Australian Meat Industry Employees Union v Primo Foods Pty Ltd

[2022] FedCFamC2G 540

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Australian Meat Industry Employees Union v Primo Foods Pty Ltd [2022] FedCFamC2G 540  

File number(s):

BRG 243 of 2021

Judgment of:

JUDGE EGAN

Date of judgment:

5 July 2022 

Catchwords:

INDUSTRIAL LAW – Alleged adverse action taken for prohibited reason – credibility of witnesses considered – rebuttal of presumption that termination was decided upon for a prohibited reason – application dismissed.

Legislation:

Fair Work Act 2009 (Cth) ss. 341, 340, 342(1), 360 and 361

Cases cited:

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

CFMEU v Clermont Coal Pty Ltd [2015] FCA 1014

Russel v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250

Tsilibanks v Transfield Services (Australia) Pty Ltd [2015] FCA 740

Division:

Division 2 General Federal Law

Number of paragraphs:

39

Date of last submission/s:

15 June 2022

Date of hearing:

3 – 9 May 2022

Place:

Brisbane

Counsel for the Applicant:

Mr S Grant

Solicitor for the Applicant:

Australian Meat Industry Employees Union

Counsel for the Respondent:

Ms H Blattman

Solicitor for the Respondent:

JBS Australia

ORDERS

BRG 243 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AUSTRALIAN MEAT INDUSTRY EMPLOYEE'S UNION

Applicant

AND:

PRIMO FOODS PTY LTD

First Respondent

JBS AUSTRALIA PTY LTD ACN 011 062 338

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	5 JULY 2022

THE COURT ORDERS THAT:

1.The Application filed on 11 June 2021 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

Judge Egan

Introduction

1. The applicant has brought this action on behalf of one Sam Johnson, a union member, in its capacity as a registered employee organisation under the Fair Work (Registered Organisations) Act 2009. Johnson was employed by the respondent as a quality control (QC) officer, and as a quality assurance (QA) officer, in the meat manufacturing establishment operated by the respondent at Wacol between 12 December 2015 and on or about 9 April 2021.

2. The terms of Johnson’s employment as a QC officer were as set out in a letter sent by the respondent to Johnson (then known as Soheil Yahyapour) dated 2 December 2015. [1]

   [1]           Exhibit 3.

3. The terms of Johnson’s employment as a QA officer were as set out in a letter sent by the respondent to Johnson dated 5 February 2016, as confirmed in a change of positon document dated 10 March 2020. [2]

   [2]           Exhibit 3.

4. Johnson’s employment was terminated by the respondent’s letter to him dated 9 April 2021. [3] In such letter, the reason which was given for the termination was that Johnson was in possession of confidential information in breach of the respondent’s group code of conduct and ethics; [4] that he had had discussions with members of the QA team about the confidential terms and conditions of their contracts of employment; and that in doing so during his ongoing contract negotiations, Johnson was guilty of misconduct justifying the termination of his employment. The letter relevantly provided as follows:

   [3]           Annexure SJ - 25 to the affidavit of Johnson filed on 10 January 2022 (CB - pp. 395 – 397) 

   [4]           Annexure NW – 11 to the affidavit of Nancy Williams filed on 4 February 2022 (CB – pp. 949 – 971) 

   “ …

   Firstly, I do not accept that your response to Ms Williams emails on 26 and 30 March 2021 were honest. Your response on 30 March 2021 was to deny that you had a conversation with John Denby about the offers of terms and conditions of employment of other QA team members. In your response dated 7 April 2021 you concede that you mentioned whether or not Maria Bedia and Oanh Nguyen had accepted the offers made to them or not. You also enquired about the position of Leanne McLean.

   My view is that your responses try and navigate around whether you disclosed details of the offers. It is clear to me that you were in possession of confidential information around the contract negotiations of a number of employees in the QA team. I do not accept your denials that you did not obtain, and do not know, those confidential details. Ms Bedia has admitted to telling you details of her offer. Her involvement in that disclosure will be required to be addressed by her.

   On the balance of probabilities I find that you were not honest in your responses to Ms Williams on 30 March 2021.

   You admit to referring to information about Ms Bedia's and Ms Nguyen's contract status or negotiations. You deny referring to Ms Hogan or Ms Sauer. I also have reviewed notes of that meeting written by Mr Denby on which the allegations put to you were partly based. Mr Denby states that you said words to the effect that you were aware of the dollar amounts of the offers of members of the QA team. He also states that you said words to the effect that you were aware that Ms Bedia had had her offer for 1O weeks and was still to sign. Mr Denby also states that you said to him words to the effect of that you knew about Ms Nguyen's offer, she didn't agree with it, and that she was responding as you had seen the email she was sending.

   It is clear from your response on 7 April 2021 that you know that the terms of the contracts of the members of the QA team, and their negotiations, are confidential information. It is also clear that you understand the importance of confidentiality. That conduct is inconsistent with the JBS Australia Group Code of Conduct and Ethics in relation to the disclosure of confidential information about other team members.

   On the balance of probabilities, I believe you did refer to the status of contract discussions in relation to Ms Hogan and Ms Sauer. Even if you did not, I find that it was inappropriate for you to have obtained and disclosed confidential information in relation to Ms Bedia and Ms Nguyen. I find also that it is more likely than not that you had discussion with members of the QA team about the terms of their contracts.

   In relation to your comment in your response of 7 April 2021 that the warning issued to your last year "has been disputed and subject to evidence" in your Application, I am aware that you do not agree with that warning. I am aware that there was a lengthy period of time in which the warning was debated by you. In my experience, it is not uncommon for an employee to not agree with disciplinary action. The warning is not in dispute. You could have used the procedure in the Primo Foods Pty Ltd - JBS Primo Wacol Enterprise Agreement 2019 (the Agreement) that applies to your employment at Primo to dispute the warning. The Agreement expressly states that warnings such as the one you were given last year are a consideration for future disciplinary action.

   I have decided to take the warning into account.

   I have found that you were dishonest in your responses to Ms Williams on 30 March 2021. I have found that you obtained and disclosed confidential information. You accept referring to knowing of, and stating to Mr Denby, they you were aware of the amount of the offers of other employees and whether those offers had been accepted or not. You have not explained how you come into possession of that knowledge. You deny being in possession of information of Ms Bedia's confidential offer of terms and conditions of employment, but she has admitted to disclosing that information to you. The conduct outlines above, as substantiated by me, amounts to misconduct.

   Considering the misconduct and taking the warning issued to you last year into account, I have decided to terminate your employment. Your last day of employment will be today. You will be paid your notice period in lieu of you working it. You will also be paid you outstanding entitlements.”

5. At [4] – [20] inclusive of the applicant’s Statement of Claim, it was alleged that the respondent had taken adverse action against Johnson within the meaning of s. 342(1) Item 1 of the Fair Work Act 2009 (Cth) (the FWA). Those allegations of relevance were as follows:

   “[4] During the Employment, the Employee was subjected to ongoing workplace bullying from a manager, Ms Diane Van Den Berg.

   Particulars

   The particulars of the Workplace bullying are set out in the Bullying Application as pleaded at paragraph 6 herein

   [5]On or about 12 August 2020 the Employee, via the Applicant, made a written complaint (the Complaint) about Ms Van Den Berg to the Respondent.

   [6]On or about 31 August 2020, the Employee made an Application to the Fair Work Commission (the Bullying Application) for orders to stop workplace bullying.

   Particulars

   The bullying application was assigned Matter Number AB2020/581 by the Fair Work Commission.

   [7]The Employee subsequently participated in conferences conducted by the Fair Work Commission in relation to the Bullying Application (the Conferences).

   Particulars

   The Fair Work Commission conducted telephone conferences in relation to Matter number AB2020/581 on 14 October 2020, 13 November 2020, 27 November 2020, and 15 February 2021.

   [8]On or about 4 November 2020, the Employee commenced a period of paid personal leave from his employment due to illness pursuant to section 97(a) of the Act (the Personal Leave).

   [9]On or about 10 December 2020, the Employee made an application for Workers'

   Compensation (the Workers' Compensation Application).

   Particulars

   The Employee made the application for a psychological injury caused by the bullying conduct of Ms Diane Van Den Berg. The application was made to the JBS Australia Workers' Compensation Department, which assigned the claim number 0420/00283 to the application.

   [10]On or about 5 February 2021, the Employee's Workers' Compensation Application was accepted.

   [11]On or about 26 February 2021, the Employee returned to work, performing his normal duties for the Respondent.

   [12]On or about 26 March 2021, the Employee was accused by a human resources officer of the Respondent of breaching the Respondent's policies in respect of confidentiality

   (the Allegation).

   Particulars

   Ms Nancy Williams, a human resources officer, corresponded with the Employee by email, accusing him of discussing confidential information with other Quality Assurance employees regarding employment contract negotiations.

   [13]On or around 9 April 2021, the Respondent terminated the Employee's employment

   (the Termination).

   [14]The making of the Complaint by the Employee as pleaded at paragraph 5 herein, was the exercise of a workplace right within the meaning of section 34l(l)(a)(ii) of the Act.

   [15]The making of the Bullying Application by the Employee as pleaded at paragraph 6 herein was the exercise of a workplace right within the meaning of section 341(1)(a)(ii) and or alternatively section 341(1)(b) of the Act.

   [16]The participation by the Employee in the proceedings of the Fair Work Commission dealing with the Bullying Application as pleaded at paragraph 7 herein was the exercise of a workplace right within the meaning of section 341(1)(b) of the Act.

   [17]The taking of the Personal Leave as pleaded at paragraph 8 herein was the exercise of workplace right within the meaning of section 34l(l)(a) of the Act.

   [18]The making of the Workers' Compensation Application by the Employee as pleaded at paragraph 9 herein was the exercise of a workplace right within the meaning of section 34l(l)(c)(ii) and or alternatively 34l(l)(b) of the Act.

   [19]In terminating the employment of the Employee, and or alternatively raising the Allegation against the Employee, the Respondent has taken adverse action against the Employee, within the meaning of section 342(1) Item 1 of the Act.

   [20]     The Respondent took this adverse action against the Employee:

   (a)because the Employee made the Complaint in contravention of section 340(1)(a)(ii) of the Act; and/or

   (b)because the Employee made the Bullying Application in contravention of section 340(l)(a)(ii) of the Act; and/or

   (c)because the Employee participated in the Conferences in contravention of section 340(l)(a)(ii) of the Act; and/or

   (d)because the Employee took the Personal Leave in contravention of section 340(1)(a)(ii) of the Act; and/or

   (e)because the Employee made the Workers Compensation Application in contravention of section 340(1)(a)(ii) of the Act; and/or

   (f)to prevent the Employee exercising a workplace right, namely to prevent the Employee from pursuing the Bullying Application, in contravention of Section 340(1)(b) of the Act,”

   The Law

6. The relevant sections of the FWA for first consideration in this matter were ss. 340(1)(a)(ii), 341(1)(a)(ii), 341(1)(b), 342(1) Item 1, 360 and 361. Those sections respectively provided as follows:

   “Section 340 – Protection

   (1) A person must not take adverse action against another person:

   (a) because the other person:

   (i) has a workplace right; or

   (ii) has, or has not, exercised a workplace right; or

   (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

   (b) to prevent the exercise of a workplace right by the other person.

   Note: This subsection is a civil remedy provision (see Part 4-1).

   (2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.

   Note: This subsection is a civil remedy provision (see Part 4-1).

   Section 341 – Meaning of workplace right

   Meaning of workplace right

   (1) A person has a workplace right if the person:

   (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

   …

   Section 342 – Meaning of adverse action

   (1) The following table sets out circumstances in which a person takes adverse action against another person.

   Item 1

   Column 1 Adverse action is taken by…

   an employer against an employee

   Column 2 if …

   the employer:

   (a) dismisses the employee; or

   (b) injures the employee in his or her employment; or

   (c) alters the position of the employee to the employee’s prejudice; or

   (d) discriminates between the employee and other employees of the employer.

   …

   “Section 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.

   Section 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.”

7. For the applicant’s adverse action claims to be proven, the applicant must have asserted and established that:

   ·he exercised a workplace right or rights as pleaded in his SOC;

   ·the conduct complained of in fact occurred; and

   ·the conduct constituted adverse action pursuant to the provisions of s. 342(1) of the FWA.

8. If it is established by the applicant that the impugned conduct was carried out for a prohibited reason, it is for the first respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible reason.

9. As to the proper approach to be adopted by a court when considering whether adverse action has been established or not, the Court respectfully adopts the principles as set out in the decision of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [5] per French CJ and Crennan J; at [104] and [129] per Gummow and Hayne JJ; and at [140] and [141] per Heydon J where it was respectively said:

   “[5]The task of a court in a proceeding alleging a contravention of s 346 is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason. This appeal was concerned with identifying the correct approach to that task.”

   …

   [104] In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised “a substantial and operative” reason, or reasons including the reason, for the employer’s action and that this action constitutes an “adverse action” within the meaning of s 342.”

   …

   [129] … The test is whether adverse action has been taken because of a proscribed reason.

   …

   [140]… Examining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action.

   [140]… The assessment of a witness’s mental processes is an assessment of that witness’s state of mind. It is pre-eminently a matter in which a trial judge has a considerable advantage over an appellant court…”

10. A causal link must be established between the adverse action the subject of complaint, and the matters referred to in s. 340(1)(a)(i) – (iii) inclusive of the FWA, due to the use of the word “because” in s. 340(1)(a) of the FWA. That issue was dealt with by Foster J in Russel v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 at [60] and [63] where His Honour said:

    “[60]The provisions particularly relied upon by the applicant (ss 44, 97, 340, 341, 351 and 352 of the FWA) all use the expression “because” or “because of” as describing the necessary causal link between the adverse action and the relevant prohibited reason for that action.

    ...

    [63] It is not necessary for an applicant to establish that the only reason or the dominant reason that adverse action was taken was a prohibited reason. It is sufficient if the prohibited reason is one of several reasons for the taking of the action although it may be that the prohibited reason must have operated as a substantial and operative factor in the taking of the adverse action.”

11. On the issue of what evidence was needed to be canvassed in relation to the impugned action taken by an employer, it was said by French CJ and Crennan J in Barclay at [41], [44] and [45] as follows:

    [41] The question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the Fair Work Act. These provisions must be construed together in accordance with the principles of statutory construction established by this Court, which must begin with a consideration of the text of the relevant provisions and may require consideration of the context including the general purpose and policy of the provisions.

    …

    [44] There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. 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.”

    (Footnotes omitted) (Emphasis added)

1. On the question of onus, it was said by French CJ and Crennan J in Barclay at [50] as follows:

   “[50] The following description of a legislative predecessor to s 361 given by Mason J in General Motors-Holden’s Pty Ltd v Bowling remains pertinent: “the plain purpose of the provision [is to throw] on to the defendant the onus of proving that which lies peculiarly within his own knowledge.”

   (Footnotes omitted)

2. An employer’s onus may not be satisfied by a mere statement that the action taken by the employer was not for a proscribed reason. As was said by French CJ and Crennan J at [54] of Barclay:

   “[54] … a question arose as to whether the director’s evidence was sufficient to satisfy the onus cast upon the employer. In deciding that the director’s evidence was sufficient, the majority in Pearce recognised that mere declarations of an innocent reason or intent in taking adverse action may not satisfy the onus on an employer if contrary inferences are available on the facts.”

   (Emphasis added)

3. When deciding, for the purposes of s. 361 of the FWA, who the relevant decision-maker was, or upon whose advice or recommendation the decision-maker relevantly acted upon when taking any adverse action, White J in Tsilibanks v Transfield Services (Australia) Pty Ltd [2015] FCA 740 at [121] – [127] inclusive said:

   “[121] My conclusion that the applicant’s exercise of his workplace rights played no part in the decision of Mr De Angelis and the recommendation of Mr Kerswell is not conclusive of the applicant’s case with respect to the termination of his employment. Regard should also be had to the basis for the underlying recommendation on which they acted. If those making the recommendation to Mr De Angelis did so because of the making of the applicant’s First Complaint, Transfield would not discharge the s 361 onus. This is evidenced by the authorities.

   [122] In Voigtsberger v Council of the Shire of Pine Rivers (No 2) (1981) 58 FLR 239, the finance committee of the respondent Council had recommended that the applicant’s position be abolished. The report of the finance committee was adopted later that same day by the full Council. Evatt J held at 256 that the decision of the finance committee was the critical decision in the case because the full Council had merely rubber stamped its recommendation. Accordingly, it was essential that the Court have evidence from the members of the finance committee so that it could determine whether a proscribed reason had been a substantial and operative factor influencing the decision of any individual councillor.

   [123] Smithers J addressed the question of principle involved in Wood (on behalf of the Industrial Relations Bureau) v Lord Mayor, Councillors and Citizens of the City of Melbourne (1979) 41 FLR 1 at 19 in a context analogous to the present:

   [19] In the task of ascertaining the mind of the defendant corporation, with respect to the standing down of Mr Kane, that mind may be located in the mind of one authorised officer or of more than one person exercising the executive power of the corporation.  It is a pure question of fact where in particular circumstances that corporate mind may be located.  In a case where two officers are concerned in the solution of an administrative problem and are working jointly to solve it and decide what the corporation is to do and are working in harmony and in full confidence, the one with the other, the mind of the corporation is to be found in the course of conduct agreed upon between them and the reasons which in the end are the operating reasons for the policy agreed upon.

   However, as Smithers J went on to acknowledge, that does not preclude the possibility that one of the participants may have as his or her motive an undisclosed proscribed reason for joining in the decision.

   [124] Gray J also noted the issue in Gibbs v Palmerston Town Council (unreported, 21 December 1987) at 84‑5 when he said:

   [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 advised by the other person, the mind of the decision maker will not be tainted by the improper purpose of the other person.  The problem assumes greater complexity when the decision is made by more than one person, as might be the case with the board of directors of a company, and as is often the case when the decision is made by a local government authority.

   [125] Gray J reviewed and applied these authorities in National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 at [25]‑[29].

   [126] Counsel for the applicant referred to Rowland v Alfred Health [2014] FCA 2. The decision in that case confirms that it is appropriate to have regard to the reasons actuating the members of a selection committee making a recommendation, and not just to the reasons of the ultimate decision maker.

   [127] Accordingly, it is appropriate in the present case to have close regard to the reasons of those who made the recommendations to Mr De Angelis and Mr Kerswell. This includes their reasons for recommending the restructure which Transfield adopted as well as their reasons for selecting the applicant as a person to be made redundant in consequence of that restructure.  The evidence of Mr Rynja and Mr Hall is particularly significant in this respect. Mr Handy did not contribute to the recommendation to Mr De Angelis, and Mr Vigus had only a limited role.”

4. It will always be a question of fact as to whether the allegedly proscribed reasons, as pleaded in a SOC as constituting the reason/reasons or motive for the taking of the adverse action, have been rebutted. Motive is a relevant consideration for the Court to take into account, when assessing the evidence before it, in that regard.

5. Whether or not a complaint or inquiry has been made by an employee in relation to his or her employment for the purposes of s. 341(1)(c)(ii) of the FWA is to be considered objectively.

6. When considering the factors relevant to an assessment of what the relevant reasoning process was in relation to the termination decision, Reeves J in CFMEU v Clermont Coal Pty Ltd [2015] FCA 1014 at [120] – [123] inclusive said as follows:

   “Two parts to the inquiry

   [120] These authorities therefore place the focus on the reasoning process that led to the ultimate decision. Where the decision was made by one person and her or his reasoning for the decision was based on one incident involving the employee, the task is relatively straightforward. The judgments in Barclay and BHP Coal require a focus on the reasoning process employed by that person to determine whether the employer has discharged its onus under s 361(1) of the FWA to show that the reasoning process did not include, as a substantial and operative reason, the alleged prohibited reason or reasons. However, the employer is only required to show that none of those reasons was a “substantial and operative reason”. It does not need to negate every reason, however immaterial it was to the reasoning process underpinning the decision to dismiss the employee concerned: see Barclay at [104] and [127] per Gummow and Hayne JJ, and [140] per Heydon J.

   [121] On the other hand, where 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 does not involve a roving search of the minds of the employees of the kind rejected by Heydon J in Barclay (at [146]). Nor does it involve an objective inquiry of the kind rejected in Barclay (at [44] and [126]), nor import some “unconscious” reasoning to the ultimate decision-maker that was also rejected in Barclay (at [124] per Gummow and Hayne JJ, and [146] per Heydon J). Instead, it 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. This is what I consider the Full Court meant by “inadvertently” adopting an “undisclosed prohibited reason” in Kodak (see at [117] above).

   [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. I will proceed to undertake the first part of this inquiry under this issue and attend to the second part of it under the next issue. But first, I will review the evidence bearing upon both parts of the inquiry. In that review, it is unnecessary to further consider the evidence of Ms Washington because it is already sufficiently summarised above. I will therefore begin with the evidence of Mr Fry, Mr Scott’s supervisor, and then turn to the evidence of Mr Pretorius, Mr Christensen and, finally, Mr Fleming.

   Mr Kevin Fry – Mr Scott’s supervisor

   [123]As noted a number of times above, from about 2012, Mr Fry was Mr Scott’s supervisor. In that capacity, he conducted Mr Scott’s 2013 WPR. The score from that WPR became the first in the hierarchy of selection criteria used in the redundancy process (see at [35] above).”

   Circumstances Leading To Termination

7. In about mid-2020, employees of the respondent were progressively made new offers of employment with the respondent. Those offers contemplated that the basis for calculation of remuneration for employees would change from an hourly rate assessed under the then existing “Primo Food Pty Ltd – JTS Primo Wacol Enterprise Agreement 2019”, to being calculated on an agreed salaried basis.

8. In her affidavit filed on 4 February 2022, Lauren Cook (who was the then general manager of the respondent’s quality and technical division) gave evidence as to why she believed such change would constitute a worthwhile initiative. Paragraphs [38] – [46] inclusive of her affidavit were as follows:

   “TRANSITION TO SALARIED ROLE

   [38] After I joined Primo in around late 2019, one of the key people opportunities I identified was the need to create ‘one quality team’ across the Primo business. The 4 sites were not really working together in an optimised way, structures and titles were not aligned or reflective of the roles that people had and we had team members being paid a mix of wages and salary.

   [39] The rationale for moving all Quality Team members to a salary was two-fold:

   (a)       It was consistent with a ‘one team’ approach; and

   (b) It would ensure that the same programs and opportunities were being deployed and accessible to the entire Quality Team because some initiatives and events (for example the JBS Australia Christmas party) are only made available to salaried employees.

   [40] In terms of team structure, we were seeking to establish 4 key levels in our site-based Quality Teams:

   (a) Quality Partner, being the most junior role in the team. This role predominately works with the operations teams on the factory floor. These team members ensure all the checks and balances are in place, collect samples, complete testing where required and documenting, actioning and escalating non-compliances;

   (b)Quality Leader, having more experience and higher-level responsibilities and decision-making authority than a Quality Partner;

   (c)Quality Coordinator, having greater responsibilities and decision-making authority than a Quality Leader. This role also involves supervision of Quality Leaders and Quality Partners; and

   (d)Quality Manager, having management and oversite of the site Quality Team with independent decision-making authority on all matters relating to food safety, quality or regulatory compliance.

   [41]      Sam’s role prior to his termination was equivalent to that of a Quality Partner.

   [42]We were aiming to have this project completed by the end of 2020, this was however hampered by the additional workloads associated with managing COVID-19. A great deal of my own focus and attention in 2020 and 2021 was directed to maintaining the Chullora facility in the peak of the New South Wales Delta outbreak.

   [43]I communicated Primo’s intention to transition the Quality Team to salaries to my direct reports in around the start of 2020 and requested that they communicate this to their own teams.

   [44]I worked closely with Nancy (who also consulted with Primo’s Payroll Team) from around the middle of 2020 to formulate the new salary offers for the waged team members in the Quality Team. Various factors were considered including the team members’:

   (a)       Tenure;

   (b)       Experience;

   (c)       Current rates of pay; and

   (d)       Current role and responsibilities.

   [45]On 12 October 2020, Sam sent me an email to follow up on the progress of the offers to transition. My reply to Sam is exhibited hereto and marked “LJC-2”.

   [46]The offers were ready to be communicated to employees in around the end of 2020. I understand from verbal updates I received from Nancy that her conversations with individual team members to discuss the process commenced in around late 2020 or early 2021.”

9. From as early as 8 July 2020, Johnson had made email enquiries of Diane Vandenberg as to when offers concerning the transition from payment on an hourly basis to a salaried basis might be expected to be delivered to him and others in his team. A fellow employee named Maria Bedia had been copied in to such email. [5] From 8 July 2020 until 13 October 2020, Johnson emailed others, including Ms Cook, on a number of occasions seeking an update as to when he might get a response. Such enquiries had also been made by Bedia on 24 July 2020. [6]

   [5]           Annexure LJC – 2 to Cook affidavit – CB – p. 1069.

   [6]           CB – p. 1065

10. The critical evidence adduced on behalf of the respondent concerning Johnson’s alleged breach of confidentiality provisions of the code of conduct was the affidavit and oral evidence given by one John Denby. In his affidavit filed on 4 February 2022, Denby set out the circumstances in which, at a meeting held by him with Johnson on 25 March 2021, a salary offer was made to Johnson.[7] Present at the meeting were Denby, Johnson and one Nancy Williams, a HR officer in the employ of the respondent. Denby and Johnson were in the one room, and Williams participated via a Microsoft Teams connection. Denby deposed that the meeting ended at approximately 3:20 pm, at which time Williams disconnected from her Microsoft Teams connection.

    [7]           Paragraphs [28] – [37] of Denby affidavit – CB p. 861 – 862.

11. At paragraph [38] of Denby’s affidavit, Denby outlined, in particular detail, the content of a short conversation he then allegedly held with Johnson before Johnson left the meeting room. The Court finds that that conversation did occur as deposed to by Denby, who impressed the Court with his forthright responses to questions put to him in cross-examination, and who gave such evidence in a logical and credible manner. It was an important conversation which was central to the issues at hand in this proceeding. Paragraph [38] of Denby’s affidavit was as follows:

    “[38]Our meeting ended at about 3:20pm. Nancy disconnected from the teams meeting and Sam and I had a conversation for about 10 minutes to the following effect:

    Me:     “Are you okay with all of that, do you understand everything?”

    Sam:     “Yeah, still don’t understand the way they calculated the salary.”

    Me:      “You could have asked Nancy during the meeting.”

    Sam:“I didn’t because I was waiting for my contract which I’d asked for before the meeting so I can discus with Warren [AMIEU Representative].”

    Me:“Well, we had discussed it during the meeting and explained to you prior to the meeting that it wasn’t a negotiation session, it was just to provide you with information on how the process would work. Then we’ll provide you with the contract after, Nancy said this afternoon.”

    “Do you understand the 1.3 [overtime removal] calculation?”

    Sam:“I still don’t really understand it.”

    Me:[I took Sam through a scenario and wrote out an example calculation. Sam and I had a back and forth discussion about the calculation and it appeared to me that he understood how it worked because by the end of he was working through the calculation himself.]

    Sam:“I still want to go through the contract with Warren so I can be sure I’m aligned with the EBA and I get the pay increases.”

    Me: “I don’t know anything about that, you’ll have to go through that with Nancy.”

    Sam:“You know I know how much the others have been offered for their salaries. I know that Sarah said no and asked for more money and got more. I also know that Veronica only signed last week and Maria still hasn’t signed because she’s looking at how it affected her overtime.”

    Me:“Well you know more about it than I do, we shouldn’t really be discussing the others, this is about your contract.”

    Sam“What do you think about the difference between wages and salaries?”

    Me:“I’ve always looked to favour salary over wages because I’ve always seen it as more consistent.”

    “The only time I had issues with salary was when I was paid monthly. Other than that, I’d look at the salary.’

    “Maybe you should compare it to wages without overtime. A lot of people who get overtime need to consider that overtime might not always be there.”

    Sam:“That makes sense, I’ll discuss it with Warren when I get the contract.”

    Me:“Just be mindful that the company, if they wanted to, could have just set a figure which wasn’t for negotiation. I think they’re being really good and open about this.”

    “In the past under previous management, I’ve had contract offers where Dion has just given me a contract with a dollar value and said this is what the position is worth.”

    “Your basic schedule of hours won’t change because the factory is still doing one 6-hour day and four 8-hour days. Our shifts will need to be scheduled to cover that.”

    “You know, for example, Chris works 5:30 to 2:45pm to cover the end of the first shift and then the afternoon guys come in at 3:00pm.”

    Sam: “Well, I know Oanh was offered an increase which she isn’t going to take, I’ve read the letter she’s going to send back to Nancy asking for more.”

    Me:“I knew they were going to make Oanh an offer, we can’t discus other people’s salaries. I haven’t even seen it yet, I’m not sure why she showed you.”

    Sam:[shrugged] “Well, you were on holidays so she asked me.”

    Ms:“Well you better go and get ready for work, and I’ve got to try and fix this camera.”

    Sam:“I’ll google it for you, it shouldn’t be that difficult.”

    [Sam opened his phone to search. We checked some settings together on the computer and I received a call from Nancy called me]

    Me:“I need to take this, thanks buddie, I’ll catch up with you later”

    Sam:[Left the room]”

1. The conversation as recorded by Denby was consistent with what Denby said Johnson had earlier told him he would do when the time came for Johnson to respond to any salary offer made to him. [8] Further, as to the question of individual employment conditions being considered strictly confidential by the respondent, Denby had already made that clear to Johnson in an email dated 23 September 2020. [9]

   [8]           Paragraphs [50] – [51] of Denby affidavit – CB p. 866.

   [9]           Annexure JED – 6: CB p. 888.

2. Having been asked to do so by Williams, on the evening of 25 March 2021, Denby prepared a file note of his said conversation with Johnson, wherein Johnson had that day said to him that he knew how much the other employees in his team had been offered. [10] That file note, reasonably contemporaneous as it was, was included in an email sent at 6:54 am on 26 March 2021 by Denby to Williams. [11]

   [10]          Paragraph [41] of Denby affidavit – CB p. 865.

   [11]          Annexure JED – 2: CB pp. 873 – 874.

3. Denby subsequently had meetings on 29 and 30 March 2021 with Veronica Hogan, Sarah Sauer, Oanh Nguyen and Maria Bedia, those being the members of the QA staff who were allegedly identified by Johnson as his having spoken to about their respective salary offers. Denby sent a summary of his conversations with each of those QA staff to Williams by email at 12:10 pm on 31 March 2021. [12] Though Hogan, Sauer and Nguyen were recorded as not having had specific conversations with Johnson concerning the salary offers made to them, it was recorded that Bedia had “… openly said that she had discussed her salary with Sam (Johnson)”. Curiously, the applicant failed to call either Bedia or Nguyen to confirm that during the relevant period, neither of them had disclosed to Johnson the salary offers which had been made to them. The Court has had regard to such failure when weighing up all of the evidence before it going to the issue of Johnson’s credibility, as well as the credibility of other witnesses who gave evidence at trial.

   [12]          Annexure JED – 3: CB pp. 877 – 878.

4. The termination letter of 9 April 2021 was written by Ms Cook. She was clearly a decision maker whose reasons for termination were relevant. The letter was written after Ms Cook had reviewed Johnson’s response to the show cause letter sent to him by Williams on 1 April 2021. [13] That show cause letter was relevantly as follows:

   [13]          Annexure SJ – 22 to the affidavit of Johnson – CB pp. 383 – 384.

   “ …

   Dear Sam

   I refer to correspondence between you and I in relation to a report from your supervisor, John Denby, that you disclosed to him at around 3:20pm on 25 March 2021 that you were aware of confidential offers of terms and conditions of employment of other employees in the Quality Assurance (QA) team.

   You have denied saying anything about your own offer or those of any other members of the QA team.

   Mr Denby has provided the following particulars of that alleged conversation:

   (a)you stated words to the effect that you were a “ a bit off-guard and not prepared as you had not yet received information from Warren”; and

   (b)John stated words to the effect that “he understood the 1.3 removal calculation and he wasn’t sure what you were referring to”. John then went through it with you prepared an example calculation; and

   (c)you stated words to the effect that you had spoken to other QAs and that you knew of their salary offers and that Sarah Sauer had said ‘no’ and asked for more money and she got some more money; and

   (d)you stated words to the effect that Veronica Hogan only signed her offer a week ago; and

   (e)you stated words to the effect that Maria Bedia is still to sign her offer; and

   (f)you stated words to the effect that Oanh Nguyen had been offered an increase and that you read a response she was going to send related to her negotiations.

   The matters in the conversation referred to above have also been confirmed with members of the QA team, including Maria Bedia and Oanh Nguyen, have stated that you had conversations with them about their offers and negotiations.

   Primo has reached a preliminary view that you have been dishonest and did, in fact, disclose what you had procured from other members of the QA team. That conduct, if proven on the balance of probabilities, would be inconsistent with the JBS Australia Group Code of Conduct and Ethics. The dishonesty of wholly denying that conversation with John Deny is also of great concern to Primo.

   Primo has also reached the preliminary view that, if the alleged conduct is substantiated, you will be subject to disciplinary action up to and including termination of your employment. The warning you received last year will be taken into account.

   Primo invites you to show cause why you should not be disciplined, including by terminating your employment, by close of business on Wednesday, 7 April 2021. If you do not respond by that time, Primo will make a decision based on the information it has to hand.

   You are obligated to keep this matter confidential and not discuss it with your colleagues. You may discuss it with your representative. Failure to meet this request will be seen as a failure to comply with a management direction and may lead to disciplinary action.

   It is unlawful for you to victimise or retaliate against any person you believe may have been involved in the investigation, and we would like to also remind you of your obligation for confidentiality in regards to the investigation and this outcome. If you breach these obligations, disciplinary action may be taken against you, up to and including termination of your employment.

   I understand this may be a difficult time and would like to take this opportunity to remind you of the Employee Assistance Program (EAP). This is a confidential counselling service provided by LifeWorks which you can access directly on 1300 361 008.

   If you have any questions in relation to the matter(s) covered in this letter, please do not hesitate to contact me directly.

   Yours sincerely

   [Signature]

   Nancy Williams

   Human Resources Advisor”

5. Johnson’s response to the show cause letter, though denying any knowledge of the actual terms of any offer made to any other employee, and further denying disclosure by him of any such terms of offer, was nevertheless significant for a number of reasons, namely:

   (a)Johnson conceded that he knew that Bedia had not at that time signed any salary agreement.

   (b)Johnson conceded that he knew that Nguyen had not at that time signed any salary agreement.

   (c)Johnson had assisted Nguyen in relation to an email which Nguyen had said she had intended to send to HR. As to that, in Johnson’s first affidavit at paragraph [116] he deposed as follows:

   “[116]John said he would like to have a conversation with Oanh also, but he did not want to discuss it with me. I mentioned since John was on holiday and Oanh was in a stressful situation, she had asked me to review an email she was going to send to HR. So, I helped her to make sure that she wrote a more reasonable email rather than an emotional one (The email did not include the confidential terms and condition of the contract of Oanh). I added that since John was going to talk to Oanh, I did not want to disclose any details regarding the email I helped to review for Oanh before she submitted to HR and John said that was okay.”

6. In cross-examination, Johnson said that he had only assisted Nguyen in respect of one paragraph of her draft email, and that such draft was not otherwise read by him, the implication  he wanted to convey being that he had not become privy to any confidential information about any salary offer which might have been contained in such draft. [14] In his affidavit, however, Johnson deposed that he had helped Nguyen make sure that she wrote a more reasonable email rather than an emotional one. Having so deposed, Johnson deposed that the email did not include the confidential terms and conditions of the contract of Nguyen, but he did not clarify whether or not the email contained Nguyen’s counter-offer to any offer which may have been made to her. When taken to Nguyen’s actual response dated 8 March 2021, Johnson again denied that he had read the whole email, saying that he had only skimmed through it. When looking at Nguyen’s actual response, one sees that it is a one page email of four main paragraphs. The first paragraph substantially related to the basis for the making of a counter-offer of $66,000.00 plus superannuation. The Court finds it implausible that Johnson would not have read the whole draft letter, which included the quantum of Nguyen’s counter-offer, when he admitted assisting Nguyen with the drafting of same.    

   [14]          Transcript pp. 71.20 – 72.10. 

7. Williams, Johnson’s relevant human resources supervisor, had recommended to Cook that Johnson’s employment be terminated. Ms Cook acted upon that recommendation. Ms Williams was relevantly a decision maker whose reasons for termination were relevant. Her concerns were as set out in the show cause letter sent by her to Johnson.   

8. Denby and one Tanya Shanahan were other employees of the respondent who were each peripherally involved in investigations concerning Johnson’s conduct, but neither of them were involved in the decision making process which culminated in Johnson’s employment being terminated. Rather, they had merely passed on to Williams the relevant information arising out of further meetings held by them with QA staff. 

9. In her affidavit filed on 4 February 2022, Williams deposed that after having been informed by Denby that Johnson had said to him that he knew details of other salary offers made to QA staff she was annoyed. Paragraphs [46] – [52] inclusive of her affidavit were as follows:

   “[46]After our call ended, I thought ‘you’ve got to be kidding me.’ I was concerned and annoyed because so much work had gone into the project to ensure the offers were fair. I had been really excited to finally be able to have the Quality Team aligned with clear roles and responsibilities. I was worried that Sam discussing other people’s offers would derail the project and mean that all of my work would go to waste. I also thought that if Sam was just flippantly discussing those things with John that he had very little regard for everyone else’s privacy.

   [47]I made a short file note of my conversation with John either shortly after my phone call with John ended, or on the following Monday, 29 March 2021. I don’t usually work in the office on Fridays and my usual practice is to leave my notebook in the office. Exhibited hereto and marked “NW-2” is a copy of my file notes.

   [48]On 25 March 2021 at 5:11pm, I sent Sam a copy of his new contract. Exhibited hereto and marked “NW-3” is a copy of my email to Sam.

   [49]On 26 March 2021, I received a copy of John’s file notes from our meeting and his subsequent conversation with Sam.

   [50]From John’s file notes, it was apparent to me that Sam was in possession of, and had shared with John, confidential information about the offers made to other employees in the Quality team.

   [51]I was concerned about what Sam had said to John because in my experience, when team members know what their peers are being paid it can cause conflict and potentially lead to people resigning because they are disgruntled.    

   [52]I had spent a lot of time and effort formulating the offers to ensure that they were fair and I was worried that the salary transition process would be significantly delayed and undermined if everyone knew about what the rest of the team were offered, particularly without understanding the rationale for that offer. Formulating the offers wasn’t as simple as just looking at how many hours the team member worked, it also took into account their qualifications and experience.”

10. Williams also made a file note which effectively recorded what Denby had said Johnson had said to him. [15]

    [15]          Annexure NW – 2: CB p. 910.

    Findings

11. The Court finds that each of Denby, Cook, Williams and Shanahan were reliable witnesses. The importance of keeping salary offers confidential was logically explained by each of them as set out in their evidence. The Court accepts that Williams told each of the employees at the time the salary offers were made to them that such information was confidential, and that such offers were not to be shared around with other employees. There was good reason for that to be done as referred to earlier in the evidence of Williams and Cook.

12. Further, the Court finds that Denby had no reason to fabricate evidence about what he said Johnson had said to him about Johnson having knowledge of the salary offers which had been made to other employees. Denby was not the subject of any complaint made against him by Johnson, and was otherwise not an interested party in respect of claims made by Johnson against Vandenberg and Cox. Denby seemed to have a reasonable relationship with Johnson, and was only acting in accordance with instructions given to him by Williams concerning the reporting of any information adverse to the respondent’s interests.

13. Williams and Cook were similarly detached from any of Johnson’s complaints directed against other workers. Williams and Cook were entitled to accept as reliable the information provided by Denby about what Johnson had said to him. Having accepted the truth of such information, each of Williams and Cook were entitled to take such measures as they considered reasonably appropriate in terms of their assessment of the seriousness of the contravention by Johnson of the provisions of the respondent’s code of conduct. Consistently with what each alleged in their evidence about the seriousness of Johnson’s breach of confidentiality, they reasonably terminated Johnson’s employment. Cook took into account the earlier warning which had been issued to Johnson concerning an unrelated matter. She was entitled to do that.

14. The Court finds, on the balance of probabilities, that the reasoning processes behind the decision of Williams to recommend termination, and behind the decision of Cook to effect termination, were unaffected by any of the matters pleaded by the applicant as constituting prohibited reasons for such termination. Such alleged prohibited reasons played no part, let alone any substantial or operative part, in the termination of Johnson’s employment.

15. The respondent has rebutted the presumption that the adverse action taken against Johnson was taken for any prohibited reason.

16. The applicant’s claim is accordingly dismissed.

17. It is so ordered.  

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       4 July 2022