Debus v Condor Energy Services Limited
[2022] FedCFamC2G 429
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) – Volume 1 p. 246.
Annexed to the Letter of Offer was a Schedule of Employment Conditions which included, in part, the following: [2]
[2] CB Volume 1 pp. 247 – 250.
“Employment Conditions
Health and Safety
It is a condition of employment that both of you and Condor meet the obligations under the applicable Health and Safety legislation. Condor’s responsibilities include;
•Providing and maintaining a safe working environment for employees and others in the workplace
•Providing and maintaining facilities for your welfare while at work
•Providing all necessary training and instructions
•Making sure machinery and equipment is safe
•Making sure working arrangements are not hazardous
•Providing procedures to deal with work emergencies
•Making sure health and safety employee engagement and participation processes are in place
•Consulting and cooperating with other businesses operating in the same workplace(s) to keep everyone safe and healthy.
Your responsibility is to take reasonable care in the workplace, including;
•Following all reasonable health and safety rules and instructions
•Participating in health and safety discussions
•Exercising your right to refuse to do unsafe work
•Taking reasonable care that your actions, do not cause harm, or risk of harm to yourself or others
•Not reporting for duty under the influence of alcohol or drugs that impair your performance or fitness for work
•Wearing all necessary personal protective equipment and clothing.
You are required to report any potential risks, incidents and near misses so Condor can investigate, and eliminate or minimise harm or risk of harm.
Failure to follow reasonable health and safety rules and instructions may be considered serious misconduct and will be regarded as a breach of your contract.
(underlinings added to indicate obligations relevant to the applicant)Fitness for Work
Employees must ensure that they are fit for work. Employees must ensure they are fit for work and fully comply with the Company's Occupational Health and Safety policy and other standards in place to ensure the health of employees at work. You may be required to participate in medical assessments in accordance with the Standards and policies and may be required to complete a periodic medical assessment, to ensure you continue to be medically fit for this position.
If your fitness for work changes at any time during your employment, you are required to bring it to the attention of your line manager and/or the HSEQ Manager in a timely manner to ensure your safety, the safety of your colleagues and the effective execution of the operation is not compromised.
The company has a strict drug and alcohol policy and as such you may also be required to undergo drug and alcohol testing, either randomly or with cause in accordance with the Company's policy.
In addition, all employees must comply with any client/site/project policies while working on location.
(underlining added)Disclosure of information
By accepting this offer you confirm that you have disclosed to the Company all information including medical and worker's compensation information that could reasonably be held to be relevant to your ability to safely and competently perform your role. You further confirm your acceptance that any facts of dishonesty or similar conduct are breaches of your obligation to act in good faith towards the Company and may be grounds for dismissal.
Contracts of Employment within Condor Energy are confidential agreements between the individual and the company. As such the conditions and benefits contained in this contract, being matters agreed between you and Condor Energy, shall remain confidential.”
(underlining added)On 11 November 2019, the second respondent emailed a Termination Letter to the applicant. [3] That letter provided as follows:
[3] CB Volume 1 p. 302.
“Dear Wayne,
Unsuccessful probation termination of employment
Your probation period with us at Condor Energy Services Ltd is due to end on 29 January 2020.
As discussed with you, we confirm that we have decided not to continue your employment beyond your probationary period due to on-going issues with your conduct and negative and disruptive workplace behaviour. We note that these respective issues have been discussed with you throughout your employment at Condor Energy Services Ltd. As a result, your employment will end today on 11 November 2019 and you will be paid in lieu of your 4 week notice period and any of your other applicable entitlements.
Employees and employers may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them, you can call 13 13 94 or visit their website at you have any further questions or concerns, please contact me via email. We wish you well in your future endeavours.
Yours sincerely,
Carter Dumont
Chief Executive Officer”
On 3 March 2020, the applicant commenced proceedings in this Court by the filing of an Application seeking the following orders:
(a)Reinstatement of Employment with promised increased annual salary and back pay.
(b)Compensation
In an Amended Statement of Claim relied upon by the applicant at trial, the applicant sought the following relief:
(A)…
(B)An order pursuant to s. 545 of the Fair Work Act 2009 (Cth) (the Act) requiring the first respondent to pay compensation to the applicant for loss caused by its contravention of the Act.
(C)An order pursuant to s. 545 of the Act requiring the respondents to apologise to the applicant by way of a formal written declaration.
(D)An order, with the Court’s indulgence upon application, pursuant to s. 546(1) of the Act that the second respondent pay pecuniary penalties for his intentional participation in the contraventions of the Act, based on demonstrated actual knowledge of the essential matters and his association with, implication in, and/or practical connection with the contravening conduct and an order pursuant to s. 546(3)(c) that any penalties be paid to the applicant.
(E)An order pursuant to s. 547 of the Act for interest.
(F)An order pursuant to s. 546(3)(c) that any penalties be paid to the applicant.
The Law
The relevant sections of the Fair Work Act 2009 (Cth) (“the Act”) for first consideration in this matter were ss. 342(1) Item 1, 351, 361, 545 and 550. Those sections respectively provided as follows:
Section 342 - Meaning of adverse action
(1) The following table sets out circumstances in which a person takes adverse action against another person.
Item 1
Column 1 Adverse action is taken by…
an employer against an employee
Column 2 if …
the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
…
Section 351 - Discrimination
(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.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti‑discrimination law in force in the place where the action is taken; or
(b) taken because of the inherent requirements of the particular position concerned; or
(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3) Each of the following is an anti‑discrimination law:
(aa) the Age Discrimination Act 2004;
(ab) the Disability Discrimination Act 1992;
(ac) the Racial Discrimination Act 1975;
(ad) the Sex Discrimination Act 1984;
(a) the Anti‑Discrimination Act 1977 of New South Wales;
(b) the Equal Opportunity Act 2010 of Victoria;
(c) the Anti‑Discrimination Act 1991 of Queensland;
(d) the Equal Opportunity Act 1984 of Western Australia;
(e) the Equal Opportunity Act 1984 of South Australia;
(f) the Anti‑Discrimination Act 1998 of Tasmania;
(g) the Discrimination Act 1991 of the Australian Capital Territory;
(h) the Anti‑Discrimination Act of the Northern Territory.
…
Section 361 – Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
…
Section 545 – Orders that can be made by particular courts
Federal Court and Federal Circuit and Family Court of Australia (Division 2)
(1) The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.
Note 1: For the court’s power to make pecuniary penalty orders, see section 546.
Note 2: For limitations on orders in relation to costs, see section 570.
Note 3: The Federal Court and the Federal Circuit and Family Court of Australia (Division 2) may grant injunctions in relation to industrial action under subsections 417(3) and 421(3).
Note 4: There are limitations on orders that can be made in relation to contraventions of subsection 65(5), 76(4), 463(1) or 463(2) (which deal with reasonable business grounds and protected action ballot orders) (see subsections 44(2), 463(3) and 745(2)).
(2)Without limiting subsection (1), orders the Federal Court or Federal Circuit and Family Court of Australia (Division 2) may make include the following:
(a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;
(b) an order awarding compensation for loss that a person has suffered because of the contravention;
(c) an order for reinstatement of a person.
Eligible State or Territory courts
(3) An eligible State or Territory court may order an employer to pay an amount to, or on behalf of, an employee of the employer if the court is satisfied that:
(a) the employer was required to pay the amount under this Act or a fair work instrument; and
(b) the employer has contravened a civil remedy provision by failing to pay the amount.
Note 1: For the court’s power to make pecuniary penalty orders, see section 546.
Note 2: For limitations on orders in relation to costs, see section 570.
(3A) An eligible State or Territory court may order an outworker entity to pay an amount to, or on behalf of, an outworker if the court is satisfied that:
(a) the outworker entity was required to pay the amount under a modern award; and
(b) the outworker entity has contravened a civil remedy provision by failing to pay the amount.
Note 1: For the court’s power to make pecuniary penalty orders, see section 546.
Note 2: For limitations on orders in relation to costs, see section 570.
When orders may be made
(4) A court may make an order under this section:
(a) on its own initiative, during proceedings before the court; or
(b) on application.
Time limit for orders in relation to underpayments
(5) A court must not make an order under this section in relation to an underpayment that relates to a period that is more than 6 years before the proceedings concerned commenced.”
…
Section 550 – Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
Note:If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person’s contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.”
For the applicant’s adverse action claims to be proven, the applicant must have asserted, and it must be established that:
·the conduct complained of in fact occurred; and
·the conduct constituted adverse action pursuant to the provisions of s. 342(1) of the FWA.
·If it is established by the applicant that the impugned conduct was carried out, and that it constituted adverse action, it is for the first respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible proscribed reason.
As to the proper approach to be adopted by a court when considering whether adverse action has been established or not, the Court respectfully adopts the principles as set out in the decision of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [5] per French CJ and Crennan J; at [104] and [129] per Gummow and Hayne JJ; and at [140] and [141] per Heydon J where it was respectively said:
“[5]The task of a court in a proceeding alleging a contravention of s 346 is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason. This appeal was concerned with identifying the correct approach to that task.”
…
[104] In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised “a substantial and operative” reason, or reasons including the reason, for the employer’s action and that this action constitutes an “adverse action” within the meaning of s 342.”
…
[129] … The test is whether adverse action has been taken because of a proscribed reason.
…
[140]… Examining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action.
[141]The assessment of a witness’s mental processes is an assessment of that witness’s state of mind. It is pre-eminently a matter in which a trial judge has a considerable advantage over an appellant court…”
The principles as laid down in Barclay, and the operation of s. 351 of the Act, was considered by the Full Court of the Federal Court in Western Union Business Solutions (Australia) Pty Ltd v Robinson (2019) 272 FCR 547 where at [114] – [120], it was said per O’Callaghan and Thawley JJ as follows:
“[114] The general operation of s 351 can be stated in the following way.
[115]First, putting to one side whether any of the exceptions in s 351(2) apply, the Court’s task in determining the application of s 351(1) is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason – see: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [5] (French CJ and Crennan J); at [101] (Gummow and Hayne JJ).
[116]Secondly, where adverse action is taken as a result of a decision made by an individual within a corporation, the identification of the operative reasons for taking the adverse action turns on an inquiry into the mental processes of the relevant individual: Barclay at [140] (Heydon J); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 at [7] (French CJ and Kiefel J); [85] (Gageler J).
[117]Thirdly, the object of that inquiry is to determine the actual reasons. These are determined from all of the facts and circumstances and inferences properly drawn from them. In light of s 361, one would ordinarily expect direct evidence from the individual responsible for the employer’s action as to their reasons for that action, which may properly include positive evidence that the action was not taken for a prohibited reason. Of course such statements must be assessed against all of the facts and circumstances. In State of Victoria (Office of Public Prosecution) v Grant (2014) 246 IR 441 at [32], Tracey and Buchanan JJ summarised the following propositions from Barclay at 517 (French CJ and Crennan J); 542 (Gummow and Hayne JJ); 545-546 (Heydon J) and BHP at [19]-[22] (French CJ and Kiefel J); [85]-[89] (Gageler J):
•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 s 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 s 361.
[118]Fourthly, s 351(1) does not apply, even though it otherwise would have applied, if the relevant action falls within s 351(2). Where s 351(2)(b) is raised as an issue, the Court’s task involves determining whether the adverse action was “taken because of the inherent requirements of the particular position concerned”. If adverse action was taken because of the inherent requirements of the particular position, or for reasons which included such a reason (s 360), the adverse action is not prohibited by s 351(1), even though it would have been so prohibited absent the existence of such a reason.
[119]Section 346, which was considered by the High Court in Barclay and BHP, prohibits adverse action being taken for reasons which include any of the industrial action related matters identified in paras (a) to (c) of s 346. Section 346 does not contemplate any exceptions. Section 351(1) prohibits adverse action being taken for identified reasons of discrimination. However, s 351 does contain exceptions, one of which is an exception which also revolves around the state of mind of the employer, namely s 351(2)(b).
[120]Fifthly, and assuming s 351(2)(a) and (c) are not in issue, once all of the reasons for the adverse action are identified, the question or questions which remain to be answered are:
(1)section 351(1): whether one of the operative reasons of substance for the adverse action included a prohibited reason;
(2)if s 351(2)(b) is in issue: whether one of the operative reasons of substance for the adverse action was “the inherent requirements of the particular position concerned”.”
A causal link must be established between the adverse action the subject of complaint, and the dismissal. That issue was dealt with by Foster J in Russel v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 at [60] and [63] where His Honour said:
“[60]The provisions particularly relied upon by the applicant (ss 44, 97, 340, 341, 351 and 352 of the FWA) all use the expression “because” or “because of” as describing the necessary causal link between the adverse action and the relevant prohibited reason for that action.
...
[63]It is not necessary for an applicant to establish that the only reason or the dominant reason that adverse action was taken was a prohibited reason. It is sufficient if the prohibited reason is one of several reasons for the taking of the action although it may be that the prohibited reason must have operated as a substantial and operative factor in the taking of the adverse action.”
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)
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.”
It will always be a question of fact as to whether the allegedly proscribed reasons, as pleaded in a SOC as constituting the reason/reasons or motive for the taking of the adverse action, have been rebutted. Motive is a relevant consideration for the Court to take into account, when assessing the evidence before it, in that regard.
When considering the factors relevant to an assessment of what the relevant reasoning process was in relation to the termination decision, Reeves J in CFMEU v Clermont Coal Pty Ltd [2015] FCA 1014 at [120] – [123] inclusive said as follows:
“Two parts to the inquiry
[120] These authorities therefore place the focus on the reasoning process that led to the ultimate decision. Where the decision was made by one person and her or his reasoning for the decision was based on one incident involving the employee, the task is relatively straightforward. The judgments in Barclay and BHP Coal require a focus on the reasoning process employed by that person to determine whether the employer has discharged its onus under s 361(1) of the FWA to show that the reasoning process did not include, as a substantial and operative reason, the alleged prohibited reason or reasons. However, the employer is only required to show that none of those reasons was a “substantial and operative reason”. It does not need to negate every reason, however immaterial it was to the reasoning process underpinning the decision to dismiss the employee concerned: see Barclay at [104] and [127] per Gummow and Hayne JJ, and [140] per Heydon J.
[121] On the other hand, where the reasoning process is dispersed through an assessment process involving a number of persons, the task is much more complicated. In that situation, I consider the judgment in Kodak requires me to examine the reasoning process employed by each person whose involvement had a material effect on the ultimate decision. This inquiry does not involve a roving search of the minds of the employees of the kind rejected by Heydon J in Barclay (at [146]). Nor does it involve an objective inquiry of the kind rejected in Barclay (at [44] and [126]), nor import some “unconscious” reasoning to the ultimate decision-maker that was also rejected in Barclay (at [124] per Gummow and Hayne JJ, and [146] per Heydon J). Instead, it focuses on the conscious reasoning processes of those who had a material effect on the ultimate outcome to determine whether their reasoning processes were free of the alleged prohibited reason or reasons. If one or more of the reasons employed by one or more of them was a prohibited reason, that will impugn the ultimate decision. This is what I consider the Full Court meant by “inadvertently” adopting an “undisclosed prohibited reason” in Kodak (see at [117] above).
[122] I therefore consider the focus and scope of the inquiry in this matter should proceed in two parts. First, an inquiry to ascertain whose reasons had a material effect on the reasoning process that preceded Mr Pretorius’ ultimate decision to dismiss Mr Scott. And, secondly, an inquiry to examine the reasoning employed by those persons to ascertain whether it was affected by a prohibited reason or, to put it in the terms of s 360 of the FWA, whether Clermont Coal has established to the requisite standard that none of the alleged “particular reasons” was a substantial and operative reason for the decision to dismiss Mr Scott. I will proceed to undertake the first part of this inquiry under this issue and attend to the second part of it under the next issue. But first, I will review the evidence bearing upon both parts of the inquiry. In that review, it is unnecessary to further consider the evidence of Ms Washington because it is already sufficiently summarised above. I will therefore begin with the evidence of Mr Fry, Mr Scott’s supervisor, and then turn to the evidence of Mr Pretorius, Mr Christensen and, finally, Mr Fleming.
Whether Applicant’s Allegations Have Been Made Out
Central to the applicant’s case was his assertion that his employment was terminated because he suffered from a disability. [4] The applicant relied upon 4 affidavits, three of which were respectively filed on 2 July 2020, [5] 14 January 2022, [6] as well as an affidavit filed on 30 August 2022. [7] Also filed in the proceeding on behalf of the applicant on 17 July 2020 was a further affidavit of the applicant. The Court has had regard to, and considered, those parts of all affidavits filed on behalf of the applicant which were found to be admissible.
[4] Paragraph [11] of Applicant’s Trial Submissions (AS) filed on 10 October 2022.
[5] CB Volume 1 pp. 79 – 129.
[6] CB Volume 1 pp. 138 – 233.
[7] Paragraph [12] of AS
As to the applicant’s affidavit filed on 30 August 2022, the relevant parts of the affidavit found to be admissible were as follows:
“[1] On the afternoon of 30 May 2022, the applicant underwent cross-examination by Counsel for the Respondents, however, as witnessed by The Court, I suffered a mental health episode similar to previous 'meltdowns' and could not continue.
[2]The applicant, by way of explanation, asserts that such 'episodes' are not within his conscious control, nor is he able to identify the 'emotion' or 'stressor' that may have 'triggered' such an 'episode' with any certainty.
[3]The applicant expresses his gratitude to The Court for its understanding and compassion.
[4]During the above-mentioned cross-examination, several assertions (detailed below) were put to the applicant.
[5]The applicant rejects with disgust, the assertion put to him under cross-examination that he "Just made it up!"
…
[12]The applicant suggests that, given this more illuminated view, the assertion in paragraph 5 above is nothing more than a contemptible and vexatious accusation not based in fact. This assertion, in the applicant's mind, was 'intended' to provoke a reaction by him in the Court, predicated on detailed knowledge of the applicant's conditions and documented historical reactions through the access to medical histories.
…
[37]The applicant states that he has, to the best of his knowledge, always had a temper - most often the result of an unanticipated change in his physical environment, schedule, or diet etc...
[38]The applicant confirms that he has a significant history of mental health treatment with numerous psychologists, therapists, counsellors as well as countless G.P.'s.
…
[46]The applicant rejects the assertion put to him under cross-examination that ”the Respondents' couldn't have known about his disability ("If any”) as he could not have known, as he was not diagnosed until after my employment with CESL."
…
[49]The applicant restates that at no time on 7 November did he engage in any knowingly aggressive behaviour nor did he 'threaten to headbutt' anybody as asserted by Respondents' Counsel and he suggests such claims are offensive and unsubstantiated, there is no evidence before the Court that the 'claims' to suggest that they were investigated and the 'claims' lack any form documentary support/evidence (despite numerous Court Orders, and a Subpoena).
…
[58]The applicant, with utmost respect, suggests that consideration be given to the necessary and appropriate exercise of discretion regarding shortcomings in the applicant's attempts to comply with Court requirements in regard to filings and procedure.
[59]The applicant stresses that he has done his best, despite significant functional impairment, to assist the Court in its duty.”
The Court finds that the second respondent was the decision maker in respect of the termination of the applicant’s employment. That fact was not materially disputed by the applicant. No other person was relevantly involved in the termination of the applicant’s employment. Mr Dumont was the only person who had the relevant authority to terminate the applicant’s employment.
The adverse action taken against the applicant was the termination of his employment in circumstances where the applicant fully appreciated that his employment was probationary. [8]
[8] Paragraph [20] of AS
Under s. 351 of the Act, for the applicant to be successful in his claim, the Court must be satisfied that the reason for termination of the applicant’s employment was, relevantly, due to his physical or mental disability, and that such action was discriminatory. In order for the Court to so find, the Court must first find that the relevant decision maker (Mr Dumont) undertook the adverse action in circumstances where the disability was known to him, either directly or indirectly.
First, it was a condition of the applicant’s employment with Condor that if his fitness for work changed at any time during the course of his employment, he was required to bring such issue to the attention of his line manager and/or the HSEQ Manger
“ … in a timely manner, to ensure your safety, the safety of your colleagues and the effective execution of the operation is not compromised.” [9]
There was no probative evidence before the Court that the applicant had ever brought the question of his fitness for work, due to any claimed or unclaimed disability, to the attention of either his line manager or the HSEQ Manger.[9] See condition under heading “Fitness for Work” – CB Volume 1 p. 249.
Second, the date of termination of the applicant’s employment was before the 24th day of July 2020, that being the date on which Dr Jenkins diagnosed the applicant as suffering from “Asperger’s/ASD”. During the course of cross-examination, Dr Jenkins explained that Asperger’s was a subtype of Autism. [10]
[10] Transcript (T) pp. 71.15 – 72.5 and at 74.5 - 75.42
In a letter dated 12 April 2021, Dr Jenkins stated as follows: [11]
[11] CB Volume 1 p. 97.
“12 April 2021
TO WHOM IT MAY CONCERN
RE: Wayne DEBUS
DOB: 03 December 1975
Wayne Debus has been a regular client of this service since July 2016. He has the following confirmed diagnoses:
•Autistic spectrum disorder
•Major depression.
These conditions have been present during the time when he was la t employed.
The conditions produced symptoms which clearly impair his capacity to work and study. This has led to him currently being on the disability pension with Centrelink and receiving NDIS support.
These conditions impact on his mental health and capacity to function in the workplace, which would have been noticeable by even casual observers in his workplace.
His impairment is now lifelong.
Kind regards
Dr S Jenkins
PN: 010925CX”
It was submitted on behalf of the applicant that the applicant’s mental ill health and incapacity to effectively function in the workplace would have been noticeable to all of the first respondent’s witnesses as casual observers in Condor’s workplace, as recorded by Dr Jenkins, and that, therefore, Condor had notice of his disability. It was submitted that that knowledge was the prohibited reason for the adverse action taken against him. The Court does not accept that submission. As became apparent during the course of Dr Jenkins’s cross-examination, Dr Jenkins:
(a)Was reliant upon what the applicant had told him about how the applicant interacted with work colleagues. [12]
(b)Never attended at the applicant’s workplace at Condor, or ever took the opportunity to observe how the applicant and his colleagues interacted with each other. [13]
(c)Didn’t interview any of the applicant’s work colleagues. [14]
(d)Didn’t ask any of the applicant’s work colleagues as to how the applicant appeared during the course of his employment, or whether any disability was observable. [15]
(e)Agreed that fellow employees of the applicant and management personnel at Condor would not necessarily have had the skills to identify any manifestation of a disability on the part of the applicant. [16]
[12] Transcript of 30 May 2022 – p. 66.1 – 66.6
[13] Transcript of 30 May 2022 – p. 66.7 – 66.10
[14] Transcript of 30 May 2022 – p. 73.5
[15] Transcript of 30 May 2022 – p. 73.11 – 73.17
[16] Transcript of 30 May 2022 – pp. 75.44 – 76.18
The applicant had also asserted, both in his affidavits and in his oral evidence, that he had been treated for Autism for most of his life. If that had been the case, the applicant ought to have formally advised Condor prior to his having been interviewed for the job, and certainly before the commencement of his employment, that he had a disability which may adversely impact upon his capacity to effectively and efficiently carry out his employment. To do so would only have been fair to Condor. The Court finds that the applicant failed to do so, both before the commencement of his employment, and during the course of his employment, in circumstances where he ought to have, both as an implied term of his contract of employment, as well as pursuant to his contractual obligations as set out in the schedule of conditions to the contract.
Third, all of the witnesses called on behalf of the first respondent gave clear, concise and persuasive evidence that at no time had any of them either been informed by the applicant in writing, or otherwise told by him, that he suffered from any physical or mental disability which might adversely manifest itself during the course of his employment. All of the witnesses called on behalf of the respondents deposed that they had no knowledge that the applicant had suffered from any disability. The evidence of the Respondent’s relevant witnesses where knowledge of any disability was denied was respectively as follows:
(a)Mr Dumont [17]
(b)Ms Duffin [18]
(c)Ms Schultz [19]
(d)Ms De Cuevas [20]
(e)Ms Barry [21]
[17] Transcript of 28 September 2022 – pp. 30.25 – 30.45 and pp. 45.35 – 46.10
[18] Transcript of 28 September 2022 – pp. 54.15 – 54.20 and 59.10 – 59.15
[19] Transcript of 28 September 2022 – pp. 63.25 – 63.30
[20] Transcript of 28 September 2022 – pp. 70.10 – 70.15 and 73.10 – 74.30.
[21] Transcript of 28 September 2022 – pp. 79.35 – 80.30
It was put to each of them by the applicant that they were being untruthful in giving such evidence. The Court does not accept that submission and finds that the respondent’s witnesses would not have engaged in a criminal conspiracy to provide false evidence to the Court about such an essential factual issue in dispute between the parties. The Court accepts those witnesses called on behalf of the respondents as being witnesses of truth.
The Court further finds that the applicant was himself mistaken as to what actually transpired on the question of whether or not the first respondent, or any of the first respondent’s witnesses, had notice of any disability claimed to have been suffered by the applicant. The evidence which the Court has additionally relied upon in support of the above findings was as follows:
(a)One Kim Schulz was the HSEQ Manager for Condor at the time of the applicant’s employment. The Court accepts her evidence that on 29 July 2019, she provided the applicant with an induction form which advised all employees to notify their supervisor if they were taking any medication which might affect their ability to work. [22] The induction form was signed off by the applicant on 29 July 2019, and it was acknowledged by him that there was a requirement to notify his supervisor if any medication which might affect his ability to work was being taken by him. The Court further accepts the evidence of Ms Schulz that though she was aware that the applicant had previously been diagnosed with cancer, she had no knowledge of any other medical condition or disability suffered by the applicant.
[22] Paragraphs [2] – [7] inclusive and Annexure KS - 1 to affidavit of Ms Schulz filed on 13 October 2020.
(b)The applicant had a conversation with Ms Schulz on 24 October 2019 where there was a disagreement between them as to how to correctly use the word “mobing” when referring to mobilisation on a worksite. Annexure KS–2 to Ms Schulz’s affidavit was a copy Facebook message which evidenced an aggressive response on the part of the applicant. The Court finds that such response was unjustified on any basis in a modern workplace. The response was in a Facebook Messenger chat where the applicant wrote as follows:
“I seriously don’t need you questioning my work in front of the fucktards mate – gives em some idea that they may be right and they’re not. … Not having a go btw – happy to hear your thoughts always.”
(c)After another interaction with the applicant on the morning of 25 October 2019, Ms Schulz, at 4.12 pm on that day, initiated a text conversation with Mr Dumont wherein she ultimately formally put him on notice of her concerns regarding the applicant’s conduct. The applicant’s conduct was considered by Ms Schulz to constitute bullying in the workplace. [23] The Court accepts that Ms Schulz was justifiably concerned about the effect that the applicant’s behaviour was having on her and his fellow employees.
[23] Annexure KS – 4 to the affidavit of Ms Shulz filed on 13 October 2020.
(d)On 5 November 2019, Ms Schulz had a conversation with the applicant in which he complained to her about Ms Erin Duffin and Ms Bosanac. The Court infers that Ms Schulz made mention of the making of the applicant’s complaints to either Ms Barry or Mr Dumont, because after that conversation, Ms Barry asked Ms Schulz to prepare a statement concerning the applicant’s behaviour in the workplace. As to the way in which the applicant spoke to other staff, Ms Schulz in her evidence during cross-examination said that the applicant had yelled at both her, as well as Ms Bosanac, during work hours. Ms Schulz subsequently prepared a statement dated 8 November 2019 which adverted to such conduct. [24] To fully appreciate the extent to which the applicant’s behaviour was disruptive to others in the workplace, the statement of Ms Schulz is set out in full as follows:
[24] Annexure KS – 5 to Schulz affidavit.
“Personal Statement - Kim Schulz
I was one of the first people to meet Wayne on his first day at Condor as I had to provide the HSE Site Induction for the Brisbane office and later as his desk was set up next to mine. We got on well and had good discussions at work about everything. Wayne was new to the oil and gas industry and often asked me questions about Condor, people and the industry to help him understand what he was working on.
Wayne and I sit close to the kitchen, so I generally have headphones in to minimise distractions. Wayne would poke me with a ruler to get my attention and it would sometimes be just for a chat or question or just to see how I was doing. Wayne disclosed many things that I found quite confronting, particularly about him being gay and his lifestyle, history and his use of violence to solve problems, often with very detail descriptions.
Despite this, we developed what I would call a friendship. We would send each other messages and text outside of work, just in general conversation or something funny. He did invite me to go out with him to gay events (knowing that I'm not gay) but wanted someone to take out. I said okay, but felt extremely uncomfortable as this was completely outside my comfort zone.
I was on leave during September/ October and Wayne messaged me and said things were quiet at work without me. When I returned to work, he said that he missed me and jokingly said that I wasn't allowed to go on holidays again unless he was with me.
On my return from leave, things settled back into the normal pace and I was busy catching up, so I often had my headphones in a lot so I could concentrate. Wayne would just do the usual poking with the ruler to get my attention so everything seemed okay.
I did have a discussion with Carter on my return from leave as I was finding the continual attention from Wayne distracting me from my work and I asked if Wayne or I could be moved, but I didn't want it to seem like I was making him be moved. Carter said he would help with this.
On the 16th October, a situation occurred between Mary and Wayne and it was quite distressing to see and hear Wayne speak to Mary the way he did, see Mary's reaction and then Wayne demanding Erin to do something about Mary's work performance. The office environment became very tense after this with people working quietly and wearing headphones. Wayne was continually criticising and watching Mary's work performance and it felt like sides had to be taken, which was again very distressing.
On the 24th October, Wayne asked me a question regarding the date of the mobe for the upcoming Tri-Star work and I said that they had already started mobbing to site. Wayne said he calls mobbing as,when they start the work, not when they start transporting items to the site. I corrected him and said that they even put mobe on journey management plans and that he should align himself with industry terminology. He said that he calls things what he wants and if there are any issues that he goes to
Carter who will approve it anyway. I responded, 'so you go to Dad' and smiled as I thought the conversation was still quite civil, as it wasn't uncommon for Wayne and I to have robust conversations about things. He was furious at my comment and started yelling at me. I was really surprised and embarrassed and said okay, I will just put my headphones back in. Wayne didn't talk to me for the rest of the day but sent me a messenger message on my phone which said: "I seriously don't need you questioning my work in front of the fucktards mate - gives em some idea that they may be right & they're not. Not having a go btw-happy to hear your thoughts always'. I didn't reply to him and just continued to work. The next morning I was in the office early and he walked in and I said 'hey' and he mumbled something and walked to his desk and dragged the little cupboard to another desk away from me and came back to get his monitor and other items without saying anything to me. I moved some paperwork onto his side of the desk a bit to work on something and when he returned to get a cable, I said 'sorry, taking up all your room' and he replied that its not his desk anymore. He spent the rest of the day talking to everyone but me. He was laughing and seemed happy to be relocated.
Carter had sent me a text the night of the 24th Oct asking if we could catch up the next day to discuss the office. On the 25th Oct I didn't see Carter much as he was busy going to and from meetings, however he did take Wayne downstairs to have a chat. I was waiting for him to come back and then talk to me but that never happened. Wayne was in a good mood after meeting with Carter and I felt really upset that I never got to explain my version of events and I had no idea what Wayne had said to Carter. I messaged Carter on the night of the 25th Oct and asked why he didn't speak to me that day. He said he had forgotten and that he would call me soon. I replied that I was pissed off and it was probably better if he didn't as I may say something that I would regret. We communicated by a couple of text messages and then I said the following: 'I told Wayne that the way he spoke to Mary and then the behaviours after, such as not talking to her, are considered bullying. He is doing the exact same to me and he is aware of it now. I tried to talk to him this morning and he said a couple of words and walked away. I didn't try again. I am officially making you aware of the situation now.'
I went out to the field the following week (28/10 - 1/11) so I didn't really have any interaction with ,anyone from the office. I returned to work in the office on the 4th Nov and things were the same with Wayne. He didn't talk to me and just sat with his headphones on at his desk. To be fair, we don't need to talk that much as our work doesn't really intersect. He just used me to ask questions when he sat next to me. On 5th Nov I got into work early and said hello to Wayne as I normally would. He came over to my desk and started talking to me and told me it wasn't his idea to move away and started complaining about Erin and Mary again. Later in the morning he sent me an email to meet him outside but I was busy, plus I didn't want to go downstairsJo the smokers area to talk. He went downstairs with Willie for a cigarette and I just sent him a message saying I was busy. I was in the conference room later and as he walked past he pressed himself up against the glass and made a silly face. I could tell he was in a joking mood and I just smiled. I thought it was strange to go from not talking to me one day to doing that the next. We didn't get a chance to catch up but everything felt like it was getting better. The rest of the week he seemed to keep to himself with his headphones in most of the time.
Kim Schulz
8/11/2019”
The Court was impressed with the witness Schulz who was clear and succinct whilst giving evidence, and who was unshaken during the course of cross-examination.
(e)
The applicant had relied upon a text message exchange between himself and Mr Dumont’s personal assistant named Ms Barry on 24 October 2019 at 7.38pm in support of the submission that in such exchange he had given clear notice of his disability to Ms Barry. The applicant wrote:
“I’m an Autistic freak of nature and maybe should be somewhere else but I can’t afford it and wouldn’t fit in anywhere anyhow – as my history tells me very clearly. There is no place for someone like me.” [25]
[25] Annexure EB-1 to the affidavit of Ms Barry filed on 31 August 2020.
As to that exchange, the Court accepts the evidence of Ms Barry that she did not consider the content of the message sent to her by the applicant as being anything other than banter. She did not consider it to be a serious disclosure of a medical disability. It is to be noted that Ms Barry was not the relevant person to whom any notice of the suffering of a disability was to be given in any event. In cross-examination, the applicant attempted to smear Ms Barry by suggesting that she was giving false evidence because she was in a close personal relationship with Mr Dumont. The Court accepts the denials of Ms Barry on both counts, and holds that during the course of such cross-examination, Ms Barry appeared calm and collected in the face of an unnecessarily aggressive attempt on the part of the applicant to demean her. It was reasonable for her to accept the applicant’s text reference to autism as mere banter.
The Court further accepts the evidence of Ms Barry that at no time on 7 November 2019 did she observe the applicant to suffer from any physical incapacity akin to what the applicant described as a “meltdown”.
(f)
In his cross-examination, Mr Nambach (a psychologist) was questioned about his finding that the applicant:
“ … had significant difficulties working with other people. He has always experienced regular interpersonal conflict in the workplace which has resulted in short-term employment. Due to his Autism he can only work on his own.”
Relevant extracts of that evidence established to the Court’s satisfaction that the applicant ought to have informed the first respondent prior to the time of his having sought employment that he could only ever work by himself. Had he so informed Condor, the Court finds that Condor would have been most unlikely to have employed him. The transcript was relevantly as follows: [26]
[26] 30 May 2022 Transcript – p. 86.1 – 86.38
“And what he had told you was that he had significant difficulties working with other people; is that right? ---Yes.
And he said he has always experienced regular interpersonal conflicts in the workplace which has resulted in short term employment? ---Yes.
And it also says:
Due to the autism, he can only work on his own.
?---Yes.
Now, that diagnosis at the end, due to autism he can only work on his own, is that a diagnosis you’ve made or is that what Mr Debus has told you?---No, that’s my – my recommendations for Centrelink.
Right. So that’s the case that right throughout this period of his life when he suffered autism, he could only ever work by himself; is that correct? ---Yes.
And that prior to coming to you, he told you about the fact that he had had that history of work conflict and that had resulted in him only having short term employment right throughout his life?---Yes.
So it’s your view based on that information he has told you about his past that he can only work on his own and should only ever have been working on his own; is that correct?---It’s based on his evidence of short term work.
Yes? ---And of holding jobs for any lengths of time.
Yes. No further questions, your Honour.”
(g)The person least affected by the applicant’s unusual behaviour during the course of his employment, and who had numerous fond text exchanges with the applicant, both during such employment and up to the time of termination, [27] was Ms Alessandra de Cuevas. Ms de Cuevas was the applicant’s direct line manager from the time of the commencement of the applicant’s employment on 29 July 2019 until on or about 22 August 2019 when she commenced maternity leave. The Court accepts Ms de Cuevas’s evidence that at no time did the applicant advise her that he had suffered from a mental health condition which might adversely impact upon his employment. The Court further accepts Ms de Cuevas’s evidence that at no time did the applicant say to her that he was experiencing conduct which was belittling and degrading that was directly the result of a mental health condition suffered by him, that being Autism Spectrum Disorder.
[27] See CB Volume 1 pp. 173 - 214
(h)Mr Dumont gave evidence that he had had conversations with the applicant regarding the applicant’s poor workplace behaviour on 13 September 2019, 24 October 2019 and 25 October 2019. On the last occasion, the applicant was given a warning by Mr Dumont that if he did not modify his workplace behaviour, consideration would be given to terminating his employment. [28] At [15] of his affidavit, Mr Dumont deposed that he decided to terminate the applicant’s employment due to the applicant’s failure to change his behaviour toward Condor’s other employees. In addition to the meetings that Mr Dumont had had with the applicant concerning the applicant’s inappropriate workplace behaviour, the relevant events leading up to the termination of the applicant’s employment were as follows;
(i)Mr Dumont had met with Ms Duffin at or about 11:00 am on 24 October 2019, at which time she had made complaints to Mr Dumont about the applicant’s inappropriate behaviour. [29]
(ii)On 25 October 2019, Mr Dumont had had a text conversation with Ms Schulz concerning the applicant’s poor behaviour. [30]
(iii)On 7 November 2019, at 12:45 pm, Mr Dumont emailed a human resources assistant seeking assistance concerning the termination of the applicant’s employment. [31]
(iv)On the afternoon of Thursday 7 November 2019, Mr Dumont was informed by Ms Duffin that she had sent the applicant home from work due to his aggressive behaviour toward her and other staff that day. [32] The aggressive behaviour included the applicant threatening to headbutt someone. The Court has no reason to disbelieve either the witness Duffin or the witness Schulz concerning the applicant’s behaviour during the course of his employment despite the applicant’s denials that he had behaved poorly. Their evidence was consistent and the Court believes them as witnesses of truth.
(v)On 8 November 2019, Mr Dumont asked Condor’s legal counsel to draft a termination letter to the applicant. On Friday, 8 November 2019 at about 5.32pm Mr Dumont received an email from Condor’s legal advisors which attached a proposed draft termination letter. [33]
(vi)Mr Dumont met with the applicant on the morning of 11 November 2019, at which meeting the applicant’s employment was orally terminated. At 4.23 pm on 11 November 2019, Mr Dumont emailed to the applicant the letter of termination. [34]
(vii)The Court accepts the evidence of Mr Dumont that on 7 November 2019 he sought assistance from the human resources department concerning his proposed termination of the applicant’s employment even before the applicant was later sent home by Ms Duffin for bad behaviour that day.
[28] Paragraphs [3] – [8] of Dumont affidavit filed on 31 August 2020
[29] Paragraph [4] of Dumont affidavit.
[30] Annexure CCD-2 to Dumont affidavit.
[31] Paragraph [18] of Dumont affidavit and Annexure CCD-3 to Dumont affidavit.
[32] Paragraph [20] of Dumont affidavit; Paragraphs [5] - [10] inclusive of Duffin Affidavit filed on 13 October 2020 and Annexure ED-1 to Duffin Affidavit
[33] Paragraph [22] of Dumont affidavit and Annexures CCD – 4 and CCD – 5 of Dumont affidavit.
[34] Paragraphs [24] – [30] inclusive of Dumont affidavit and Annexure CCD – 6 to Dumont affidavit.
Effect of the Court’s Findings
The Court accepts the evidence of the respondents’ witnesses that there were many occasions on which the applicant had exhibited unacceptable behaviour in the workplace. That behaviour was disruptive and exasperating to employees such as Ms Duffin and Ms Schulz, as it was to Mr Dumont. Despite his best efforts to encourage the applicant to improve his behaviour, Mr Dumont found that his counselling and his warning had no real positive effect upon the applicant.
In the light of the overwhelming weight of the evidence, the Court findsthat no one at Condor knew or suspected that the applicant was labouring under any mental disability either prior to the commencement of his employment, or during the course of his employment. In such circumstances, the Court finds that the applicant’s claim that his employment was terminated because he suffered from such disability must be dismissed.
The applicant has failed to establish any causal relationship between what the Court accepts was an unknown disability suffered by the applicant during the course of his employment, and the termination of such employment. The Court dismisses the entirety of the applicant’s evidence to the contrary as being implausible.
On the question of compensation, even if the applicant had established that his employment was terminated for a prohibited reason and that the Respondents had contravened s 351 of the FW Act (which is denied), the Court accepts the Respondents’ submission that by reason of the evidence given by Mr Nambach, the Applicant has suffered no loss because he “has always experienced regular interpersonal conflicts in the workplace which has resulted in short term employment” and “due to his autism he can only work on his own.” On the basis of such evidence, the Court finds that compensation would not have been payable to the applicant in any event.
And it is so ordered. The applicant’s claims as set out in the Amended Statement of Claim filed on 16 October 2020 are dismissed.
The Court will hear the parties as to any other matter which might arise consequent upon the publication of these reasons.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 23 December 2022
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