Lintvelt v QGC Pty Ltd
[2021] FCCA 1959
•24 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Lintvelt v QGC Pty Ltd [2021] FCCA 1959
File number(s): ADG 214 of 2020 Judgment of: JUDGE BROWN Date of judgment: 24 August 2021 Catchwords: INDUSTRIAL LAW – practice and procedure – fair work – discovery – production of documents – issue of accessorial liability – alleged breach of general protection powers pursuant to the Fair Work Act 2009 (Cth) – where applicant is self-represented – where the reason for the applicant’s termination is in contention – where it is considered that the documents will assist in the fair and expeditious conduct of the trial – whether appropriate and in the interests of justice to order discovery of the relevant documents Legislation: Evidence Act 1995 (Cth), ss 55, 56, 102
Fair Work Act 2009 (Cth), Pt 3-1, ss 12, 340, 342, 346, 351, 361, 550
Federal Circuit Court of Australia Act 1999 (Cth), ss 3, 42, 45, 81
Federal Circuit Court Rules 2001 (Cth), rr 1.05, 14.02, 14.04, 14.05, 15A.17
Federal Court Rules 2011 (Cth)
Work Health and Safety Act 2011 (Qld)Cases cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.
Board of Bendigo Regional Institute of Technology and Further Education v Barclay & Anor [No1] (2012) 248 CLR 500.
Harrington-Smith v Western Australia (2003) 130 FCR 424
Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399.
Rana v University of South Australia (2004) 136 FCR 344
Shortv Ambulance Victoria [2015] FCAFC 55.
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184.Number of paragraphs: 103 Date of hearing: 3 August 2021 Place: Adelaide Solicitor for the Applicant: The Applicant appearing in person Solicitor for the Respondents: Corrs Chambers Westgarth Counsel for the Respondents: Mr Ellery ORDERS
ADG 214 of 2020 BETWEEN: BRETT LINTVELT
Applicant
AND: QGC PTY. LTD.
First Respondent
ANTHONY HARLAND
Second Respondent
STEVEN COOPER (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
24 AUGUST 2021
THE COURT ORDERS THAT:
1.Within fourteen (14) days of the date of this order, the first respondent, QGC Pty Ltd (‘the first respondent’) do provide informal discovery of:
(a)the full copy of the isolation carried out on F03 Screw 7 carried out between 9 October 2019 and 23 October 2019 by Mark Kelly.
(b)the Isolation P&ID and list for POI Recip.1 in effect on 4 January 2020.
(c)the QGC Pty Ltd isolation procedure implemented during September 2019 to February 2020.
(d)the policy stated by the second, third and fourth respondents to the effect that the applicant was precluded from applying to other jobs.
(e)the modification log of Isolation and associated Isolation and Permit Win -0-166561.
(f)the Asbestos and Mineral Fibre policy which was in effect during the applicant’s employment.
(g)electronic and longhand handover notes regarding POI Recip 2 exhaust lagging. Dated 5 February 2020, 12 February 2020 and 19 February 2020 – persons responsible A. Harland, M. Smoothy, P. Joyce, P. Brett.
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION:
This is a case arising under the general protection provisions of the Fair Work Act 2009 (Cth).[1] At this stage, issues have arisen between the parties regarding the admissibility and relevance of a number of documents said to relate to the central issue in the case. These reasons for judgment are directed to resolving this preliminary issue.
[1] Hereinafter referred to as ‘the Act’ or ‘the FWA’.
The parties to the proceedings are the Applicant, Brett Louw Lintvelt and his former employer QGC Pty Ltd and three of its employees.[2]
[2] Hereinafter referred to as ‘QGC’.
QGC is a subsidiary of the international energy company Shell. It operates a gas field in Chinchilla in Central Queensland, from which gas is extracted. On the field are a number of gas wells and associated gas compression facilities.
Mr Lintvelt was employed by QGC between 11 September 2019 and 11 February 2020 as a Gas Plant Operator at QGC’s Windibri operations at Chinchilla.
In his claim, Mr Lintvelt details his various duties, at Windibri, as follows:
·Routine safety checks;
·Observations and readings;
·Isolations in preparation for maintenance;
·Start up and shut down of equipment;
·Adjustment of gas plant process variables;
·Safety environmental checklist completion; and
·other duties as specified.
In general terms, it is my understanding that Mr Lintvelt was responsible for shutting down gas compression machinery, and other related equipment in order that routine maintenance be undertaken.
QGC terminated Mr Lintvelt’s employment in a letter directed to him on 21 February 2020. The reasons given to Mr Lintvelt for his termination can be summarised as follows:
·He had not improved his knowledge of field compression stations, during his 6 month probationary employment with the company;
·He had applied for other internal roles, in the company, for which he was not eligible and which was contrary to company policy;
·He had failed to make appropriate travel arrangements to comply with his roster at QGC’s Chinchilla facility.
It is Mr Lintvelt’s position that these were not the substantial reasons for his dismissal. Rather, he asserts that he was terminated because he had raised issues to do with safety, particularly in regards to how an isolation procedure had been implemented and the removal of asbestos from a piece of equipment, at QGC’s Chinchilla facility.
In these circumstances, Mr Lintvelt asserts that QGC has breached the provisions of section 340 of the Act, which prohibit an employer taking adverse action against an employee because that employee has exercised a workplace right, to which the employee is entitled. In his case, the right to make a complaint about safety issues in the workplace.
The second respondent, Anthony Harland, was Mr Lintvelt’s direct supervisor. At relevant times, the third respondent, Steven Cooper, was the field manager at the Chinchilla field, whilst the fourth respondent, Kimberley Melrose was its ER/IR Advisor.
It is Mr Lintvelt’s position that Mr Harland, Mr Cooper and Ms Melrose have accessorial liability for the breach by QGC of the general protection owed by him pursuant to the provisions of section 550 of the FWA.
Mr Lintvelt commenced these proceedings on 15 June 2020. He seeks to impose a pecuniary penalty against the respondents; compensation; and to be reinstated in his position, as a consequence of the alleged breach of the general protection provisions of the FWA.
The respondents responded to this Application on 21 July 2020. Their positon is that the Application should be dismissed as there has been no breach of the relevant provisions of the Act as it asserts Mr Lintvelt was dismissed for justifiable reasons related to his work performance.
In his claim, Mr Lintvelt makes the following allegations:
·In mid-October 2019, he raised issues regarding the safety of an isolation procedure, relating to a high pressure valve which did not have an appropriate brass plug. He asserted his concerns were noted in the company’s electronic reporting system known as OICC;
·He exercised a stop work authority on 3 February 2020 in respect of an isolation procedure, which he considered incorrect;
·On 4 February 2020, he was directed to remove a section of insulating lagging, which contained asbestos, which had fallen from a compressor and declined to do so because he had not been provided with appropriate safety clothing;
·He also asserts, at this time that he raised other issues relating to asbestos, at the workplace, with his leading hand but his concerns were not actioned;
·On 11 February 2020, he reported that scaffolding, at the plant, was not safe.
In this context, in general terms, Mr Lintvelt claims that he had a number of entitlements under the Work Health and Safety Act 2011 (Qld),[3] which related to his and other employee’s personal safety at the plant, including the manner in which asbestos was to be removed and other issues to do with safety in the workplace.
[3] Hereinafter referred to as the ‘Queensland Act’.
It is Mr Lintvelt’s position that he complained to his direct supervisor about these issues and it was as a consequence of him doing so that his employment was terminated. Mr Lintvelt’s employment was terminated on 21 February 2020. In this context, in his statement of claim, Mr Lintvelt asserts as follows:
On 21 February 2021 the applicant was dismissed from his employment with the first respondent when he was telephoned at home by the second, third and fourth respondents. The grounds given were ‘failing to improve knowledge and understanding of field compression stations, applying for other internal roles and failure to make appropriate travel arrangements’. The applicant attempted to rebut these grounds but was talked over by the fourth respondent.[4]
[4] See Claim filed 15 June 2020 at [13].
It seems uncontroversial that safety requirements at the workplace were covered by the provisions of the Queensland Act. However, in the absence of knowing what the particular documents contain, I am not in a position to ascertain whether the reasoning of the relevant decision-maker in this case was influenced and to what degree by any complaints or otherwise made by Mr Lintvelt in the workplace in question.
It is Mr Lintvelt’s position that he had a statutory entitlement to raise issues and make complaints, pursuant to this legislation about safety issues at this workplace. In its response, the respondents acknowledged that the applicant raised an issue regarding a non-compliant isolation, which occurred on 17 October 2019. Otherwise, the other aspects of Mr Lintvelt’s complaint are denied in respect of the isolation incident.
Rather, QGC asserts that it followed its own procedures in respect of the incident correctly. It denies any knowledge of an asbestos complaint or of other issues relating to other isolation procedures or scaffolding.
In these circumstances, QGC denies that it terminated the applicant’s employment because of any of the workplace safety issues that were allegedly raised by him. Rather, it asserts that the applicant’s employment was terminated because his work performance was found to be unsatisfactory, for the following reasons:
·He failed to assist other team members with work as required;
·He browsed eBay, during work time, using the company’s resources when doing so;
·Applied for roles in a related company, when he did not have the approval of the relevant line manager to do so;
·Failed to change his flights to ensure that he was present, when required, for handovers; and
·Some of his colleagues had expressed an unwillingness to work with him.
It is the position of QGC that Mr Lintvelt was given an opportunity to rectify his work performance and demonstrate some level of improvement prior to the end of his qualifying period of employment, but failed to do so. It is alleged that he failed to attend at a shutdown as required in mid-February 2020.
In addition, QGC asserts that Mr Lintvelt had failed to demonstrate an adequate knowledge of field compression stations, and during his employment failed to extend his practical knowledge of such matters.
The proceedings were referred to mediation on 6 August 2020 but this mediation failed to resolve the matter. Accordingly, on 2 December 2020, when the case returned to Court, the following directions were made:
1. Evidence in chief of the parties shall be by affidavit.
2. The Applicant file and serve their evidence in chief in the form of affidavit evidence on or before Tuesday 2 February 2021.
3. The Respondents file and serve their evidence in chief in the form of affidavit evidence on or before Friday 2 April 2021.
4. The parties confer as to whether discovery is required and, if required, the scope of that discovery on or before Friday 30 April 2021.
5. Should the parties be unable to reach agreement on discovery as in order [4], the parties have liberty to apply.
6. The Applicant file and serve any affidavit in response to the affidavit(s) filed for the Respondents in order [3], and an outline of submissions, on or before Friday 6 August 2021.
7. The Respondents file and serve an outline of submissions on or before Friday 17 September 2021.
8. Each party give notice of any objections to affidavits and of its intention to cross-examine a deponent no later than 21 days before the date the proceedings are listed for hearing in order [9] below.
9. The proceedings be listed for final hearing on 21 & 22 October 2021 at 10.00am via videoconference in the Federal Circuit Court of Australia sitting at Adelaide NOTING 2 days hearing time has been allocated and will not be exceeded without leave of the Court.
10. The parties have liberty to apply.[5]
[5] Orders of Judge Brown dated 2 December 2020.
On 29 January 2021, Mr Lintvelt filed an Affidavit of his evidence, in the proceedings. He is not relying on any other witness apart from himself. Thereafter, on 6 April 2021, QGC Pty Ltd has filed the following Affidavits:
·An Affidavit of Steven William Cooper, who is the field manager at Chinchilla and has been since January 2013;
·An Affidavit of Kimberley Melrose who is QGC’s ER/IR advisor. It is the effect of her evidence that she did not make the decision to terminate Mr Lintvelt’s employment, rather it was made by Kevin Lutton, who at relevant times was the transformation manager at Shell;
·An Affidavit of Anthony John Harland, who was the plant supervisor at the Windibri plant. He was Mr Lintvelt’s direct supervisor;
·Kevin William Lutton, who was previously based in QGC’s Brisbane office and, at relevant times, was deputy operations manager for QGC;
·Catherine Yvonne McGonigle, who is Shell’s human resources account manager and at relevant times the supervisor for Ms Melrose.
THE CURRENT APPLICATION
In accordance with order 5 of the orders of 2 December 2020, on 2 June 2021, Mr Lintvelt filed an Application in a Case, in which he seeks discovery, from QGC, of the following documents:
1. Full copy of the isolation carried out on F03 Screw 7 carried out between 9 October 2019 and 23 October 2019 by Mark Kelly.
2. Copy of the Isolation P&ID and list for POI Recip. 1 in place on 4 January 2020.
3. Copy of the QGC isolation procedure current during September 2019 to February 2020.
4. Copy of the policy stated by the second, third and fourth respondents to the effect that the applicant was precluded from applying for other jobs and that the applicant must remain in their current position for four years.
5. Copy with modification log of Isolation and associated Isolation and Permit Win -0-166561.
6. Copy of Asbestos and Mineral Fibre policy which was in effect during the applicant’s employment.
7. Electronic and longhand handover notes regarding POI Recip 2 exhaust lagging. Dated 5/2/20, 12/2/20, 19/2/20 – persons responsible A. Harland, M. Smoothy, P. Joyce, P. Brett
8. Copy of documentation to authorise removal of the applicant’s personal effects from a locked cupboard in accommodation Stayover on Zeller St, Chinchilla QLD.[6]
[6] Application in a Case filed by the applicant on 28 May 2021.
Mr Lintvelt’s Application is supported by an Affidavit of himself in which he asserts that the various documents sought will establish the systematic non-compliance by QGC with its own safety requirements.
As a corollary of this, it is implicitly the applicant’s position that these documents will establish that the dominant reason for his dismissal can only be the fact that he raised these various transgressions with his line manager, who took exception to this criticism leading to his ultimate dismissal, in the days following him making a complaint about safety.
The respondents have not formally responded to this Application. However, on 28 July 2021, an Affidavit was filed on their behalf of Renae Harg, who is a solicitor in the firm retained by QGC.
Essentially, QGC assert that the majority of the documents sought by Mr Lintvelt are not relevant to the issues in dispute between the parties. Essentially, it is asserted that Mr Lintvelt was terminated because he did not perform his duties satisfactorily, therefore documents relating to an isolation procedure on a particular piece of equipment and other maintenance records, along with its asbestos policy cannot be relevant.
It has however, provided a copy of its policy relating to the application of employees for other jobs and the green hat policy, which is apparently directed to visually identifying the experience of field workers on site. It concedes these are relevant to the matter because these relate to what it asserts were the reasons why Mr Linvelt was dismissed.
Mr Linvelt has acted on his own behalf throughout these proceedings. He is a determined and intelligent person but is not legally qualified. The provisions relating to general protections, in the workplace, are not without their complexities.
As is the case here, every so often, the central evidentiary issue for the Court is to establish the reason why a person was dismissed. Necessarily, depending on the circumstances of the case concerned, there may be one reason or a raft of related reasons. It is also not unknown for a party to be disinclined to reveal the actual reason for a person’s dismissal and, in this context, for other reasons to be proffered.
In these circumstances, complex legal issues arise as to which of the parties, in any particular workplace dispute, bears the burden of either establishing or rebutting what was the actual reason why a person’s employment was terminated.
As is evident from this introductory summary, in the current matter, the parties concerned fundamentally disagree about why Mr Lintvelt was terminated. It is in this context that the issue of discovery must be determined.
As I understand, Mr Lintvelt’s position it is that, if he can establish that the various safety issues, which he asserts were raised by him, did in fact occur, it will provide corroboration to his assertion that this was a substantial and operative factor for his dismissal,[7] and this will ground his claim for a breach of one of his workplace rights.
[7] See Board of Bendigo Regional Institute of Technology & Further Education v Barclay & Anor [No 1] (2012) 248 CLR 500, 542 [127] (Gummow and Hayne JJ).
On the other hand, QGC assert that its reasons for dismissing Mr Lintvelt had nothing to do with safety issues and therefore, as a matter of logic, the documents in question can have no relevance to the reasons motivating its action, and therefore Mr Lintvelt’s claim on the documents must be regarded as a form of an opportunistic fishing exercise.
THE LEGAL PROVISIONS APPLICABLE TO THE APPLICATION
Part 3-1 of the FWA is headed General Protections. Pursuant to section 340(1) a person must not take adverse action against another person because that other person has a workplace right.
Section 341 provides the definition of workplace right. A person has such a right if, amongst other matters, they are:
able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.
Section 342(1) of the Act contains a table setting out the circumstances in which a person is to be regarded as having taken adverse action against another person. The first item of the table provides as follows:
Adverse action is taken by an employer against an employee if the employer:
(a)dismisses the employee; or
(b)injures the employee in his or her employment; or
(c)alters the position of the employee to the employee’s prejudice; or
(d)discriminates between the employee and other employees of the employer.”
The expression workplace right is defined by section 341(1) of the FWA;
(1)A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
i.to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
ii.if the person is an employee—in relation to his or her employment.
Section 12 of the Act defines workplace law and workplace instrument. Relevantly, workplace law means the FWA itself or any other law of the Commonwealth or a State, which regulates the relationships between employers and employees (including by dealing with occupational health & safety matters). A workplace instrument is any document made pursuant to a workplace law, which concerns the relationship between employers and employees.
Given the current circumstances of the case, there can be no doubt that Mr Lintvelt was the subject of adverse action, as his employment was obviously terminated. It is also non-controversial that, in general terms, he has an entitlement to make a complaint about issues to do with workplace safety, given the application of the Queensland Act.
In these circumstances, the central issue in the case is the reason why Mr Lintvelt’s employment was terminated. On the one hand, it is Mr Lintvelt’s positon that the only logical explanation for his dismissal was the fact that he complained about issues to do with safety at the gas field.
On the other hand, through its various agents and servants, QGC assert that Mr Lintvelt was terminated, at the conclusion of his probationary period, because he was found to be unsuitable for the position, which he held, and did not discharge his duties to the appropriate standard required.
This is this issue, which will be the focus of the trial scheduled for October of this year. In this context, one of the central issues in the case is which of the parties must establish the reason why Mr Lintvelt was dismissed. Necessarily, as he was not the relevant decision maker, to a certain extent, Mr Lintvelt must conjecture why this was so.
The only individuals, who definitively know why Mr Lintvelt was dismissed are the various decision makers, within QGC, who made the decision. Necessarily, there is likely to be controversy about this central issue. In addition, as previously indicated, there may be several reasons, or group of reasons germane to the issue, some of which are more important than others
In this context, section 361 of the FWA is central. This section provides as follows:
(1)If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
Collier J in Jones v Queensland Tertiary Admissions Centre Limited (No 2) explained the operation of section 361 of the FWA in the following terms:[8]
That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason … it is not sufficient for [an applicant] to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that [an applicant] is able to prove these allegations, the burden is then cast on to [the employer] to prove that adverse action was not taken against [an applicant] because of [her] workplace rights for the purposes of section 340 and 361 of the Act.[9]
[8] Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399 at [10] (Collier J).
[9] Citations have been removed from this quotation.
In Board of Bendigo Regional Institute of Technology and Further Education v Barclay & Anor (‘Barclay’),[10] the High Court, in the context of section 346 of the Act, which provides protection for employees against adverse action motivated by an employer in respect of industrial activities, discussed the application of the onus arising under section 361. In the case, Gummow and Hayne JJ said as follows:
In determining an application under s 346 [it is necessary to] to assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.[11]
[10] Board of Bendigo Regional Institute of Technology and Further Education v Barclay & Anor [No1] (2012) 248 CLR 500.
[11] Ibid at 542 [127] (Gummow & Hayne JJ).
In Shortv Ambulance Victoria (‘Short’),[12] the Full Court of the Federal Court (comprised of Dowsett, Bromberg and Murphy JJ) provided an erudite and very useful summary, in respect of the application of section 361 and the authorities which relate to it, as follows:
When an employee alleges that an employer has taken action against him or her because the employee exercised a workplace right s 361 casts the onus on the employer to “prove otherwise”. Under s 360, while there may be multiple reasons for an employer to have taken the adverse action, the employer takes action for a prohibited reason if the reasons for the action include that reason. The rationale for the presumption was … as being to throw on to the employer the onus of proving that which lies peculiarly within its own knowledge
Where adverse action is taken by one person against another, the task of a court in a proceeding alleging contravention of s 340 or s 351 is to determine why the person took the adverse action and to ask whether it was for a prohibited reason or reasons which included a prohibited reason … The relevant inquiry is therefore into the “particular reason” of the decision-maker for taking action … which is a determination of fact to be made by the court taking account of all the facts and circumstances of the case and available inferences…
To displace the presumption created by s 361 in light of the effect of s 360, the respondent must prove that its conduct was not motivated in whole or in part by the prohibited reason alleged. A failure to displace the presumption enables the allegation by an applicant of adverse action for a prohibited reason to stand as sufficient proof of that fact.[13]
[12] Shortv Ambulance Victoria [2015] FCAFC 55.
[13] Ibid at [54]-[56] (Dowsett, Bromberg and Murphy JJ).
In a case such as the present one, the evidence from the management team and decision makers concerned at QGC is likely to be crucial. It was them who took the actual step of dismissing Mr Lintvelt and they alone definitively know why they did so. As such, they bear the onus. It is not sufficient for Mr Lintvelt to establish that he was subject to adverse action and then demonstrate some protected attribute germane to him. The two must be causally linked. However, it is beyond his capacity to do anything other than conjecture about what was the substantial reason for his dismissal given he was not directly involved in the decision to terminate him.
Accordingly, the focus in the case is likely to be on the ‘particular reason’ why Mr Lintvelt was terminated. Clearly the management team at QGC knows what the operative reasons for Mr Lintvelt’s dismissal were. They have provided their reasons. Mr Lintvelt does not accept these reasons. It is his case that it is open to the Court to infer that QGC regarded him as some form of workplace agitator because he raised safety issues and this was the reason why he was dismissed.
The onus is on QCG to establish that Mr Lintvelt is incorrect. Ultimately, as the Federal Court pointed out in Short, this issue will be determined by reference to all material evidence, including available inferences.[14]
[14] See Shortv Ambulance Victoria [2015] FCAFC 55 at [54]-[56] (Dowsett, Bromberg and Murphy JJ).
Although he has not put it in these express terms, it is Mr Lintvelt’s position that the records sought by him have the potential to infer and support his assertion that he was dismissed as a consequence of the safety issues raised, particularly in circumstances in which he refutes the other criticism made in respect of his employment performance by QCG, which he suggests are confabulated.
The effect of sections 361 is to place the onus of disproving the necessary causal link on the respondent. In these circumstances, an application arising under Part 3-1 of the Act involves three elements:
·Does the applicant have a workplace right or other protected attribute arising under either sections 340 or 351 of the Act;
·Did the respondent concerned take adverse action against the applicant;
·If so, was the adverse action taken because of the applicant’s possession, exercise or proposed exercise of that workplace right or because of one of the protected attributes of the applicant concerned.
In State of Victoria (Office of Public Prosecutions) v Grant,[15] White J summarised the relevant principles applicable to section 361 as follows:
•The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
•That question is to be answered having regard to all the facts established in the proceeding.
•The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
•It will be “extremely difficult to displace the statutory presumption in section 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”
•Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
•If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by section 361.[16]
[15] State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184.
Axiomatically, at this stage, I am not in a position to resolve this controversy in the context of the current proceedings. However, in my view, this forms the framework in which the resolution of the discovery aspects of the case must be considered.
The Federal Circuit Court is a lower level court with a broad jurisdiction, in both general law and family law proceedings. It was created to deal with ‘less complicated’ matters, which were more suited to its jurisdiction than in the court superior to it, namely the Federal Court and the Family Court, which hold overlapping but supervisory jurisdiction.
The ethos of the Federal Circuit Court and the objects underpinning its establishment are set out principally in section 3(2) of the Federal Circuit Court of Australia Act 1999 (Cth).[17] The Court is directed to operate as informally as possible in the exercise of judicial power; and, in so doing, it is encouraged to use streamlined procedures.
[17] Hereinafter referred to as ‘the FCC Act’.
In addition, pursuant to section 42 of the FCC Act, the Court is directed by the use of the word must to:
[P]roceed without undue formality and must endeavour to ensure that the proceedings are not protracted.
As a consequence of considerations of this kind, a party to proceedings in this Court does not have an automatic right to discovery or to administer interrogatories. It is a potentially expensive exercise for parties to have to compile affidavits of documents, in which documents are definitively delineated and categorised, including into those in respect of which privilege is claimed or not.
However, for self-apparent reasons, in many cases, documents have been created, by the parties concerned, which are axiomatically relevant to the proceedings at hand. Clearly, in such cases, it is necessary for the parties concerned to be appraised of these documents.
In these circumstances, in order to limit expense and accord with the ethos of the Court in regards to use of streamlined procedures, orders are frequently made for what is termed ‘informal discovery’. That is the parties themselves exchange relevant documents, without the expensive requirement that they be collated on oath, with all the exactitude which such an oath or affirmation entails. This approach is congruent with other procedures mandated by the Court.
Pursuant to section 81 of the FCC Act, the Judges of the Court are authorised to make rules in relation to the practice and procedure to be followed in the Federal Circuit Court. As a consequence of this power, the Federal Circuit Court Rules 2001 (Cth)[18] have been created.
[18] Hereinafter referred to as ‘the Rules’.
Pursuant to rule 1.05(1), these rules are intended to govern the practice and procedures of the Court. However, if the rules are insufficient or inappropriate, in any particular case, the Court may apply the Federal Court Rules 2011 (Cth), if it is necessary to do so.[19]
[19] See Federal Circuit Court Rules 2001 (Cth) r 1.05(2).
Rule 14.02 of the Rules deals with disclosure of documents generally and discovery, pursuant to section 45(1) of the FCC Act, specifically. The Court may make a declaration under the section, either on the application of a party or on its own motion.
Rule 14.02(2) authorises the Court to make an order for disclosure:
•Generally; or
•In relation to particular classes of documents; or
•In relation to particular issues; or
•By a specified date.
Rule 14.04 mandates the production of documents to the Court itself, which may then inspect any such document if a claim of privilege is made.[20]
[20] Federal Circuit Court Rules 2001 (Cth) r 14.05.
Accordingly, I am satisfied that I have the authority to direct QGC to provide the documents, sought by Mr Linvelt, to him. However the question is what considerations should apply prior to such a direction being made.
Clearly an informal approach to discovery has proven ineffective in the present matter. In these circumstances, although no actual affidavit of documents is sought, it seems to me that I should consider the legislative provisions relevant to formal discovery as an aid to resolve the current issues in dispute between the parties.
Pursuant to section 45 of the FCC Act, discovery is only to be allowed if the Court declares that is appropriate, in the interests of the administration of justice, to allow such discovery. Pursuant to section 45(2) in deciding whether to make such a declaration, the Court is directed to have regard to the following matters:
·Whether discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and
·Any other matters, which the Court considers relevant.
In my view section 45 of the FCC Act creates a rebuttable presumption, in proceedings before the Court, that discovery will not be generally permitted. The exercise of the presumption is subject to the interests of the administration of justice. This is consistent with the Legislature’s direction, arising from section 3 of the FCC Act that the Court is to act informally and utilise streamlined procedures.
Rather, before any order is made for formal discovery, the Court must formally declare that it is appropriate, in the interests of the administration of justice, to allow discovery. The exercise of this discretion is governed by considerations of whether discovery would likely assist in the fair and expeditious conduct of the case concerned and any other relevant matters.
In Rana v University of South Australia,[21] Lander J recognised that this Court, referring to its precursor, the Federal Magistrates Court:
[H]as been created to offer relatively inexpensive and expeditious justice. It is a Court which should proceed without undue formality and should ensure proceedings are not protracted: [section 42]. It has abandoned the formal procedures of superior Courts. That course is consistent with the Act and the FMCA Rules.[22]
[21] Rana v University of South Australia (2004) 136 FCR 344.
[22] Ibid at 349 [37] (Lander J).
Administration as a noun refers to the process or activity involved in running an organisation. In a broader sense, it refers to the management of public affairs or government generally. Accordingly, the concept contained in section 45(1) of the FCC Act is distinct from the interests of the parties concerned in any particular piece of litigation.
It has wider connotations and can encompass the interests of other users of the justice system and the community generally, who have an interest in ensuring the Court resources are utilised rationally and carefully for the benefit of all.
In this context, it is likely to be beneficial to these other stakeholders that cases be concluded expeditiously, through a focus on the main issues arising in them, so that the Court’s scarce judicial resources can be applied as widely as possible to the speedy resolution of other cases.
In my view, considerations of this type have informed the Legislature’s directive in respect of the issue of interrogatories and discovery, in this Court, which is placed on the lowest rung of the Federal Judiciary and, as such, is directed towards the resolution of less complicated matters falling within its jurisdiction.
In this context, what was said by the former Chief Justice of the High Court, French CJ in Aon Risk Services Australia Limited v Australian National University appears germane.[23] His Honour said this:
The adversarial system has been qualified by changing practices in the Courts directed to the reduction of costs and delay and the realisation that the Courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources.[24]
[23] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.
[24] Ibid at 189 [23] (French CJ).
For the reasons provided, I am of the view that, at least potentially, given the application of section 361 of the FWA to the proceedings, it is likely to aid the quicker resolution of the case that Mr Linvelt is able to inspect the documents to which he seeks access.
It seems unlikely that the issue to which these documents are asserted to relate is coming to dematerialise in the currency of this litigation and this may lead to a more efficient use of the Court’s time, if he able to access the documents sooner rather than later.
This is particularly the case given that either the formal or informal process of discovery is not the only mechanism by which parties to proceedings can access documents. Rule 15A.17 of the Rules provides as follows:
(1)A party may, by notice in writing, require another party to produce, at the hearing of the proceeding, a specified document that is in the possession, custody or control of that other party.
(2)Unless the Court otherwise orders, the party given notice to produce must produce the document at the hearing.
It also seems to me to be beneficial to the administration of justice if the parties to relevant litigation are of the view that the process itself has been fairly conducted on a level playing field. In a case like the present, there is an obvious and enormous disparity in the legal resources available to each of the parties concerned.
However, the mere fact an unrepresented litigant wants to inspect a document does not warrant its production. Axiomatically, unwarranted calls for multifarious categories of documents can only lead to litigation become more protracted, which cannot be congruent with the efficient administration of justice.
In my view, whether it is appropriate that the relevant documents be produced or otherwise must be determined by an assessment of their potential to be relevant to the proceedings at hand. It is difficult for the Court to resolve this issue without being able to examine the documents concerned.
Issues regarding the admissibility of evidence are to be determined by reference to the provisions of the Evidence Act 1995 (Cth).[25] Pursuant to section 56 only relevant evidence is admissible in proceedings before the Court, whilst evidence, which is not relevant is inadmissible. Accordingly, the various aspects of the evidence on which Mr Bland seeks to rely must be relevant to the case. This enjoins the provisions contained in section 55, which provides as follows:
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)In particular, evidence is not taken to be irrelevant only because it relates only to:
(a) the credibility of a witness; or
(b) the admissibility of other evidence; or
(c) a failure to adduce evidence.
[25] Hereinafter referred to as ‘the Evidence Act’.
The test of relevance, provided by section 55, is a wide one. To be relevant, the evidence in question must relate to a fact in issue in the case. As has been pointed out above, the central fact in issue in this case is whether Mr Linvelt was terminated from his employment with QGC because he raised safety concerns or because he did not perform his duties correctly.
The section requires a rational or logical connection between the evidence sought to be led and the fact in issue. The connection may be minimal and it may be indirect but there must be such a connection. Lindgren J put it as follows: relevance depends on ‘an objective test grounded in human experience, on the application of which minds may differ, but which does not allow for the exercise of discretion’.[26]
[26] See Harrington-Smith v Western Australia (2003) 130 FCR 424, 426 [11] (Lindgren J).
In addition, it is important to note that evidence is not necessarily irrelevant only because it goes to the credibility of a witness.[27] This provision has relevance, so far as the general exclusion provision regarding credibility evidence,[28] and touches on the concept of evidence which may have dual qualities, in the sense that it goes to the reliability of the evidence in question but also as to whether a fact in issue did or did not occur.
[27] See Evidence Act 1995 (Cth) s 55(2)(a).
[28] Ibid s 102.
The central issue in this case is the reason why Mr Linvelt’s employment was terminated. This issue must be determined in the context of the reverse onus created by section 361 of the FWA. It seems to me that there is a logical connection between the majority of documents sought by Mr Linvelt, which relate to the specific safety issues raised by him, in his application, and the central issue in the case, namely why was he dismissed.
In so doing, I am aware that the Court is required to seek out the substantial and operative factor for the dismissal, which is a question of fact rather than conjecture. When boiled down, this means I am required to ascertain the real reason why Mr Lintvelt was dismissed. This is a question to be answered ‘in the light of all the facts established in the proceedings’.[29]
[29] See State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32] (White J).
In a case such as the present one, evidence alone from an employer that a particular decision sought to be impugned was made for a specified purpose may not be sufficient to discharge the onus upon such a decision maker in the light of other evidence. As French CJ and Crennan J indicated in Barclay:
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.[30]
[30] See Board of Bendigo Regional Institute of Technology and Further Education v Barclay & Anor [No1] (2012) 248 CLR 500, 517 [45] (French CJ and Crennan J).
In my view, it may possibly be the case that the contents of the various documents sought by Mr Lintvelt may be capable of contradicting the direct evidence currently provided by the various witnesses to be called by QGC regarding the real reason Mr Lintvelt’s employment was terminated, and therefore be relevant to the proceedings at hand.
I am also cognisant of the dangers of the Court attempting to attribute a motivation, which might be unconscious to or not appreciated by the decision-maker concerned, but which might conceivably be apparent to an objective observer. In this context, Heydon J said as follows:
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.[31]
[31] Ibid at 546 [146] (Heydon J).
The danger arising can be summarised by applying the following reasoning;
·There were safety incidents in the workplace shortly prior to Mr Lintvelt’s termination;
·Mr Lintvelt was terminated; and
·Therefore Mr Lintvelt was terminated because of his connection to the workplace safety incidents.
There must be a causative link established between the two events, which is demonstrated in the mind of the relevant decision-maker as leading to the reason or reason which led to the making of the decision to terminate Mr Lintvelt’s employment. At this stage, Mr Lutton denies that these issues played any role in decision whatsoever. A state of affairs that Mr Lintvelt disputes, and which therefore will be a legitimate line of inquiry in the trial before me.
In this context, it is likely to be a subject of inquiry as to what Mr Lutton was told about Mr Lintvelt and how his performance in the workplace was presented to him by the various individuals who interacted with him at the Windibri facility. His response to the safety issues may have been the subject of some form of comment in the management team reports.
However, in the absence of knowing what the particular documents contain, I am not in a position to ascertain whether the reasoning of the relevant decision-maker in this case was influenced, and to what degree by any complaints or otherwise made by Mr Lintvelt in the workplace in question.
Mr Lintvelt has conjectured that what he would characterise as his robust response to the incidents marked him out as some form of trouble maker at Windibri, which more likely than not would have been subject to some form of comment to superiors. Whether this is so or not remains a live issue. QGC has denied it. The denial, in the absence of finding of fact by the Court, does not resolve it.
Accordingly, I am satisfied that the majority of the documents concerned do have relevance to a central issue in the case, namely what factors may have conceivably influenced the ultimate decision-maker to terminate Mr Lintvelt’s employment. It will remain an issue for trial as to whether these matters were either known by him, or formed part of his operative reasoning.
Although it is not strictly a relevant consideration in the case, I also consider that the provision of the majority of these documents will assist in the fair and expeditious conduct of the trial and such be in the interests of the administration of justice, given Mr Lintvelt is self-represented.
He is not likely to abandon his attempts to gain access to the documents in question. No suggestion has been made, by QGC, that they contain privileged material or will be difficult or expensive to collate. In these circumstances, it seems to me that it makes pragmatic sense that they be produced to him sooner rather than later.
The exception to this ruling is the group of documents identified as pertaining to the removal of Mr Lintvelt’s personal effects from his accommodation in Chinchilla, which are said to establish that QGC breached its policies in some way. I am unable to see the relevance of these documents to the general protection issues raised in the case pursuant to the FWA.
For these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 24 August 2021
SCHEDULE OF PARTIES
ADG 214 of 2020 Respondents
Fourth Respondent:
KIMBERLEY MELROSE
[16] Ibid at [32] (White J).
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