Bland v Australian Portable Camps Services Pty Ltd
[2014] FCCA 2397
•24 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BLAND v AUSTRALIAN PORTABLE CAMPS SERVICES PTY LTD | [2014] FCCA 2397 |
| Catchwords: EVIDENCE – Preliminary rulings sought on admissibility prior to trial – desirability of limiting length of trial – relevance – hearsay – admissions made with authority – credit – tendency. |
| Legislation: Fair Work Act 2009 (Cth), ss.336, 340(1), 342(1), 346, 348(a), 360; 361 Evidence Act 1995 (Cth), ss.55, 55(2)(a), 56, 59(1), 76(1), 81, 87, 87(1)(b), 97, 101A, 102, 103, 140 |
| Harrington-Smith v Western Australia (2003) 130 FCR 424 Jacara v Perpetual Trustees WA Ltd (2000) 106 FCR 51 Bendigo Institute v Barclay [No 1] (2012) 248 CLR 500 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Jeremy Gans & Andrew Palmer: Uniform Evidence Oxford University Press (2010) |
| Applicant: | JAMES BLAND |
| Respondent: | AUSTRALIAN PORTABLE CAMPS SERVICES PTY LTD |
| File Number: | ADG 318 of 2012 |
| Judgment of: | Judge Brown |
| Hearing date: | 16 September 2014 |
| Date of Last Submission: | 16 September 2014 |
| Delivered at: | Adelaide |
| Delivered on: | 24 October 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hardie |
| Solicitors for the Applicant: | Australian Manufacturer’s Workers Union |
| Counsel for the Respondent: | Mr Roder SC |
| Solicitors for the Respondent: | Norman Waterhouse |
ORDERS
The following designated portions of the following specified affidavits filed in these proceeding are struck out pursuant to the provisions of Rule 15.29 (1) of the Federal Circuit Court Rules:
(a)Affidavit of James Richard Bland sworn 26 June 2013 and filed 27 June 2013:
(i)Paragraphs 5 to 7 inclusive.
(b)Affidavit of James Richard Bland sworn 18 October 2013 and filed 25 October 2013:
(i)Entire.
(c)Affidavit of Ronald Allan Bowman affirmed 26 April 2013 and filed 27 June 2013:
(i)Paragraphs 1, 2, 3, 4, 5, 6, 7, 8 & 12.
(d)Affidavit of Ronald Allan Bowman affirmed 23 October 2013 and filed 25 October 2013:
(i)Paragraphs 7, 17, 18, 19, 20 & 22.
(e)Affidavit of Mark Lobban sworn 20 May 2013 and filed 27 June 2013:
(i)Paragraphs 3, 7 & 8.
(f)Affidavit of Mark Lobban sworn 25 October 2013 and filed 28 October 2013:
(i)Entire affidavit.
(g)Affidavit of Jayme Allan Marshall affirmed 16 May 2013 and filed 27 June 2013:
(i)Entire affidavit.
(h)Affidavit of William Scott McLeod affirmed 10 June 2014 and filed 15 June 2014:
(i)Entire affidavit apart from paragraph 8.
(i)Affidavit of Daryl Richard Plush affirmed 12 June 2014 and filed 10 July 2014:
(i)Entire affidavit.
The proceedings be listed for further directions and to allocate a date for final hearing on 3 December 2014 at 9:30am.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 318 of 2012
| JAMES BLAND |
Applicant
And
| AUSTRALIAN PORTABLE CAMPS SERVICES PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings arise as a consequence of the provisions of Chapter 3 of the Fair Work Act 2009 (Cth) (“the FWA”), which deals with the rights and responsibilities of employers and employees. The objects of this part of the FWA include the protection of workplace rights [FWA section 336(1)].
James Bland “the applicant” claims that his former employer Australian Portable Camps Services Pty Ltd “the respondent” or “APC” has contravened his workplace rights by taking “adverse action” against him because of his membership of the Australian Manufacturing Workers’ Union (“the AMWU”) in contravention of section 346 of the FWA. The adverse action was dismissal from employment [FWA section 342(1)].
Background
The applicant is an electrician by occupation. He asserts that he has been a member of the AMWU since 2008. He commenced employment with the respondent on 30 August 2010 and was forcibly made redundant on 14 November 2012.
The respondent manufactures temporary accommodation and ancillary services for use in the mining, pipeline and construction industries, particularly in remote locations. It has a factory at Monarto South, in rural South Australia, where it constructs camp facilities, but also dispatches staff to locations to facilitate the installation of its camps.
The respondent’s owner and managing director is Mr Frank Martino. Initially, the applicant was a casual employee of the respondent, who installed electrical fittings in rooms, which were to be deployed to remote camp sites around Australia.
Later, Mr Bland was moved to the water division, which deals with the provision of water and waste water treatment at camp sites. He largely worked at APC’s facility at Monarto, but also worked at a camp site at Ivanhoe, New South Wales and other camps in other parts of Australia.
It is Mr Martino’s position that Mr Bland installed wiring inappropriately on two or three camp buildings, whilst he worked in the construction division of APC. As a consequence of this, Mr Bland was moved to the water division. It is also asserted, by Mr Martino, that Mr Bland’s work performance, at APC’s remote sites, was found to be wanting.
At relevant times, in the period during which the applicant was employed by APC and prior to his dismissal in November 2012, the respondent employed various individuals in managerial positions. These persons included Bruce Lehmann (operations superintendent); Brian Devey (human resources manager); and Ronald Bowman (transport manager).
Mr Martino asserts that he received information from Mr Lehmann that the applicant’s work had been found to be unsatisfactory, from time to time. It is also Mr Martino’s evidence that his business experienced a significant downturn, in mid to late 2012 and, in this context, in conjunction with Mr Lehmann, he discussed reducing APC’s workforce numbers.
It is Mr Martino’s evidence that he trusted Mr Lehmann’s judgment and discussed with him the possibility of engaging contractors, as an alternative to APC engaging its own employees directly. He further deposes that he was unaware that Mr Bland was a union member, at the time of his termination. He specifically denies that any person, including Mr Bland, was dismissed by him, in his capacity as the owner of APC, because of union membership.
Mr Devey commenced his employment with APC on 4 June 2012. Prior to that time, he had been employed as the group human resources manager at T & R Pastoral Pty Ltd (“T & R”), which operated an abattoir at Murray Bridge. He ceased employment with T & R on 10 June 2011.
It is common ground between Mr Bland and Mr Devey that they were both employed at T & R in 2008. Mr Devey in a managerial position, Mr Bland initially as a trade assistant and then as an electro technology apprentice.
During his period at T & R, Mr Devey concedes that he became aware that Mr Bland had been appointed as a workplace delegate for the AMWU. In this role, Mr Bland played a part in negotiating a workplace agreement between the management of T & R and the maintenance crew of the abattoir.
Mr Devey is highly critical of the manner in which Mr Bland deported himself, whilst employed by T & R. He alleges that Mr Bland had an inability to control his anger and behaved threateningly to workers, supervisors and managers at T & R. As a consequence of this behaviour, Mr Devey alleges T & R terminated his employment.[1]
[1] See affidavit of Brian Raymond Devey at paragraphs 11 -12
Mr Bland does not accept this characterisation. It is his view that he was targeted because he was perceived to be a troublemaker at T & R, particularly by Mr Devey, because of his involvement in the enterprise bargaining negotiations, which were protracted. As such his dismissal was unfair.
Mr Devey commenced employment, at APC, on 4 June 2012, as the National OHSE Manager. He oversaw six occupational health and safety advisers and managed the work activities of a human resources officer.
On 14 November 2012, the applicant was given a letter by Mr Devey and under his hand, which advised that Mr Bland had been made redundant by APC, effective that day, due to a “significant downturn …. and the fact several expected projects had either been delayed indefinitely or cancelled”. As a consequence, the letter indicated that APC needed to reduce staffing numbers, of which Mr Bland was one.
Mr Bland does not accept the bona fides of this letter, as it relates to him. It is his position that Mr Devey, in particular, held a grievance against him, because of his previous workplace role in the enterprise agreement bargaining negotiations at T & R.
In addition, Mr Bland asserts that he discharged his work responsibilities, at APC, capably and without incident. As such, it his case, that the only logical inference, which can be drawn from his termination is that it occurred because of his membership of the AMWU, which fact was obviously well known to Mr Devey and therefore, by necessary implication, to other members of the management team of APC, including Mr Martino.
Accordingly, it is Mr Bland’s case that APC terminated his employed because of his workplace right to be involved in the AMWU. It is prohibited, as a consequence of the provisions of section 340(1) of the FWA, for a person to take adverse action against a person because that other person had a workplace right. The expression Workplace Right is defined in section 341 of the FWA.
In general terms, it provides protection, in the workplace, for industrial associations and their representatives to be involved in lawful industrial activities. It is Mr Bland’s case that adverse action was taken against him, namely the termination of his employment on 14 November 2012, by APC, because he was a member of the AMWU [see FWA section 342(1)].
In particular, pursuant to section 346 of the FWA, a person is prohibited from taking adverse action against another person because that other person: is an officer or member of an industrial association; or engages in industrial activity.
It is the effect of Mr Martino’s evidence that he made the decision, in conjunction with Mr Lehmann, as to which employees of APC, including overseas skilled visa holders, would be made redundant. Whilst Mr Lehmann was on leave, some of his responsibilities devolved onto Mr Devey.
In this context, Mr Martino has deposed that Mr Devey gave effect to some of the proposed dismissals but was not involved in specific decisions as to who was to be dismissed. He deposes that he (Mr Martino) had no conversation with Mr Devey concerning any relationship, which he (Mr Devey) had previously had with Mr Bland at T & R.[2]
[2] See affidavit of Frank Martino filed 23 August 2013 at paragraph 21
It is further Mr Martino’s evidence that he was personally unaware that Mr Bland had been a member of any particular union but was aware that Mr Lehmann and Mr Bowman had made criticism in respect of the manner in which Mr Bland had discharged his duties, whilst employed by APC.
In summary, it is Mr Martino’s evidence that Mr Bland’s employment was terminated because there was a serious down turn in the amount of business available to APC and there was another employee, one Kevin Ellis, whose experience and skills were deemed to be superior to those of Mr Bland.
In these circumstances and given the criticism that had been made of Mr Bland’s employment, Mr Martino asserts that he made the decision to terminate Mr Bland’s employment.[3] Mr Martino denies that Mr Bland’s relationship with the AMWU, of which he says at relevant times he was unaware, played any part in this decision. In support of this assertion, he points to the fact that Mr Ellis, who was retained by APC, was also a member of the AMWU.
[3] Ibid at paragraph 26
This is the central evidentiary issue in the case – was Mr Bland’s employment terminated because of his association with the AMWU and therefore in breach of section 348(a) of the FWA or did the dismissal occur for some other legitimate reason. The issue for resolution, in these interlocutory proceedings, is what is the relevant evidence to be admitted in respect of that ultimate inquiry?
The issues arising in these interlocutory proceedings
Mr Bland commenced these proceeding on 13 December 2012. Thereafter each party has filed affidavits from various persons who were either employed by or associated with APC at relevant times. Regrettably the trial of the application has been delayed on two separate occasions, most recently in June of 2014, when Mr Bland’s representative, Mr Hardie, fell seriously ill.
In this context, the respondent has sought to ventilate a number of objections it has to some aspects of the affidavit material filed on behalf of Mr Bland. It was asserted by senior counsel for APC, Mr Roder that it would be expedient for the court to deal with these objections discretely, prior to final hearing, in order to ensure that the trial was completed within the time allocated for it, otherwise it was said it had the potential to blow out.
As there had already been much delay in the hearing of the case, I was persuaded that there was some logic to this approach. These reasons for judgment are directed to resolving these issues and determining the admissibility of parts of the evidence of the following potential witnesses in the case:
i)Mr James Bland;
ii)Mr Ronald Bowman;
iii)Mr Mark Lobban;
iv)Mr Jayme Marshall;
v)Mr William McLeod; and
vi)Mr Daryl Plush.
In respect of Mr Bland,[4] the respondent objects to the leading of evidence from him regarding his relationship with Mr Devey at T & R and his (Mr Bland’s) perception as to why his employment there was terminated.
[4] Affidavits of Mr James Bland filed 27 June 2013 and 25 October 2013
Evidence in chief is sought to be led from Mr Bowman,[5] which relates to conversations allegedly occurring between him, Mr Devey and Mr Lehmann, which related to Mr Bland and during which Mr Devey had referred to Mr Bland as a “unionist trouble maker” and made other comments inimical to union involvement at APC.
[5] Affidavit of Ronald Allan Bowman filed 27 June 2013
In this context, it is said Mr Devey confided to Mr Bowman that Mr Bland had been terminated because “we can’t have unions in here.” This evidence is objected to on the basis that it is hearsay and irrelevant to the state of mind of Mr Martino.
Mr Bowman also deposes to a later conversation, to which Mr McLeod was privy and which involved Mr Lehmann, in which it is alleged that Mr Lehmann said that APC could not have Mr Bland “around when we start bargaining.” It is not proposed, by either party, to call Mr Lehmann in these proceedings, for reasons which will appear shortly.
Similar objections are taken to the evidence of Mr Lobban,[6] who at relevant times was an engineer in the employee of APC. He deposes to Mr Devey referring to Mr Bland as a “union trouble maker and stirrer.” It is also said the Mr Devey confided in him that APC had secured a suitable replacement for Mr Bland. Finally Mr Lobban deposes as to the competency of Mr Bland as an electrician, which the respondent submits is irrelevant to the issue which the court must determine in this matter.
[6] Affidavit of Mark Lobban filed 27 June 2013
Mr Lobban has also been terminated from his employment with APC. Following his termination, he filed a further affidavit in these proceedings.[7] Objection is also taken to this affidavit on the grounds of relevance as it is largely taken up with criticisms of the management of APC by Mr Lobban in respect of its treatment of sewerage at one of its camp sites. This evidence is said to be both irrelevant and scandalous, as well as to amount to a collateral attack on the credit of another witness, namely Mr Martino.
[7] Further affidavit of Mark Lobban filed 28 October 2013
Again Mr Marshall’s evidence relates to matters which occurred between Mr Bland and Mr Devey at T & R. Mr Marshall was the occupational health and safety representative at the time of Mr Bland’s dismissal. Mr Marshall asserts that Mr Bland’s demeanour in the workplace was appropriate and therefore his dismissal was not valid.
Mr McLeod is a former employee of APC. It is sought to lead evidence in chief from him regarding the termination of Mr Lehmann’s employment from the firm on the grounds of his (Mr Lehmann’s) alleged dishonesty. Again this is said to amount to a collateral attack on the credit of a witness, which is inadmissible as a consequence of the provisions of section 102 of the Evidence Act 1995 (Cth) “the Evidence Act”.
Mr McLeod also makes other significant criticisms in respect of how both Mr Martino and Mr Devey dealt with the termination of his employment, which involved issues to do with his physical disability, which Mr McLeod perceived APC dealt with unfairly. Mr McLeod is also sought to be called to corroborate the conversations relating to Mr Devey deposed to by Mr Bowman and Mr Lobban.
Mr Plush is a plumber, who has also been terminated in his employment with APC. He complains about the circumstances of his dismissal. He also has criticisms of APC waste water management practices. He deposes as to the qualities of Mr Bland as an electrician with the implication that his termination was unfair.
Other controversial issues, particularly those relating to the possibility of Mr Hardie being a witness in the proceedings and issues related to the inspection and copying of documents have been resolved. Issues relating to the potential allocation of costs arising from this aspect of the proceedings and the aborted trial remain outstanding.
Applicable legal principles
The principles which the court must apply to the resolution of these issues are contained in various provisions of the Evidence Act. These principles must be viewed in the light of two important provisions of the FWA, namely section 360 and 361, which deal with the evidence required to establish whether a person has taken adverse action against another person, in an industrial context and where the onus for proving such an action lies.
Pursuant to the provisions of rule 15.29 (1) of the Federal Circuit Court Rules (2001,) I have authority to order material to be struck out of an affidavit, which has been filed in proceedings before the court, at any stage of those proceedings, if the material:
(a) is inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative; or
(b) contains opinions of persons not qualified to give them.
The relevant provisions of the Evidence Act are sections 55 and 56, which deal with relevance; section 76, which renders evidence about opinions irrelevant; section 97, which deals with evidence of tendency or propensity; and sections 101A and 102, which deal with credibility evidence. Each of these sections appear in Chapter 3 of the Evidence Act, which is headed Admissibility of Evidence.
In addition, provisions relating to the inadmissibility of hearsay evidence and exceptions to that rule are relevant, particularly in respect of admissions against self-interest. The rule is contained in section 59.
As previously indicated, APC object to the admission of evidence regarding conversations said to have taken place between Mr Devey and Mr Bowman regarding why Mr Bland was terminated from his employment.
The inference sought to be drawn from those various conversations, on the submission of Mr Bland, being that Mr Devey was part of the decision-making process in regards to the issue and the decision itself was tainted by his alleged anti-unionism. Mr Devey describes himself as OHS Manager at APC.
What was said to Mr Bowman, as ascribed by him to Mr Devey, is hearsay. Mr Devey denies having any such conversations with either Mr Bowman or any other persons at APC. Section 59(1) reads as follows:
59 The hearsay rule—exclusion of hearsay evidence
(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
However, pursuant to section 81, the hearsay rule does not apply to evidence of an admission, which is defined as representation adverse to the person’s interests in the outcome of the proceedings. Mr Devey alleged representation, if true and accepted by the court, is potentially adverse to the interests of APC, but not directly to Mr Devey, who is not a party to the proceedings.
This situation, in my view, potentially engages the provisions of section 87 of the Evidence Act, which reads as follows:
87 Admissions made with authority
(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that:
(a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made; or
(b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person’s employment or authority; or
(c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party.
It is a question of fact whether Mr Devey had the authority to make the statements attributed to him and whether they related to a matter within the scope of his authority at APC. In his affidavit, he deposes as follows:
“In approximately September 2012 I became aware that there had been a downturn in the mining accommodation industry. A number of APC tenders had proven unsuccessful and several awarded contracts had been cancelled or deferred. I learned that our labour costs were too high compared to the workload being undertaken and that there would be a number of redundancies as a consequence. Frank Martino, owner of APC, convened a meeting of all employees to discuss these developments and give warning of possible redundancies.
In October 2012, workforce numbers were reduced. This was achieved through natural attrition, withdrawing work offered to a number of casual employees (including Korean ‘backpackers”), terminating the employment of thirteen sub-class 457 visa holders and the forced redundancy of a handful of permanent employees.
I was not involved in any of the decision making processes relating to the workforce reductions. This was undertaken by Frank Martino as the owner and Bruce Lehmann, Operations Manager who had the greatest understanding of the current and future workforce needs and associated labour costs.
By the end of November 2012, the workforce had been reduced by approximately 50 employees. During this time my job role had been expanded to include “people and culture” and I was overseeing various human resource functions including assisting with the reduction in workforce numbers. I conducted a number of terminations in the absence of Bruce Lehmann and under the instruction of Frank Martino. I was not involved in the decision making processes but on some occasions affected the terminations.
During this time I had been contacted by several officials from the AMWU. Concern was expressed that members of the AMWU were being specifically targeted for termination due to their union membership. I had no knowledge that this was a criteria being used and was aware of the illegality of such practices. The majority of workers comprising the 50 positions reduced were unskilled labourers.
Several meetings were held with the AMWU regarding the reduction in the APC workforce and in respect of several issues affecting some Philippino sub-class 457 visa holders. These issues were resolved.
At no time have I ever become aware of the identity of AMWU members employed at APC other than on those occasions when the AMWU has provided that information during their representation of their members.
Some time in November 2012 I became aware that Frank Martino had spoken with Bland and Keven Ellis (Electrician) regarding a possible change in their working arrangements. I was not present at the meeting/s and do not know what was discussed.
I later learned that Bland and Ellis had been offered the opportunity to switch to contract employment from their full time positions. I was of the understanding that this was in keeping with a restructure of the workforce and the ongoing redundancies.
I played no part in the discussions between Frank Martino and Bland and Ellis.”[8]
[8] See affidavit of B R Devey filed 26 September 2014 at paragraphs 16-25
Pursuant to section 56 only relevant evidence is admissible in proceedings before the court, whilst evidence, which is not relevant is inadmissible. Accordingly, the various aspects of the evidence on which Mr Bland seeks to rely must be relevant to the case. This enjoins the provisions contained in section 55, which provides as follows:
55Relevant evidence
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to:
(a) the credibility of a witness; or
(b) the admissibility of other evidence; or
(c) a failure to adduce evidence.
The test of relevance, provided by section 55, is a wide one. To be relevant, the evidence in question must relate to a fact in issue in the case. As has been pointed out above, the central fact in issue in this case is whether Mr Bland was terminated from his employment with APC because of his association with the AMWU.
The section requires a rational or logical connection between the evidence sought to be led and the fact in issue. The connection may be minimal and it may be indirect but there must be such a connection. Lindgren J put it as follows: relevance depends on “an objective test grounded in human experience, on the application of which minds may differ, but which does not allow for the exercise of discretion.”[9]
[9] See Harrington-Smith v Western Australia (2003) 130 FCR 424 at 426
In addition, it is important to note that evidence is not necessarily irrelevant only because it goes to the credibility of a witness [section 55(2)(a)]. This provision has relevance, so far as the general exclusion provision regarding credibility evidence [section 102], and touches on the concept of evidence which may have dual qualities, in the sense that it goes to the reliability of the evidence in question but also as to whether a fact in issue did or did not occur.
The general rule is that evidence of opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed [Evidence Act section 76(1)]. There are two major exceptions to this rule – certain lay opinions, where the evidence in question can only be given as an opinion and expert evidence.
Section 97(1) deals with evidence relating to how a person has behaved on an occasion prior to the event or chain of events, which constitute the fact or facts in issue in the particular case concerned. It is convenient to summarise it under the rubric of tendency or propensity evidence. Such evidence is inadmissible, unless it has significant probative value. The section reads as follows:
97 The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:
…
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
The expression significant probative value is not defined in the Act. In Jacara v Perpetual Trustees WA Ltd Sackville J concluded evidence of significant probative value had to hold something more than mere relevance but less than substantial relevance. It must be evidence of import or consequence or be clearly and strongly probative of the relevant fact in issue.[10]
[10] Jacara v Perpetual Trustees WA Ltd (2000) 106 FCR 51 at 68-69
In general terms, credibility deals with the believability of a witness or whether that person is worthy of being believed. In the dictionary of terms supplied to the Evidence Act, under the entry for credibility, there is reference to the ability of a witness to observe or remember facts. Accordingly the concept of credibility also encompasses the reliability of a witness’s testimony.
The definition of credibility evidence is provided by section 101A of the Evidence Act and reads as follows:
101A Credibility evidence
Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that:
(a) is relevant only because it affects the assessment of the credibility of the witness or person; or
(b) is relevant:
(i) because it affects the assessment of the credibility of the witness or person; and…
Section 102 of the Evidence Act provides a general exclusion in respect of evidence which goes solely to the credulity of a witness. The section reads as follows:
102 The credibility rule
Credibility evidence about a witness is not admissible.
There are exceptions to this rule, the most notable of which is provided by section 103 of the Evidence Act, which authorises cross-examination of a witness, if the evidence sought to be led could substantially affect the assessment of the credibility of the witness concerned.
Accordingly, under the Evidence Act, a cross-examiner does not have an unfettered entitlement to cross-examine a witness as to his or her credit or reliability. Rather the entitlement arises if the evidence sought to be led is of some moment, so far as the credibility of that witness is concerned. The rationale of the section appears to be to enable the court to place some limits on the length of cross-examinations and so ensure that proceedings are concluded within a reasonable timeframe.
As has previously been indicated, the Evidence Act recognises that credibility evidence may nonetheless be relevant to the determination of a fact in issue. The learned authors (Gans and Palmer) of Uniform Evidence put it this way:
“Credibility evidence is relevant because anything that affects the probability that a witness is telling the truth obviously affects the probability of the existence of the facts to which he or she is testifying.”[11]
[11] Jeremy Gans & Andrew Palmer: Uniform Evidence Oxford University Press (2010) at page 200
In general terms, issues of credit may be relevant when the evidence in question has bearing on the veracity of a fact in issue, in the particular case concerned but be irrelevant when it goes to a fact which is collateral to it. Accordingly, it is impermissible for evidence to be led, which amounts to a collateral attack on the credit of a witness.
Pursuant to section 360 of the FWA, a person takes action for a particular reason if the reasons for the action include that reason. Section 360, addresses the not uncommon situation, where an employer might act for concurrent or mixed reasons, including a reason which might amount to adverse action as a consequence of an employee’s workplace right as well as for other legitimate reasons, such as those relating to practical considerations.
That is the situation here. Mr Martino has deposed that Mr Bland’s redundancy came about because APC suffered a severe downturn in its work. There is evidence which corroborates this assertion. However, Mr Bland asserts that he was targeted for a redundancy, amongst those which were necessary at APC, because of his union affiliation and therefore the action was unlawful.
Accordingly, although Mr Martino may be able to establish the truth of his evidence regarding the downturn in his business and the resulting necessity to reduce staffing levels, if one of the motivating factors for including Mr Bland specifically in the proposed redundancies was his trade unionism, section 360 will apply and potentially the action will be rendered unlawful by virtue of section 346 of the FWA.
It is also necessary to consider the provisions, with the FWA, which deal with where the burden of establishing such an adverse action lies. These provisions have recently been the subject of analysis in the High Court.
Absent a specific provision showing an intention otherwise, the applicant would have the burden of proving all the necessary facts to establish that he or she had been the subject of such adverse action according to the standard of proof provided by section 140 of the Evidence Act which provides that the applicable standard of proof, in civil proceedings, is proof on the balance of probabilities.
However, section 361 of the FWA provides as follows:
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.
This provision, in the context of an application concerning section 346, was considered by the High Court in Bendigo Institute v Barclay [No 1] [12] particularly whether the actions of the person alleged to have taken adverse action against another was to be characterised by the court following either a subjective or objective examination of his/her conduct.
[12] Bendigo Institute v Barclay [No 1] (2012) 248 CLR 500
French CJ and Crennan J summarised the distinction in the following terms:
·On the one hand, does a contravention of section 346 require a mental element – namely the subjective reason why the employer took the adverse action was because of the employee’s membership of an industrial association or engagement in industrial activity;
·On the other hand, was a contravention of section 346 to be determined objectively – namely if adverse action is taken against an employee, who is a member of an industrial association or engaged in industrial activity, a contravention would be established, if a reasonable observer would conclude that the real reason for the adverse action was disassociated from the reasons prohibited by section 346.
In Bendigo Institute v Barclay, the majority of the High Court preferred the second formulation. French CJ and Crennan J said as follows:
“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 enquiry 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?’
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.” [13]
[13] Ibid at 517 [44] – [45]
Gummow and Hayne JJ took a similar view, emphasising the centrality of evidence from the decision-maker in assessing the reason why the adverse action in question had been taken. Their honours said as follows:
“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.”[14]
[14] Ibid at 542 [127]
Accordingly, when the matter proceeds to hearing, the central question for the court will be why was Mr Bland terminated from his employment with APC. Was it because of his association with the AMWU.
In this context, the High Court disapproved of any attempt, by a court such as this one, to attribute a motivation, which might be unconscious to or not appreciated by the decision-maker concerned, but which might conceivably be apparent to an objective observer. In this context, Heydon J said as follows:
“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.” [15]
[15] Ibid at 546 [146]
Applying the principles to the specific evidence
It is the position of the respondent, in these proceedings, that the relevant decision-maker, in respect of the termination of Mr Bland’s employment from APC, was Mr Martino. Accordingly, it is Mr Roder’s submission that Mr Martino’s evidence is central to the determination of the central factual issue in these proceedings. As such, the court must not embark on an inquiry regarding the potential attribution, to Mr Martino, of any unconscious motivation for his dismissal of Mr Bland.
As is clear, from Bendigo Institute v Barclay, if such explanation is ultimately accepted by the court, a decision-maker’s explanation as to why adverse action has been taken against a particular person, who also has a relationship with an industrial association, will satisfy the onus stipulated in section 361.
It seems apparent, at this stage, that Mr Devey was the person at APC who was the actual agent for delivering the decision regarding the termination of his employment to Mr Bland. He did this both orally and in the form of a letter, which he personally drafted. However he asserts that he did not make the decision regarding the redundancy of Mr Bland, as this decision was solely within the authority of Mr Martino.[16]
[16] See affidavit of Brian Raymond Devey filed 26 September 2013 at paragraph 26-27
As such, it is submitted, by Mr Roder, that evidence regarding Mr Devey’s attitudes towards industrial associations in general and Mr Bland in particular, as a trade union trouble-maker is irrelevant. Similarly, the allegation that Mr Devey has a tendency to have an anti-union bent is inadmissible in these proceedings, as it has no significant probative value.
The thrust of Mr Hardie’s submissions is that it is axiomatic that Mr Devey was part of the decision-making or management team at APC. Accordingly, it appears to be his position that the behaviour and conduct of Mr Devey is relevant to the discharge of the reverse onus arising under section 361, currently laying on APC.
It is a question of fact whether Mr Devey was a relevant decision-maker, so far as the decision to terminate Mr Bland’s employment is concerned. He and Mr Martino assert that he (Mr Devey) was not. In his written submissions to the court, Mr Roder characterises Mr Devey as a middle manager. This is not a term of art.
Mr Bland appears not to be in a position to say definitively one way or the other, whether Mr Devey was such a decision-maker. Mr Hardie characterises Mr Devey as, at the very least, having the appearance of being part of the decision-making process regarding Mr Bland.
As such, it is the effect of Mr Hardie’s submission that Mr Devey’s alleged anti-unionism must be regarded as objectively permeating the decision to terminate Mr Bland’s employment, so rendering his termination illegal, as a consequence of the combined effect of sections 360 and 361 of the FWA.
I consider that, both at final hearing and at this stage, I must guard against falling into the error, identified and disapproved by the High Court in Bendigo Institute v Barclay of potentially approaching the matter by applying the following logic:
·Mr Bland was a unionist;
·Mr Devey knew that Mr Bland was a unionist and disapproved of him because of it;
·Mr Devey was part of the management team at APC;
·The management team at APC terminated Mr Bland;
·Therefore, Mr Bland was terminated by APC because he was a unionist and so APC has not discharged its onus arising under section 361.
The difficulty with this analysis, besides the attribution of a motive for the termination of Mr Bland arising from objective circumstances – the alleged history of anti-union feeling on Mr Devey part – is that there is not as yet any evidentiary basis established for the implied assertion that Mr Devey was a relevant decision-maker in respect of the decision to end Mr Bland’s employment at APC.
It may be a legitimate issue arising at final hearing, for Mr Bland to explore, in cross-examination, the business relationship between Mr Martino and Mr Devey and how authority for making various managerial decisions, at APC, was allocated between them, particularly whether Mr Devey was involved in the decision to terminate Mr Bland’s employment [Evidence Act section 103].
However, the subjective reason for the termination and whether it was tainted by any illegal consideration is fundamentally a question of fact – who decided what and for what reason. In this context, it is not legitimate for the court to seek out or attribute an unconscious motivation for this action, as a consequence of objective circumstances. The relevant witnesses, in respect of this issue, must be primarily Mr Martino and conceivably Mr Devey and Mr Lehmann.
On his own evidence, Mr Bowman was not part of this decision making process. However, the effect of the evidence sought to be led from him seeks to attribute the decision making authority, at least in part, to Mr Devey and thereafter taint the decision made by him with anti-union motivation.
The difficulty with this aspect of Mr Bowman’s evidence is that he does not provide actual evidence that, in subjective terms, Mr Devey was such a decision-maker. It arises only as a consequence of an implication. In this context, the application of section 87 is central.
In determining what evidence is relevant and therefore admissible in these proceedings, I must bear in mind what are the facts in issue in this case. What are the facts in issue is to be determined by reference to the matters required to be established pursuant to section 360 and 361 of the FWA.
a)Mr Bland’s evidence
In my view, the evidence of Mr Bland,[17] relating to his previous employment relationship with Mr Devey, at T & R, is not admissible in these proceedings, on the basis that it is not relevant to the fact at issue in this case, namely the reason why Mr Bland was made redundant from APC.
[17] Affidavit of James Richard Bland filed 27 June 2013 at paragraphs 5-7
In essence, it is asserted that because Mr Devey allegedly has a reputation for anti-union feelings, and has behaved adversely towards Mr Bland in the past. He is likely to have behaved in the same manner towards him, when Mr Bland was dismissed from APC. Essentially, it is said that Mr Devey has a tendency to behave adversely towards Mr Bland, because of his trade unionism and this renders it probable that he was dismissed from APC for an illegitimate reason.
In my view, there are a number of evidentiary difficulties with this assertion. Firstly, there is no evidence currently available to me to indicate that Mr Devey was a decision-maker in respect of major employment decisions at APC, such as the termination of a worker’s employment. At its highest, Mr Bland’s case is one of conjecture that Mr Devey has, in some way, influenced Mr Martino against him.
In this context, Mr Bland concedes that a meeting was held, at APC, which Mr Martino convened and addressed. Ostensibly at least, the purpose of the meeting was for Mr Martino to inform staff at APC that there would be redundancies, at the company, due to a downturn in the industry. As such, to some extent, Mr Bland concedes that Mr Martino, the proprietor of APC, was the major decision-maker so far as his employment was concerned.
In this context, in my view, the alleged tendency evidence of Mr Devey, to express animosity for Mr Bland personally and for unionists generally, cannot be regarded as being strongly probative of the major factual issue in the case, namely why he was dismissed from APC.
Nor, in my view, is it relevant, given that it is not permissible for the court, in its application of section 361 of the FWA, to glean evidence of intent to take adverse, action against an employee, from objective circumstances. In this case, as Mr Bland alleges, such objective circumstances, are the nature of the relationship said to exist between Mr Devey and Mr Martino and the potential for the former to exercise influence over the latter. This issue also arises in the evidence of Mr Bowman, who impliedly asserts that Mr Devey referred to an entity identified as “we” when speaking of Mr Bland and his trade unionism.
Mr Bland has filed a further affidavit,[18] in which he expands upon his perception, as to why he was dismissed from T & R. In my view, for the same reasons as outlined above, the sections of this affidavit, which relate to the enterprise agreement negotiations at T & R, involving Mr Devey and Mr Bland, are inadmissible in these proceedings, as is the evidence regarding the alleged dispute, which occurred in the boning room at T & R, which allegedly lead to Mr Bland’s dismissal. This evidence is not relevant.
b) Mr Bowman’s evidence
[18] Affidavit of James Richard Bland filed 15 November 2013
Mr Bowman has affirmed two affidavits.[19] As part of his duties, as the transport manager at APC, Mr Bowman was required to roster interstate truck drivers. In this regard, he criticises Mr Martino for directing him to roster drivers regularly, in breach of regulations regarding rest breaks.
[19] Affidavits of Ronald Allan Bowman filed 27 June 2013 and 25 October 2013
In my view, this evidence is not relevant to the fact in issue, in these proceedings, namely the reason why Mr Bland’s employment was terminated. It is an attack on the credit of Mr Martino, which arises from an issue collateral to this central issue. Accordingly, this aspect of the evidence is not admissible.
Mr Bowman further deposes that he was, in effect, recruited by Mr Devey and Mr Lehmann to report back to them information relating to trade union activity, which took place out in the yard at APC. In this context, Mr Bowman asserts that, both before and after Mr Bland’s termination, Mr Devey said words to the effect of “we” had to “get rid of” various employees (including Mr Bland) because they were union trouble makers or union ring leaders.
Mr Bowman does not specify to whom Mr Devey was referring when he used the pronoun “we”. This is because the words described by Mr Bowman are not his words, rather they are attributed, by him, to Mr Devey. Mr Bowman is not in a position to say to whom Mr Devey refers when he uses the pronoun “we”. As such, the representation is hearsay. Accordingly, the evidence is prima facie inadmissible [Evidence Act, section 59].
However, the import of the evidence is clear. An inference is to be drawn that the “we” referred to is the management of APC and thus the decision to terminate Mr Bland was made by the management of APC, of which Mr Devey was part, because he (Mr Bland) was a trade unionist. This assertion is contrary to the evidence of both Mr Martino and Mr Devey himself.
In particular, Mr Devey deposes as follows:
“I never attended any meetings with Bowman, Frank Martino … to discuss the subject of Bland or unions.”[20]
[20] See affidavit of Brian Raymond Devey filed 26 September 2013 at paragraph 39
It is proposed, by APC, that Mr Devey be called to give evidence. An affidavit of his evidence in chief has been filed. Accordingly, Mr Devey is available to be cross-examined about the various statements attributed to him and whether he did or did not have the conversations in question. However these conversations, which Mr Bowman allegedly heard, do not of themselves provide a subjective reason as to why Mr Bland’s employment was terminated, if the decision was Mr Martino’s alone to make.
The central issue in the case remains why was Mr Bland’s employment terminated? This entails an examination of who made the relevant decision and what factors influenced it, including whether it was for an unlawful reason relating to Mr Bland’s trade unionism.
More saliently, Mr Devey, and indeed Mr Martino, can be cross-examined about their respective roles in actually making the decision to terminate Mr Bland’s employment and what was the reason for it. As the High Court held in Bendigo Institute v Barclay the main focus of the court’s enquiry must be on why the decision-maker concerned made the relevant decision in question. The court is not entitled to attribute indirectly motivation to such a decision-maker from extraneous circumstances. As such, if Mr Devey is not found to be a decision-maker, any conversation between him and Mr Bowman are not relevant to the issue of why Mr Martino acted in the way in which he did vis-à-vis Mr Bland.
I appreciate that there can be potentially more than one such decision-maker. In this case, it is clear that Mr Martino was such a decision-maker. However, Mr Bowman’s evidence does not establish that Mr Devey was also such a decision-maker or definitively establish to whom he was referring when he used the pronoun “we”. However, axiomatically, as a consequence of the attribution to him of the use of the first person plural, in the alleged conversation, it must include Mr Devey himself.
The implication of the evidence of Mr Bowman is that Mr Devey, against the interests of APC, asserted that he (Mr Devey) as part of a decision making process at APC determined to terminate Mr Bland because of his trade union membership.
The evidence, in my view, is only admissible, as an exception to the hearsay rule, if it amount to a statement contrary to the interests of APC and Mr Davey was acting as an employee of APC within the terms envisaged by section 87(1)(b) of the Evidence Act. Such a finding must be reasonably open.
Thereafter its relevance depends on whether Mr Devey was a substantive decision-maker concerning the decision to terminate Mr Bland. If he was not, it is irrelevant when the matters to be considered under section 361 of the FWA are taken into account.
There are other issues which are likely to arise regarding the credibility of Mr Bowman. Mr Devey has deposed that he terminated Mr Bowman’s employment at APC because of alleged incidents of dishonesty on his part. It is asserted, by Mr Devey, that the South Australian Police are investigating these allegations.
Accordingly, it is highly probable that, in the event Mr Bowman is called to give evidence about his recollection of the various conversations in question between him and Mr Devey, regarding Mr Bland, it will be suggested to him that he has a motivation to be untruthful about these conversation.
The difficulty with ruling on this aspect of the case is that the evidence regarding the existence of the conversation is controversial. Mr Devey denies that it took place and that Mr Bowman has a reason to be untruthful. The major rationale for the court embarking on this somewhat tortuous process of ruling on evidence prior to hearing is to limit the length of the ultimate trial. However, I must be careful not to be unduly zealous in such a process. I must be aware of potential pitfalls in determining issues of evidence in a vacuum.
In my view, given the polarised nature of the evidence of Mr Devey and Mr Bowman, I am not in a position to ascertain one way or the other, about the existence of otherwise of these conversations, at this interlocutory stage. However, in my view, such conversations have the potential to be admissible, obviously only if it is found firstly that they occurred, on the basis that either Mr Devey was a relevant decision-maker, regarding Mr Bland’s employment or he (Mr Devey) made representations, in his role as an agent or employee of APC, concerning the connection of Mr Bland to a trade union.
Accordingly, as I am not able to find firstly that the representations were made and secondly, although Mr Devey is incontrovertibly an employee of APC, I am unable to ascertain whether the representation, if made, fell within the scope of his employment or authority, I decline to rule on this aspect of the evidence, at this stage of proceedings.
In respect of Mr Bowman’s second affidavit, filed on 25 October 2013, paragraph seven is inadmissible on the grounds of relevance. Paragraphs seventeen, eighteen, nineteen, twenty and twenty-two are also inadmissible as being irrelevant and raising matters of credit to issues extraneous to these proceedings.
c) Mr Lobban’s evidence
Mr Lobban has also filed two affidavits of evidence.[21] His evidence is broadly analogous to that of Mr Bowman. In addition, as with Mr Bowman, his employment with APC was terminated, by Mr Devey, allegedly on ground of serious and wilful misconduct on Mr Lobban’s part.
[21] See affidavits of Mark Lobban filed 27 June 2013 and 28 October 2013 respectively
In his first affidavit, objection is taken to an alleged conversation which is said to have taken place between Mr Lobban and Mr Devey regarding the rationale for Mr Bland’s termination. In a similar fashion to Mr Bowman, Mr Lobban alleges that Mr Devey said words to him to the effect of “we can’t afford to have a union trouble maker here” in reference to Mr Bland.
In his second affidavit, Mr Lobban traverses matters to do with his termination from APC, which he alleges were spurious and related to incompetent and potentially corrupt practices on the part of the management of APC.
Again Mr Devey denies that these conversations took place. For the same reason already set out in respect of Mr Bowman’s evidence, I decline to rule on the admissibility of these particular controversial conversations at this stage of proceedings.
However, in my view, evidence relating to Mr Lobban’s perception as to why he was terminated from APC and his view as to the failings of the company, as it pertained to him personally, are not relevant to these proceedings. However, he is open to being cross-examined about his credibility generally.
d) Mr Marshall
Mr Marshall deposes to having known and worked with Mr Bland for fifteen years.[22] In this period, he attests to Mr Bland’s skills as an electrician and his general reliability as an employee. He further deposes as to his surprise and the surprise of others on learning of the dismissal of Mr Bland.
[22] Affidavit of Jayme Allan Marshall filed 27 June 2013
In my view, this evidence is not relevant to the issue for determination in these proceedings. In addition, in my view, the assertion made by Mr Marshall that Mr Bland was terminated because he was aggressive and a troublemaker is also not relevant. Unlike other controversial conversation, it has no connection to the cause of action, in these proceedings, which arises pursuant to the provisions of section 346 of the FWA.
e) Mr McLeod
Mr McLeod has deposed[23] as to his perceptions as to why Mr Lehmann and Mr Lobban left the employ of APC. In my view, this aspect of his evidence is inadmissible as a collateral attack on Mr Martino’s credit. In addition, in my view, other aspects of his evidence, relating to his own termination from APC are not relevant to this matter and should be excluded on this basis (paragraphs one to six, ten to thirteen).
[23] Affidavit of William McLeod filed on 10 July 2013
Finally, Mr McLeod deposes as to being present at a meeting, in his office, involving Mr Devey, Mr Bowman and Mr Lehmann, when the issue came up of Mr Bland being sent to work at a remote camp site. Mr Lehman is said to have opposed Mr Bland’s nomination on the following basis:
“Jim is not to go on camp. Wait till I get back from the Philippines, I’ll get rid him of him them. We can’t have him around when we start bargaining”.[24]
[24] See affidavit of Ronald Allan Bowman filed 27 June 2013 at paragraph 9 and affidavit of William McLeod (supra) at paragraph 8
Mr McLeod deposes that he cannot remember the phrase when we start bargaining but deposes to hearing the phrase union trouble maker being attributed to Mr Bland. For the reasons provided above, I am not prepared to rule on the admissibility of this aspect of the evidence at this stage of proceedings.
f) Mr Plush
Mr Plush’s opinion that APC was attempting to “casualise its workforce” is not admissible in these proceedings. In addition, in my view, his evidence regarding the circumstances of his own termination from the company are not relevant nor is his opinion as to Mr Bland’s skills as an electrician. Finally, his evidence regarding his views as to how APC managed its sewage plants amounts to a collateral attack on the credit of the management of APC and should not be admitted.
Conclusions
These proceedings have been significantly delayed. This delay has not been as a consequence of any default on the part of APC. More recently, the matter has come under my control, for case management purposes, due to the retirement of the previous docket judge Judge Lindsay.
In these circumstances, application was made to list the matter to see what steps needed to be taken to ensure that the matter could be effectively listed for trial, within a time frame appropriate to the issues required to be determined, on the pleadings lodged by each of the parties.
It is in the interests of the community generally that trials not be unduly protracted[25] and the court’s attention not focussed on issues largely irrelevant to the issues required to be determined before it. One of the rationales of the rules of evidence is to enable courts to place limits on the evidence able to be admitted to ensure that proceedings are concluded within a reasonable timeframe.
[25] See Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
However the desirability of resolving cases in a timely matter is not to be achieved at the price of depriving the parties concerned of a just resolution of their case. The respondent is entitled to seek the court’s ruling as to the admissibility of evidence prior to the commencement of the hearing process in order to ensure that it is not put to unnecessary expense.
However, it is also the court’s over-riding responsibility to ensure that the ultimate outcome of the proceedings is a fair one, which encompasses an examination of all relevant evidence. In this context, it is sometimes difficult to rule on the admissibility of evidence, in a vacuum, prior to the trial process itself. As such, the preliminary examination of evidence, in a civil proceeding, is a task to be approached with some caution.
In this case I am not charged with undertaking an inquiry into the general affairs of APC or a more specific inquiry into how it has managed its workforce in the immediate past. The issue in dispute between the parties, in these proceedings, solely concerns why Mr Bland’s employment was terminated – was it for legitimate operational reasons, as Mr Martino contends or was that decision tainted because it was, at least in part, motivated by Mr Bland’s trade unionism.
Much of the evidence, which Mr Bland seeks to muster in these proceedings, concerns the complaints of others, regarding their treatment by the management of APC. From Mr Bland’s perspective, these issues are relevant because they go to the overall credibility of the company in their specific dealings with him.
The general rule is that, to be admissible, evidence must relate to a fact in issue in the proceedings concerned. For the reasons provided, I do not consider that much of the evidence sought to be elicited by Mr Bland is so relevant, although it may conceivably go to the credibility of some of the witnesses concerned. However to admit that evidence has the potential to greatly increase the length of the trial concerned.
The major area of contention, at this stage of the case, concerns the admissibility of conversations involving Mr Devey and others, which relate to Mr Bland’s trade unionism. In my view, it would be inappropriate for me to rule these conversations inadmissible because I am unaware, at present, of the scope of Mr Devey’s employment at APC and, in my view, the conversations may be relevant to the issue of why Mr Bland’s employment was terminated.
I have concluded, as a consequence of this reasoning that the relevant portions of the various affidavits, referred to above, should be struck out pursuant to the provisions of Rule 15.29(1) of the Federal Circuit Court Rules.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 24 October 2014
Key Legal Topics
Areas of Law
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Employment Law
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Evidence
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