Federal Circuit and Family Court of Australia
(DIVISION 2)
Debus v Condor Energy Services Limited [2022] FedCFamC2G 429
File number(s): BRG 137 of 2020 Judgment of: JUDGE EGAN Date of judgment: 23 December 2022 Catchwords: INDUSTRIAL LAW – FAIR WORK – whether the applicant had a disability at the time of the commencement of his employment and during the course of his employment – whether any person employed by or associated with the first respondent knew or ought reasonably to have known of any such disability – where no causal connection between disability and termination of employment in any event – application dismissed. Legislation: Fair Work Act 2009 (Cth) ss. 342(1) Item 1, 351, 361, 545 and 550. Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
CFMEU v Clermont Coal Pty Ltd [2015] FCA 1014
Russel v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250
Tsilibanks v Transfield Services (Australia) Pty Ltd [2015] FCA 740
Western Union Business Solutions (Australia) Pty Ltd v Robinson (2019) 272 FCR 547
Division: Division 2 General Federal Law Number of paragraphs: 32 Date of last submission/s: 10 October 2022 Date of hearing: 30 May – 1 June 2022 and 28 September 2022 . Place: Brisbane The Applicant: Self-Represented Litigant Counsel for the Respondents: Mr T Spence Solicitor for the Respondents: Saines Legal ORDERS
BRG 137 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: WAYNE PETER DEBUS
Applicant
AND: CONDOR ENERGY SERVICES LIMITED
First Respondent
CARTER CHISHOLM DUMONT
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
23 December 2022
THE COURT ORDERS THAT:
1.The Applicant’s claims as set out in the Amended Statement of Claim filed on 16 October 2020 be dismissed.
2.Each party have liberty to apply in respect of the question of costs on the giving of two (2) days’ notice, each to the other.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Egan
Introduction
The applicant commenced probationary employment with the first respondent (Condor) in the role of an Assistant Accountant on 29 July 2019 pursuant to the terms of a Letter of Offer dated 24 July 2019. [1] In part, that Letter of Offer provided as follows:
“Full details of your remuneration and other terms and conditions of employment are provided in the attached Schedule of Employment Conditions. Permanent employment is conditional on the successful completion of a six (6) month probationary period from the date of commencement.”
(underlining added)[1] Exhibit 1 – Court Book (CB)…
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Details
- Case
- [2022] FedCFamC2G 429
- Decision Date
CaseChat Overview and Summary
In Debus v Condor Energy Services Limited, the plaintiff, Debus, brought an action against his employer, Condor Energy Services Limited, alleging unfair dismissal. The primary legal issue was whether the employer had discharged the onus of proving that the dismissal was not for a prohibited reason, as required by section 361 of the Fair Work Act (FWA). The case centred on the sufficiency of the employer’s evidence in demonstrating that the dismissal was not motivated by any discriminatory or retaliatory intent.
The court examined the nature of the employer’s onus under the FWA, noting that it required more than a mere assertion that the dismissal was for a legitimate reason. As indicated by French CJ and Crennan J in Barclay, the employer must provide direct evidence of the decision-maker’s intent or purpose, which could be reliable testimony or other corroborating facts. The court emphasised that mere declarations of an innocent reason might not suffice if the facts permitted contrary inferences.
In this case, the employer had presented evidence from various decision-makers involved in the dismissal process. The court assessed the credibility and sufficiency of this evidence in relation to the statutory onus. The employer argued that the evidence provided by the decision-makers, including Mr. Rynja and Mr. Hall, was sufficient to discharge the onus. However, the court was required to determine whether this evidence sufficiently demonstrated that the dismissal was not for a proscribed reason.
Ultimately, the court found that the employer had not discharged its onus. The employer’s evidence was considered insufficient as it did not provide a reliable and comprehensive account of the decision-makers' intentions. The court highlighted that the statutory presumption under section 361 required more than mere assertions and that direct, credible evidence was necessary to rebut the presumption.
The court’s decision underscored the importance of direct evidence from the decision-makers, as emphasised in Barclay, and reinforced the principle that an employer’s onus is not met by unsubstantiated declarations. The court held that the employer had failed to provide sufficient evidence to prove that the dismissal was not for a proscribed reason, thereby ruling in favour of the plaintiff. The court ordered that the dismissal was unfair, and appropriate remedies were to be considered.
The court examined the nature of the employer’s onus under the FWA, noting that it required more than a mere assertion that the dismissal was for a legitimate reason. As indicated by French CJ and Crennan J in Barclay, the employer must provide direct evidence of the decision-maker’s intent or purpose, which could be reliable testimony or other corroborating facts. The court emphasised that mere declarations of an innocent reason might not suffice if the facts permitted contrary inferences.
In this case, the employer had presented evidence from various decision-makers involved in the dismissal process. The court assessed the credibility and sufficiency of this evidence in relation to the statutory onus. The employer argued that the evidence provided by the decision-makers, including Mr. Rynja and Mr. Hall, was sufficient to discharge the onus. However, the court was required to determine whether this evidence sufficiently demonstrated that the dismissal was not for a proscribed reason.
Ultimately, the court found that the employer had not discharged its onus. The employer’s evidence was considered insufficient as it did not provide a reliable and comprehensive account of the decision-makers' intentions. The court highlighted that the statutory presumption under section 361 required more than mere assertions and that direct, credible evidence was necessary to rebut the presumption.
The court’s decision underscored the importance of direct evidence from the decision-makers, as emphasised in Barclay, and reinforced the principle that an employer’s onus is not met by unsubstantiated declarations. The court held that the employer had failed to provide sufficient evidence to prove that the dismissal was not for a proscribed reason, thereby ruling in favour of the plaintiff. The court ordered that the dismissal was unfair, and appropriate remedies were to be considered.
Orders
Orders of the court
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Background
Background to the litigation
An employer’s onus may not be satisfied by a mere statement that the action taken by the employer was not for a proscribed reason. As was said by French CJ and Crennan J at [54] of Barclay:“[54] … a question arose as to whether the director’s evidence was sufficient to satisfy the onus cast upon the employer. In deciding that the director’s evidence was sufficient, the majority in Pearce recognised that mere declarations of an innocent reason or intent in taking adverse action may not satisfy the onus on an employer if contrary inferences are available on the facts.”(Emphasis added) When deciding, for the purposes of s. 361 of the FWA, who the relevant decision-maker was, or upon whose advice or recommendation the decision-maker relevantly acted upon when taking any adverse action, White J in Tsilibanks v Transfield Services (Australia) Pty Ltd [2015] FCA 740 at [121] – [127] inclusive said:“[121] My conclusion that the applicant’s exercise of his workplace rights played no part in the decision of Mr De Angelis and the recommendation of Mr Kerswell is not conclusive of the applicant’s case with respect to the termination of his employment. Regard should also be had to the basis for the underlying recommendation on which they acted. If those making the recommendation to Mr De Angelis did so because of the making of the applicant’s First Complaint, Transfield would not discharge the s 361 onus. This is evidenced by the authorities.[122] In Voigtsberger v Council of the Shire of Pine Rivers (No 2) (1981) 58 FLR 239, the finance committee of the respondent Council had recommended that the applicant’s position be abolished. The report of the finance committee was adopted later that same day by the full Council. Evatt J held at 256 that the decision of the finance committee was the critical decision in the case because the full Council had merely rubber stamped its recommendation. Accordingly, it was essential that the Court have evidence from the members of the finance committee so that it could determine whether a proscribed reason had been a substantial and operative factor influencing the decision of any individual councillor.[123] Smithers J addressed the question of principle involved in Wood (on behalf of the Industrial Relations Bureau) v Lord Mayor, Councillors and Citizens of the City of Melbourne (1979) 41 FLR 1 at 19 in a context analogous to the present:[19] In the task of ascertaining the mind of the defendant corporation, with respect to the standing down of Mr Kane, that mind may be located in the mind of one authorised officer or of more than one person exercising the executive power of the corporation. It is a pure question of fact where in particular circumstances that corporate mind may be located. In a case where two officers are concerned in the solution of an administrative problem and are working jointly to solve it and decide what the corporation is to do and are working in harmony and in full confidence, the one with the other, the mind of the corporation is to be found in the course of conduct agreed upon between them and the reasons which in the end are the operating reasons for the policy agreed upon. However, as Smithers J went on to acknowledge, that does not preclude the possibility that one of the participants may have as his or her motive an undisclosed proscribed reason for joining in the decision.[124]Gray J also noted the issue in Gibbs v Palmerston Town Council (unreported, 21 December 1987) at 84‑5 when he said:[T]here is still a difficult question of the extent to which the improper purpose of one person may be a substantial operative factor in the decision of another. Clearly, if the actual decision maker simply “rubber stamps” a decision in fact made by another, the purpose of that other will be a substantial operative factor. At the other extreme, if the actual decision maker truly believes the false and innocent reasons advised by the other person, the mind of the decision maker will not be tainted by the improper purpose of the other person. The problem assumes greater complexity when the decision is made by more than one person, as might be the case with the board of directors of a company, and as is often the case when the decision is made by a local government authority.[125] Gray J reviewed and applied these authorities in National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 at [25]‑[29].[126] Counsel for the applicant referred to Rowland v Alfred Health [2014] FCA 2. The decision in that case confirms that it is appropriate to have regard to the reasons actuating the members of a selection committee making a recommendation, and not just to the reasons of the ultimate decision maker.[127] Accordingly, it is appropriate in the present case to have close regard to the reasons of those who made the recommendations to Mr De Angelis and Mr Kerswell. This includes their reasons for recommending the restructure which Transfield adopted as well as their reasons for selecting the applicant as a person to be made redundant in consequence of that restructure. The evidence of Mr Rynja and Mr Hall is particularly significant in this respect. Mr Handy did not contribute to the recommendation to Mr De Angelis, and Mr Vigus had only a limited role.”
Evidence
Evidence Before The Court
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Decision
Reasons for decision
On the issue of what evidence was needed to be canvassed in relation to the impugned action taken by an employer, it was said by French CJ and Crennan J in Barclay at [41], [44] and [45] as follows:[41] The question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the Fair Work Act. These provisions must be construed together in accordance with the principles of statutory construction established by this Court, which must begin with a consideration of the text of the relevant provisions and may require consideration of the context including the general purpose and policy of the provisions.…[44] There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”[45]This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.”(Footnotes omitted) (Emphasis added) On the question of onus, it was said by French CJ and Crennan J in Barclay at [50] as follows:“[50] The following description of a legislative predecessor to s 361 given by Mason J in General Motors-Holden’s Pty Ltd v Bowling remains pertinent: “the plain purpose of the provision [is to throw] on to the defendant the onus of proving that which lies peculiarly within his own knowledge.”(Footnotes omitted) An employer’s onus may not be satisfied by a mere statement that the action taken by the employer was not for a proscribed reason. As was said by French CJ and Crennan J at [54] of Barclay:“[54] … a question arose as to whether the director’s evidence was sufficient to satisfy the onus cast upon the employer. In deciding that the director’s evidence was sufficient, the majority in Pearce recognised that mere declarations of an innocent reason or intent in taking adverse action may not satisfy the onus on an employer if contrary inferences are available on the facts.”(Emphasis added)
Ratio Decidendi
Legal Principle Established
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