Laing O'Rourke Australia Management Services Pty Ltd v Haley
[2024] FCA 1323
•15 November 2024
FEDERAL COURT OF AUSTRALIA
Laing O’Rourke Australia Management Services Pty Ltd v Haley [2024] FCA 1323
Appeal from: Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 5) [2024] FedCFamC2G 286 File number: WAD 86 of 2024 Judgment of: SHARIFF J Date of judgment: 15 November 2024 Catchwords: INDUSTRIAL LAW – appeal from decision of Federal Circuit and Family Court of Australia (FCFCOA) in which primary judge found appellant liable for wrongful termination, adverse action contrary to s 340(1) of Fair Work Act 2009 (Cth) (FW Act) and a contravention of s 117(1) of FW Act – where appellant had summarily terminated employment of respondent for alleged serious misconduct arising from incident at after-hours gathering of work colleagues and subsequent investigation of incident – where primary judge found that appellant had not established serious misconduct on part of respondent – where primary judge found that respondent had exercised certain workplace rights and appellant failed to rebut presumption in s 361 of FW Act that appellant had terminated respondent’s employment “because of” exercise of those rights – where primary judge found that appellant had contravened s 117(1) of FW Act by failing to give respondent notice of termination in authorised manner – consideration of principles of appellate review and remitter – whether primary judge erred in making various findings of fact, including that person identified by appellant as having made decision to dismiss respondent was not, in fact, person who made that decision; and that, where person who primary judge found had made decision to dismiss respondent was not called to give evidence, appellant had failed to rebut presumption in s 361 of FW Act – HELD: majority of alleged factual errors rejected; however, primary judge erred in specified respects; questions as to who was materially involved in decision to terminate respondent’s employment and whether presumption in s 361 of FW Act rebutted to be remitted to different judge of FCFCOA – whether primary judge erred in deciding that respondent had not engaged in serious misconduct warranting summary dismissal – HELD: primary judge did not so err – whether primary judge erred in deciding that appellant took adverse action against respondent because it failed to call as witness person who primary judge determined had made decision to dismiss respondent – HELD: this question to be dealt with on remitter – whether primary judge erred in finding that appellant had contravened s 117(1) in way notice of termination was given to respondent – HELD: primary judge did not err in way contended for by appellant, but serious doubt expressed about correctness of finding of contravention for other reasons not advanced in appeal – whether primary judge denied appellant procedural fairness in proceedings below, including by reason of delay between proceedings and delivery of primary judgment – HELD: no denial of procedural fairness
PRACTICE AND PROCEDURE – where outcome of appeal in large measure turned on forensic choices made by appellant in way it conducted proceedings below and on appeal – where no witnesses of fact to incident called other than respondent – where witness accounts and investigation report concerning incident tendered for non-hearsay purpose and relied upon for both hearsay and non-hearsay purposes – where appellant primarily relied on audio recording of part of incident – where appellant failed to engage with other substantial evidence in witness accounts which shed light on context in which incident occurred – where appellant alleged that respondent had engaged in conduct that was deliberately dishonest – where appellant failed to make out its case as to serious misconduct as pleaded and run in proceedings below
PRACTICE AND PROCEDURE – application of Practice Note APP 2: Content of Appeal Books and Preparation for Hearing – expectations of parties in relation to compilation of Appeal Books
Legislation: Acts Interpretation Act 1901 (Cth) ss 28A, 28A(1), 29
Fair Work Act 2009 (Cth) ss 12, 44, 61, 117(1), 123(1)(b), 340(1), 340(1)(a), 340(1)(a)(ii), 341(1), 341(1)(c)(ii), 342(1), 360, 361, 361(1), 539
Fair Work Regulations 2009 (Cth) regs 1.07, 1.07(1)(2)(b)(ii)
Federal Court Rules 2011 (Cth) Div 36.5, rr 36.54, 36.54(c)
Residential Tenancies Act 2010 (NSW)
Cases cited: Adami v Maison de Luxe Ltd (1924) 35 CLR 143
Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; (2018) 261 FCR 301
Austar Finance Group Pty Ltd v Campbell [2007] NSWSC 1493; (2007) 215 FLR 464
Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215; (2019) 273 FCR 332
Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345
Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424
Buitendag v Ravensthorpe Nickel Operations Pty Ltd [2014] WASCA 29
Civil Aviation Safety Authority v Boatman [2006] FCA 460
Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; 249 FCR 421
Community and Public Sector Union v Telstra Corp Ltd (No 2) [2001] FCA 479; (2001) 112 FCR 324
Construction, Forestry Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243
Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; (2015) 253 IR 166
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Crowley v Worley Ltd (No 2) [2023] FCA 1613
Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 281 FCR 421
Daynes v I-MED Central Queensland Pty Ltd [2024] NSWSC 1064
Dorsch v HEAD Oceania Pty Ltd [2024] FCAFC 133
Eldridge v Wagga Wagga City Council [2021] NSWSC 312
Elliot v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) 129 IR 251
Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189; (2004) 140 FCR 17
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Frigger v Trenfield (No 3) [2023] FCAFC 49
Haley v Laing O’Rourke Australia Management Services Pty Ltd (No 4) [2022] FedCFamC2G 743
Haley v Laing O’Rourke Australia Management Services Pty Ltd (No 5) [2024] FedCFamC2G 286
Haley v Laing O’Rourke Australia Management Services Pty Ltd (No 8) [2024] FedCFamC2G 779
Harvard Nominees Pty Ltd v Nicoletti [2022] FCAFC 179
Harvard Nominees Pty Ltd v Tiller (No 4) [2022] FCA 105; (2022) 403 ALR 498
Jupiter General Insurance Co Ltd v Shroff [1937] 3 All ER 67
Leahey v CSG Business Solutions (Aus) Pty Ltd [2017] FCA 1098
Lee v Lee [2019] HCA 28; (2019) 266 CLR 129
MacPherson v R [1981] HCA 46; (1981) 147 CLR 512
Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; (2015) 229 FCR 221
Microsoft Corp v CPL Notting Hill Pty Ltd [2024] FCAFC 20; (2024) 177 IPR 389
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Monie v Commonwealth of Australia [2005] NSWCA 25; (2005) 63 NSWLR 729
National Tertiary Education Industry Union v University of Sydney [2021] FCAFC 159; (2021) 392 ALR 252
National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; (2013) 234 IR 139
New South Wales - Sydney Trains v Annovazzi [2024] FCAFC 120
North v Television Corporation Ltd (1976) 11 ALR 599
Pilbrow v University of Melbourne [2024] FCA 1140
Pryde v Coles Myer Limited t/as K-Mart Auto (1990) 33 IR 469
Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71; (2022) 292 FCR 34
Rankin v Marine Power International Pty Ltd [2001] VSC 150; (2001) 107 IR 117
Roberts v General Motors-Holden’s Employees’ Canteen Society Inc (1975) 172 CAR 1073
Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21; (1931) 45 CLR 359
Southern Migrant and Refugee Centre Inc v Shum (No 3) [2022] FCA 481
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Transport Workers’ Union of Australia v Qantas Airways Ltd [2021] FCA 873; (2021) 308 IR 244
University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68
Voigtsberger v Pine Rivers Shire Council (1981) 1 IR 198
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598
Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491
Willis Australia Group Services Pty Ltd v Mitchell-Innes [2015] NSWCA 381
Wong v National Australia Bank Ltd [2021] FCA 671
Wong v National Australia Bank Ltd [2022] FCAFC 155; (2022) 318 IR 148
Wood v City of Melbourne Corporation [1979] FCA 42; (1979) 26 ALR 430
Zong v Lin [2022] NSWCA 136
Eastwood A, “Corporations and the Aggregation of Knowledge” (2013) 87 ALJ 553
Reynolds D, “Corporate Knowledge: The Search for the Relevant Mind(s)” (2018) 92 ALJ 991
Division: Fair Work Division Registry: New South Wales National Practice Area: Employment and Industrial Relations Number of paragraphs: 624 Date of hearing: 2, 3, 11 September 2024 Counsel for the Appellant: Mr G Hatcher SC and Mr K Brotherson Solicitor for the Appellant: Ferrous Advisory Counsel for the Respondent: Mr O Fagir Solicitor for the Respondent: Gadens ORDERS
WAD 86 of 2024 BETWEEN: LAING O’ROURKE AUSTRALIA MANAGEMENT SERVICES PTY LTD
Appellant
AND: THOMAS HALEY
Respondent
ORDER MADE BY:
SHARIFF J
DATE OF ORDER:
15 NOVEMBER 2024
THE COURT ORDERS THAT:
1.Declaration 2 made by the primary judge on 28 March 2024 be set aside.
2.The proceedings be remitted to a judge of the Federal Circuit and Family Court of Australia other than the primary judge for determination in accordance with these reasons and in particular those set out at [277]-[454].
3.The appeal be otherwise dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SHARIFF J:
A. INTRODUCTION
[1]
B. A SUMMARY OF THE RELEVANT EVENTS AND THE LITANY OF FORENSIC CHOICES MADE BY LOR
[16]
B.1 The Incident – a summary
[17]
B.2 LOR’s pleaded case and submissions below
[31]
B.3 LOR’s forensic choices
[38]
C. AMENDED NOTICE OF APPEAL
[56]
C.1 Challenges to findings of fact
[58]
C.2 Challenge to conclusion of serious misconduct
[59]
C.3 Challenges to findings of law
[60]
C.4 Procedural fairness grounds
[62]
D. PRINCIPLES OF APPELLATE REVIEW
[63]
E. THE EVIDENCE BEFORE THE PRIMARY JUDGE AND UNCHALLENGED FINDINGS
[68]
E.1 Employment Contract and Position Description
[69]
E.2 Code of Conduct and Travel Policy
[73]
E.3 The Incident
[76]
E.4 Complaints received from the Pointons
[77]
E.5 Mr Haley is suspended and an investigation is commenced
[82]
E.6 First set of interviews conducted on 6 July 2020
[91]
E.6.1 Mr Field’s account
[92]
E.6.2 Mr Shaun Boyle’s account
[93]
E.6.3 Mr Grierson’s account
[94]
E.6.4 Interview with Ms Pointon
[96]
E.7 The primary judge’s assessment of the evidence gathered to this point by LOR
[98]
E.8 The Audio Recording is sent to LOR
[100]
E.9 Further interviews on 6 July 2020
[109]
E.9.1 Mr Byrne’s account
[111]
E.10 Letter to Mr Haley setting out allegations on 6 July 2020
[113]
E.11 Interviews on 8 July 2020
[119]
E.11.1 Mr Shane Neely’s account
[120]
E.11.2 Interview with Mr Haley on 8 July 2020
[121]
E.11.3 Mr Adam Neely’s account
[129]
E.12 Telephone discussion with the Pointons on 9 July 2020
[130]
E.13 Letter to Mr Haley dated 9 July 2020
[131]
E.14 Second interview with Mr Byrne on 13 July 2020
[134]
E.15 Second interview with Mr Grierson on 14 July 2020
[137]
E.16 First conversation between Mr Haley and Mr McDevitt
[140]
E.17 Mr Haley’s letter dated 14 July 2020 responding to the 9 July Letter
[143]
E.18 Ms Haley complains on Mr Haley’s behalf about the investigation
[147]
E.19 Finalisation of the investigation
[154]
E.20 Second conversation between Mr Haley and Mr McDevitt on 18 July 2020
[159]
E.21 Reflection Email
[161]
E.22 Drafting of the Show Cause Letter
[163]
E.23 Final Show Cause Letter sent to Mr Chatwin
[170]
E.24 Show Cause Meeting on 22 July 2020
[174]
E.25 Lead up to the Termination Letter
[179]
E.26 Mr Chatwin’s consideration as to termination
[188]
F. ERRORS OF FACT ALLEGED BY LOR
[194]
F.1 First Alleged Factual Error: the owners of the Pambula Property did not hear or notice the Offensive Words
[194]
F.2 Second Alleged Factual Error: the owners of the property had no right to demand that the tenants leave the property
[207]
F.3 Third Alleged Factual Error: Mr Haley could not see Ms Pointon at the time he uttered the Offensive Words
[219]
F.4 Fourth Alleged Factual Error: to the extent Mr Haley made statements in the Reflection Email with which he did not agree, he was unfairly induced to do so
[228]
F.5 Fifth Alleged Factual Error: Mr Haley had no actual recollection as at 20 July 2020 of uttering the Offensive Words
[246]
F.6 Sixth Alleged Factual Error: there was no genuine investigation of the complaints against Mr Haley
[252]
F.7 Seventh and Eighth Alleged Factual Errors: Mr Chatwin did not make the decision to dismiss Mr Haley, and by failing to call the person who did make that decision, LOR failed to rebut the statutory presumption in s 361 of the FW Act
[277]
F.7.1 Relevance of the findings as to whether Mr Chatwin was the decision-maker
[283]
F.7.2 The evidence called by LOR
[298]
F.7.3 The primary judge’s findings
[304]
F.7.4 Consideration
[316]
(a) Error in reasoning and finding that the decision to terminate was not Mr Chatwin’s to make as the power to do so rested in the hands of Mr O’Rourke and that Mr O’Rourke made the decision
[316]
(b) Further errors in finding that Mr Chatwin was not the decision-maker or was not the only decision-maker
[365]
(c) An erroneous approach to the discharge of the statutory presumption in s 361 of the FW Act
[426]
(d) Did LOR discharge its onus on the evidence before the primary judge?
[441]
F.8 Ninth Alleged Factual Error: dishonesty was not alleged in LOR’s response
[455]
G. THE SUMMARY DISMISSAL GROUND
[458]
G.1 Relevant principles
[462]
G.2 Consideration
[471]
G.2.1 The First Serious Misconduct Contention
[473]
G.2.2 The Second Serious Misconduct Contention
[541]
G.2.3 The Third Serious Misconduct Contention
[560]
G.2.4 Conclusion on the Summary Dismissal Ground
[585]
H. ALLEGED ERRORS OF LAW
[587]
H.1 The Adverse Action Ground
[587]
H.2 The Section 117 Ground
[588]
I. PROCEDURAL FAIRNESS GROUNDS
[607]
I.1 The Delay Ground
[607]
I.2 The Browne v Dunn Ground
[614]
I.3 The Absence of Evidence Ground
[622]
J. DISPOSITION OF THE APPEAL
[624]
SCHEDULE: GLOSSARY OF RELEVANT PERSONS AND ORGANISATIONS
A. INTRODUCTION
This is an appeal from the judgment, declarations and orders of the Federal Circuit and Family Court of Australia (FCFCOA) in Haley v Laing O’Rourke Australia Management Services Pty Ltd (No 5) [2024] FedCFamC2G 286 (primary judgment or PJ). The event at the centre of the proceedings below, and the central subject matter of the primary judgment, was a so-called Incident that occurred some four years ago, late in the evening of 2 July 2020 and the early hours of the following morning, during a gathering at a property located in Pambula (the Pambula Property) on the South Coast of New South Wales. It was an after-hours gathering of work colleagues who were celebrating a milestone achieved on a work project.
As a result of matters that were said to have occurred during the Incident and in its subsequent investigation, the appellant (LOR) summarily terminated the employment of the respondent (Mr Haley) on the ground that he had engaged in serious misconduct. Mr Haley commenced proceedings in the Court below, essentially propounding three causes of action relevant to the present appeal which were in substance that:
(a)his employment had been wrongfully terminated because he did not engage in misconduct warranting summary termination and was thereby entitled to damages;
(b)his dismissal from employment was adverse action engaged in because he had exercised one or more workplace rights and therefore contrary to s 340(1)(a) of the Fair Work Act 2009 (Cth) (FW Act); and
(c)LOR contravened s 117(1) of the FW Act by failing to give him notice of the termination of his employment in the manner prescribed by that subsection.
The primary judge determined questions as to liability separately to the determination of damages, compensation and penalty (if any). In substance, the primary judge found that LOR had not discharged its onus of establishing serious misconduct, and that the summary termination of Mr Haley’s employment was therefore a repudiation of the employment contract. Further, the primary judge found that Mr Haley had established that he had exercised workplace rights in some respects and that, in relation to the termination decision, LOR had not rebutted the presumption arising by operation of s 361 of the FW Act that that decision had been taken “because of” the exercise of those rights. The primary judge also found that LOR had contravened s 117(1) of the FW Act by failing to give Mr Haley notice of the termination of his employment in the (apparent) manner prescribed by that subsection.
LOR appeals from a number of factual and legal findings made by the primary judge and his Honour’s ultimate conclusions as to liability. The primary judge has since made a determination as to the assessment of damages and compensation, which is now the subject of a separate appeal instituted by LOR: see Haley v Laing O’Rourke Australia Management Services Pty Ltd (No 8) [2024] FedCFamC2G 779 (Compensation Judgment). The penalty phase of the proceedings below has been stayed pending the outcome of this appeal.
The primary judgment is lengthy. It considers in detail a vast number of documentary materials, as well as the oral evidence given at trial, resulting in a judgment of 675 paragraphs and over 300 pages in length. Given the grounds of appeal that were advanced by LOR, the hearing and determination of this appeal has involved an extensive review of the evidence in the proceedings below. Regrettably, this has meant that this judgment is also a lengthy one.
For the reasons set out below, I have rejected the majority of the grounds of appeal advanced by LOR.
Much of LOR’s case below as to Mr Haley’s alleged misconduct rested upon the allegation that during the course of the Incident he had said and directed to the owners of the Pambula Property, Mr and Ms Pointon (the Pointons), the words, “go home you fucking silly old cunt… Go home old man, old lady. Go home, go home, go home, go home”: PJ [142]. LOR ran its case below on the basis that it was the totality of these words which were the “Offensive Words”. The primary judge found, and LOR does not dispute, that the case was never put on the basis that Mr Haley’s conduct in saying the words “Go home old man, old lady. Go home, go home, go home, go home” were sufficient to establish misconduct. LOR’s case in this regard required it to establish that Mr Haley had said the particularly vulgar and profane words “go home you fucking silly old cunt” to and directed them towards the Pointons.
The outcome of this appeal does not turn on whether the words “Go home you fucking silly old cunt” were offensive. Rather, in large measure, the outcome of this appeal turns upon whether error has been established based on a real review of the evidence. That evidence needs to be considered in the context of: (a) the specific case advanced by LOR; and (b) the deliberate forensic choices made by LOR in the way it conducted that case.
LOR called no evidence from any witness as to the facts of the Incident, including the Pointons. The only testimony given before the primary judge as to the facts of the Incident was that given by Mr Haley. Instead of calling any witnesses of fact as to the Incident, LOR tendered into evidence the accounts given by witnesses during LOR’s internal investigation into the Incident, together with the final Investigation Report. This evidence consisted of the accounts given by other employees of LOR who were present during the Incident (the Witness Accounts) and the accounts given by the Pointons (the Pointons’ Accounts). These documents were admitted into evidence for a non-hearsay purpose, over Mr Haley’s objection (who was self-represented in the proceedings below). Thereafter, both Mr Haley and LOR relied upon those documents for hearsay purposes and the primary judge did likewise in the primary judgment: see PJ [10]. The primary judge found that LOR did not submit that the Witness Accounts should be accorded little or no weight, and made no submission about what credit should be accorded to those statements. It followed that the Witness Accounts were relied upon in the proceedings below as truthful accounts by both LOR and Mr Haley. LOR did not challenge these findings.
LOR principally relied upon an Audio Recording that Ms Pointon had taken during one part of the Incident which recorded Mr Haley saying (but not in immediate sequence) the Offensive Words. The Audio Recording was taken without the consent of any person who was present and did not purport to record the entirety of the Incident. LOR did not challenge the primary judge’s finding that the particularly profane words “go home you fucking silly old cunt” are only audible on the Audio Recording with concentrated effort. My own assessment accords with the primary judge’s finding and I would add that those words are barely audible without intentionally seeking to hear them out. LOR challenges the findings made by the primary judge that these words were not said or directed to the Pointons. However, LOR did not gainsay that not one of the Witness Accounts reported that Mr Haley had said these words, let alone that he had said them to or towards the Pointons. Nor did it gainsay that the Pointons did not say so in their accounts. More tellingly, during its investigation, LOR never asked a single witness, let alone the Pointons, whether they heard these words, and, if so, whether they were said or directed towards the Pointons. Yet, in the appeal, LOR invited me to make findings to the contrary by drawing inferences from the Audio Recording.
LOR did not engage with the sequence of events that occurred during the Incident that led up to the point at which the Offensive Words were spoken. In particular, LOR paid little regard to the fact that the Pointons had entered the Pambula Property unannounced well after midnight at a time when the occupants were seemingly intoxicated, made a line towards one of the occupants and wrested away a television remote from him, and came into physical contact with at least one of the occupants. Nor did LOR engage with the fact that on the Witness Accounts (that LOR itself tendered) Mr Pointon was yelling to and at all those present to “fucking get out” and when told that he could not do that, Mr Pointon’s riposte was to say “I can do whatever the fuck I want”. There followed a commotion with various expletives being exchanged by all those who were present. The primary judge set out at PJ [205]-[209] the serious deficiencies in LOR’s submission as to what occurred during the Incident, which failed to engage with the other substantial evidence contained in the Witness Accounts. Importantly, this led the primary judge to reject the notion that what LOR submitted occurred at the Incident “[went] anywhere near to fairly representing the evidence about what occurred during the Incident, or Mr Haley’s conduct in the course of that Incident”: PJ [209]. LOR did not challenge these findings.
The one substantive area in respect of which LOR’s appeal has succeeded relates to the primary judge’s findings in relation to Mr Haley’s adverse action case, and, in particular, the primary judge’s finding that Mr Simon Chatwin, a Commercial Director of LOR, was not the person who made the decision to terminate Mr Haley’s employment, or did not make that decision alone. For the reasons that follow, I have concluded that the primary judge erred in reasoning to this conclusion and, regrettably, the question as to whether Mr Chatwin was the sole decision-maker has to be remitted to a different judge.
Another point needs to be made at the outset. It is most regrettable that, both in the proceedings below, and on appeal, findings and conclusions have been made about the conduct of the Pointons and others involved in the Incident, without any of them having been called to give evidence. That is a direct consequence of the manner in which LOR elected to conduct the proceedings.
In order to best deal with the issues raised and explain my reasons for making the orders that I have made, these reasons are organised as follows:
(a)First, I provide a high-level summary of the relevant events and of certain forensic choices made by the parties below and in the appeal (Section B);
(b)Second, I set out the grounds advanced by LOR in its Amended Notice of Appeal (Section C);
(c)Third, I explain the principles of appellate review relevant to the determination of the appeal by this Court (Section D);
(d)Fourth, I set out (in some detail) the relevant evidence before the primary judge and the unchallenged findings of fact made by his Honour (Section E);
(e)Fifth, I turn to the various errors of fact alleged by LOR (Section F);
(f)Sixth, I turn to LOR’s claim that the primary judge erred in finding that Mr Haley had not engaged in misconduct warranting summary dismissal and that LOR had thereby repudiated his contract of employment (Section G);
(g)Seventh, I address the errors of law alleged by LOR, namely that the primary judge erred in finding that:
(i)LOR had engaged in adverse action as a result of failing to call as a witness the person who the primary judge determined had made the decision to terminate Mr Haley’s employment (Section H.1); and
(ii)LOR had breached s 117(1) of the FW Act in the way notice of termination had been given to Mr Haley (Section H.2);
(h)Eighth, I address LOR’s contentions that it was denied procedural fairness, including as a result of delay between the hearing of the proceedings below and the delivery of the primary judgment and for other reasons (Section I);
(i)Finally, I conclude and dispose of the appeal (Section J).
For convenience, a glossary of relevant persons and organisations referred to throughout the judgment is attached as a Schedule to these reasons.
B. A SUMMARY OF THE RELEVANT EVENTS AND THE LITANY OF FORENSIC CHOICES MADE BY LOR
Given the length of the judgment below, and these reasons, it is convenient to provide a summary of the relevant events and, as part of that summary, identify the forensic choices that were made in the proceedings below and in this appeal.
B.1 The Incident – a summary
In January 2020, LOR had been engaged to undertake recovery works following the bushfires that had devastated the South Coast region in the Australian summer of 2019/2020 (Bushfire Project). In order to aid these efforts, LOR’s employees had come to occupy various premises on the South Coast on a temporary basis so that they could manage and perform the works that were being undertaken. The Pambula Property was one such premises and the booking for it had been arranged through the website “stayz.com.au” by Central Travel Team (CTM), LOR’s external travel provider.
As at 2 July 2020, the Pambula Property was, and was to be, occupied by five employees of LOR (Mr Andrew Byrne, Mr Shane Neely, Mr Adam Neely, Mr Shaun Boyle and Mr Jamie Boyle), who were referred to as the Pambula Property Residents, but the precise legal arrangement governing their occupation (lease, licence and whether it was LOR or the Pambula Property Residents that were the parties to that arrangement) was less than clear on the evidence adduced at trial. Neither party adduced evidence as to the terms upon which the Pambula Property came to be occupied by the Pambula Property Residents. As noted above, the owners of the Pambula Property were the Pointons. For reasons unknown, the Pointons were referred to in the proceedings below as “Mr P” and “Ms P” and they are referred to in this way in relevant extracts from the primary judgment, but I will otherwise refer to them as the Pointons, or Mr and Ms Pointon as the context permits.
In order to celebrate a “commercial milestone” on the Bushfire Project, the Pambula Property Residents had arranged for a gathering to occur at the Pambula Property on 2 July 2020 involving a barbecue (BBQ) and the consumption of drinks including alcohol. There was evidence before the primary judge that such gatherings had been organised and occurred previously at other locations including at another house in Batemans Bay on the South Coast of New South Wales. LOR did not contest this evidence.
There was evidence before the primary judge that the Pambula Property Residents had informed Ms Pointon that such a gathering would be organised. One of the Residents, Mr Byrne, told LOR that he had made Ms Pointon aware that a BBQ with work colleagues would be held at some point during the stay, and Ms Pointon had said that the gathering could go ahead and they could make “as much noise as [they] wanted” so long as the gathering was kept inside and out the front but not on the back balcony of the Pambula Property: PJ [128]. This was corroborated by other accounts: PJ [117]-[118]. LOR did not contest this evidence and I will return to the significance of this later in these reasons.
Among those invited to the gathering, and who attended, was Mr Haley. It was common ground that Mr Haley was the most senior employee of LOR who attended the gathering.
It was common ground that Mr Pointon’s elderly mother resided in a separate part of the Pambula Property. However, it was also not challenged that, while this fact was known to the Pambula Property Residents, it was not known to the other persons who attended the gathering at the Pambula Property, including Mr Haley, until much later in the evening of 2 July 2020 or in the early hours of the following morning.
The social gathering was uneventful until much later in the evening of 2 July 2020. Mr Pointon received a call from his elderly mother complaining about the noise from the gathering. This initially led to Mr Pointon attending the Property and asking Mr Byrne to bring an end to the gathering, and later Ms Pointon also calling Mr Byrne and making the same request. The Pointons later attended the Pambula Property. By this time, it was well after midnight. There followed the events which came to be described as the Incident. The precise sequence of events, including what was said and by whom, were all apparently in dispute. However, the apparent dispute about the facts and circumstances relating to the Incident was, and is, a curiosity in circumstances where, as I have already observed, LOR called no evidence in the proceedings below from any witnesses of fact to the Incident. Despite LOR’s position, there were significant aspects of the facts of the Incident that were in dispute. Precisely how these factual disputes were to be resolved was left unexplained and undeveloped by LOR both in the proceedings below and on appeal.
The following day, 3 July 2020, senior employees of LOR received notice (on a second hand basis) of a complaint made by the Pointons about the Incident including in relation to the conduct of Mr Haley. Thereafter, LOR made a decision to suspend Mr Haley and others from their employment and conducted an investigation. As part of that investigation, LOR obtained accounts from Mr and Ms Pointon, being the Pointons’ Accounts, and Mr Haley, as well as the Witness Accounts. On the whole, the evidence (which is set out below) that LOR obtained from others who attended the gathering pointed towards the Pointons having been the initiators and, at least the initial, aggressors of the Incident. Despite the tenor of that evidence (which LOR had available to it), LOR not only did not call that evidence, it did not call evidence from the Pointons to seek to contradict it. LOR apparently did so on the basis that those involved in the investigation into the Incident had formed the view that the relevant witnesses may have spoken with each other. Other than an oblique suggestion to that effect contained in the Investigation Report prepared by LOR, there was no evidence before the primary judge as to any question of collusion amongst the witnesses and, as such, no finding was made to that effect. Accordingly, it is not a basis upon which the present appeal could be determined.
The Pointons later supplied to LOR the Audio Recording and a separate video recording capturing parts of the events of the Incident. The Audio Recording records Mr Haley uttering the words “go home you fucking silly old cunt” and also later on the words “Go home old man, old lady. Go home, go home, go home, go home”: PJ [142]. LOR defined the whole of these words as the Offensive Words: PJ [142]. The primary judge did not accept that LOR’s definition of the Offensive Words reflected the true sequence of events. The primary judge observed that it was not part of LOR’s case that the words “Go home old man, old lady. Go home, go home, go home, go home” were of themselves offensive and that these words were not relied upon by LOR to summarily terminate Mr Haley’s employment. Rather, LOR’s case was that it was the whole of the words that constituted the conduct in respect of which Mr Haley’s employment was terminated. In particular, it was critical to LOR’s case that Mr Haley had said the words “go home you fucking silly old cunt” to and towards the Pointons. On appeal, LOR did not cavil with this characterisation of its case.
Thus, a critical factual integer of LOR’s case below and on appeal was that Mr Haley had said the words “go home you fucking silly old cunt” to and directed them towards the Pointons. It was submitted that this conduct in all the circumstances was offensive and unbefitting of a person occupying Mr Haley’s position, especially given that his conduct occurred in the presence of subordinate employees.
The Audio Recording was seized upon by those conducting the investigation as demonstrating misconduct on the part of Mr Haley. The primary judge found that Mr Haley had uttered the Offensive Words, but also in substance found that the particularly offensive words, “go home you fucking silly old cunt”, could only be faintly heard on the Audio Recording due to foreground and other noise. As explained later in these reasons, these findings are not challenged and accord with my own assessment of the evidence. Further, as explained below, the acontextual and microscopic examination of the Offensive Words as recorded on the Audio Recording, detached from what else occurred and was occurring up until this point in time of the Incident and thereafter gives the Offensive Words a prominence that no one present at the time or at any time thereafter gave them (other than those involved in its granular assessment in the aftermath of the Incident). The fact is that no evidence was led from the Pointons or anyone else present that they heard the Offensive Words, or heard them being directed towards the Pointons. Nor did the Pointons complain to LOR that they heard the Offensive Words. And, no one as part of LOR’s investigation team explored this fact, which became the centrepiece of LOR’s case, in the communications, interviews and discussions that were had with the Pointons and the other witnesses during the investigation.
LOR’s position in the appeal was that it did not matter that the Pointons did not hear the words, “go home you fucking silly old cunt”, or did not complain about them because: (a) Mr Haley had put himself in a position where he had uttered those words including in the company of subordinate staff and members of the public (even if they did not hear those words being uttered); (b) there was a risk that the Pointons would hear those words if and when they played the Audio Recording and that the Audio Recording could be widely distributed; (c) Mr Haley had not sought to de-escalate the Incident; and (d) Mr Haley had intentionally lied during the course of the investigation by not admitting that he had said the Offensive Words. These are all matters that I deal with below.
After the preparation of several drafts, a final Investigation Report was completed and submitted to Mr Haley’s manager, Mr Chatwin. The report concluded that the complaint made against Mr Haley was substantiated. This then led to a “show cause” process including the holding of a meeting with Mr Haley on 22 July 2020 (Show Cause Meeting). There was no evidence led from the author(s) of the Investigation Report or those who conducted the investigation, or who participated in the show cause process, including in the steps leading up to and including Mr Haley’s employment being terminated, other than from Mr Chatwin. The absence of such evidence took on significance as part of Mr Haley’s adverse action case, with the primary judge ultimately finding that Mr Chatwin was not the decision-maker or not the only decision-maker.
On 24 July 2020, LOR terminated Mr Haley’s employment on the basis that he had engaged in serious misconduct, both during the Incident and in the course of the subsequent investigation. The termination letter dated 24 July 2020 (Termination Letter) identified the following three grounds as the basis for termination:
1.Lying to the investigator charged by Laing O’Rourke to undertake an investigation into the matter;
2.Serious breaches of company policies, including the Code of Conduct;
3.Engaging in conduct that caused imminent and serious risk to the reputation of Laing O’Rourke.
B.2 LOR’s pleaded case and submissions below
Mr Haley commenced proceedings on 26 October 2020 in the Court below, alleging (amongst other things) wrongful termination and adverse action in relation to the decision to terminate his employment. In those proceedings, LOR defended the claim as to wrongful termination on the basis of the three grounds identified above. Its pleaded position was as follows:
(a)First, LOR pleaded that the investigator appointed by LOR to investigate the allegations made against Mr Haley found that he had acted in an aggressive, inconsiderate, deplorable and intimidating manner towards the Pointons during the Incident, and that Mr Haley had breached section 1 of LOR’s Code of Conduct and section 3 of its Travel Policy;
(b)Second, LOR referred to the following statements from Mr Haley’s statement dated 8 July 2020 (what I later refer to as the 8 July Haley Statement):
(i)that he “didn’t feel it was necessary to go outside” and had “remained inside and was at least 15-20 yards from [Mr Pointon] with the bi-fold doors also providing a physical barrier”;
(ii)that he “continued to remain inside the property until the police arrived”;
(iii)that he was “unsure what was said and what happened due to being inside”;
(iv)that he “contributed to the commotion by saying things like you are out of order and you need to leave”;
(v)that he believed that he and other attendees at the party “were in danger” of being “attacked” by Mr Pointon;
(vi)that Mr Pointon “represent[ed] a risk and a danger to the safety and welfare of the residents” and that Mr Pointon had “caused [Mr Haley] physical harm”; and
(vii)that the allegations made by Mr and Ms Pointon regarding Mr Haley’s conduct and the “grounds for [Mr Haley’s] suspension” were “untrue”;
(c)Third, LOR referred to a phone interview with Mr Haley on 8 July 2020 by the investigator in which Mr Haley was asked whether, at any point during the Incident he had “address[ed] the owners”, and that Mr Haley had replied “[t]hat’s covered in my statement”;
(d)Fourth, LOR stated that on 9 July 2020, the investigator had written to Mr Haley inviting him to explain and/or clarify “inconsistencies” between his written statement and information that had been provided by the Pointons and “other persons who attended the party”, which included a sound recording of Mr Haley saying the Offensive Words; and that in response to that letter (in a document which I later refer to as the Response to the 9 July Letter), Mr Haley:
(i)stated that he had been “subjected to a physical assault by Mr Pointon”, in relation to which Mr Pointon was “seeking to avoid criminal charges”;
(ii)described the person who could be heard in the sound recording saying the Offensive Words as “the individual”, without admitting that it was him;
(iii)stated that he had “no change to make” to his written statement regarding whether he said the Offensive Words;
(iv)stated that Mr and Ms Pointon had made “false and malicious allegations” against him; and
(v)stated that he “continue[d] to completely refute the allegations”;
(e)Fifth, LOR stated that, in the course of the Show Cause Meeting on 22 July 2020, Mr Haley:
(i)admitted that he had used offensive language toward Mr and Ms Pointon during the Incident by saying to them the Offensive Words;
(ii)stated that he had not been subjected to a physical attack by Mr Pointon; and
(iii)stated that he did not consider Mr Pointon’s conduct during the Incident to be sufficiently serious to warrant criminal charges or reporting the matter to LOR;
(f)Finally, LOR pleaded that:
(i)by reason of the statements made in the Show Cause Meeting (set out above at [31](e)), the statements in the 8 July Haley Statement (set out above at [31](b)), during the phone interview on 8 July 2020 (set out above at [31](c)) and in the Response to the 9 July Letter (set out above at [31](d)), were false; and that Mr Haley knew that those statements were false at the time he made them; and
(ii)Mr Haley was interviewed by the investigator on 3, 4 and 8 July 2020 and was “provided with numerous opportunities to respond to the allegations and findings made against him” including at the Show Cause Meeting.
In summary, then, LOR’s pleaded position in relation to the termination of Mr Haley’s employment was that it was justified because he had lied to the investigator (in the sense that there were said to be inconsistencies between his earlier statements and later statements, and that the earlier statements were known to be false at the time he made them); and that he engaged in wilful or deliberate behaviour that was inconsistent with the continuation of his employment and which caused imminent and serious risk to the reputation of LOR (in the sense that he had acted in an aggressive, inconsiderate, deplorable and intimidating manner towards Mr and Ms Pointon during the incident; and had breached section 1 of the Code of Conduct and section 3 of the Travel Policy).
In its closing submissions in the Court below, LOR contended that the termination of Mr Haley’s employment on the ground of serious misconduct was warranted on “one or more of the following grounds”.
First, LOR contended that, by his conduct in becoming intoxicated and saying the Offensive Words to Mr and Ms Pointon, Mr Haley committed “misconduct” within the meaning of cl 2 in section 4 of his employment contract. It contended that the language was obscene, highly offensive and directed to two members of the public whose property was being rented by LOR and used by its employees in connection with their work on the Bushfire Project, and that his conduct was “entirely unbefitting of someone who was employed in a senior management role” at LOR.
Second, LOR contended that Mr Haley’s conduct also fell within the specific category of conduct that caused imminent and serious risk to LOR’s reputation within the meaning of cl 2(b) in section 4 of the employment contract, because:
(a)Mr and Ms Pointon knew that the persons staying at the Pambula Property were employed by, or affiliated with, LOR, such that Mr Haley’s conduct was capable of reflecting poorly upon his employer in the eyes of the Pointons;
(b)proof of actual damage to LOR’s reputation was not required; rather, an “imminent and serious risk” to the company’s reputation was sufficient to warrant summary dismissal. It was submitted that Mr Haley’s behaviour gave rise to an imminent and serious risk to LOR’s reputation in the eyes of Mr and Mrs Pointon and the other attendees at the party (including external contractors), including because the police were called to the property, and that it did not matter whether the conduct was witnessed by a larger audience or published to the world at large; and
(c)this was especially so in light of the “commercial sensitivity” of the Bushfire Project and the “amount of publicity in the media regarding LOR’s role as the lead contractor in that project”. In this regard, LOR extracted a passage of cross-examination from Mr Chatwin where he stated (amongst other things):
… So having a party, swearing at people, making allegations, changing those allegations, there’s a high chance that Mr and Mrs Pointon will go and tell their friends and people. It will become public knowledge what happened. Someone will have a link to the story. Someone will make it into, you know, a big issue in the press and then suddenly all those fears that we have come true and materialise because of one crazy – you know, one crazy night and event…
(Emphasis added).
Third, LOR contended that Mr Haley had engaged in “wilful or deliberate behaviour that was inconsistent with the continuation of his employment” for the purposes of cl 2(1) of his employment contract, because he had made certain “non-disclosures and statements during the investigation that he knew to be incorrect”. In this regard, LOR relied upon the same apparent “inconsistencies” which it had pleaded in response to Mr Haley’s claim (and which are set out in the summary of LOR’s pleaded case at [31]-[32] above). As I will return to below, LOR’s case as it was put was that Mr Haley had knowingly made false statements and had been dishonest. As I will also later explain, the case put on appeal was said to one based on “deliberate lies” made by Mr Haley.
As noted above, the primary judge upheld the majority of Mr Haley’s claims. In coming to these conclusions, the primary judge largely but not exclusively accepted the evidence of Mr Haley, and although not rejecting outright the credit of Mr Chatwin, who LOR claimed was the decision-maker for the purposes of the decision to terminate Mr Haley’s employment, did not accept Mr Chatwin’s evidence in various respects.
B.3 LOR’s forensic choices
It will be apparent from the above that the parties, but especially LOR, made a number of forensic choices in the conduct of the proceedings below, and in the appeal.
First, there were only two witnesses called to give evidence, and who were cross-examined. These were Mr Haley in his own case and Mr Chatwin in LOR’s case.
Second, despite accepting in the proceedings below that it bore the onus of establishing that Mr Haley had engaged in serious misconduct, LOR made the forensic choice not to call the Pointons, or any other eyewitnesses of fact to the Incident.
Third, in the proceedings below, LOR sought to tender the final Investigation Report which included schedules containing the Pointons’ Accounts and the Witness Accounts: PJ [9]. Despite the matters I have already set out above at [9], and there being no grounds of appeal in this regard, LOR contended in the appeal that I should disregard the Witness Accounts and give them no weight. In the following exchange, Senior Counsel for LOR stated as follows (at T26.5-42):
HIS HONOUR: Okay. So your submission is I should have no regard to any of the records of interview?
COUNSEL: Yes, your Honour. For this purpose.
HIS HONOUR: Including the complaints from [the Pointons]?
COUNSEL: Yes, your Honour. It’s not direct evidence. It’s not been challenged in Court. It’s admitted under the business records as the investigation report, which is part of the business records. That doesn’t make it credible. It just makes it part of the evidence supportive of the case.
Counsel for Mr Haley made the contrary contention that I should have regard to the Witness Accounts as these were part of the evidence below and this was not challenged (at T117.1-26):
HIS HONOUR: And there’s no appeal ground from them on this point. And there’s no cross appeal or notice of contention from you on this point?
COUNSEL: No, there’s not. And we - - -
HIS HONOUR: Sorry, it wouldn’t be a cross appeal. It would be a notice of contention.
COUNSEL: Yes.
HIS HONOUR: So, the question I had for Mr Hatcher and the question I have for you, is when I conduct a real review of the evidence, you say given that neither party raises this point on appeal and it was admitted…a real review of the evidence includes a review of all the records of interview.
COUNSEL: Well, the records of interview - - -
HIS HONOUR: Are part of the evidence.
COUNSEL: Yes. Yes. They are.
HIS HONOUR: And so, I would not be in error in referring to them.
COUNSEL: No.
In the absence of any ground of appeal or notice of contention challenging the course taken by the primary judge in having regard to the Investigation Report and records of interview for the truth of their contents, I have proceeded on the basis that the Pointons’ Accounts and Witness Accounts formed part of the unchallenged evidence before the primary judge for both hearsay and non-hearsay purposes.
Fourth, both by reason of the Termination Letter and its pleaded case, as well as the submissions it made in the proceedings below, to the extent that LOR contended that Mr Haley had misled or lied to it during the course of the investigation, LOR put its case on the basis that Mr Haley had made statements that were knowingly false and, therefore, that he had engaged in conduct that was intentionally dishonest. This was confirmed in the following exchange with Senior Counsel for LOR (at T62.8-29):
HIS HONOUR: I was going to raise that with you. In various parts of your written submissions, you say that [Mr Haley] has deliberately lied. That’s a very serious allegation – very serious. It’s not just that the evidence he gave is false or untrue, but you say he’s deliberate. He was deliberate in lying in the show cause meeting. Is that your submission?
COUNSEL: Not in the show cause meeting. I don’t think that we said that, your Honour. But, certainly, we say he was deliberately - - -
HIS HONOUR: The termination letter says that:
You have been dishonest.
COUNSEL: Yes.
HIS HONOUR: Well, how do I take that?
COUNSEL: Well, that - - -
HIS HONOUR: Deliberate?
COUNSEL: Deliberately dishonest, yes.
(Emphasis added).
It follows that the way I was invited to consider LOR’s case below was that it had advanced a case of deliberate dishonesty.
Fifth, in the lead-up to the proceedings below, Mr Haley sought to issue subpoenas seeking that various persons attend to give evidence on the basis that he contended that there were some 20 people involved in making the decision to terminate his employment. LOR objected to the subpoenas and they were successfully set aside. The primary judge gave reasons for refusing to grant the application: Haley v Laing O’Rourke Australia Management Services Pty Ltd (No 4) [2022] FedCFamC2G 743 (Subpoena Judgment). As explained below, LOR was on notice that the question as to whether Mr Chatwin had made the decision to terminate, or was the sole decision-maker in that regard, was likely to be a critical issue in the trial. Despite this, it elected to call evidence only from Mr Chatwin, and not anyone else.
Sixth, the appeal was conducted on particular challenges to findings of fact and conclusions and certain matters of law but in other respects there was no challenge to the findings made by the primary judge. As would be expected, I have only determined those matters which were sought to be challenged.
Seventh, in the ordinary course, this Court’s Practice Note “APP 2: Content of Appeal Books and Preparation for Hearing” (Appeals Practice Note) limits the parties’ submissions in chief to 10 pages. However, allowing for the fact that the primary judgment was lengthy and LOR sought to challenge various findings of fact, I made orders directing each party to file submissions of up to 25 pages. Paragraph 4.3 of the Appeals Practice Note provides as follows:
4.3 Where a party intends to challenge any of the primary Judge’s findings of fact, the outline must:
(a) identify the error (including any failure to make a finding of fact);
(b) identify the finding that the party contends ought to have been made;
(c) state concisely why, in the party’s submission, the finding, or failure to make a finding, is erroneous; and
(d) refer to the evidence to be relied upon in support of the argument.
Further, paragraph 3.1 of the Appeals Practice Note requires compliance with Division 36.5 of the Federal Court Rules 2011 (Cth) in relation to Appeal Books. Rule 36.54 sets out the requirement for the Appeal Book to comprise Part A, Part B and Part C. Relevantly, Part B contains a “Comprehensive Reference Index” comprising a complete index of the record of the evidence from the proceedings below. It is important to note that Part B is an index. It does not contain the universe of evidence from the proceedings below. Instead, r 36.54(c) of the Rules requires the parties to produce Part C, “being only the exhibits and evidence to which the parties refer in the parties’ submissions, arranged in the same order as the Comprehensive Reference Index…”.
The combined effect of paragraph 4.3 of the Appeals Practice Note and r 36.54 is that the party seeking to challenge findings of fact must identify with precision not only the alleged error of fact, but also provide references to the evidence in support of its contentions which are then to be included in Part C.
Despite these requirements being made clear, several parts of LOR’s submissions referred to materials in Part B. These were references to an Index. The materials were not included in Part C. There was an assumption made that this Court on an appeal had access to the underlying evidence from the proceedings below as contained in the Part B Index. It does not necessitate saying this, but the assumption was fundamentally wrong. Nor does it necessitate stating that the only material to be included in Part C are those materials to which the parties have referred in their submissions.
Prior to the hearing of the appeal, Mr Haley tendered, in effect, an addendum to Part C which it was submitted consisted of evidence from the proceedings below that he wished to rely upon, but which LOR had not agreed to include in Part C. Following the conclusion of the appeal, I granted leave for LOR to supplement the Part C documents with its own bundle of additional documents.
The result is that I had no confidence by the conclusion of the appeal, and I had no confidence when writing this judgment, that the parties had provided to the Court all of the evidentiary material from the proceedings below upon which they relied in support of their respective contentions. Despite this, I was invited to conduct a real review of the evidence. It suffices to note that the position is highly unsatisfactory.
Finally, several parts of LOR’s submissions contended that certain factual findings be “quashed”. It goes without saying that this Court does not quash factual findings; it corrects legal and factual error. If persuaded that those factual and legal errors affect or alter the ultimate findings and orders made as to liability as reflected in the orders and declarations made by the Court below, the Court may set aside those orders and declarations.
At times, LOR’s appeal was conducted on the basis that the finding of a single factual error in the primary judge’s reasons would result in the opposite finding of fact being made, or that it was thereby a sufficient basis to set aside the primary judge’s orders and declarations as to liability. Neither of these consequences necessarily flow from a finding of factual error. In at least one other respect, LOR submitted that its ground of appeal was “not relevant” to the disposition of the appeal (a point to which I will return below when discussing that relevant ground).
C. AMENDED NOTICE OF APPEAL
In the proceedings below, Mr Haley was self-represented while LOR was represented by Counsel. There were significant disputes as to the facts and law which fortunately do not need to be rehearsed because all that needs to be determined are the grounds set out in the Amended Notice of Appeal.
Relevantly, by its Amended Notice of Appeal, LOR challenges findings of facts and law, and claims that it was denied procedural fairness, as follows.
C.1 Challenges to findings of fact
LOR claims that the primary judge made a number of findings of fact which were contrary to the evidence, contrary to the weight of the evidence or involved the primary judge misdirecting himself as to relevant issues, including that:
(a)the Pointons did not hear or notice the Offensive Words: PJ [216](c) (First Alleged Factual Error);
(b)the Pointons had no right to demand that the tenants leave the property: PJ [538](c) (Second Alleged Factual Error);
(c)Mr Haley could not see Ms Pointon at the time he uttered the Offensive Words: PJ [215](m) (Third Alleged Factual Error);
(d)to the extent Mr Haley made statements in an email (which I refer to below as the “Reflection Email”) with which he did not agree, he was unfairly induced to do so: PJ [416] (Fourth Alleged Factual Error);
(e)Mr Haley had no actual recollection as at 20 July 2020 of uttering the Offensive Words: PJ [409] (Fifth Alleged Factual Error);
(f)there was no genuine investigation by LOR of the complaints against Mr Haley: PJ [18] (Sixth Alleged Factual Error);
(g)the person identified by LOR (Mr Chatwin) as having made the decision to dismiss Mr Haley was not, in fact, the person who made that decision: PJ [503] (Seventh Alleged Factual Error);
(h)where the person who made the decision to dismiss Mr Haley was not called by LOR to give evidence in the proceedings, the rebuttable presumption presented in s 361 of the FW Act had not been met: PJ [616] (Eighth Alleged Factual Error); and
(i)dishonesty was not alleged in LOR’s amended response: PJ [549] (Ninth Alleged Factual Error).
C.2 Challenge to conclusion of serious misconduct
LOR claims that the primary judge erred in deciding that Mr Haley had not engaged in serious misconduct sufficient to justify summary dismissal, and that therefore LOR had repudiated Mr Haley’s contract of employment, by, among other things:
(a)misapplying principle and acting contrary to authority;
(b)not addressing the actual conduct of Mr Haley;
(c)disregarding the reasons relied on by LOR for the decision to summarily dismiss Mr Haley;
(d)failing to recognise the senior position of Mr Haley and the responsibilities and obligations attached to that; and
(e)failing to take into account relevant evidence and taking into account irrelevant considerations,
(the Summary Dismissal Ground).
C.3 Challenges to findings of law
LOR claims that the primary judge erred and acted contrary to authority in deciding that by “purporting” to summarily dismiss Mr Haley from his employment on 24 July 2020, LOR took adverse action against Mr Haley in contravention of s 340(1) of the FW Act because it had failed to call as a witness the person who the primary judge determined was the decision-maker (the Adverse Action Ground). This ground concerns the same subject matter as Alleged Factual Error Seven and Alleged Factual Error Eight (set out above).
LOR also claims that the primary judge erred in finding that it had contravened s 117(1) of the FW Act in the way notice of termination of employment had been given to Mr Haley, because his Honour did not consider that Mr Haley had been guilty of serious misconduct and therefore the exception in s 123(1)(b) of the FW Act could not apply (the Section 117 Ground).
C.4 Procedural fairness grounds
Finally, LOR claims that it was denied procedural fairness in the proceedings below on the following grounds:
(a)by reason of the delay between the giving of evidence in the proceeding (19, 20, 21 and 23 September 2022), the making of closing submissions (28 November 2022) and delivery of the primary judgment (28 March 2024) (the Delay Ground);
(b)by reason of the primary judge’s decision to reject Mr Chatwin’s evidence that he was the sole decision-maker in relation to the decision to terminate Mr Haley’s employment, and to find that LOR’s managing director, Mr Cathal O’Rourke (Mr O’Rourke), likely made the decision to terminate Mr Haley’s employment, in circumstances where it was never put to Mr Chatwin in cross-examination that Mr O’Rourke was the sole decision-maker in relation to the decision to terminate Mr Haley’s employment (the Browne v Dunn Ground); and
(c)that the primary judge acted in the absence of evidence by finding that:
(i)the owners of the Pambula Property were not entitled to enter the premises during the Incident; and
(ii)the owners’ unlawful entry onto the premises incited the Incident,
in circumstances where:
(iii)the only evidence which supported the findings referred to in (i) and (ii) above was that some of LOR’s employees had apparently shouted at the owners that they were not entitled to be on the premises;
(iv)the contract pursuant to which LOR’s employees were occupying the Pambula Property was not in evidence; and
(v)the contract was unlikely to be a conventional landlord and tenant agreement, as:
(A)it was entered into on the “stayz.com.au” website;
(B)only part of the Pambula Property was to be occupied by LOR’s employees, with the remaining part of the residence to be occupied by the owners’ elderly mother; and
(C)it was inherently unlikely that the owners would not have been entitled to enter the Pambula Property to visit their mother,
(the Absence of Evidence Ground).
D. PRINCIPLES OF APPELLATE REVIEW
In response, Mr Haley submitted that the identity of the decision-maker was squarely in issue in the proceedings and any suggestion that LOR was denied a fair opportunity to be heard on that issue was misconceived. First, it was noted that in an interlocutory dispute prior to the hearing of the substantive proceedings below, Mr Haley sought disclosure of evidence relevant to the identity of the decision-maker, which course was successfully resisted by LOR: see the Subpoena Judgment. In the course of that dispute, Mr Chatwin gave affidavit evidence in which he denied a contention put by Mr Haley that various persons including Mr O’Rourke were decision-makers and asserted that he was the sole decision-maker. In determining that dispute, the primary judge gave the “warning” to which LOR referred in its submissions above that Mr Haley appeared to intend to submit at hearing that persons other than Mr Chatwin were involved in the decision to terminate Mr Haley’s employment (extracted at PJ [492]).
Second, Mr Haley submitted in both opening and closing submissions in the proceedings below that Mr Chatwin was not the sole decision-maker and that Mr O’Rourke was at least involved in the decision to dismiss.
Third, LOR did not submit in closing below that the Court should decline to consider a submission that Mr O’Rourke was a or the decision-maker because that proposition had not been put to Mr Chatwin in cross-examination or because it would otherwise be unfair to do so.
Finally, it was submitted that there is no rule which required the primary judge to accept Mr Chatwin’s assertion that he was the decision-maker unless the contrary was put to him. In this regard, it was said that the rule in Browne v Dunn did not have that effect because:
(a)it is doubtful whether the rule operates at all in relation to a litigant in person: MacPherson v R [1981] HCA 46; (1981) 147 CLR 512 at 532;
(b)the rule does not apply where the witness is on notice that their evidence is in contest (which, for the reasons given above, both LOR and Mr Chatwin were); and
(c)in any event, a breach of the rule does no more than authorise a trial judge to address any attendant unfairness, there being no rule of law that requires acceptance of unchallenged evidence: Zong v Lin [2022] NSWCA 136 at [53].
It is not necessary to determine every aspect of Mr Haley’s contentions. It is sufficient that I reject LOR’s contention that Mr Chatwin was denied procedural fairness. The identity of the decision-maker was squarely in issue in the proceedings below. LOR was on notice of the possibility that the case could be determined on the basis that someone other than Mr Chatwin, including Mr O’Rourke, was the true decision-maker, or at least one of them. The Second Chatwin Affidavit expressly dealt with the issue and contained Mr Chatwin’s denials that anyone else was involved in the decision to terminate Mr Haley’s employment. The acceptance or rejection of that evidence was a matter about which both LOR and Mr Chatwin were on notice about prior to the commencement of the trial. In those circumstances, I consider that there was no error and LOR was not denied procedural fairness by reason of it not having been explicitly put to Mr Chatwin in cross-examination that Mr O’Rourke was involved in the decision to terminate
The Browne v Dunn Ground fails.
I.3 The Absence of Evidence Ground
By this ground, LOR contended that the primary judge acted in the absence of evidence in finding that the Pointons were not entitled to enter the premises during the Incident and that their unlawful entry onto the premises “incited” the Incident.
Again, I have already dealt with the subject matter of this ground of appeal above, finding that his Honour did err in finding that the Pointons were not entitled to enter the premises, but that equally the evidence did not establish that they were so entitled. As for the alleged error in finding that their unlawful entry onto the premises “incited” the Incident, for the reasons I have given (including at [534]), I do not consider that the primary judge erred in so finding.
J. DISPOSITION OF THE APPEAL
For all of the foregoing reasons, I will make orders upholding the Seventh and Eighth Alleged Factual Errors, setting aside Declaration 2 made by the primary judge on 28 March 2024 and remitting the matter for redetermination of the matters I have raised above in Part F.7.4(d).
I certify that the preceding six hundred and twenty-four (624) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Shariff. Associate:
Dated: 15 November 2024
SCHEDULE: GLOSSARY OF RELEVANT PERSONS AND ORGANISATIONS
(a)LOR – Laing O’Rourke Australia Management Services Pty Ltd (the appellant);
(b)Mr Tom Haley – Commercial Leader, Clients and Markets Team, LOR and visitor to the Pambula Property (the respondent);
(c)Ms Shaunna Haley – Mr Haley’s wife;
(d)Mr Robert Pointon and Ms Sally Pointon – owners of the Pambula Property;
(e)Mr Simon Chatwin – Commercial Director, LOR;
(f)Mr Murray Curnow-Rose – Human Capital and Industrial Relations Lead and Employee Relations Manager for Bushfire Project, LOR;
(g)Mr Cathal O’Rourke – Managing Director, LOR;
(h)Mr Dane Bates – Head of Industrial Relations and Human Capital Operations, LOR;
(i)Mr Daniel Sleeman – Senior Employee and Industrial Relations Manager, LOR;
(j)Mr Simon Barrett – Head of Legal, Contracts (Core and Specialist Businesses), LOR;
(k)Ms Sarah Boulter – Human Capital Business Partner, LOR;
(l)Ms Cassandra Byrne – Human Capital Business Partner, LOR;
(m)Ms Helen Fraser – General Manager, Human Capital, LOR;
(n)Mr Paul Barrie – Project Director for Bushfire Project, LOR;
(o)Ms Michelle Salisbury – Senior Human Capital Advisor, LOR;
(p)Mr Pat Cashin – Director, Major Projects, LOR;
(q)Mr Jeff McAuliffe – Project Leader for Bushfire Project, LOR;
(r)Ms Holly Hatcher – Commercial Manager, LOR;
(s)Mr Kevin McDevitt – an officer or member of the LOR group of companies in the United Kingdom;
(t)Mr Andrew Byrne – Commercial Manager for Bushfire Project (South Region), LOR and Pambula Property Resident;
(u)Mr Shane Neely – Quantity Surveyor for Bushfire Project (South Region), LOR and Pambula Property Resident;
(v)Mr Adam Neely – Assistant Quantity Surveyor, LOR and Pambula Property Resident;
(w)Mr Shaun Boyle – Commercial Administrator for Bushfire Project (South Region), LOR and Pambula Property Resident;
(x)Mr Jamie Boyle – Commercial Administrator, LOR and Pambula Property Resident;
(y)Mr David Grierson – Senior Superintendent, LOR and visitor to the Pambula Property;
(z)Mr David Field – Procurement Manager, LOR and visitor to the Pambula Property;
(aa)Ms Amy Lovell – Assistant Quantity Surveyor, LOR and visitor to the Pambula Property;
(bb)Ms Lisa McKeever – Commercial Administrator (labour hire engaged by LOR) and visitor to the Pambula Property;
(cc)Central Travel Team (CTM) – LOR’s external travel provider;
(dd)“Amy” – Corporate Consultant, CTM Laing O’Rourke Team;
(ee)Ms Tarsh Woodford – Hub Travel Coordinator, Central Travel Desk, Australia Hub.
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