Govan v Health Services Union (No.1) Branch
[2015] FCCA 491
•16 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GOVAN v HEALTH SERVICES UNION (NO.1) BRANCH | [2015] FCCA 491 |
| Catchwords: INDUSTRIAL LAW – Adverse action – general protections application – applicant’s employment as union organiser terminated – whether termination for reason or reasons that included political opinion or sexual preference – whether respondent met burden of proof – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth) ss.342(1), 346, 347, 351, 360, 361 |
| Cases cited: Re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95 State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 290 ALR 647 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41 Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27 Maritime Union of Australia v CSL Australia Pty Limited [2002] FCA 513 Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585; [2008] 177 IR 306 Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399 Khiani v Australian Bureau of Statistics [2011] FCAFC 109 Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 Forty Two International Pty Ltd v Barnes [2014] FCA 85 Schmidt v Panja & Ors [2015] FCCA 111 General Motors Holden Pty Ltd v Bowling (1976) 136 CLR 676 Jones v Dunkel (1959) 101 CLR 298 |
| Applicant: | JAYNE FAYE GOVAN |
| Respondent: | HEALTH SERVICES UNION (NO.1) BRANCH |
| File Number: | MLG 1376 of 2013 |
| Judgment of: | Judge O’Sullivan |
| Hearing date: | 16 & 17 February 2015 |
| Date of Last Submission: | 8 April 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 16 April 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Addison |
| Solicitor for the Applicant: | Maddison & Associates |
| Counsel for the Respondent: | Ms Duffy |
| Solicitor for the Respondent: | Holding Redlich |
ORDERS
The application filed 28 August 2013 be dismissed.
The respondent file and serve any application for costs, affidavits and written submissions within 14 days.
The applicant may file and serve any response, affidavits and written submissions to be relied on 14 days thereafter.
AND THE COURT NOTES:
Any application for costs will be determined on the papers unless otherwise requested in submissions.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1376 of 2013
| JAYNE FAYE GOVAN |
Applicant
And
| HEALTH SERVICES UNION (NO.1) BRANCH |
Respondent
REASONS FOR JUDGMENT
Introduction
In 2013 Ms Jayne Govan (“the applicant”) was employed as an organiser and then terminated by the Health Services Union Victoria (No.1) Branch also known as the Health Workers Union (“the respondent”).
The applicant commenced proceedings against the respondent in this Court on 28 August 2013. The applicant made various claims of breaches by the respondent of the Fair Work Act 2009 (Cth) (“the FW Act”).Whilst these are not unfair dismissal proceedings the comments in Re Loty and Holloway v Australian Workers Union [1971] AR (NSW) 95 about the role of the industrial officer, (a position analogous to that occupied by the applicant) seem apposite. Sheldon J said:
“Industrial representation in many instances is not a matter of speaking from a textbook or a prepared brief. …problems may arise instantly which can be best handled by an advocate whose ear is sympathetically turned to current union policies. The whole job requires close collaboration and mutual confidence between the representative and those controlling the union…”
The applicant claims her employment with the respondent was terminated, in breach of the FW Act, because (or for reasons including) what the secretary of the respondent believed was the applicant’s sexuality or sexual preference and/or because her political beliefs were different to that of the ‘dominant view’ within the respondent.
The respondent denies these claims.
For the reasons that follow I am satisfied that the applicant’s employment was not terminated for those reasons or for reasons including those reasons. Accordingly, and for the reasons set out below, the application should be dismissed.
Background
The applicant was employed by the respondent as an organiser between January and July 2013.
The respondent is registered under the Fair Work (Registered Organisations) Act 2009 (Cth). The respondent represents members working in the health care and community services sector across Victoria. Its offices are located in South Melbourne. In 2012 Ms Diana Asmar was elected secretary of the respondent.
The applicant was known to and had previously worked with Ms Asmar when they were both organisers employed by the respondent in 2005/2006.
As an organiser the applicant was responsible for representing and assisting members of the respondent at a number of different workplaces. The applicants’ conditions of employment provided inter alia that her duties and responsibilities were able to be varied by the respondent and that her employment was subject to a probationary period and she reported to the lead organiser.
On 12 July 2013, the respondent terminated the applicant’s employment. The written notice of termination dated 12 July 2013 provided:
“In accordance with the terms of your contract of employment, your employment will cease immediately and you will be paid out your statutory entitlements including four weeks pay in lieu of notice.”
Subsequently the applicant brought proceedings in the Fair Work Commission contesting the termination of her employment.
On 19 August 2013 Commissioner Ryan of the Fair Work Commission certified that all reasonable attempts to resolve the dispute had been or were likely to be unsuccessful.
On 28 August 2013 the applicant commenced these proceedings by application filed the same day supported by a form 2 alleging her dismissal was in contravention of a general protection.
On 13 September 2013 the respondent filed a response objecting to the orders sought by the applicant.
The proceedings had a first Court date on 30 October 2013 at which time orders and directions were made for mediation and the matter adjourned for further directions on 14 March 2014. The mediation wasn’t successful. On 14 March 2014 the proceedings were fixed for trial on 16 September 2014 and there were orders and directions made for that purpose.
Whilst the parties subsequently agreed to variations to that timetable, when the proceedings returned to Court on 16 September 2014 for trial the parties still hadn’t complied and the trial had to be adjourned to
16 February 2015.
At the trial of the proceedings on 16 February 2015, Mr Addison, Solicitor, appeared on behalf of the applicant and Ms Duffy of Counsel, appeared on behalf of the respondent.
Material relied upon
At trial the Court was told the applicant relied on:
·her affidavit, filed 15 September 2014;[1]
·her affidavit, filed 22 January 2015;[2]
·the affidavit of Robert John McCubbin, filed 15 September 2014;[3]
·the affidavit of Anastasia Perri, filed 20 January 2015;[4]
·the affidavit of Deidre Jessica McIntosh, filed 15 September 2015;[5]
·the affidavit of Susan Emily Hay, filed 22 January 2015;[6]
·the agreed Statement of Facts, filed 11 February 2015;[7] and
·a tax Income Statement 2013 – 2014, filed 11 February 2015.[8]
[1] Exhibit A3.
[2] Exhibit A4.
[3] Exhibit A5.
[4] Exhibit A6.
[5] Exhibit A7.
[6] Exhibit A8.
[7] Exhibit A1.
[8] Exhibit A2.
At trial the Court was told the respondent relied on:
·the affidavit of Diana Asmar, filed 10 December 2014;[9]
·the affidavit of Lee Michael Atkinson, filed 10 December 2014;[10]
·the affidavit of Nick Katsis, filed 10 December 2014;[11] and
·a number of emails tendered as exhibits.[12]
[9] Exhibit R6.
[10] Exhibit R9.
[11] Exhibit R10.
[12] R1, R2, R3, R4, R5, R7 and R8.
The applicant’s case
The applicant’s case appeared to change as the matter progressed.
In the form 2 accompanying her initiating application the applicant had alleged inter alia that:
“4.The applicant was terminated by the respondent on 12 July 2013. The applicant was not given a reason for the termination.
5. When the applicant asked for a reason she was told that the respondent did not need to provide a reason to her because she has not completed 6 months of employment.
6. The applicant has since discovered that her employment was terminated because she was not a member of the predominant ALP faction that controls the Victorian branch of the union.
7. The applicant is accused of being a lesbian and this is the reason for the termination.
8. The applicant was engaged in industrial activity within the meaning of the Act. The applicant was accused of organising activity contrary to the interests of the Secretary of the union. The applicant’s employment was terminated on the basis of this activity.”
However in her contentions of fact and law filed 3 February 2014 the applicant’s position was:
“4.On or about 12 July 2012 the Applicant was told by the Secretary of the union that her employment was to be terminated by the union. The applicant asked the reasons for the termination but was refused a reason by the Secretary.
5.The Applicant alleges that there were essentially three reasons for the termination the three reasons were:
· That she was terminated in breach of section 351 because she had a different political opinion to the dominant view within the union (that she was not a member of the dominant Australian Labour Party faction that controlled the branch);
· That she was considered by the Secretary to be a lesbian and was terminated on that ground in breach of section 351; and
· Because of her political opinion and her activates (sic) as part of her duties as an organiser she was perceived to be acting in a way contrary to the interests of the Secretary of the union. That is distinct from acting against the interests of the union and its members.”
Then in the outline of submissions filed on 2 January 2015 the applicant alleged:
“1…The applicant in these proceedings submits that her employment was terminated by the respondent in a manner which is in breach of the provisions of the Act. The applicant says specifically that her employment was terminated on the basis of the secretary’s belief that she was either homosexual or bisexual. Further, the applicant says that she was terminated because her political beliefs were different to that of the employer (or the dominant view within the union) and that the employer terminated the employment on the basis of political belief.
…
3.The termination of the employment on the basis of sexual preference and political opinion is in contravention of section 351 of the Act.
…
9.In response to the application the respondent says that the termination of the employment was not for the prohibited reason the respondent says that the reason for the termination was because the applicant was not performing work to a standard expected by the respondent.
10. The respondent says that the applicant had been counselled by senior members of staff in relation to her performance. However, the applicant denies that there was any counselling of her at any time further the applicant says that no complaints in relation to her performance were ever put to her by the respondent.
…
11.It is submitted in the circumstances of this case that the assertions of the respondent given the evidence which will be led by the delegates is not credible.
…
13.The applicant no longer seeks reinstatement to her position as an industrial organiser with the Health Services Union Victorian number 1 Branch the applicant seeks compensation for lost remuneration due to the termination of her employment. The applicant also seeks the imposition of a penalty against the respondent of the breach of the provisions of the Act.”
Ultimately it was these most recent alleged discriminatory or prohibited reasons the applicant alleged were the reasons or part of the reasons for her termination and that the applicant pursued at trial.
The respondent’s case
In the response filed on 13 September 2014 the respondent opposed all of the orders sought by the applicant. The grounds upon which the respondent did so were:
“1.The Applicant did not conduct herself in accordance with good practice or carry out her work diligently.
2. The Applicant was terminated by the Respondent on
12 July 2013 because a number of complaints were received from Members and Delegates regarding her performance as an Organiser. The Applicant was not performing her work as an organiser to the required standard.
3. The allegation that the Applicant was terminated because of her political views, her sexual orientation or her industrial activity is completely without foundation. It is strenuously denied.”
In the particulars of defence filed on 17 February 2014, the respondent’s position was the applicant’s poor performance was the reason for her termination of her employment. Whilst admitting the applicant was told by the secretary of the respondent, that her employment would be terminated, it otherwise denied the allegations made by the applicant or that it had breached the FW Act.
In submissions filed prior to the trial the respondent’s position was:
“10.The Respondent filed particulars of defence on 17 February 2014. The Respondent denied that “the Applicant’s employment was terminated because she had a different political opinion to the dominant view within the union” or “on the ground that she was a lesbian” and stated that: “…the Applicant’s poor performance was the reason for the termination of her employment.”
11.The Respondent has filed the following affidavits by the following deponents:
(a)Diana Asmar dated 9 December 2014;
(b)Nick Katsis dated 9 December 2014;
(c)Lee Atkinson 9 December 2014; and
(d)Mark Donohue dated 15 December 2014.
12.The Respondent denies that there is or was a “dominant view within the union” or a “dominant Australian Labour Party faction that controlled the branch”. Ms Asmar will give evidence that she doesn’t know whether Ms Govan was in a faction of the ALP and that the termination of her employment had nothing to do with Ms Govan’s political allegiances.
13.Further, Ms Asmar will give evidence that she did not know or care whether Ms Govan was bisexual and that Ms Govan’s sexuality had nothing to do with the termination of her employment.
14.The Applicant was dismissed by reason of her poor performance and the Respondent submits that the objective facts and circumstances surrounding the Applicant’s dismissal are:
(a)The Applicant was employed for a short period of time and was dismissed within the probationary period that applied to her employment;
(b)The Respondent and its employees who supervised Mr Govan believed her performance was poor; she was counselled and questioned about her performance during the course of her employment and Ms Asmar ultimately decided that she would terminate the Applicant’s employment during her probation period because she was “simply not up to the job”.
15.The Respondent submits that neither sexual orientation nor political opinion were operative or immediate reasons for the termination of the Applicant’s employment.”
The legislation
The applicant’s claims raise for consideration the general protection provisions in Division 3-1 of the FW Act. In relation to both the allegations of adverse action on the grounds of political opinion and sexual preference the provisions of ss.342, 351, 360 and 361 of the FW Act are relevant.
Section 351(1) of the FW Act provides:
“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 preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”
For the purposes of s.351(1) of the FW Act, the circumstances in which “adverse action” is taken by an employer against an employee is set out in s.342(1) at Item 1 as follows:
“(1)The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action Item Column 1
Adverse action is taken by ...Column 2
if ...1 an employer against an employee 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.
2 a prospective employer against a prospective employee the prospective employer:
(a) refuses to employ the prospective employee; or
(b) discriminates against the prospective employee in the terms or conditions on which the prospective employer offers to employ the prospective employee.
3 a person (the principal ) who has entered into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor the principal:
(a) terminates the contract; or
(b) injures the independent contractor in relation to the terms and conditions of the contract; or
(c) alters the position of the independent contractor to the independent contractor's prejudice; or
(d) refuses to make use of, or agree to make use of, services offered by the independent contractor; or
(e) refuses to supply, or agree to supply, goods or services to the independent contractor.
4 a person (the principal ) proposing to enter into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor the principal:
(a) refuses to engage the independent contractor; or
(b) discriminates against the independent contractor in the terms or conditions on which the principal offers to engage the independent contractor; or
(c) refuses to make use of, or agree to make use of, services offered by the independent contractor; or
(d) refuses to supply, or agree to supply, goods or services to the independent contractor.
5 an employee against his or her employer the employee:
(a) ceases work in the service of the employer; or
(b) takes industrial action against the employer.
6 an independent contractor against a person who has entered into a contract for services with the independent contractor the independent contractor:
(a) ceases work under the contract; or
(b) takes industrial action against the person.
7 an industrial association, or an officer or member of an industrial association, against a person the industrial association, or the officer or member of the industrial association:
(a) organises or takes industrial action against the person; or
(b) takes action that has the effect, directly or indirectly, of prejudicing the person in the person's employment or prospective employment; or
(c) if the person is an independent contractor--takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services; or
(d) if the person is a member of the association--imposes a penalty, forfeiture or disability of any kind on the member (other than in relation to money legally owed to the association by the member).
In summary an employer can take adverse action against an employee by: dismissing the employee; or by injuring the employee in his or her employment; or by altering the position of the employee to the employee’s prejudice; or by discriminating between the employee and other employees of the employer.
The FW Act provides that once an applicant has established either that they have a workplace right or an attribute covered by s.351(1) of the FW Act and that they have been subject to adverse action s.361 of the FW Act operates to reverse the normal onus of proof.
Section 361 provides:
“(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, in proceedings arising from the application 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.”
By virtue of s.360 of the FW Act a person takes action for a particular reason if the reasons for the action include that reason.
The relevant provisions of the FW Act provide that once the applicant has established:
· the entitlement to the workplace right alleged or the attribute covered by s.351 of the FW Act; and
· the alleged adverse action;
the onus then falls to the respondent to establish that the alleged action was not for a prohibited reason or with a particular intent that would constitute a contravention of the FW Act.
It is also necessary to note that s.140 of the Evidence Act 1995 (Cth) deals with the question of the standard of proof in these proceedings and provides:
“(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into court in deciding whether it is so satisfied, it is to take into account;
(a)the nature of the cause of action or defence; and
(b)the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.”
Approach to legislative provisions
The leading authority on the approach to the adverse action provisions of the FW Act is Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 290 ALR 647.[13]
The High Court (French CJ, Gummow, Hayne, Heydon and Crennan JJ) upheld an appeal against a majority decision of a Full Court of the Federal Court that adverse action had been taken “because” the respondent had engaged or proposed to engage in industrial activities, an attribute proscribed by s.346 in conjunction with s.347 of the FW Act.[13] at paragraphs [56]; [102]; [127].
In that case, the High Court confirmed that the question of whether a particular action or decision was taken because of a proscribed reason, or for reasons which included a proscribed reason, is a question of fact to be determined on the whole of the evidence.
What their Honours describe as the “correct approach” is set out at paragraphs [41]-[45] of their reasons:
“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.
42.Determining why a defendant employer took adverse action against an employee involves consideration of the decision-maker's "particular reason" for taking adverse action (s 361(1)), and consideration of the employee's position as an officer or member of an industrial association and engagement in industrial activity ("union position and activity") at the time the adverse action was taken (ss 342, 346(a), 346(b), 347 and 361(1)).
43.Clearly a defendant employer interested in rebutting the statutory presumption in s 361 can be expected to rely in its defence on direct testimony of the decision-maker's reason for taking the adverse action. The majority in the Full Court correctly rejected an argument put by the respondents that the introduction of the statutory expression "because" into a legislative predecessor to s 346, in place of the previous statutory expression "by reason of", rendered irrelevant the state of mind of the decision-maker.
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 enquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?"
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.”
French CJ and Crennan J also considered the effect of s.360 of the FW Act at [57] to [59]. Their Honours adopted the reasons of Mason J in General Motors Holden Pty Ltd v Bowling (1976) 136 CLR 676.
At paragraphs [100] to [104], Gummow and Hayne JJ discuss the meaning of “because” in s.346 which is in similar terms to s.340 of the FW Act:
“100.The application of s 346 turns on the term "because". This term is not defined. The term is not unique to s 346.
It appears in s 340 (regarding workplace rights), s 351 (regarding discrimination), s 352 (regarding temporary absence in relation to illness or injury) and s 354 (regarding coverage by particular instruments, including provisions of the National Employment Standards).
101. The use in s 346(b) of the term "because" in the expression "because the other person engages ... in industrial activity", invites attention to the reasons why the decision-maker so acted. Section 360 stipulates that, for the purposes of provisions including s 346, whilst there may be multiple reasons for a particular action "a person takes action for a particular reason if the reasons for the action include that reason". These provisions presented an issue of fact for decision by the primary judge.
102. Reference was made in argument to Purvis v New South Wales. That litigation concerned the application of the Disability Discrimination Act 1992 (Cth) to the suspension and expulsion of a disabled student from a State school. Section 5(1) used the expression "because of the disability". Gummow, Hayne and Heydon JJ emphasised that s 10 of the statute stated that if an act is done for two or more reasons, one of which is the disability of a person, even if it not be the dominant or a substantial reason for doing the act, the act is taken to be done for that reason. This provision may be compared with s 360 of the Act just described.
103. With respect to what became s 346 of the Act, paragraph 1458 of the Explanatory Memorandum to the Fair Work Bill 2008 stated:
"Clause 360 provides that for the purposes of Part 3-1,
a person takes action for a particular reason if the reasons for the action include that reason. The formulation of this clause embodies the language in existing section 792 which appears in Part 16 of the WR Act (Freedom of Association) and includes the related jurisprudence. This phrase has been interpreted to mean that the reason must be an operative or immediate reason for the action (see Maritime Union of Australia v CSL Australia Pty Limited). The 'sole or dominant' reason test which applied to some protections in the WR Act does not apply in Part 3-1." (emphasis added)The phrase "operative or immediate reason" used in CSL is relevantly indistinguishable from the phrase "a substantial and operative factor" used by Mason J in Bowling.
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.”
Their Honours warn at paragraph [121] of the dangers of an enquiry contrasting “objective” and “subjective” tests in applying s.346 of the FW Act. They conclude at paragraph [126]-[128]:
“126.The relevant frame of reference in this case is a statutory provision in which neither the words "objective" nor "subjective" appear. There is an inherent risk of misguidance when seeking to imply tests or requirements in the application of a statutory provision absent some persuasive basis to do so. Nothing was put in argument, nor are there any decisions of this Court, to provide such a basis. Indeed, no direct challenge was made to what had been said by Mason J in Bowling.
127.In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a "substantial and operative factor" as to constitute a "reason", potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.
128.Whilst it is true to say, as do the respondents, that there is a distinction between discharging the onus of proof and establishing that the reason for taking adverse action was not a proscribed reason, there is nothing to suggest that the conclusions drawn by the primary judge, and the findings and reasons upon which these were based, did not take this into consideration. As Lander J concluded, if the reasons for the conclusions and the facts for which they were formulated are not challenged, then the contravention of s 346 cannot be made out. This proposition should be accepted. To hold otherwise would be to endorse the view that the imposition of an onus of proof on the employer under s 361(1) creates an rebuttable presumption at law in favour of the employee.”
Heydon J said at [146]:
“To search for the "reason" for a voluntary action is to search for the reasoning actually employed by the person who acted. Nothing in the Act expressly suggests that the courts are to search for "unconscious" elements in the impugned reasoning of persons in Dr Harvey's position. No requirement for such search can be implied. This is so if only because it would create an impossible burden on employers accused of contravening s 346 of the Act to search the minds of the employees whose conduct is said to have caused the contravention. How could an employer ever prove that there was no unconscious reason of a prohibited kind? An employer's inquiries of the relevant employees would provoke, at best, nothing but hilarity. The employees might retort that while they could say what reasons they were conscious of, they could say nothing about those they were not conscious of.”
Given the nature of the applicant’s claim(s) it is important to note that Collier J in Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399 (“Jones”) explained the nature of the onus cast upon an applicant in an application, such as this as follows:
“10.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, was explained by Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 at [161]-[162] and Moore J in Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585; [2008] 177 IR 306 at 321-322 [49]- [50]. To paraphrase observations of Moore J in Rojas [2008] FCA 1585; [2008] 177 IR 306 at 322, it is not sufficient for Ms Jones to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that Ms Jones is able to prove these allegations, the burden is then cast on to QTAC to prove that adverse action was not taken against Ms Jones because of her workplace right for the purposes of s 340 and s 361 of the Act.”
Finally in State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 (“Grant”) the Full Court of the Federal Court said of the abovementioned sections of the FW Act:
“32. As the trial judge recognised the leading authority on the operation of ss 360 and 361 of the Fair Work Act in the context of Part 3-1 of that Act (which includes s 351) is Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500. The principles which informed this decision were recently reaffirmed by a majority of the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41. Relevantly, these authorities establish that:
· 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 prescribed 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.”
Evidence
Applicant’s evidence
The applicant filed two affidavits upon which she relied and was cross examined.
In her affidavit filed 15 September 2014 the applicant deposed to inter alia her opinion about her “significant” workload, what areas she said she was responsible for organising and the problems she said arose from this.
The applicant deposed to concerns she had about allegations of corruption and exploitation of casual workers at Monash Health and problems she said were caused by a delegate including complaints to Ms Asmar. The applicant deposed:
“33.A delegate from Monash health had been on secondment in the office on the member’s service team at the time
Ms Asmar became State Secretary. This member’s secondment did not lead to employment and she returned to Monash medical centre. This particular delegate was not happy with the employment of labour party friends and voiced this through emails to Ms Asmar. I know this because the member told me what she was doing and showed me some of the emails that she sent to Ms Asmar. At the time I told the delegate not to involve me in the political warfare between her and Asmar as I was the organiser and was at the workplace to deal with industrial issues of concern to the members. I was also aware that I should not involve myself in political matters whilst on the business of the union.34.Ms Asmar instructed me to control this member, I stated it was not possible to control anybody and people can have their own political opinion. Ms Asmar would call me saying that the delegate had sent yet another email and that I was not doing my job as an organiser if I couldn’t control her.
I again stated that this delegate could not be controlled nor did I want to control her. She was an active delegate and was working hard for the members in her department at her workplace. I chose to work with the delegate, as it is not the role of an organiser to discriminate against members.
35.I was also instructed that I had to work hard with Monash to persuade the members to support Ms Asmar, as in the election they were supporting the opposing ticket. I worked hard at supporting and representing the members at Monash Health, in return the members were regaining their faith in the union. Monash Health was important for Ms Asmar to gain their support due to numbers for the upcoming election.”[14]
[14] Affidavit of Ms Jayne Govan filed 15 September 2014.
The applicant also deposed to concerns she had about an incident arising from a discussion with the office of the then State Opposition leader Daniel Andrews about issues concerning a member of the respondent. The applicant went on to acknowledge that she had subsequently admitted to Ms Asmar to being impolite in the exchange with other employees of the respondent after that discussion.
In her affidavit filed 15 September 2014 the applicant deposed to her concerns that “labor party employees and friends” dominated the way the respondent was run and her evidence was she “had a target” on her back because of the abovementioned incident.
In her affidavit filed 22 January 2015 the applicant had deposed:
“20. During my employment with the branch I was asked to become a member of the ALP specifically I was asked to become a member of the Altona branch of the ALP.
Ms Asmar knew that I was not a member of the ALP but clearly wanted me to become a member...”
The applicant also deposed to being told by Mr McCubbin of concerns (he said were) held by Ms Asmar about the applicant’s interactions with Ms McIntosh. The applicant deposed that she was shocked to hear as reported by Mr McCubbin, statements made (allegedly by Ms Asmar) that it was thought the applicant would coerce Ms McIntosh into a sexual relationship.
In her affidavit filed 15 September 2014 the applicant deposed:
“37. Approximately mid-June Mr McCubbin stated that Ms Asmar had told him that I was bisexual and that she had concerns for Ms McIntosh being close friends with me.
As Ms McIntosh was going through a marriage separation and vulnerable (sic) that I would take advantage of this and coerce Ms McIntosh into a sexual relationship. I was shocked to hear such statements, as she had known me for so long.”
In her affidavit filed 22 January 2015 the applicant deposed that (on the one hand) to the best of her knowledge there were no members at the sites she had visited who had complained about her work ethic. However the applicant also deposed to being aware of complaints about her and having had issues raised with her by those she reported to at the respondent. Notwithstanding this the applicant disagreed her performance was substandard.
In cross examination the applicant’s evidence was she acknowledged there had been complaints about her and her performance, including not returning phone calls from members and not addressing their industrial issues.[15]
[15] Transcript 16 February 2015 p 24, lines 14 – 16.
In her evidence in cross examination the applicant accepted training other organisers was not a formal part of her role[16] and that the respondent rejected her claims about the organising areas she claimed she was responsible for.[17]
[16] Transcript 16 February 2015, p 26, line 15-17.
[17] Transcript 16 February 2015, p 24, lines 21-45.
The applicant was confronted in cross-examination with correspondence detailing problems the respondent had with her performance and directives she was given on behalf of the respondent to address those performance problems.[18]
[18] Transcript 16 February 2015, p 31, line 30- 25.
The applicant also acknowledged there had been correspondence to the respondent from members expressing dissatisfaction with service they had or hadn’t received from the respondent during the time she was the responsible organiser for their workplace/s.[19]
[19] Transcript 16 February 2015, p 36, line 41- 23.
Evidence of Mr McCubbin
The applicant relied on the affidavit of Mr Robert McCubbin who had been employed by the respondent as lead organiser during some of the time the applicant was employed in 2013.
Mr McCubbin gave evidence and was cross examined. In his affidavit filed 15 September 2014, Mr McCubbin had deposed to having been involved with the respondent and Ms Asmar for some time. It was Mr McCubbin’s evidence he believed he had been a trusted confidant and close friend of Ms Asmar.
Mr McCubbin deposed to being aware of and at times involved in arguments and debates he claimed had occurred about the applicant’s employment and her political views during the time he was lead organiser. In his affidavit Mr McCubbin claimed everything around the respondent was about supporting the ALP.
Mr McCubbin deposed to having arguments about complaints received about the applicant and her performance with Ms Asmar. In his affidavit Mr McCubbin’s position was he believed those claimed complaints were principally about Ms Asmar.
Mr McCubbin acknowledged in his affidavit there were complaints about the applicant from members but his evidence was he would “personally” call those members to find out what their issues were.
Mr McCubbin deposed in his affidavit to attending a function at Ms Asmar’s home as follows:
“8.Once the situation had calmed somewhat during the night, we all sat down at the table and Diana expressed her concerns about another female organiser, Dee McIntosh was going through a separation with her husband. Dee was very good friends with Jayne. Diana stated quite clearly to us that she was seriously concerned about the situation.
The concern Diana had was not about Dee’s separation but was more about Jayne. Diana told us that Jayne was bisexual and Diana was worried that Jayne would seduce Dee into a bisexual relationship.
9. Diana then made it clear, in her view this was another reason that Jayne should be dismissed. Diana told us that she intended to terminate Jayne Govan’s employment because of her sexuality and because she was not a member of the political faction that she expected employees of the union to be in.”
Mr McCubbin’s evidence in cross examination was he acknowledged he was no longer employed by the respondent when the applicant was terminated but that he nonetheless believed Ms Asmar terminated the applicant’s employment because she (Ms Asmar) believed the applicant was bisexual and/or was not a member of the prevailing political faction at the respondent’s office.
In cross examination Mr McCubbin’s evidence was he acknowledged Ms Asmar had raised concerns with the applicant’s performance on a number of occasions with him and had raised those with the applicant too.[20]
[20] Transcript 16 February 2015, p 42, line 8-11.
Mr McCubbin also accepted he was quite close “in a personal sense” with unsuccessful candidates in the election that saw Ms Asmar elected secretary of the respondent.
Evidence of Ms McIntosh
The applicant also relied on the affidavit of Ms Deidre McIntosh filed
15 September 2014. Ms McIntosh worked for the respondent on a
3 month secondment in 2013. Ms McIntosh gave evidence and was cross examined.Ms McIntosh deposed to her claims of concerns she had about the applicant’s workload. Ms McIntosh deposed to being told by Mr McCubbin to communicate with him about work related matters and not the applicant. Ms McIntosh deposed to becoming “aware” that Ms Asmar was uncomfortable with her close friendship with the applicant.
Ms McIntosh deposed to discussions between her, Mr McCubbin and the applicant and becoming aware of the claims made by Mr McCubbin about what he said Ms Asmar had told him and that she was horrified about such “accusations/assumptions”.
Ms McIntosh deposed to claims made by her about events after the applicant was terminated and her belief that the applicant was “diligent” and “passionate” about her work.
In cross examination Ms McIntosh’s evidence was she had “actively campaigned against” Ms Asmar in the most recent union election.[21]
[21] Transcript 16 February 2015, p.57, line 7-9.
Evidence of Ms Hay and Ms Perri
Finally the applicant also relied on the affidavits of Susan Hay
(a delegate for the respondent at Monash Health) and Anastasia Perri, (a member of the respondent and former delegate at the Dental Hospital). Both Ms Hay and Ms Perri gave evidence and were cross examined.
In her affidavit filed 22 January 2015 Ms Hay deposed to having “no complaints” with regards to the way the applicant carried out her functions. Ms Hay deposed to having significant complaints about “the way Ms Asmar” manages the respondent and deals with complaints from members.
However in cross examination Ms Hay’s evidence was she acknowledged making frequent complaints about the respondent including dissatisfaction with service from the respondent when the applicant was the responsible organiser.[22]
[22] Transcript 17 February 2015, p.66, lines 35-45 to p 67, lines 25-34.
Ms Hay also acknowledged she had supported rival candidates in each of the elections Ms Asmar had stood as secretary.
Ms Perri deposed to her involvement as a delegate for the respondent at the Dental Hospital. Ms Perri deposed to her concerns about how the respondent had dealt with complaints she had made about another organiser.
Ms Perri’s evidence in chief and cross examination added nothing directly relevant to the facts in issue.
Respondent’s evidence
The respondent relied on the affidavit of Ms Diana Asmar filed
10 December 2014. Ms Asmar gave evidence and was cross examined.
Ms Asmar who is the current secretary of the respondent denied the claims made by and on behalf of the applicant of “faction fighting” and that jobs were provided because of “political allegiances” or for “family friends”.
Ms Asmar rejected the claims made by and on behalf of the applicant as to the applicant’s responsibilities for organising areas or training role.
Ms Asmar in her affidavit acknowledged Ms Hay made lots of complaints and her evidence was they were about unresolved industrial issues which she believed the applicant was supposed to have been responsible for addressing and resolving.
Ms Asmar deposed she didn’t know whether the applicant was in a faction of the ALP and if she was which one it was. Ms Asmar also deposed that as far as she was concerned a person’s sexuality had nothing to do with their employment and in this case certainly had nothing at all to do with the termination of the applicant’s employment.
Ms Asmar’s evidence in chief and cross examination was consistent on the issues of the concerns she said she had about the applicant’s performance. In her affidavit filed 10 December 2014 Ms Asmar deposed:
“12.I refer to paragraph 42 of the Applicant’s affidavit. After the incident involving Mr Donohue, I asked Ms Govan to attend a meeting in my office a few days later with Mr McCubbin.
I listened to what Ms Govan had to say but I made the point that she was not to slam doors in anyone’s face regardless of whether she thought it was necessary. I warned her about her behaviour and said I would not be warning her again about this kind of behaviour. At this meeting we also spoke about her work performance because she had not been completing her diary, which all organisers were required to do. McCubbin agreed that her behaviour was not appropriate and that he would ask her to apologise to Mark and that he was having trouble getting her to complete her diary.”In relation to the allegations made against her by Mr McCubbin on behalf of the applicant Ms Asmar denied those allegations. By way of an example Ms Asmar’s evidence was:
“15.Mr McCubbin would turn up at my house reasonably regularly if he was upset about work. We would occasionally discuss Ms Govan’s performance but most of these conversations took place in the office and were about complaints made about Ms Govan. Ms Govan stood out from the other organisers for the number of complaints made about her not responding to members’ enquiries and about not being contactable. Often I could not reach Ms Govan by telephone and she did not return my calls.
…
17.I absolutely deny that I made the comments alleged at paragraphs 8 and 9 of Mr McCubbin’s affidavit. I never said anything like that. I did not and still don’t know whether Ms Govan is bisexual or not; as far as I know, she always had male partners. I would never discriminate against anyone for that reason. I have no difficulty if people are gay, lesbian or bisexual. Ms Govan’s brother Daniel is openly gay and ran on my ticket. I had also helped Ms Govan and some friends of hers (who were a lesbian couple) make a submission to Melbourne City Council about child care for same sex parents. I also attended their wedding. I have lots of gay and lesbian friends and acquaintances and some employees of the HWU are gay. As far as I am concerned, a person’s sexuality has nothing to do with their employment and it certainly had nothing at all to do with the termination of Ms Govan’s employment.”
Ms Asmar’s evidence in chief as to why the applicant’s employment was terminated was:
“19.The reason for the termination of Ms Govan’s employment was her performance. During her employment, I and other senior HWU staff, including the then Lead Organiser Mr McCubbin, received multiple complaints about her failure to do even the most basic duties of her position. I, and other senior staff, including Mr Donohue, consistently questioned and counselled her about her performance, including her failure to organise and attend members’ meetings, failure to attend member disciplinary meetings (which lead to adverse outcomes for members), failure to respond to email and telephone messages and failure to communicate with other HWU staff in relation to industrial matters. Ms Govan also failed to complete a work diary, which was required for all organisers to make sure that they had planned visits to all their worksites.
…
23.The reason for the termination of Ms Govan’s employment was poor performance. It was clear to me that she was simply not up to the job and so I decided to terminate her employment within her probation period. It had absolutely nothing to do with her sexual orientation or political allegiances.”
In cross examination Ms Asmar was confronted with each of the applicant’s allegations. In relation to the claim by the applicant and her witnesses that the applicant had responsibility for three organising areas Ms Asmar denied this and maintained the applicant’s responsibilities were no different to other organisers.[23]
[23] Transcript 17 February 2015, p.86, lines 15 – 33.
In relation to the claims made by and on behalf of the applicant that her workload as an organiser was difficult for the applicant Ms Asmar accepted that Mr McCubbin had argued it was difficult for the applicant to cope with that workload. However Ms Asmar denied the applicant had a specific training role and her evidence was the applicant just couldn’t do the workload which wasn’t different to other organisers.[24]
[24] Transcript 17 February 2015, p.89, lines 17 – 30.
Ms Asmar was critical of Mr McCubbin’s effectiveness in his role as lead organiser and took issue with the veracity of the claims he made in his evidence.[25]
[25] Transcript 17 February 2015, pp.98 – 99, lines 43 – 14.
Ms Asmar rejected the criticism of her made by and on behalf of the applicant that relied on the evidence of Mr McCubbin pointing out he had left the respondent and hadn’t been doing his job as she found out after he resigned he hadn’t been following up complaints reported to him.[26]
[26] Transcript 17 February 2015, p.91, lines 13 – 24.
In relation to the evidence on which the applicant relied about complaints about the applicant being of a general nature and about lack of service from the respondent, rather than the applicant in particular Ms Asmar rejected this and made clear her view was if the applicant had been doing her job as an organiser properly the complainants would have got the assistance from the respondent they complained they weren’t getting.[27]
[27] Transcript 17 February 2015, p.92, lines 40 – 44 and p.95, lines 30-36 and p.96, lines 18 – 25.
Ms Asmar rejected the allegations made on behalf of the applicant that she had difficulty with anybody not politically aligned to her.[28] Ms Asmar’s evidence in cross examination was the respondent was not even a part of or affiliated with the ALP as a union.[29]
[28] Transcript 17 February 2015, pp.96 - 99, lines 27 – 5.
[29] Transcript 17 February 2015, p.98, lines 6 11.
In a series of questions put to her in cross examination, Ms Asmar vehemently rejected the central allegations of the applicant’s claim and denied her decision to terminate the applicant’s employment had been for the reason including a prohibited reason.[30]
[30] Transcript 17 February 2015, p.97 – 100, line 37 – 44.
Ms Asmar’s evidence in chief as to why she took the decision to terminate the applicant’s employment was not shaken in cross examination.[31]
[31] See for example Transcript 17 February 2015, p.100, lines 21 – 45, p.116, lines 9 – 11, to p.117, line 11.
Importantly it was never put to Ms Asmar that performance problems hadn’t been raised with the applicant. The questions that were asked (which might have been of central relevance in an unfair dismissal claim) took issue with Ms Asmar’s decision as secretary of a union not to do more before terminating the applicant’s employment.[32]
[32] See transcript 17 February 2015 p.100, lines 21 – line 45, pp.116 – 117, line 9-11.
Evidence of Mr Atkinson and Mr Katsis
The respondent also relied on the affidavits of Mr Lee Michael Atkinson filed 10 December 2014 and Mr Nick Katsis also filed
10 December 2014. Mr Atkinson and Mr Katsis were both called to give evidence and were cross examined.Mr Atkinson is an organiser employed by the respondent and worked for the respondent when the applicant was employed.
Mr Katsis is a head organiser also employed by the respondent and worked as an organiser for the respondent at the same time as the applicant.
Both Mr Atkinson and Mr Katsis gave evidence (which the applicant denied) about comments they said the applicant had made about her sexual preference and that they understood from what she had told them in front of the other employees of the respondent that she was into “black” or darker skinned men. The evidence which it appeared they each thought was salacious was presumably given to rebut the impression the applicant sought to create that her sexual preference (and knowledge of same which she sought to impute to Ms Asmar) was somehow notorious amongst those employed at the respondent.
Submissions
Both parties filed written submissions before and after the trial upon which they relied.
The applicant’s position in submissions filed prior to the trial have already been set out at paragraph 20 above.
In final submissions filed 18 March 2015 the applicant maintained:
“3.The evidence of the applicant was that she was terminated from her employment for a prohibited reason or reasons the reasons being her political differences with the prevailing view within the employer, and for reasons of her sexuality.
…
7.It is submitted that the evidence adduced by the applicant in the proceedings clearly demonstrates the circumstances in the workplace are such as to give reasonable rise to the allegations that the applicant puts in relation to the termination of her employment. The evidence of Mr McCubbin in relation to his conversations with the respondent state secretary at her home in which she told Mr McCubbin that she intended to terminate the applicant’s employment because of political differences and because of the fact that she considered the applicant to be bisexual demonstrate this.
8.The evidence in the proceedings it is submitted demonstrate that the applicant was a competent industrial operative and that she had been competent in this field for a significant period of time. Further, it is submitted that on the evidence the respondent state secretary was aware of the competence of the applicant as set out above.
9.The evidence in this matter from the applicant and the applicant’s immediate supervisor Mr McCubbin shows that the applicant had a very large work load. The applicant was responsible for a significant number of workplaces and members. The applicant gave evidence that it was very difficult for her to keep up with the workload and the telephone enquiries. It was Mr McCubbin’s evidence that he attempted to assist the applicant by fielding a number of the telephone enquiries.
10.The applicant had performed her industrial duties for
2 years in a previous engagement with the union and had performed industrial work for the current state Secretary during the secretary’s election campaign in 2012.
The current secretary gave evidence that this was not the case however it became crystal clear during the cross examination of the state secretary that in fact this work had been performed. It is submitted that the state secretary’s evidence in relation to this matter and others should not be accepted by the court. The evidence that was given was given in an argumentative and evasive way and the concessions that were given by the state secretary were given reluctantly.11.The applicant gave evidence that she was called into the office of the state secretary on the day of the termination and was handed a letter of termination. The letter of termination is very brief and is attached to the affidavit of the applicant and is exhibited at page 58 of the court book. The letter of termination does not have a reason for the termination recorded. It was put to the state secretary that she did not include the reason for termination because she knew that she was terminating the applicant for it prohibited reason. The respondent state secretary denied that proposition however it is submitted that her evidence ought not be believed.
12. In his evidence Mr McCubbin said: –
“On or around the 7th June 2013 my partner Sandy Porter and I attended a meeting at Diana and David Asmar’s residence. At that meeting and like other meetings we had had previously, there was a lot of argument and debate about the employment of Jayne Govan with the health services union No. 1 Branch. These arguments were around Jayne Govan’s political views. Diana had verbally promised the members at every meeting that the union would have no involvement with any political party. However everything around the union was about supporting the ALP.”
Further
“Diana then made it clear, in her view this was another reason that Jayne should be dismissed. Diana told us that she intended to terminate Jayne Govan’s employment because of her sexuality and because she was not a member of the political faction that she expected employees of the union to be in.”
13.Mr McCubbin maintained that evidence under cross examination. Mr McCubbin was not shaken in his evidence in respect of these matters it is the submission of the applicant that the evidence given by McCubbin ought to be accepted by the court as genuine and true.
14.The evidence from the respondent was that the applicant had been terminated because of complaints from the delegates. The respondent relied on an email from Ms Sue Hay which is an attachment DA 1 to the affidavit of Ms Asmar at page 117 of the court book. The respondent also relied on an email from Ms Morrey which is at page 119 of the court book and an email from St Vincent’s Hospital which is at page 122 – 124 of the court book and an email from Ms Thornton which is exhibited at page 126 – 127 of the court book. It is interesting to note that the respondent did not call any of the delegates who are said to have authored the emails.
15.The delegates, that were available, were however called by the applicant to give evidence on her behalf. Ms Hay gave evidence that the email from her was generated by her in consultation with the applicant. Further, that the email was not a complaint about the applicant. Rather, it was a list of unresolved issues that she and the applicant were working on and it was sent to the applicant on that basis. Ms Hay reserved her criticism for the State Secretary rather than the applicant.
16.In relation to the email from Ms Morrey the applicant gave comprehensive evidence with regards to the facts and circumstances surrounding that email. The email deals with 457 Visa holders working at the Alfred Hospital. The applicant gave evidence that she had been the organiser for a relatively short period and that prior to her being the organiser Mr Katsis who also give evidence on behalf of the respondent had been the organiser. Further, Mr Katsis as well is being an industrial organiser for the respondent was and continues to be an immigration agent. The applicant gave evidence that she had referred this matter to Mr Katsis in his capacity as an immigration agent as she had no experience dealing with these issues. The applicant’s evidence is set out in her affidavit in response at paragraphs 17 and 18 at page 130 of the court book.
17.The email from St Vincent’s Hospital delegates is dated after the termination date of the applicant the applicant was terminated on 12 July 2012 and the St Vincent’s correspondence is dated 9 August 2013 and 2 August 2013 on that basis the information contained within the documents could not have been in the possession of the respondent at the time of the termination. In those circumstances it would not have been possible for the respondent to rely on the contents of those emails at the time of the termination of the applicant.
18.In relation to the email from Ms Thornton the applicant gave evidence that she was not responsible for the matters referred to in the email. Rather, Mr Sherriff was the responsible official and she had a discussion with him at which he agreed that he would continue to look after the matter. The evidence in regards to this matter is at paragraph 19 of the applicant’s affidavit in response at page 131 of the court book. The respondent chose not to call Mr Sherriff in relation to this matter.
19.The respondent through the secretary said in addition to the 4 emails referred to above that Ms Govan’s performance was not up to speed in relation to an incident where the applicant allegedly slammed the door in Mr Donohue’s face. The applicant gave comprehensive evidence in relation to that matter and said she did not slammed (sic) the door in anybody’s face rather that she closed the door to prevent Mr Donohue from interrupting a conference call that she and Mr McCubbin were having with a member. The secretary conceded that she was not involved in the incident and only had knowledge of it from Mr Donohue. It is submitted that the direct evidence of the applicant ought be preferred in these circumstances.
20.It is submitted that the evidence in relation to the matters relied on by the secretary who was the decision maker should not be accepted. The secretary further conceded in her evidence that no (sic) of these matters had been put to the applicant prior to her termination.
21.on (sic) the basis of the evidence that is before the Court there is evidence from Mr McCubbin that he was told directly by the secretary that she was going to terminate the employment of the applicant for it prohibited reason (s). It is submitted that there is no reason why Mr McCubbin would make this matter up. On the other hand there is a denial from the decision maker that she terminated the employment of the applicant for those prohibited reasons. The secretary says she terminated the employment because of the applicant’s performance. Ranged against that proposition is the clear evidence that the secretary had the applicant perform industrial work for her during the secretary’s election campaign. Obviously, the industrial work would have to be performed to a high standard if it was part of the election campaign which it was.
22.In relation to the evidence of Mr Katsis and Mr Atkinson it is submitted that their evidence adds nothing to the proceedings. Their evidence is in the submission of the applicant irrelevant to the proceedings and reveals nothing about the true nature of the motivation of the secretary in relation to the termination of the applicant’s employment.
…
24.It is submitted that the adverse action was taken because of the applicant was not a member of the dominant political faction within the union and because of her sexuality. In those circumstances the taking of the adverse action was unlawful.
…
27.It is submitted that on the basis of the evidence before the Court the respondent has not met its onus of proof. It is telling in the submission of the applicant that the secretary refused to give her reason for the termination of her employment. It was put to the secretary that she did not give the reason because she knew she was engaging in prohibited conduct. The secretary did not agree with that characterisation but when her evidence is viewed as a whole it is submitted that it is the correct characterisation of her evidence and her position. Indeed, it is the submission of the applicant that the reasons given by the secretary in her evidence for the termination are simply a retrospective attempt to justify the unjustifiable.
…
30.It is clear from the evidence that Ms Govan did hold an opinion that was inconsistent with the prevailing view within the union. She refused to become a member of the ALP and more specifically the right-wing faction of that party. She was requested on a number of occasions by the organisation or influential people within the organisation to join that group and she refused. Because of that according to the evidence of Mister (sic) McCubbin the secretary determined to terminate her employment which is unlawful adverse action.
…
38.Further, it is submitted based on the evidence that non-of (sic) the factors which the decision maker says were the reason for the termination of the applicant demonstrate a proper basis for termination in the case of Sperandio v Lynch [2006] FCA 1648 Jessup J in considering an application under the predecessor legislation in not dissimilar circumstances to the present case reached the conclusion that the reasons for termination put by the respondent were not the correct reasons and rather the applicant had been terminated unlawfully because of a short-term absence from work. His honour found that the respondent had not met the required level of proof. As a consequence his honour found that the respondents had breached section 170 CK.
39.It is submitted that the court should find that the respondent has not met its onus of proof in relation to this matter…”
Ms Asmar was also asked in cross examination:
“Okay, and at some point between 29 January 2013 and 12 July 2013 you formed the opinion that Ms Govan’s sexuality was bisexual, didn’t you? Totally untrue.
And you formed the opinion that Ms Govan might cause a problem for Ms Macintosh, didn’t you? Totally untrue. It’s so – so much nonsense.
And you told Mr McCubbin at your home that you had decided that you would terminate Ms Govan’s employment on the basis of her political affiliation or non-affiliation and her sexuality, didn’t you? Definitely not, Mr Addison. I respect everyone’s sexuality and no matter who a member of, the Essendon Football Club, Collingwood, ALP, Liberal, I couldn’t give a damn.
Okay. Mr McCubbin is very clear with regards to this allegation. He sets it out paragraphs 8 and 9 of his affidavit, which his on page 82. You were in the court when he gave evidence with regards to it yesterday. It was a very clear proposition that Mr McCubbin put to this court under oath, that you had made these comments in your home at a meeting. I put it to you Mr McCubbin is telling the truth and you are not? Unfortunately Mr McCubbin drinks a lot and takes strong medication that he has memory losses and makes up accusations, and I take offense to these allegations which is totally untrue.
So you say Mr McCubbin – no, I withdraw that. Okay. I hear what you say with regards to that? And I have a lot of friends that are gay and lesbians and bisexuals but you know what, when I employ people I don’t even look at those situations, and I have current employees that are of that nature and I love them dearly no matter what sex or race or affiliations they are with.
I hear what you are saying, Ms Asmar.”[68]
[68] Transcript 17 February 2015, p.98, lines 42- 22..
Both parties made submissions on credibility in light of the evidence. The applicant’s witnesses did little to conceal their evident animus towards Ms Asmar. However for present purposes it is necessary to resolve the collision in the evidence between Mr McCubbin and Ms Asmar about what was allegedly said by Ms Asmar at her home.
The respondent submitted that an adverse inference should be drawn because the applicant failed to call Ms Sandy Porter (Mr McCubbin’s partner who he said was present during the alleged conversation).
Mr McCubbin’s evidence was confused on why she wasn’t called.[69] For the principle in Jones v Dunkel (1959) 101 CLR 298 to apply the respondent need only demonstrate a particular inference be drawn having regard to the existing evidence.[70]
[69] See transcript 16 February 2015, p 47, lines 4 -11.
[70] See Forty Two International Pty Ltd v Barnes [2014] FCA 85 at [511].
In Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 of 431 it was said:
“Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he [or she], though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he [or she] is a truthful person telling the truth as he [or she] sees it, did he [or she] register the intentions of the conversation correctly and, if so, has his [or her] memory correctly retained them? Also, has his [or her] recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others?” [71]
[71] See also discussion deciding between conflicting testimony at [44] to [48] in Schmidt v Panja & Ors [2015] FCCA 111.
Taking all of these matters into account including the plausibility of each account and all of the evidence in this case (including that the applicant’s case rested almost entirely on what she said Mr McCubbin told her) I find that Mr McCubbin’s evidence of the alleged conversation was more likely to be what he believed to be said rather than a recollection of what was in fact said.
Ms Asmar denied the allegations made by the applicant and the allegations put to her in cross examination. Ms Asmar denied she was aware of the applicant’s sexuality or sexual preference at the time she made the decision to terminate the applicant’s employment. Ms Asmar also denied that any political opinion of the applicant was a reason or part of the reason for the termination of the applicant’s employment. Ms Asmar’s evidence was the applicant’s employment was terminated solely because of her poor performance.
In considering those issues I have taken into account the evidence of the respondent’s witnesses and the submissions made by both parties. Ms Asmar’s evidence, as to the reason for the termination of the applicant’s employment was not shaken, and I am not persuaded it should be rejected.
The evidence of Ms Asmar was not otherwise unreliable because of other contradictory evidence given by her or because other objective facts have been proven which contradict her evidence.[72]
[72] See Barclay at [45]. See also Grant at [48].
The more plausible the evidence of, or as to, the real reason for taking the adverse action, the more likely the Court will accept a decision makers statement that the action was not taken for a prohibited reason. In this case the evidence of Ms Asmar was replete with consistent and ongoing concerns about the applicant’s inability to perform in the role of organiser.
The evidence was these concerns were repeatedly identified, attempts were made to address those, but the evidence was ultimately the applicant’s performance did not meet the standard required by Ms Asmar. Put simply I accept Ms Asmar’s evidence that she believed the applicant was simply not up to the job.
Conclusion
For the reasons set out above, the Court accepts the evidence of the respondent that the one and the only reason for the termination of the applicant’s employment was her poor performance.
Accordingly, as no aspect of the applicant’s claim has been made out, the application must be dismissed.
Given s.570 of the FW Act any application for costs is to be filed and served within 14 days and any response 14 days thereafter.
Any application for costs will be determined on the papers unless the parties request otherwise.
I certify that the preceding one hundred and thirty eight (138) paragraphs are a true copy of the reasons for judgment of Judge O’Sullivan
Deputy Associate:
Date: 16 April 2015
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