the Bendigo TAFE gave evidence that she took action because the allegations made by Mr Barclay were not raised with management, the language used in the email was bound to cause distress to staff, and his actions could bring the reputation of Bendigo TAFE into question in the important process of reaccreditation, and that Mr Barclay was employed in the unit responsible for overseeing preparation of the audit process. The trial judge accepted this evidence and found that Mr Barclay had not been disciplined for proscribed reasons. A majority of the Full Court (Gray and Bromberg JJ) allowed the appeal in Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14 on the ground that all of the conduct alleged against Mr Barclay involved him in his capacity as a union official and not as an employee. The majority said at [28]:

The real reason for a person’s conduct is not necessarily the reason that the person asserts, even where the person genuinely believes he or she was motivated by that reason. The search is for what actuated the conduct of the person, not for what the person thinks he or she was actuated by. In that regard, the real reason may be conscious or unconscious, and where unconscious or not appreciated or understood, adverse action will not be excused simply because its perpetrator held a benevolent intent. It is not open to the decision-maker to choose to ignore the objective connection between the decision he or she is making and the attribute or activity in question.
197. This approach was rejected by the High Court which allowed an appeal. French CJ and Crennan J said at [44] that the question was “why was the adverse action taken?” and there is no warrant in the text of s 346 for treating the expression “because” as requiring only an objective enquiry into the employer’s reason, including an unconscious reason, for taking adverse action.
198. Gummow and Hayne JJ said at [121]:
[T]o engage upon an inquiry contrasting “objective” and “subjective” reasons is to adopt an illusory frame of reference. Such an inquiry into the “objective” reasons risks the substitution by the court of its view of the matter for the finding it must make upon an issue of fact.
199. And at [126]:
The relevant frame of reference in this case is a statutory provision in which neither the words “objective” nor “subjective” appear. There is an inherent risk of misguidance when seeking to imply tests or requirements in the application of a statutory provision absent some persuasive basis to do so.
200. And at [127]:
In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.

[Emphasis added.]
201. Heydon J said at [146]:
To search for the “reason” for a voluntary action is to search for the reasoning actually employed by the person who acted. Nothing in the Act expressly suggests that the courts are to search for “unconscious” elements in the impugned reasoning of persons in Dr Harvey’s position. No requirement for such search can be implied.
202. In BHP Coal it was alleged that the employer dismissed the employee because the employee participated in a lawful activity engaged by the union, the CFMEU, and / or because he represented or advanced the views, claims or interests of the CFMEU contrary to s 347(a) and (b) of the Act. The employee was employed at the Saraji Mine. He participated in a protest in the course of a seven day work stoppage. During the protest he held up a sign which included the word “SCABS”. The general manager of the mine gave evidence which was accepted that he dismissed the employee because the employee repeatedly and deliberately held up the sign including the word “SCABS” and waved it at those driving into the mine knowing that the use of the word was inappropriate in the workplace. The trial judge held that the employer dismissed the employee contrary to s 346(b). Holding and waving the sign was participation in lawful activity organised by the CFMEU within the meaning of s 347(b)(iii), and also represented or advanced the views and interests of the CFMEU within the meaning of s 347(b)(iv). In the Full Federal Court, a majority, Dowsett and Flick JJ, held that the prescribed reasons played no part in the reasons of the general manager. Kenny J agreed in respect of the allegation under s 347(b)(iii), but differed in the respect of the allegation under s 347(b)(iv). In the High Court, French CJ and Kiefel J in one judgment, and Gageler J in a separate judgment dismissed the appeal. Hayne and Crennan JJ in separate judgments would have allowed the appeal. French CJ and Kiefel J said at [21] and [22]:
21. In the present case, the reasons found by the primary judge to actuate Mr Brick’s decision did not include Mr Doevendans’ participation in industrial activity, or his representing the views of the CFMEU. To the contrary, his Honour found that Mr Brick had not been motivated by such considerations. This was consistent with the reasons given by Mr Brick in evidence accepted by his Honour, which related to the nature of Mr Doevendans’ conduct and what it represented to Mr Brick about Mr Doevendans as an employee.

22. The primary judge then went on to consider whether Mr Doevendans’ conduct constituted an industrial activity in the relevant respects. The only inference which can be drawn from this additional reasoning is that, because the adverse action was based upon the sign which Mr Doevendans held and waved, this activity must be taken as one of the reasons for the action. That is to say no more than that the adverse action had a connection, in fact, to the industrial activity. That connection may necessitate some consideration as to the true motivations of Mr Brick, but it cannot itself provide the reason why Mr Brick took the action he did. That enquiry was concluded by his Honour’s earlier findings. His Honour, in effect, wrongly added a further requirement to s 361, namely that the employer dissociate its adverse action completely from any industrial activity.
203. Gageler J said [85], [88] and [90]:
85. Analysis in the appeal to this Court must begin, as analysis began at each stage of the proceedings in the Federal Court, with consideration of this Court’s decision in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1]. The unanimous holding in that case was that, read in the context of ss 360 and 361 of the Act and of its legislative history, the word “because” in s 346 of the Act connotes the existence of a particular reason as an operative and immediate reason for taking adverse action. 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.

88. The majority in the Full Court of the Federal Court in the present case was correct to treat Barclay as foreclosing the mode of analysis adopted by the primary judge in the present case to conclude that BHP Coal’s dismissal of Mr Doevendans was because he had engaged in industrial activity within the meaning of s 347(b)(iii) and (v).

90. In the present case, the totality of the operative and immediate reasons for BHP Coal having taken adverse action against Mr Doevendans were proved by the evidence of Mr Brick about his own process of reasoning. The fact that Mr Doevendans held and waved the signs while participating in the protest organised by the CFMEU was not an operative part of Mr Brick’s reasoning. Nor was the fact that the signs represented or advanced the views or interests of the CFMEU. The correct answer to the question presented by s 346(b) in those circumstances was that given by the majority in the Full Court: BHP Coal’s dismissal of Mr Doevendans was not because he had engaged in industrial activity within the meaning of s 347(b)(iii) and (v) and therefore did not contravene s 346(b).

[Footnotes omitted.]
204. Hayne J on the other hand, in dissent, said:
42. But Mr Doevendans’ [the employee] use of the word (by his displaying the sign) cannot be divorced from the circumstances in which it was used. He used it in the course of participating in a union-organised protest. The protest was directed at BHP Coal as employer. But it was also directed at those employees who had not joined the work stoppage.

43. As has been noted earlier, Mr Brick’s reasons for dismissing Mr Doevendans hinged around the language in which Mr Doevendans chose to express that latter form of protest. The central point was that he had chosen to express his protest using a word which he knew was offensive. That is, Mr Doevendans had participated in a lawful activity organised by the CFMEU (a protest against his employer and his fellow employees who were not participating in the work stoppage) in a way which he knew would give offence to others.

45. The conclusion that Mr Brick did not act for a prohibited reason can be reached only by distinguishing between Mr Doevendans’ participation in the protest near the entrance to the mine property and the manner in which he expressed his protest. No relevant distinction of that kind can be drawn.

50. There could be no doubt that Mr Brick understood that the word “scab” was used in the manner and circumstances that have already been described. That is, Mr Brick knew not only that the word was used to demean those who had not joined in the work stoppage, but also that the CFMEU had organised the protest at which the sign was repeatedly displayed. And Mr Brick knew that the protest was directed at both BHP Coal and those of its employees who had not joined in the work stoppage.

51. Again, unless some distinction can be drawn between the act of representing or advancing the views or interests of the CFMEU and the manner in which that was done, Mr Doevendans was dismissed for reasons that included his representing or advancing those views. For the reasons given in connection with the application of s 347(b)(iii), no distinction of that kind can be made.
205. Crennan J, who agreed with the reasons expressed by Hayne J also said in dissent:
67. The factors which Mr Brick listed as justifying his dismissal of Mr Doevendans were accepted by the primary judge as honest explanations of why Mr Brick dismissed Mr Doevendans. However, the circumstances and conduct for which Mr Doevendans was dismissed were inconsistent with, and rendered unreliable, Mr Brick’s assertion that Mr Doevendans’ engagement with industrial action or activity had nothing to do with his decision. On all of the material before him the primary judge rejected the respondent’s contention that holding and waving the scabs sign as part of lawful industrial activities protected under s 347(b)(iii) and (v) could be abstracted from the Act’s protection because the sign was offensive, albeit lawful.
68. …Barclay does not hinder the drawing of available inferences which may controvert an honest decision-maker’s assertion that he or she did not take adverse action for any prohibited reason.
206. In Endeavour Coal a maintenance fitter in a colliery was moved from a weekend day shift roster to an ordinary Monday to Friday roster. It was accepted that the move was adverse action. In the previous two and a half years the employee had taken personal leave on 15 occasions amounting to 29½ days. He was entitled to take this leave, save for one day, under the agreement governing his employment. The Federal Circuit Court concluded at [177]:
[I]t was the lack of predictability in Mr McDermott’s attendance which was the reason for the decision to move him from the weekend day shift, not the fact that he had previously exercised his rights to personal/carer’s leave.
207. The appeal was dismissed by a majority (Jessup and Perram JJ).
208. Jessup J recorded the argument for the appellant which is relevant to the present case at [31] thus:
Counsel for the appellant in the present case based her argument seeking to distinguish Barclay and BHP Coal upon the holding of French CJ and Kiefel J in the latter that it was not sufficient for there to be a connection between the adverse action taken by the employer and the industrial activity in which the employee had engaged; and that, under s 361, it was not incumbent on the employer completely to dissociate the adverse action from any industrial activity. By contrast in the present case, counsel submitted, the absences from work by reason of which adverse action was taken against Mr McDermott were in fact the personal leave to which he was entitled under the agreement. Her client was not relying merely on some degree of association or connection between the two: Mr McDermott was subjected to adverse action for the very absences to which he was entitled.
209. Jessup J said at [32]:
The “connection” which was held not to be sufficient in BHP Coal was between the adverse action taken by the employer and the industrial activity in which the employee had engaged. It was not between two different characterisations of the conduct of the employee, in that case, as a contravention of the employer’s conduct policy and as participation in industrial activity. As French CJ and Kiefel J made clear, if adverse action was taken because the conduct involved such a contravention, it did not become a breach of s 346 merely because the conduct was, at the same time, participation in industrial activity. The existence of such a “connection” was insufficient. What was necessary was that the actual reason of the decision-maker, in his or her own mind, be the employee’s participation in industrial activity. To see their Honours’ reasons in this way is, in my view, to recognise the consistency of those reasons with the statements of principle contained in the reasons of Gageler J in the same case. Those statements represent the law after Barclay and BHP Coal.
210. And he concluded at [34]:
On the findings of the primary Judge, it was not the circumstance that Mr McDermott exercised his right to take personal leave which acted upon the mind of Mr Young when he took adverse action against Mr McDermott on 10 September 2010. Rather, it was that the respondent “did not want to have workers on [the weekend] shift whose attendance was not predictable and reliable ….” It was “the lack of predictability in Mr McDermott’s attendance which was the reason … [for the adverse action], not the fact that he had previously exercised his rights to [personal] leave.” Anticipating the analytical framework later formulated by Gageler J in BHP Coal, the respondent satisfied the primary Judge that the character of Mr McDermott’s absences as personal leave played no operative part in Mr Young’s decision to take adverse action against him.
211. Perram J described the argument of the appellants relevant to this case at [73] thus:
[I]t is submitted that the trial judge’s conclusion that Mr McDermott had been moved to the weekday shift by Mr Young because he did not always attend, rather than because he took leave to which he was entitled, was a conclusion involving error. The error was said to arise because the fact that he did not always attend was a consequence of his exercising the right to take leave. It was said that his unreliable attendance was an unavoidable incident of taking the leave to which he was entitled.
212. His Honour said at [75] that the argument:
is precluded by the High Court’s decision in CFMEU v BHP [2014] HCA 41; (2014) 314 ALR 1. The logic of that decision establishes that the question posed by s 340(1) concerns only the state of mind of the decision-maker: 3-4 [6], [7] and 18 [85]. The trial judge accepted the evidence of Mr Young that his reason for moving Mr McDermott to the weekday shift was because he did not always attend when rostered. There was material before the trial judge which would have justified a different conclusion about Mr Young’s motives but that was not the finding the trial judge made.
213. His Honour continued at [76] and [77]:
76. To outflank the application of CFMEU v BHP, the CFMEU submitted that it was distinguishable because it did not involve a situation where the permissible reason was constituted by the same facts as the forbidden reason.
77. For myself, I would be disposed to see the force of that argument but it is precluded by CFMEU v BHP and Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) [2012] HCA 32; (2012) 248 CLR 500 at 11 [45] and 540-541 [121] respectively. In the former case the employee was sacked for offensive behaviour and in the latter the employee was suspended for it. In both cases the same behaviour also constituted protected industrial action. That the conduct might be susceptible to multiple characterisations was irrelevant at the legal level. The only issue was a factual one, viz. what were the actual motives of the decision-maker. I cannot distinguish that analysis from the present situation. Mr McDermott’s absences can bear two characterisations. They can be seen as the exercise of lawful rights under the Workplace Agreement. They can also be seen as an unreliable attendance record. Which of these characterisations Mr Young put upon Mr McDermott’s actions is a purely factual inquiry which the trial judge resolved. No error is shown in that conclusion.
214. Bromberg J in dissent distinguished the case from Barclay and BHP Coal. Those cases require that there be a connection between the reason of the decision maker and the protected activity. A temporal connection is not sufficient although it may throw light on the reason. Bromberg J said that the Federal Circuit Court judge accepted that the employer was motivated by the absences of the employee but not by the character of the absences as carers leave. Barclay and BHP Coal did not hold that an employer could discharge the onus by establishing that the character of the protected activity was not motivational even when the activity was known to be protected and its content, substance, and effect were motivational.
215. The present case does not raise the issue considered in the three authorities just discussed. In each of those cases there was a debate about the reasons which motivated the adverse action. The Court had to make a choice between a number of possible reasons. In Barclay, the reason may have been that Mr Barclay was a union delegate and an alternative reason, which was accepted, was that he had sent the email of a particular character in particular circumstances. In BHP Coal the employee may have been dismissed because he was engaged in the protest activity or, alternatively, he may have been dismissed because of the nature of the reference to the word “SCABS” on the sign which he held. In Endeavour Coal the roster change may have been motivated because the employee had taken personal carers leave or, alternatively, because the employer was concerned with the predictability of attendance of employees on a particular shift.
216. In the present case, for the purposes of this argument, it is accepted that the reason Mr Sousa dismissed Mr McMaster was that Mr McMaster refused the upgrade. There is no choice of competing reasons for the dismissal. The mental process by which Mr Sousa arrived at this decision is not in contention the factual level.
217. The issue which this case raises is a different one. That issue is whether the employer acts for a proscribed reason where the employer has a mistaken view about the legality of the employee’s action.
218. There has been some consideration given to arguably analogous questions since judgment in this case was reserved. In Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 (Anglo) the applicants claimed that Mr Byrne, a mine worker employed by the respondent at the Moura mine in central Queensland, was dismissed because he exercised a right to take sick leave.
219. Mr Byrne applied to the mine superintendent, Mr Lawn, for two days annual leave. When Mr Lawn rejected the request Mr Byrne said that he would get a medical certificate and not attend for work. He did obtain the medical certificate and was absent for those two days. Mr Lawn then instituted a disciplinary process against him. In the course of the process Mr Power took over as mine manager. Mr Lawn told Mr Power that Mr Byrne had applied to him for two days annual leave, that the request was refused, and that Mr Byrne had then said that he would get a medical certificate and not come to work. Mr Power then dismissed Mr Byrne.
220. The primary judge found that Mr Byrne was in fact sick and consequently had a right under the applicable Enterprise Agreement and s 352 of the Act to take the leave.
221. The evidence of Mr Power’s reasons for dismissing Mr Byrne was described in the judgment on appeal by Jessup J thus, at [15]:
In evidence which the primary Judge accepted, Mr Power stated his reasons for terminating Mr Byrne’s employment. Factually, he accepted what Mr Lawn had told him about his conversation with Mr Byrne on 22 April 2014. He formed the view that Mr Byrne had, in effect, threatened Mr Lawn with a medical certificate, and had indicated to Mr Lawn that he would use the certificate to get what he wanted, thereby putting himself above reproach by Mr Lawn or his employer. He thought that Mr Byrne had expected that his request for annual leave would be approved and, when it was not, decided to take the leave in any event, without regard for the impact of his conduct on his colleagues or his employer. As it appeared to Mr Power, Mr Byrne had no regard for the need for annual leave to be managed carefully because of its impact on productivity and operations and the pressure it placed on other employees when too many people were away at any given time. He considered that Mr Byrne had conducted himself in a manner which showed that he intended to be dishonest with his actions and to take sick leave when he was not in fact sick. Mr Power believed that Mr Byrne had not been unfit to work on 24 and 25 April 2014, and that he had obtained a medical certificate because it was an easy way to circumvent the refusal of his annual leave request. He said that, in his experience, it was easy for an employee to get a medical certificate, even if he or she were not unwell, because of the reliance which doctors placed on their patients self-reporting their symptoms. He did not attach any significance to the fact that Mr Byrne had obtained a medical certificate.
222. Jessup J and Rangiah J in separate judgments dismissed the appeal, in essence, because Mr Power dismissed Mr Byrne not because he had a right to take sick leave, but because he acted dishonestly in absenting himself for illness when he was not, as Mr Power believed, ill. In the course of his reasons for judgment Jessup J said at [37]:
Although not the subject of a ground of appeal as such, there was some debate at the hearing of the appeal on the question whether it ought to have been found that Mr Byrne was dismissed because of his absence from work on account of illness because, objectively, he was absent for that reason and that absence was a factor in Mr Power’s reasons for his decision to dismiss. Counsel for the appellant, correctly in my view, considered that it was not open to him to argue along these lines in the light of Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243. For my own part, I consider that the present case was more straightforward than those, such as BHP Coal and Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150, which involve questions of characterisation, and was, rather, analogous to cases in which the result depended on the employer’s knowledge of the entitlement arising under the industrial instrument, such as Musgrove v Murrayland Fruit Juices Pty Ltd [1980] FCA 64; (1980) 47 FLR 156 [Musgrove]. It is true that the present case turned on the decision-maker’s belief in the existence of facts which would have given rise to the entitlement, rather than on his knowledge of the existence of the entitlement as such, but, in my view, the principle – that the case must be decided by reference to the actual reason or reasons of the decision-maker – is essentially the same in each situation.
223. Rangiah J discussed the adverse action claim and rejected it on the basis of the authority of Barclay and BHP Coal because the reason for the dismissal depends on the mental processes adopted by Mr Power. His reasoning was that Mr Byrne had acted dishonestly and that was not a prescribed reason. Following the discussion concerning the adverse action claim Rangiah J concluded his reasons for judgment as follows, at [137]:
I respectfully agree with the other aspects of Jessup J’s reasons. I agree that the appeal should be dismissed.
224. Buchanan J would have allowed the appeal. He explained at [72]:
In my view, it is not incorrect to say that Mr Byrne was dismissed because he exercised a workplace right (i.e. took sick leave to which he was entitled) and because he was temporarily absent from work on account of illness. It may also be true to say that Mr Power’s immediate, or conscious, motivation did not extend so far – i.e. his subjective reasons did not. However, in an appropriate context, objective circumstances may also provide reasons (I do not, in the present case, suggest subconscious ones) which give context and meaning to what is done and which cannot realistically be separated, divorced or disconnected from the action under examination.
225. And he further explained at [74]:
[I]t is clear from Mr Power’s evidence … that there were two fundamental and equally important reasons for his decision: Mr Byrne’s conduct on 24 and 25 April 2014 in absenting himself from work; and Mr Power’s attribution of dishonesty to that conduct. Absent either feature there would have been no dismissal. In particular, Mr Byrne was not dismissed because he said he would be absent; he was dismissed because he was, in fact, absent. He was dismissed because he exercised a workplace right which he did, in fact, have.
226. Buchanan J referred to Musgrove and regarded it as distinguishable from the circumstances raised in the appeal. I will return to his approach to that case shortly.
227. In Musgrove one issue was whether the applicant was dismissed contrary to s 5 of the Conciliation and Arbitration Act 1904 (Cth) because he was entitled to a benefit under the award. Mr Musgrove had arranged to go to lunch at 12 o’clock. When his replacement was not immediately available, contrary to instructions, Mr Musgrove shut down the extractor at which he worked and left for lunch. He was dismissed in these circumstances. As it happened Mr Musgrove had an award entitlement to take a lunch break at the time. Smithers J discussed the situation thus:
16. … So the critical question is whether the circumstance that the prosecutor was entitled to some particular benefit of the award and, of course, cl. 19 (a) is relied upon, was an operable and substantial reason in the mind of the factory, in the mind of the defendant, which influenced the defendant to dismiss the prosecutor when it did. The defendant by its managers knew that the award was operative and that the prosecutor was entitled to certain benefits thereunder. The defendant did not know what some of those benefits were but the defendant had no objection to the prosecutor having those benefits whatever they were.
17. As to these benefits that they did not know of, and did not know the nature and extent of, they were not influenced by those factors to take action against the prosecutor. The situation was that having become unfavourably inclined to the informant on various indefinite grounds, almost all of a personality incompatibility, the smouldering hostility flared into flame when the prosecutor took his meal break and for that purpose switched off the extractors. It so happened that the prosecutor was entitled to his meal break at the time at which he took it. There is no evidence he knew that, but that is, I think, irrelevant. Certainly the defendant did not know it. I may be said that the prosecutor ought to have known and that ignorance of the law is no excuse, but the question is as to the reason which actuated the defendant in taking the action that it did and that involved not what the defendant ought to have known or what ought to have been in its manager’s mind but what actually was in their minds. What circumstances were in their minds when they dismissed him? They could not act by circumstances of which they had no knowledge.
228. Then, his Honour said:
19. When one looks at what the circumstances were in the mind of Mr. Carazza which influenced him to take action against Mr. Musgrove, we find they can be easily summarized by saying that he had an established hostility and that there had been what appeared to him a high-handed act in the turning off of the extractors for the purpose of taking lunch and the defiance to Mr. Goonan when Mr. Goonan said he was not to go to lunch. (at p160)
20. The existence of the award and the prosecutor’s entitlements thereunder were just not in the mind of the defendant. To my mind it cannot be said that a man has acted by reference to a particular circumstance when he knew nothing about it. (at p160)
229. In Anglo, at [81], Buchanan J distinguished the circumstances from those in Musgrove because in Musgrove Smithers J found that the decision to dismiss was unrelated to the award entitlement. It was the result of “smouldering hostility”. In Anglo the two day absence of Mr Byrne was not a mere incident which was not central to the decision to dismiss. The absences themselves were the subject of Mr Power’s consideration.
230. In Anglo, the respondent was, as a matter of fact, mistaken that Mr Byrne was not ill and was absent for that reason. On the reasoning adopted by Jessup J by reference to Musgrove, the reasons for the dismissal depended on the state of mind of the respondent, albeit that it was, objectively, mistaken.
231. Applied to the present case, that reasoning would mean that Mr Sousa did not dismiss Mr McMaster because Mr McMaster exercised a workplace right. Mr Sousa believed that Mr McMaster did not have that right even though, in law, Mr McMaster did have the right to refuse to upgrade.
232. It is not clear that Rangiah J joined in that part of the reasoning of Jessup J. Rangiah J wrote his separate reasons on the adverse action claim. What he adopted at [137] was Jessup J’s reasoning in respect of the remaining contractual claim. It is doubtful that Rangiah J adopted the reasoning of Jessup J in respect of the application of Musgrove. There is not therefore a majority for the adoption of the Musgrove analogy.
233. In any event, the issue addressed in Anglo was different from the present issue. In Anglo the mistake made by the respondent concerned the fact that Mr Byrne was absent because he was sick. The application of the award entitlement did not arise in the mind of the employer because he believed the facts did not give rise to any award right.
234. In the present case Mr Sousa made no mistake of fact. He made a mistake concerning the existence of the legal right of Mr McMaster to upgrade. Thus, even if there were a majority in Anglo in favour of the reasoning adopted by Jessup J, that reasoning is not necessarily applicable in the different circumstances of the present case.
235. Some of the reasoning in Musgrove comes a little closer to the present case because it made reference to the ignorance of the employer of the existence of the legal right to Mr Byrne’s lunch break. However, the approach adopted in Musgrove is an insecure foundation for the resolution of the present case. The references to the employer’s ignorance of the legal right were not necessary for the decision in that case. His Honour found that the dismissal was because of a personality clash and not for any other reason. The judgment was given ex tempore and did not provide a principled analysis of the issue. And, finally, his Honour thought that it was influential that s 5 of the Conciliation and Arbitration Act was a criminal section (see [23]). The present provision gives rise to a civil penalty but not to any criminal sanctions.
236. Whilst the authority of Barclay, BHP Coal and Endeavour Coal must govern the circumstances to which they were addressed, they were not concerned with the present situation in which an employer dismissed an employee because the employer made a mistake of law in concluding that the employee did not have a workplace right.
237. In relation to matters of fact, the authorities have established that the mental process of the decision maker determines whether the action taken was “because” the employee exercised a workplace right. The consequence of that reasoning has the possibly unintended result in cases such as Anglo where the decision maker misunderstands the facts. The decision maker avoids liability even though on the facts as they were the victim was subjected to adverse action by the decision maker. The result is to restrict the area of protection of the victim provided by the section and to expand the area of non-culpability of the decision maker. The purpose of the section is to provide protection to the victims of adverse action. In order to do so it is necessary to limit the scope of the doctrine so far developed to mistakes of fact made by decision makers. The beneficial purpose of the section would be impeded if decision makers who mistake the law avoid liability.
238. Further, there is a distinction in principle between a mistake of fact in such situations and a mistake of law. People are presumed to know the law. That is a requirement for an ordered society. Members of society are not able to claim ignorance of the law as an excuse for action which is contrary to law. To allow people to do so would undermine the foundation on which an ordered society rests. It is unlikely that ignorance of the legal right was intended by the section to render the perpetrator immune from liability for the adverse action.
239. The distinction between knowledge of fact and knowledge of law, and the principle that a mistake or ignorance of the law is not a defence finds expression in the approach taken by Lord Goddard in Johnson v Youden (1950) 1 KB 544; [1950] 1 All ER 301 concerning secondary liability in criminal cases. He said:
Before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute that offence. He need not actually know that an offence has been committed, because he may not know that the facts constitute an offence and ignorance of the law is not a defence. If a person knows all the facts and is assisting another person to do certain things, and it turns out that the doing of those things constitutes an offence, the person who is assisting is guilty of aiding and abetting that offence, because to allow him to say, ‘I knew of all those facts but I did not know that an offence was committed,’ would be allowing him to set up ignorance of the law as a defence.

[Emphasis added.]

See also Giorgianni v R (1985) 156 CLR 473; [1985] HCA 29 per Mason J at 494, Gibbs CJ at 481, and Wilson, Deane and Dawson JJ at 500.
240. Although the context is different in the present statutory regime, the approach provides a useful commencement for principled analysis.
241. Mr Sousa dismissed Mr McMaster because Mr McMaster refused to upgrade. Mr McMaster had a legal right to refuse to upgrade. It was immaterial to Qube’s liability under s 340(1)(a)(ii) of the Act that Mr Sousa believed that Mr McMaster had no right to refuse to upgrade. In the result, Qube contravened s 340(1)(a)(ii) of the Act by dismissing Mr McMaster because he exercised a workplace.
242. As the parties agreed that the question whether there has been a contravention should be dealt with before the question of relief, directions will now be made to deal with the balance of the proceeding.”

McMaster v Qube Ports Pty Ltd (2015) FCA 1385 delivered 4 December 2015