Byrnes v Australian Skills Quality Authority
[2018] FCCA 2862
•5 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BYRNES v AUSTRALIAN SKILLS QUALITY AUTHORITY | [2018] FCCA 2862 |
| Catchwords: PRACTICE & PROCEDURE – Application for discovery – discovery sought of various categories of document relating to policies of the respondent – interests of the administration of justice – relevance – matters to be considered. |
| Legislation: Fair Work Act 2009, ss.12; 340; 341; 342; 346; 351; 361 Federal Circuit Court of Australia Act 1999, ss.3; 42; 45; 81; Evidence Act 1995, ss.55; 56 Federal Circuit Court Rules 2001, rs.1.05(1); 4.05; 14.02 |
| Cases cited: State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 CFMEU v BHP Coal Pty Ltd (2014) 314 ALR 1 Bruce v Oldhams Press Ltd [1936] 1 KB 697 Gaven & Gaven (No 2) [2012] FMCAfam 1005 Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740 Khiani v Australian Bureau of Statistics [2011] FCAFC 109 Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399 Board of Bendigo Regional Institute of Technology and Further Education v Barclay [No1] (2012) 248 CLR 500 Transport Workers’ Union of Australia v Premier Motor Services Pty Ltd [2015] FCA 650 |
| Applicant: | SAMANTHA MERCEDES BYRNES |
| Respondent: | AUSTRALIAN SKILLS QUALITY AUTHORITY |
| File Number: | ADG 241 of 2017 |
| Judgment of: | Judge Brown |
| Hearing date: | 28 May 2018 |
| Date of Last Submission: | 28 May 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 5 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Phillips SC |
| Solicitors for the Applicant: | Iles Selley Lawyers |
| Counsel for the Respondent: | Ms Nelson |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
The application in a case, filed on 5 April 2018, is dismissed.
The respondent’s costs of the application in a case are reserved to trial.
The parties’ competing application are fixed for final hearing on 14 to 18 October 2019 inclusive.
The matter be listed for directions on 18 April 2019 at 9:30am for directions.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 241 of 2017
| SAMANTHA MERCEDES BYRNES |
Applicant
And
| AUSTRALIAN SKILLS QUALITY AUTHORITY |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Samantha Mercedes Byrnes, commenced these proceedings on 20 June 2017, seeking relief pursuant to the provisions of the Fair Work Act 2009 (Cth).[1] The respondent to the proceedings is her former employer, the Australian Skills Quality Authority.[2]
[1] Hereinafter referred to as “the FWA” or “the Act”
[2] Hereinafter referred to as “the ASQA” or “the Authority”
In general terms, Ms Byrnes alleges ASQA illegally took adverse action against her, during the course of her employment with the Authority between late 2015 and July 2017, when she exercised a number of her workplace rights arising under the Act.
These reasons for judgment arise at an interlocutory stage, prior to both the allocation of a final hearing date and the filing of any substantive affidavits of evidence. They are directed to resolving an application in a case, filed by Ms Byrnes, on 5 April 2018, in which she seeks a formal order for discovery or alternatively the further and better disclosure of various categories of documents, which her solicitor has detailed to the solicitors for the ASQA.
There are fourteen categories of such documents, which are outlined in a seven page document, prepared by Mr Moran, who is Ms Byrnes’ solicitor.[3] It will be necessary, in due course, to outline the various categories of documents sought, in more detail. But in general terms, they relate to various policies of the ASQA, particularly in regards to complaint handling procedures and performance reviews and ancillary matters carried out by the Authority, in respect of the applicant.
[3] See annexure TJM4 to the affidavit of Travis John Moran filed 5 April 2018
ASQA contends that it is has already provided appropriate discovery, to Ms Byrnes’ solicitors, of all documents held by it, which are relevant to the issues required to be determined by the court, as raised by each of the parties. As such, it is the ASQA’s position that it is not in the overall interests of justice for the court to make any further orders for discovery.
As its name suggests, the ASQA is a Commonwealth Government authority created by the National Vocational Education and Training Regulating Act 2011 (Cth). It is the National Regulator for the vocational education sector and, regulates courses and training providers, within that sector, to ensure that statutorily mandated standards are maintained.
The applicant contends that the various policy documents, sought by her are relevant to the various workplace rights, which she asserts the authority has infringed. As such, she contends that the discovery sought by her will assist in the fair and expeditious conduct of her application and narrow the issues currently in dispute between the parties.
The legal principles applicable
The overall objectives of the court are set out in section 3(2) of the Federal Circuit Court of Australia Act 1999. [4] In this section, the court is directed to “operate as informally as possible” in the exercise of its judicial functions and is further directed “to use streamlined procedures”.
[4] Hereinafter referred to as the FCCA Act
In addition, pursuant to section 42 of the Act, the court is directed by the use of the word must to:
“… proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.”
It is in this context that the courts authority to allow interrogatories must be examined. Given its imprimatur to be a streamlined lower level Federal court dealing with less complex disputes than are currently dealt with by either the Family or the Federal Court, the Act provides a qualified prohibition against the use of either discovery or interrogatories in the Federal Circuit Court. In particular, section 45(1) of the FCCA Act provides as follows:
(1) Interrogatories and discovery are not allowed in relation to proceedings in the Federal Circuit Court of Australia unless the Federal Circuit Court of Australia or a Judge declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
Pursuant to section 45(2), in deciding whether to make such a declaration, the court is directed to have regard to the following matters.
“(a) whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and
(b) such other matters (if any) as the Federal Circuit Court of Australia or the Judge considers relevant.”
Pursuant to section 81 of the FCCA Act, the Judges of the Court are authorised to make rules in relation to the practice and procedure to be followed in the Federal Circuit Court. As a consequence of this power, the Federal Circuit Court Rules 2001 have been created.
Pursuant to rule 1.05(1), these rules are intended to govern the practice and procedures of the court. However, if the rules are insufficient or inappropriate, in any particular case, the court may apply the Federal Court Rules, if it is necessary to do so.[5]
[5] See Rule 1.05(2)
Rule 14.02 of the Federal Circuit Court Rules deals with disclosure of documents generally and discovery, pursuant to section 45(1) specifically. The court may make a declaration under the section, either on the application of a party or on its own motion.
In these circumstances, it appears that section 45 creates a rebuttable presumption, in proceedings before the court, that discovery will not be generally permitted. This is consistent with the Legislature’s direction, arising from section 3 of the Federal Circuit Court Act that the court is to act informally and utilise streamlined procedures.
Rather, before any order is made for formal discovery, the court must formally declare that it is appropriate, in the interests of the administration of justice, to allow discovery. The exercise of this discretion is governed by considerations of whether discovery would likely assist in the fair and expeditious conduct of the case concerned and any other relevant matters.
The legal provisions applicable to the application
Part 3-1 of the Fair Work Act is headed General Protections. Pursuant to section 340(1) a person must not take adverse action against another person because that other person has a workplace right.
Section 342(1) of the Act contains a table setting out the circumstances in which a person is to be regarded as having taken adverse action against another person. The first item of the table provides as follows:
“Adverse action is taken by an employer against an employee 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.”
The expression workplace right is defined by section 341(1) of the FWA;
(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
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee—in relation to his or her employment.
Section 12 of the Act defines workplace law and workplace instrument. Relevantly, workplace law means the FWA itself or any other law of the Commonwealth or a State, which regulates the relationships between employers and employees (including by dealing with occupational health & safety matters). A workplace instrument is any document made pursuant to a workplace law, which concerns the relationship between employers and employees.
Pursuant to section 351(1) of the FWA:
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
As a consequence of the use of the word because in sections 340 and 351 there must be a causal link between the taking of the adverse action against the applicant concerned and a protected attribute relating to that applicant, either as a consequence of a workplace right or one of the attributes listed in section 351.
Section 361 provides as follows:
“(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.”
The effect of section 361 is to place the onus of disproving the necessary causal link on the respondent. In these circumstances, an application arising under Part 3-1 of the Act involves three elements:
·Does the applicant have a workplace right or other protected attribute arising under either section 340 or 351 of the Act;
·Did the respondent concerned take adverse action against the applicant;
·If so, was the adverse action taken because of the applicant’s possession, exercise or proposed exercise of that workplace right or because of one of the protected attributes of the applicant concerned.
In State of Victoria (Office of Public Prosecutions) v Grant White J summarised the relevant principles applicable to section 361 as follows:
·The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
·That question is to be answered having regard to all the facts established in the proceeding.
·The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
·It will be “extremely difficult to displace the statutory presumption in section 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”
·Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
·If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by section 361.[6]
Albeit in a different kind of adverse action case (one concerning industrial organisation) Gageler J said as follows in respect of the onus arising under section 361:
“Where the adverse action taken is in consequence of a decision made by a responsible individual within a corporation, the existence or non-existence of a particular reason as an operative and immediate reason for taking that adverse action turns on an inquiry into the mental processes of that individual.”[7]
[7] CFMEU v BHP Coal Pty Ltd (2014) 314 ALR 1 at18 [85]
In this particular case, Ms Byrne alleges that she exercised a number of workplace rights to complain about how she was treated by one of her managers at ASQA [section 341(1)(c)]. Because she did so, she was subject to adverse action, namely she was refused a work transfer from Hobart to Adelaide and ultimately her employment was terminated when she was on parenting leave.
In addition, she alleges that she was refused this transfer because of a protected attribute, namely she was pregnant and married to another employee within the ASQA [section 351(1)]. In these circumstances, she seeks compensation and damages as a consequence of adverse action, particularly regarding her termination.
The ASQA’s position is that it terminated Ms Byrne’s employment for reasons which were not protected under the Act, namely Ms Byrne had breached the provisions of the Australian Public Service Code of Conduct and had been guilty of misconduct in the workplace because she had taken up another position, whilst on parenting leave without informing the Authority of this situation and being generally evasive in respect of her conduct.
The pleadings to date
Proceedings, in the Federal Circuit Court, must be commenced by the filing of an application in approved form. However, in pursuit of the aspiration that the court’s processes be flexible and adaptable to the circumstances prevailing, an applicant is given a choice as to what is to be filed with any such application.
Essentially, an applicant in a general federal law proceeding has an election as the appropriate mechanism for defining the issues, which are the subject of the litigation in question. Having made the relevant election, the rules direct what course a respondent must take.
Pursuant to rule 4.05, an applicant must ordinarily file an affidavit stating the facts relied upon. However, pursuant to rule 4.05(2), an affidavit is not required if, in a general law proceeding, a statement of claim or points of claim are filed.
Pursuant to rule 4.05(3), if a statement of claim or points of claim are filed, any relevant respondent must file a defence or points of defence instead of an affidavit. In this particular case, Ms Byrnes has proceeded by way of a statement of claim, which was filed on 11 January 2018. The ASQA filed a defence to this statement of claim on 8 February 2018. As yet, no affidavits of evidence have been filed by either party, other than affidavits of documents, which have been filed on behalf of both parties.
The term pleading refers to the formal documents in which litigants set out the presentation of their claims and defences to those claims, in the suit, which they wish the court to determine. They are filed and served sequentially, according to the rules of the particular court in question.
A statement of claim must identify a set of alleged facts that have a particular quality, which if established at trial, will entitle the applicant to the remedy or remedies claimed. A defence is the formal rebuttal of those alleged facts.
It is in the context of these pleadings that the court must determine the issue of whether the discovery provided thus far by the ASQA is adequate or otherwise. Pleadings contain statements of material fact, which a defence, in turn, will either admit or deny. An admission will have the effect of ending factual controversy about an allegation made in a statement of fact. The intent is to confine the issues to be determined by the court invoked to resolve the dispute between the parties concerned.
Material facts, in this context, have been defined as facts, whose existence is “necessary for the purpose of formulating a complete cause of action”.[8] By necessary implication, to provide a legal answer to the cause of action so raised, a defence must provide a rebuttal of each such material fact. Accordingly, there must be a connection between the material fact alleged and a legal principle, which founds the relevant cause of action.
[8] See Bruce v Oldhams Press Ltd [1936] 1 KB 697 at 712
In Gaven & Gaven (No 2) Judge Jarrett, of this court, succinctly summarised the distinction between an affidavit and a pleading in the following terms:
“An affidavit is a statement, sworn or affirmed, by a deponent who gives evidence. The purpose of an affidavit is to provide evidence. An affidavit is different to a pleading. A pleading alleges facts and facts alone (or at least is intended so to do). An affidavit, however, is of a quite different character.”[9]
[9] Gaven & Gaven (No 2) [2012] FMCAfam 1005
Formal pleadings are not mandated in the Federal Circuit Court by its Rules. However, at the same time, the Rules recognise that some types of proceedings are likely to be better served by the use of pleadings. The FCCR do not specifically indicate which type of cases is better suited to the use of affidavits and which is more amenable to pleadings.
There is no controversy between the parties that Ms Byrne commenced her duties with the ASQA, on 26 September 2011, in its Hobart office. She was promoted in October of 2013. It is also agreed that there were no concerns about any aspect of Ms Byrne’s employment until Mr David Garner became her line manager in late 2015. Mr Garner was responsible for appraising Ms Byrne’s work performance.
In her statement of claim [paragraph 6] the applicant alleges that, on 9 November 2015, she exercised a workplace right to complain about how Mr Garner had mishandled a complaint lodged by a training provider, Duerinckx Enterprises Pty Ltd, against her. She further alleges that Mr Garner did not comply with ASQA processing of complaints policy or provide her with a substantive response in regards to it.
ASQA admits that Ms Byrne did exercise a workplace right by complaining about Mr Garner. She did so by lodging a Request for Review of Action. It denies that the complaint was not appropriately investigated or that Ms Byrne was not informed of the outcome of the investigation [see Defence paragraphs 6 – 8].
Thereafter, the applicant alleges that after she made the complaint of 9 November 2015, the way in which Mr Garner treated her at work changed [SOC paragraph 9] and in particular that an application made by her for study leave was not processed expeditiously by Mr Garner.
The defendant objects to this particularisation on the basis that it is vague and ambiguous. As a consequence of the alleged delays in processing her study leave application, Ms Byrne requested, in March of 2016, that there be a review of Mr Garner’s failure to make a decision in request of her study leave application. Subsequently, on 1 April 2016, Ms Byrne’s study leave application was approved, albeit with some amendment.
The defendant admits that the applicant exercised a workplace right to complain about how Mr Garner had handled her study leave application [Defence at paragraph 9h)]. In this context, the applicant does not allege any specific adverse action was taken against her in respect of her complaint.
The applicant was provided with a Diner’s Club credit card for use in conjunction with her duties. It was necessary for there to be a formal acquittal of the expenditure raised by it use. This was done by Mr Garner. Ms Byrne alleges that Mr Garner did not approve some of her Diner’s Club acquittals in the period between late 2015 and 23 June 2016 but rather requested that she provide additional receipts.
In this context, the applicant alleges [SOC paragraphs 10 - 16] the ASQA took adverse action against her by invoking a performance development meeting, which took place on 13 July 2016 and was undertaken by Mr Garner. He provided the applicant with an assessment of her performance on 22 July 2016 and indicated to her that he intended to mark some aspects of her performance as unsatisfactory.
In this context, the applicant alleges that this rating was made by Mr Garner because she had previously complained about his conduct towards her in respect of the Duerinckx matter; her study leave application; and the Diner’s Club acquittal.
ASQA admits that the applicant exercised a workplace right to complain about Mr Garner but denies that it, through the agency of Mr Garner, took any adverse action against Ms Byrne. Rather it asserts that the performance assessment was carried out in a bona fide manner against applicable criteria and in any event, the applicant was found to unsatisfactory in only one area, namely Contributes to ASQA Leadership, in which area she was rated as “mostly achieves expectations”. It asserts it is not in a position to know whether this rating has had any consequences for Ms Byrne’s capacity to be employed by any state based agency.
The applicant was pregnant at the time of this workplace assessment. On 22 July 2016, she was admitted to hospital with elevated blood pressure. It is the ASQA’s position that she was due to start maternity leave on 1 August 2016 and it was advised of the applicant’s admission by her husband. Ms Byrne’s husband is Peter Cribb. Mr Cribb, at relevant times, was also employed by the ASQA as a legal officer, in its Hobart office.
Ms Byrne also alleges adverse action, initiated by Mr Garner, in respect of possible work transfers, by her, within ASQA. Firstly, to a role of Regulatory Operations manager in its Adelaide office; secondly to a similar role in its Hobart office. The applicant indicated her potential interest, in each of these positions, to Mr Garner, by email, in June of 2016, prior to her maternity leave.
The ASQA admits that Mr Garner indicated to Ms Byrne that she should express her interest in the Adelaide position in writing and she did so on 23 June 2016. It also concedes that it inquired of Ms Byrne whether Mr Cribb would also seek a transfer to Adelaide. It is also admitted that the ASQA refused the transfer on 19 July 2016 because it had elected to advertise the position.
The applicant alleges that this decision – the refusal of her transfer and the decision to advertise the position – was vitiated by illegal considerations, protected under the Act, namely that she was pregnant and married to Mr Cribb and because she had previously made complaints about Mr Garner’s treatment of her.
In its defence [paragraph 25], the ASQA denies these allegations. It contends that:
·The transfer did not suit its business need;
·The ethos of the Public Service encouraged an open merit based selection;
·The Adelaide role was significantly different in scale to the Hobart role then being performed by the applicant;
·There was no precedent for a direct placement to such a position, within the Agency, without a full merit selection process:
In these circumstances, the ASQA denies that any protected attributes of the applicant played a role in the decision and Ms Byrne was invited to apply for the position in question when it was advertised in accordance with the normal principles of the Australian Public Service.
There is no controversy that the Adelaide position was advertised and the applicant applied for it, on 10 August 2016, whilst on maternity leave. The applicant was granted an interview, which took place on 26 August 2016. Mr Garner was a member of the relevant interview panel. She was not granted the position. The applicant asserts that this decision was also influenced by illegal considerations under the Act.
The ASQA has denied this allegation [defence paragraph 30]. It asserts that the reasons for the decision were as follows:
·The applicant was shortlisted to one of five candidates from an initial field of sixteen;
·Appropriate adjustments were made for the applicant because of her pregnancy, in that she was able to take part in the interview process by videoconference;
·She was rated as competent to fill the relevant position, whilst the successful applicant was rated as fully competent. As such another candidate was rated as superior to Ms Byrne;
·The interview panel resolved to offer the position to Ms Byrne, if the preferred candidate declined it;
·There was a merits review of the decision.
There is no controversy that the applicant was on paid maternity leave from August 2016. It is also agreed [SOC 34; Defence 34] that Ms Byrne advised the ASQA of her intention to extend her maternity leave to 31 July 2017. This followed discussions between her and the HR manager of ASQA, who had written to Ms Byrne in February of 2017, asking when she planned to return to work. Ms Byrne responded on 20 February outlining three possible scenarios as follows: extending her parental leave; returning to her substantive position in Hobart; or accepting a lower ranking position, with ASQA, in Adelaide.
On 8 March 2017, Ms Byrne formally informed ASQA of her intention to extend her parental leave. From ASQA’s perspective, Ms Byrne had left one significant detail from this dialogue, which was that she had accepted a position and commenced employment with the South Australian Attorney-General’s Department from 9 January 2017.
In this context, ASQA formed the view that given Ms Byrne had not informed it of this employment and had not formally obtained its approval, she may have breached ASQA’s Outside Work Policy, which might render her liable to a Code of Conduct hearing under the Australian Public Service Code of Conduct.
The ASQA nominated a Mr Davidson to investigate whether Ms Byrne had breached the Code of Conduct. This investigation took place in April and May, with Mr Davidson reporting on 26 May 2017. He determined that she had breached the Code of Conduct and recommended termination of employment or a warning as a sanction.
Ms Byrne wrote to Mr Davidson informing him that she viewed the proposed sanction as disproportionate. It is agreed Mr Davidson reconsidered the matter after receiving a submission from Ms Byrne. On 30 June 2017, Mr Paterson the CEO of ASQA terminated Ms Byrne’s employment. There is no controversy that this is adverse action for the purposes of the FWA.
This is the central evidentiary issue arising in the case: why was Ms Byrne’s employment terminated? Ms Byrne contends that it was for the following reasons, which are impermissible under the Act:
·She had made complaints about Mr Garner;
·She was on maternity leave;
·She had exercised various workplace rights in respect of: the Duerinckx complaint; the Diner’s Club acquittal; her study leave application; her application to transfer to Adelaide; her response to the Code of Conduct inquiry;
·She had requested the ASQA comply with its workplace policies.
On the other hand, ASQA contend that the decision to terminate Ms Byrne’s employment was made by Mr Paterson in his capacity as CEO and was for the following reasons:
·She had breached the APS Code of Conduct;
·She had been evasive with its staff;
·She had not acknowledged that she had done anything wrong;
·She had demonstrated a lack of judgment and insight;
·She should have been aware of the requirements of the Code of Conduct, given her level of seniority.
It is in the context of the pleadings that the court must determine whether it is in the interest of the administration of justice to direct the discovery sought by the applicant in these proceedings. A central component of this inquiry is whether the discovery is likely to assist in the fair and expeditious conduct of the case.
Discussion
The applicant’s position is that the pleadings are indicative of a toxic workplace, particularly in terms of the relationship between Mr Garner and the applicant from the time of the Duerinckx issue in late 2015 onwards.
From her perspective, what happened at this stage and afterwards, coloured the ultimate decision, taken by senior management of ASQA, to terminate her employment and therefore the evidence of these matters and policies germane to their disposal are relevant to the court’s task arising under the Act, namely why was the applicant dismissed.
The respondent’s position is that the court’s task is more confined than that. From its perspective, the court’s jurisdiction arises only to determine the reason why Ms Byrne employment was terminated and ascertain whether it was for a reason which is not authorised by the Act. It concedes that Ms Byrne did indeed exercise a number of work place rights prior to her termination but her actions did not result in any adverse action being taken against her by it. As such these matters are not relevant to the central issue requiring adjudication.
In this context, in my view, it must be borne in mind that the issue, in an adverse action claim, arising under section 340 or section 351 of the Act, is not whether the employee concerned was unfairly dismissed or otherwise unreasonably or poorly treated. The task is to determine, if it is found that adverse action has been taken against the person concerned, what is the reason for that action and whether it was for a proscribed reason.
As White J said in Tsilibakis v Transfield Services (Australia) Pty Ltd[10]
It is necessary to keep in mind that the focus in a case like the present must be on whether the employer has taken the adverse action for a proscribed reason. It is not a review generally of the fairness of the employer’s conduct. The Full Court made this point in Khiani v Australian Bureau of Statistics[11] when it said:
“... A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3–1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts. In the present case, the question is whether the respondent has taken adverse action against the appellant because she had a workplace right to be on sick leave, or because she had exercised that right.
The first question to be addressed in such a case is whether adverse action was taken. Determining this question requires identification of the adverse action alleged. ...”
[10] Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740 at [16]
[11] Khiani v Australian Bureau of Statistics [2011] FCAFC 109 per Gray, Cowdroy & Reeves JJ
Accordingly, when the proceedings come on for final hearing, I must bear in mind that I am not holding a general inquiry into whether ASQA is a good or bad employer or whether Mr Garner is or is not a competent manager. Nor am I authorised to make findings about what sort of workplace ASQA provided to Ms Byrne or whether she was treated fairly or respectfully there. The inquiry is on why she was dismissed, bearing in mind the reverse onus situation created by section 361.
Collier J in Jones v Queensland Tertiary Admissions Centre Limited (No 2)[12] explained the operation of section 361 of the FWA in the following terms:
“That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason … it is not sufficient for [an applicant] to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that [an applicant] is able to prove these allegations, the burden is then cast on to [the employer] to prove that adverse action was not taken against [an applicant] because of [her] workplace rights for the purposes of section 340 and 361 of the Act.” (citations removed).
[12] Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399 at [10]
In Bendigo Regional Institute of Technology and Further Education v Barclay & Anor[13] the High Court, in the context of section 346 of the Act, which provides protection for employees against adverse action motivated by an employer in respect of industrial activities, discussed the application of the onus arising under section 361. In the case, Gummow and Hayne JJ said as follows:
“In determining an application under s 346 [it is necessary to] 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]
[13] Board of Bendigo Regional Institute of Technology and Further Education v Barclay [No1] (2012) 248 CLR 500
[14] Ibid at 542[127]
My task, therefore, when the hearing arises, is to determine the substantive and operative reasons why Ms Byrnes was terminated and if that reason relates to some attribute of Ms Byrnes which the legislation forbids be taken into account.
ASQA assert that its motivation results from a simple chain of cause and effect – Ms Byrne took an external position, without informing it, whilst she was on parental leave. As such, she breached the APS Code of Conduct, which rendered her liable to sanction, one of which was termination. It was for this reason alone that she was dismissed, which ipso facto was not for a reason rendered illegal under the FWA.
On the other hand, Ms Byrne asserts that she had been in bad odour with the ASQA, particularly Mr Garner, for a significant period of time. In this context, she suggests that she was perceived to be some sort of troublemaker by ASQA management and therefore the ostensible reason for her termination is likely to mask other motivations, which ASQA are unlikely to semaphore to her but which nonetheless fall within the purview of either section 340 or section 351 or both.
It seems a reasonable inference, from the content of the pleadings, that relations between Ms Byrnes and Mr Garner and indeed other members of management at the ASQA, were not always harmonious from late 2015 onwards. However, be that as it may, I am not conducting an inquiry into the nature of the ASQA workplace per se. I must also, when the time comes to consider the evidence, be careful not to attribute subliminal motivations to any of the actors concerned in the case, particularly Mr Paterson, the ultimate decision maker.
I also note that I have not as yet received any affidavit evidence from any of the parties concerned. It is the submission of Ms Nelson, counsel for ASQA, that this is not a documents case as it turns on one central evidentiary issue – why did Mr Paterson decided to do what he did. Even if he did so as a consequence of some tacit form of nods and winks from Mr Garner or otherwise, the documents sought are not likely to be relevant or to aid the expeditious and fair resolution of the case.
Ultimately, the court will likely have to determine whether it believes the senior management of ASQA as to why it terminated Ms Byrnes’ employment, given it bears the onus. I concede that this may not be a straightforward task. I note, of course, that I am not determining this salient issue in the context of the current proceedings. However the relevance of discovery must be gauged against what is the court’s ultimate task in the proceedings before it.
In Hadgkiss v Sunland Constructions Pty Ltd & Ors[15] Kiefel J (as Her Honour then was) summarised the considerations relevant to the establishment of facts, on the balance of probabilities, in civil proceedings, particularly those involved in civil penalty proceedings. Her Honour indicated as follows:
·The strength of the evidence necessary to establish a fact or facts, on the balance of probabilities, may vary according to the nature of what it is sought to be proved;
·The conventional perception is that people do not ordinarily engage in conduct prescribed by legislation and, as such, a court should not lightly make a finding to this effect, in civil litigation.
[15] Hadgkiss v Sunland Constructions Pty Ltd & Ors (2007) 158 FCR 193 at 195 [11]
Ultimately, in this context, as Gageler J observed in BHP Coal, the evidentiary inquiry, in this case, is likely to centre on what was going on in Mr Paterson’s mind, when he made the decision to terminate Ms Byrne’s employment and the mental processes which informed that decision.
What is the discovery sought
The applicant seeks additional discovery of the following categories of documents:[16]
[16] Those marked with an * seem to be personal to the applicant; the remainder generic. They are detailed in Mr Moran’s letter.
·ASQA’s complaint processing procedure;
·Review of action procedure;
·Travel policy;
·Performance or end of cycle review;
·Performance development framework;
·ASQA performance and APS Code of Conduct;
·ASQA supervisor notes;
·Guide to Performance Agreements;
·Documents germane to the Duerinckx complaint;*
·Documents relating to the applicant’s study leave application;*
·Documents relating the applicant’s Diner Club card acquittals;*
·Audit timeframe reports for 18 November 2013 – 30 June 2016;
·Leadership reports in respect of Mr Garner and Ms Byrne;*
·Documents relevant to the restructure of ASQA’s Hobart office.
I have no way of ascertaining how voluminous these documents are likely to be. It seems more likely than not that they will encompass many pages and will relate more to the management of ASQA and the obligations of public servants in a generic sense than to the issues raised by Ms Byrne in her statement of claim.
In this context, in my view, I must bear in mind that the applicable legislation, germane to the court’s operation, does not envisage discovery as a matter of course. It is the exception rather than the rule, given that the court’s primary raison d’être is the provision of expeditious and efficient justice.
At first blush, the inclusion of potentially prolix documents, relevant to the respondent’s general policies, in the case, would appear to be contrary to this ethos and likely to slow down the process of litigation rather than speed it up. In this context also, I must remain cognisant of the fact that I am not holding an inquiry generally into the probity of either Mr Garner or ASQA’s conduct towards Ms Byrne.
In my view, given relevant authority the scope of the court’s inquiry is necessarily confined to one central issue: What were the operative factors in Mr Paterson’s mind when he made the decision to terminate Ms Byrne’s employment. This is the adverse action which is necessarily the focus of Ms Byrne’s application.
The general rule is that documents which are relevant to proceedings should be utilised is such proceedings. Given this is a case utilising pleadings, discovery is limited to issues arising from the pleadings. I appreciate that I am not, as yet, determining the overall relevance and so admissibility of the documents sought to be discovered. But, in my view, relevance must be germane to any exercise of the discretion arising under section 45 of the FCCA Act.
Pursuant to section 56 of the Evidence Act 1995 only relevant evidence is admissible in proceedings before the court, whilst evidence, which is not relevant is inadmissible. This enjoins the provisions contained in section 55, which provides as follows:
55 Relevant 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. 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.”[17]
[17] See Harrington-Smith v Western Australia (2003) 130 FCR 424 at 426
I have not examined any of the documents, in respect of which discovery is sought. It does not, however, appear improbable that they will be anything other than voluminous in nature and their relevance to the central evidentiary issue arising in the case – namely why adverse action was taken against Ms Byrne – likely to be moot.
In these circumstances, in my view, the potential addition of multiple documents to the proceedings, may well imperil the legislative directive, to which the court is subject, to provide less formal and expedited access to justice. In Rana v University of South Australia [18] Lander J recognised that this court, referring to its precursor, the Federal Magistrates Court:
“…has been created to offer relatively inexpensive and expeditious justice. It is a Court which should proceed without undue formality and should ensure proceedings are not protracted: [section 42]. It has abandoned the formal procedures of superior Courts. That course is consistent with the Act and the FMCA Rules.”
[18] Rana v University of South Australia (2004) 136 FCR 344 at [34]
In this context, it is necessary to make reference to the specific provisions, within the legislation, dealing with discovery. The first point to be noted is that section 45 of the FCCA Act creates a rebuttal presumption that discovery will not ordinarily be permitted.[19] In deciding whether the presumption should be rebutted, it is necessary for the court to determine whether it is appropriate to do so, in the interests of the administration of justice.
[19] See NAQR & Ors v Minister for Immigration (No 1) [2002] FMCA 271 at [5]
Administration as a noun refers to the process or activity involved in running an organisation. In a broader sense, it refers to the management of public affairs or government generally. Accordingly, the concept contained in section 45(1) is distinct from the interests of the parties concerned in any particular piece of litigation. It has wider connotations and can encompass the interests of other users of the justice system and the community generally, who have an interest in ensuring the court resources are utilised rationally and carefully for the benefit of all.
In this context, it is likely to be beneficial to these other stakeholders that cases be concluded expeditiously, through a focus on the main issues arising in them, so that the court’s scarce judicial resources can be applied as widely as possible to the speedy resolution of other cases.
In my view, considerations of this type have informed the legislature’s directive in respect of the issue of interrogatories and discovery, in this court, which is placed on the longest rung of the Federal Judiciary and, as such, is directed to towards the resolution of less complicated matters falling within its jurisdiction.
In this context, what was said by the former Chief Justice of the High Court, French CJ in Aon Risk Services Australia Limited v Australian National University[20] appears germane. His Honour said this:
“The adversarial system has been qualified by changing practices in the Courts directed to the reduction of costs and delay and the realisation that the Courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources.”
[20] Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
I am concerned that the additional discovery sought is not likely to result in a proper and efficient use of public resources when the competing applications of the parties come on for final hearing, given the ambit of the dispute between them, which turns on what was the reason for Mr Paterson’s decision.
The considerations are amplified and reinforced when the contents of section 45(2) are taken into account. This section speaks explicitly of the need for both fair and expeditious conduct of proceedings as matters relevant to whether a declaration should be made pursuant to section 45(1) of the FCCA Act.
In these circumstances, it is clear that the relevance of potential discovery alone cannot be determinative of whether a section 45(1) declaration is made. In Abrahams v Qantas Airways Limited (No 2)[21] Lucev FM (as His Honour then was) identified the following considerations as being relevant to the exercise of the discretion:
·the relevance of any documents sought to be discovered;
·the volume of documents sought to be discovered;
·whether there is a court book containing relevant documents, and the extent to which relevant documents are included in the court book;
·whether discovery would narrow the issues;
·whether both parties seek discovery;
·whether there is consent to discovery;
·whether discovery is “of benefit” in the litigation; and
·the effect of discovery on litigants, especially, vulnerable litigants.
[21] Abrahams v Qantas Airways Limited (No 2) [2007] FMCA 639
Conclusions
Clearly, the issue of discovery is highly controversial in the current matter – with counsel for ASQA asserting dogmatically “this is not a documents case”; whilst counsel for Ms Byrnes asserts that without the documents sought, she “will have difficulty pursing her case.” This submission being based on the assertion that, without access to ASQA policy documents, she will be unable to establish Mr Garner acted took adverse action against prior to the ultimate adverse action taken against by her Mr Paterson, in the form of her dismissal from ASQA.
I appreciate that the definition of adverse action provided in section 342 is a wide one and includes an injury to employment or the alteration of an employee’s position, which is prejudicial to him or her. In Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia & Ors[22] the High Court discussed the expression injure an employee in his or employment and concluded that the expression encompassed:
“…a broad additional category which covers not only legal injury but any adverse affectation of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.”
[22] Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia & Ors (1998) 195 CLR at 4
In Transport Workers’ Union of Australia v Premier Motor Services Pty Ltd[23] Perry J characterised the prejudicial of a person’s position as “a broad additional category which covers not only legal injury but any adverse affectation of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.”
[23] Transport Workers’ Union of Australia v Premier Motor Services Pty Ltd [2015] FCA 650 at [33]
As I understand it, Ms Byrnes asserts that her treatment by Mr Garner, in respect of such things as the Duerinckx complaint; the Diner’s Club acquittal; and her study leave application; may not have resulted in some readily apparent form of adverse action, it nonetheless constituted some form of injury or prejudice to her employment, which created a malign and occult attitude towards held by the management of ASQA against her, which was subsequently made manifest by the obvious adverse action of Mr Paterson, in deciding to terminate her employment.
The submission being that, when Mr Garner’s treatment of these various matters is compared to the applicable policies of ASQA, it will be readily apparent that there has been a failing in the performance of his professional/managerial responsibilities owed to Ms Byrne, which will buttress the argument that her employment, at ASQA, has been injured, which in some way is related to or accumulative with the obvious adverse action of Mr Paterson and has played a part in her mental processes.
In my view, this is a complex and somewhat abstruse argument. It is also contrary to the general principle that a general protection application is not to be utilised as a general inquiry in the overall probity of an employer. In these circumstances, I do not consider that the discovery sought is likely to lead to the narrowing of issues or the saving of time – quite the contrary. As such I do not consider that there are likely to be any inherent benefits arising from the discovery.
I have already alluded to the potential relevance of the documents sought, particularly in the context of what I have assessed to be the main focus of the case – why did Mr Paterson elect to terminate Ms Byrnes’ employment? In addition, although I have not been advised as to how many documents in total are sought and what are their actual size, it does not seem likely that they will be modest in either number of length.
Certainly, I have not been provided with any convenient court book, which in any event, if it did exist, would likely defeat the purpose of having this involved dispute, largely in the abstract, about what is to be discovered. The bottom line is that I have reached the conclusion that it would not be in the interests of the administration of justice to allow further discovery in the matter.
In all these circumstances, I have come to the conclusion that I should not make the declaration for additional discovery sought by the applicant. Accordingly, the application in a case, filed on 5 April 2018 is dismissed. Any issue arising, in respect of the costs of this application, can be reserved to the final hearing.
In this context, both parties have asked me to allocate five days for the final hearing of the matter. I will allocate 14 to 18 October 2019, which regrettably are the earliest consecutive dates available to me for final hearing.
I will list the matter for directions, particularly for the making of necessary direction for the filing of trial affidavits on 18 April 2018, which is advisedly well in advance of the trial dates. At this stage, it may also be appropriate to inquire of the parties as the applicability of alternative resolution processes to their circumstances, given the potential burden, both financial and emotional, for the parties concerned.
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 twelve (112) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 5 October 2018
[6] State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32]
Key Legal Topics
Areas of Law
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Administrative Law
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Employment Law
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Statutory Interpretation
Legal Concepts
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Discovery
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Procedural Fairness
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Remedies
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Standing
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Statutory Construction
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