Lintvelt v QGC Pty Ltd
[2022] FedCFamC2G 275
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lintvelt v QGC Pty Ltd [2022] FedCFamC2G 275
File number(s): ADG 214 of 2020 Judgment of: JUDGE BROWN Date of judgment: 20 April 2022 Catchwords: INDUSTRIAL LAW – allegation of breach of general protection provisions – adverse action – termination of employment – exercise of workplace rights – entitlement to complain about efficacy of health and safety protections in the workplace – whether respondents breached sections 340 of Fair Work Act 2009 (Cth) – applicant alleged adverse action taken because of exercise of workplace right – reverse onus – who in employer’s chain of management made decision to take adverse action – consideration of reasoning process leading to dismissal – multiple decision makers involved – consideration of whether adverse action taken for proscribed reason – whether any proscribed reason was a substantial and operative reason for adverse action – whether respondent has discharged onus arising under section 361 of the Fair Work Act 2009 (Cth) Legislation: Evidence Act (1995) (Cth) s 140
Fair Work Act 2009 (Cth) ss 12, 340, 341, 342, 346, 360, 361
Work Health and Safety Act 2011 (Qld) s 340
Cases cited: Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR 500
CFMEU v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157
CFMEU v BHP Coal Pty Ltd (2014) 253 CLR 243
CFMEU v Clermont Coal Pty Ltd [2015] FCA 1014
CFMEU v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697
Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804
Ermel v DuluxGroup (Aust) Pty Ltd (No 2) [2015] FCA 17
Fox v Percy (2003) 214 CLR 118
Gibbs v Palmerston Town Council [1987] FCA 477
Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399
Khiani v Australian Bureau of Statistics [2011] FCAFC 109
NTEU v RMIT (2013) 234 IR 139
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184
Transport Workers’ Union of Australia v Qantas Airways Ltd (2021) 308 IR 244
Wang v National Australia Bank Ltd [2021] FCA 671
Division: Division 2 General Federal Law Number of paragraphs: 330 Date of hearing: 21 & 22 October 2021 Place: Adelaide Solicitor for the Applicant: The Applicant appearing on his own behalf Counsel for the Respondents: Mr Ellery Solicitor for the Respondents: Corrs Chambers Westgarth ORDERS
ADG 214 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BRETT LOUW LINTVELT
Applicant
AND: QGC PTY LTD
First Respondent
ANTHONY HARLAND
Second Respondent
STEVEN COOPER (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
20 APRIL 2022
THE COURT ORDERS THAT:
1.The application filed by the Applicant on 15 June 2020 is hereby dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
These reasons for judgment relate to a general protection claim, brought by Brett Lintvelt, against his former employer QGC Pty Ltd, pursuant to the provisions of the Fair Work Act 2009 (Cth).[1]
[1] Hereinafter referred to as “The Act” or “The FWA”.
In his application, filed on 15 June 2020, Mr Lintvelt claims he was subject to adverse action, by QGC, for a reason proscribed by the FWA, namely his employment was terminated because he exercised his workplace right to make a complaint about the safety of his workplace – the Windibri Gas Plant, which is operated by QGC.
He further contends that the relevant decision to terminate his employment was made by one or other of the Second to Fourth Respondents, either individually or collectively, on behalf of QGC. Each of them formed part of Mr Lintvelt’s direct line of management at his former place of work.
In its response, filed on 21 July 2020, QGC acknowledges that it took adverse action against Mr Lintvelt but denies it was for any reason, either in whole or part, for a reason proscribed by the Act.
Essentially, QCG contends that Mr Lintvelt was terminated because he was found to be unsuitable for the position for which he had been recruited, during his qualifying period of employment, chiefly because he displayed a poor attitude to his work and other employees but also for specific breaches of applicable workplace protocols, related to QGC.
Accordingly its position is that Mr Lintvelt was dismissed for legitimate operational reasons. It further contends that the relevant decision was made by Kevin Lutton and Catherine McGonigle, who at relevant times were respectively the Deputy Operations Manager for the QGC work site at which Mr Lintvelt had worked and the Employment Relations/Industrial Manager of Shell Australia Pty Ltd.
Mr Lintvelt agrees that the reasons, previously given to him for his termination, ostensibly related to his aptitude to be a member of the team at QGC, to which he had been earlier recruited and other criticisms relating to his travel arrangements to his worksite and the fact that he applied for another job, whilst on-site.
He denies that he did not have the necessary skills or experience to perform the role allocated to him or was otherwise inadequate in his work performance. He asserts that he rectified complaints regarding his travel arrangements and the issues regarding his application for other positions have either been magnified out of all proportion or are trumped up in nature to provide a pretext for his dismissal.
In these circumstances, he contends that the reasons provided to him mask the true motivation for his dismissal by QGC, which was because he exercised a statutorily based workplace right to point out the inadequacies of QGC’s attitude to industrial safety at the Windibri plant to both his colleagues and immediate superiors there.
His behaviour, which he would characterise as both legitimate and in accordance with his workplace entitlements, in some way, had the effect of putting out of joint the various noses of his immediate superiors at the plant, who, as a consequence, provided unreliable information about him, to their off-site superiors, on which he was not able to comment. The provision of this information, which he contends was either materially false or exaggerated, was calculated and intended by them to bring about his dismissal.
Axiomatically, Mr Lintvelt was not privy to all the internal processes of QGC, which led to his dismissal. If anyone associated with QGC was inclined to dismiss him for a reason spurious to his actual workplace performance, such an individual is hardly likely to disclose freely their true motivation. The law recognises the evidentiary difficult facing those such as Mr Lintvelt. Accordingly, in evidentiary and legal terms, this case turns on the application of the principles contained in Section 361 of the FWA.
This section creates a reverse onus. Essentially, once an applicant has established that adverse action has been taken against him or her, by an employer within an industrial context, it falls to the relevant decision maker, within the employer concerned, to provide evidence in respect of the reason why that action was taken and to establish that it was not for a protected aspect of employment.
These reasons for judgment focus on who was the constructive or effective decision maker in respect of Mr Lintvelt’s termination; what was the information on which that decision was based and whether that information was tainted by any erroneous or illegal considerations; and centrally, what was the substantive and operative reason for his dismissal? Essentially, the court must determine why was Mr Lintvelt really dismissed?
BACKGROUND
QGC is a subsidiary of the international energy company, Shell. It operates a gas field in the Surat Basin, proximate to Chinchilla, in Central Queensland, from which natural gas is extracted. On the gas field are approximately 1,100 gas wells, from which gas is compressed at 14 compression facilities.
It is apparent to me, from the evidence led in the case, that the facility is complex and technical in nature and the process which it facilitates has the potential to be extremely dangerous due to the combustible nature of gas and the fact that it is being compressed. Necessarily, it is a highly regulated industry.
Mr Lintvelt was employed as a Gas Plant Operator, by QGC, at its Chinchilla facility, which is known as the Windibri Plant. He executed a contract of employment, to this effect on 30 July 2019.[2] Mr Lintvelt has extensive experience in the oil and gas extraction industry. His immediate supervisor at the plant was Anthony Harland, who in turn reported to the field manager, Steven Cooper.
[2] See Annexure KM-1 to the Affidavit of Kimberley Melrose filed 6 April 2021.
The contract of employment was subject to a qualifying period of 6 months, during which period, Mr Lintvelt’s work performance was to be subject to review. During the qualifying period, either party was entitled to terminate the contract, by giving one week’s notice, in writing, or pay in lieu of notice.
Mr Lintvelt lives in suburban Adelaide. His employment was on a fly in/fly out basis. The relevant schedule to his contract, which stipulates, inter alia, the commencement date of his employment, his level of remuneration and position designation, under the heading Rotating Cycle and Hours of Work, stipulates that Mr Lintvelt’s employment status was full time and his hours of work are 15 on/13 off 12 hours per day.
A further clause of the employment contract provides a definition of the expression rotating cycle and hours of work. This definition does not provide a specific mechanism for calculating the exact time at which hours of work commenced. It provides as follows:
Each on duty period commences at the commencement of work at the site. Each off duty period commences on the date of your departure from the site.[3]
There is no controversy in the present matter that the relevant work site, in Mr Lintvelt’s case, was the Windibri Plant in the Surat Basin. Controversies arise as to issues related to whether or not Mr Lintvelt was at fault in respect of the time when he presented himself for work, after making arrangements to travel to Chinchilla via Brisbane, from Adelaide.
[3] See Annexure KM1 to the Affidavit of Kimberley Sacha Melrose filed 6 April 2021.
Mr Lintvelt commenced his employment with QGC on 9 September 2019. There is no controversy that his employment was terminated on 21 February 2020 by means of a letter, addressed to him and dated 19 February 2020, which was signed by Kevin Lutton, who as indicated above, was then the Deputy Operations Manager for QGC and responsible for the operation of the Chinchilla site. He reported to Hans Mooren, who was Asset Operations Manager.
At the time, Mr Lutton was based in QGC’s Brisbane office. He visited the Chinchilla site twice per week. In his evidence, Mr Lutton deposes that he was responsible for overseeing the safe delivery of gas production, at Chinchilla, and managing a team of 272 employees, one of whom was Mr Lintvelt. Mr Lutton concedes that he had limited interactions with Mr Lintvelt and struggled to get to all employees during [his visits to the Chinchilla site] because there was a large team operating at each facility and at different sites.[4]
[4] See Affidavit of Kevin William Lutton filed 6 April 2021 at [11] & [14].
In terms of QGC’s managerial line of command, Mr Lutton was the ultimate decision maker in terms of operational issues relating the termination of Mr Lintvelt’s employment. However, he concedes that the relevant letter was drafted by the Human Resources Department of QGC and his decision to terminate was made in conjunction with it. It being perceived to be necessary, by the management of Shell and its subsidiaries, to ensure that the company would not be exposed to any legal liability arising from any decision to terminate an employee.
As will be detailed in due course, the person in Human Resources responsible for signing off on line management decisions regarding employment terminations was Ms McGonigle, who had this responsibility at Shell and its subsidiaries. Ms McGonigle is based in Shell’s Perth office. She was the HR decision maker in respect of Mr Lintvelt’s dismissal.
Ms McGonigle has never met Mr Lintvelt and relied on information provided to her by Kylie Melrose, who reported to her. In the relevant jargon, Ms Melrose provided Ms McGonigle with the business case for Mr Lintvelt’s termination.
The relevant letter to Mr Lintvelt, which Mr Lutton signed, was headed Qualifying Period Review and Termination of Employment. It reads as follows:
As you are aware, your employment is covered by a 6-month qualifying period during which your performance and progress will be reviewed. Since commencing employment on 9 September 2019, your supervisor Mr Anthony Harland, has met with you on multiple occasions to provide feedback and discuss your performance and progress in the role of Gas Plant Operator.
Specifically, the following concerns have been raised with you:
•A requirement to improve your knowledge and understanding of the Field Compression Stations.
•Applying for other internal roles after you were advised you were not eligible to do so. Further following this incident, on multiple occasions you stated an intent to apply for other roles, despite being advised by your Line Manager you were not eligible to apply.
•On multiple occasions failing to make appropriate travel arrangement to enable a face to face hand over at the on the first and last day of your roster. A face to face handover is a requirement of your role.
On 2 February 2020 these concerns were raised with you by Mr Harland, and you were advised that your qualifying period was under review. You were provided with an opportunity to demonstrate an improvement in these areas.
A review of your qualifying period has been completed, and the outcome is that you have not demonstrated the performance or progress in your new role expected of a Shell employee. You have been given multiple opportunities to improve, however a satisfactory improvement has not been achieved. As a result, the decision has been made not to continue your employment beyond the qualifying period.
This letter serves to notify you of the termination of your employment effective 21 February 2020. As per the terms and conditions of your employment you will receive all entitlements applicable, including one week payment in lieu of notice.[5]
[5] Attached to the Applicant’s claim filed 15 June 2020.
In his affidavit evidence, Mr Lutton deposes as follows:
I made the decision to act upon concerns with Mr Lintvelt’s performance to approve termination of his employment, in conjunction with Human Resources.
Mr Mooren required me to run all Human Resources matters by him. I told Mr Mooren that I wanted to terminate Mr Lintvelt’s employment and Mr Mooren endorsed this.
I understood that Ms Melrose arranged the appropriate Human Resource’s approval.
Human Resources drafted a termination letter for Mr Lintvelt.
Human Resources gave me the letter to sign. I did not agree with the contents of the letter. But I had also decided that Mr Lintvelt’s employment should be terminated due to his poor attitude, behaviour and lack of respect for his superiors. I am not sure why this was not included in the letter.
From Mr Harland’s notes and from speaking with Mr Cooper and Mr Folie, I understood that Mr Lintvelt showed a lack of respect for his superiors and colleagues. The way he conducted himself was not in line with Shell’s respect model.[6]
[6] See Affidavit of Kevin William Lutton filed on 6 April 2021 at [40] to [45].
It is apparent from Mr Lutton’s evidence that, in his view, the substantive or operational reason for the termination were the matters not specifically delineated in the letter, namely what is alleged to have been Mr Lintvelt’s poor attitude and behaviour and the fact that he was perceived to be disrespectful of his superiors. Mr Lutton has no specific knowledge of these issues, which were conveyed to him by others.
At the time of his termination, Mr Lintvelt was off duty, at his home in Adelaide. He was informed of his termination in a telephone call, which took place on 21 February 2020. On this occasion, the letter dated 19 February 2020 was read to him by Steven Cooper. Also present on the conference call were Kimberley Melrose and Anthony Harland.
Mr Harland, Mr Cooper and Ms Melrose are the Second, Third and Fourth Respondents to these proceedings. QGC asserts that none of these individuals can be regarded as decision makers in respect of Mr Lintvelt’s dismissal. However, there can be no doubt that information, which they provided to their superiors, was instrumental in the decision being made.
Mr Harland has been employed by QGC since 2007. He is based at the Windibri Plant and is designated as Plant Supervisor. He was Mr Lintvelt’s immediate day to day supervisor. Central to the case are written summaries of his personal interactions with Mr Lintvelt at Windibri and his reports of what other employees told him about their individual dealing with him.
Mr Cooper has been employed by QGC since early 2013. He is also based at Windibri, where he is employed as the field manager – gas driven engines. He is responsible for the management of all aspects of safety on the site and supervises maintenance of all plant. He controls gas production. He reported to Mr Lutton. Mr Harland reported to him.
Ms Melrose has been employed by QGC since late 2012. She is based in its Brisbane office. She reports to Evan Westgarth, QGC’s Human Resources Manager, based in Brisbane and to Ms McGonigle, who is his manager. Prior to 21 February 2020, she had never met Mr Lintvelt. On 17 February 2020, she forward an email to Ms McGonigle recommending Mr Lintvelt’s termination on the basis that he had allegedly:
[S]hown negative behaviours by failing to attend handovers, delaying work intentionally, insubordination, and not demonstrating the Shell Values of honesty, integrity, and respect.[7]
[7] See Annexure KM – 11 to Kimberley Melrose’s affidavit filed 6 April 2021.
In addition, Ms Melrose provided a summary of potential legal risks, which she considered might apply to the decision to dismiss Mr Lintvelt. The only possible adverse action noted in this regard was age discrimination. However, Ms Melrose considered that coverage was provided by the fact that the dismissal would occur within the six month probationary period.
Thereafter, both Mr Westgarth and Ms McGonigle approved the dismissal. Ms Melrose was tasked with drafting the letter of termination, which Ms McGonigle subsequently amended. Mr Lintvelt challenged the decision in the Fair Work Commission and subsequently commenced the current proceedings on 15 June 2020.
Accordingly, several individuals, with varying degrees and sources of knowledge concerning Mr Lintvelt’s conduct and performance, at the Windibri plant, were involved in the decision to dismiss him. It is apparent to me that the decision in question had a collaborative quality to it. In substantive terms, it was not the decision of a single person alone. Rather, the decision making process and the reasoning associated with it appears to have been dispersed through a number of persons.[8]
[8] See CFMEU v Clermont Coal Pty Ltd [2015] FCA 1014 at [121] per Reeves J.
As indicated above, the central task, for the court, in the current matter, is to determine the substantive reason why QGC determined to dismiss Mr Lintvelt and whether it was for a reason prohibited by the FWA. In essence, it falls to the court to make findings as to the states of mind of various individuals, who constitute the directing mind and will of the corporate body that is QGC in regards to the decision to terminate Mr Lintvelt’s employment.[9]
[9] See NTEU v RMIT (2013) 234 IR 139 at 147 [26] per Gray J.
In such cases of collaborative decision making, this requires the court to
[Focus] on the conscious reasoning processes of those who had a material effect on the ultimate outcome to determine whether their reasoning processes were free of the alleged prohibited reason or reasons. If one or more of the reasons employed by one or more of them was a prohibited reason that will impugn the ultimate decision.[10]
[10] See CFMEU v Clermont Coal Pty Ltd [2015] FCA 1014 at [121].
Essentially, if any individual in the collaborative preparation of the chain of information leading to the decision to terminate Mr Lintvelt was materially influenced by a proscribed reason, but the ultimate and superior decision makers were ignorant of such influences, the decision in question nonetheless remains liable to impeachment.
In the particular matter, primarily Mr Harland and secondly Mr Cooper provided information to those above them in the decision making process at QGC. These individuals, chiefly Mr Lutton and Ms McGonigle, relied on that information to make the decision to terminate Mr Lintvelt.
In these circumstances, if the court determines that Mr Harland or Mr Cooper, either individually or in tandem, were materially influenced by reasons relating to their animus for Mr Lintvelt, because of his raising of issues to do with occupational health and safety at the Windibri plant with them, this will have the potential to vitiate the decision of Mr Lutton to terminate Mr Lintvelt, although he (Mr Lutton) personally was ignorant of those matters and relied on them in good faith.
THE COMPETING CLAIMS OF EACH OF THE PARTIES
Mr Lintvelt is not legally qualified. He has acted on his own behalf throughout these proceedings and clearly has prepared his own documents without legal advice. He is obviously both an intelligent and determined person, with some tertiary education. He is, however, at a distinct disadvantage in these proceedings, given the complexity of the issues arising in this case and his lack of experience in formulating a legal case.
More significantly, he lacked aptitude to cross-examine efficiently in respect of the salient factual controversies in the case within the matrix of the legal provisions applicable, namely the subtleties of the decision-making process leading to his dismissal. It is not the role of the court to make out Mr Lintvelt’s case for him or question witnesses on his behalf, although, from time to time, I did ask what I regarded as salient questions regarding the applicable decision making process.
It is Mr Lintvelt’s position that he was not privy to the decision to end his employment. Axiomatically this is the case. In these circumstances, he can only rely on what was indicated in the letter provided to him as to QGC’s rationale for terminating him. Necessarily, this has influenced the manner in which he has prepared his case.
In these circumstances he can only intuit what were the reasons for his dismissal from what occurred to him given his experience of what had happened before. From his perspective, the reasons provided to him neither match his own recollection and experience of what occurred nor what was told to him in the letter of termination. As such, he is highly dubious of the reasons provided to him. Essentially, he asserts that the reasons given for his termination do not match what he asserts was the industrial context in which the decision was made.
QGC concedes that, in some regards, the letter of termination is not a complete reflection of its concluded decision making process. In this context, more recently, Mr Lutton has indicated he reached his decision because of reports provided to him regarding Mr Lintvelt’s poor attitude, behaviour and lack of respect for his superiors at the Windibri plant.
These reports came from Mr Harland and Mr Cooper. Similarly, Ms Melrose reached her conclusion that Mr Lintvelt had breached his obligations to uphold Shell’s values of honesty, integrity and respect on the basis of information provided to her. Employees of Shell and its subsidiaries are required to read and agree to the company’s core values detailed in its Code of Conduct.
Accordingly, to some extent, the issues arising in the case shifted after Mr Lintvelt commenced his case and new grounds for his dismissal were raised, which had not been delineated in his earlier termination letter and which, from Mr Lintvelt’s perspective had not previously been raised with him. Factors, which heighten his suspicions that there were other undisclosed reasons which motivated QGC to release him from employment.
The rules of the court, operative at the time, mandated a pro forma document for the commencement of proceedings alleging a dismissal in contravention of a general protection. It was not required that a supporting affidavit be filed. The form itself directed that any applicant specify the workplace right claimed and set out the grounds on which it was said that this right had been contravened. Mr Lintvelt fastidiously followed this protocol.
After setting out his period of employment as a gas plant operator, he detailed his duties as including:
·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 his claim, Mr Lintvelt makes the following allegations:
·In mid-October 2019, he raised concerns, with Mr Harland, regarding a non-compliant isolation at field compression station 3, compressor 7. The isolation could not be completed in accordance with the safe system of work as the isolation drawings did not correlate with the actual configuration of the equipment being isolated. He was told by Mr Harland not to report the incident in the company’s electronic reporting system known as OICC[11];
·Between 4 December 2019 and 18 December 2019 he reported a potentially serious safety issue, in the OICC, regarding the installation of a non-compliant brass plug in a high pressure valve. Later he raised his concerns about the plug with Mr Stevens along with other concerns regarding non-compliant isolations with relevant industry standards;
·He exercised a stop work authority on 3 February 2020 in respect of an isolation procedure, which he considered incorrect;
·Between 4 February 2020 and 19 February 2020 a section of insulating lagging fell from the exhaust pipe of a compressor landing on a scaffolding deck. He was concerned the lagging might contain asbestos. Subsequently, he was directed to remove the lagging but declined to do so due to the fact the he had not been provided with suitable personal protection equipment and to do so would have been in breach of QGC’s own asbestos policy. His request that he be placed on the asbestos register was not actioned;
·On 11 February 2020, he reported that scaffolding, at the plant, was out of inspection, which did not comply with the applicable safe system of work and as a consequence the relevant permit holder for the applicable facility should not have issued a work permit.
[11] The acronym refers to Observation, Intervention, Compliance & Collaboration.
The applicant alleged that his employment was terminated because he made complaints about these matters to both Mr Harland and Mr Stevens, as he was entitled to do pursuant to the provisions of the Work Health and Safety Act 2011 (Qld), as they related to his personal safety in the workplace. This is the basis of the claim pursuant to section 340(1) of the Act.
In these circumstances, by necessary implication, he refutes the grounds initially provided to him for his dismissal, namely that he had failed to improve knowledge and understanding of field compression stations; had applied for other internal roles; and had failed to make appropriate travel arrangements.
Mr Lintvelt also complains that, when he was informed of this decision and the reasons for it, in the telephone conference of 21 February 2020, he was not given an opportunity to rebut the allegations but was talked over by Ms Melrose. In the course of his oral evidence, it became apparent that Mr Lintvelt has many other criticisms of how he was treated by QGC during his employment, particularly that he was not warned about any perceived deficits in his work performance.
In this context, it needs to be stated what these proceedings are not. They are not concerned with the generic fairness or probity of the process which led to Mr Lintvelt’s termination. In particular, I am not inquiring into whether the decision of QGC to terminate Mr Lintvelt was procedurally fair or the correct one. This is not a broad inquiry as to whether Mr Lintvelt has been “subjected to a procedurally fair or substantially unfair outcome.” [12]
[12] See Ermel v Duluxgroup (Aust) Pty Lty (No 2) [2015] FCA 17 at [48] per Bromberg J.
Rather, the only issue subject to the determination of the court is whether QGC took that the relevant adverse action for a proscribed reason. It is not a review generally of the fairness of the employer’s conduct. As the Full Court observed in Khiani v Australian Bureau of Statistics:
A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts.[13]
[13] See Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31] per Gray, Cowdroy & Reeves JJ.
By way of remedy, Mr Lintvelt seeks compensation in an amount of $153,432.50 for lost wages and related superannuation entitlements in an amount of $18,411.90 and the imposition of pecuniary penalties on QGC.
The respondents filed a response to the application on 21 July 2020. Jointly they seek the dismissal of the claim. In this context, QGC admits Mr Lintvelt raised issues with its staff regarding an allegedly non-compliant isolation on 17 October 2019 and an issue relating to the use of a brass plug in a high pressure valve but denies any other knowledge of the workplace issues alleged to have been raised by Mr Lintvelt. But otherwise, QGC denies that these specific health and safety issues played an operative part in its decision to dismiss the applicant.
Mr Harland also admits Mr Lintvelt complained about a non-compliant isolation on 17 October 2019 but indicates he told Mr Lintvelt to mark-up the relevant isolation drawing and report the matter to the site engineer. He also admits that he was informed about the use of the brass plug and told Mr Lintvelt to report it in the OICC. He too denies knowledge of the other incidents raised by Mr Lintvelt regarding asbestos, scaffolding et cetera.
Mr Cooper also admits Mr Lintvelt had a conversation with him regarding non-compliant isolations but denies any knowledge of the other occupation health and safety issues alleged by Mr Lintvelt. In these circumstances, QGC denies that Mr Lintvelt’s employment was terminated because he exercised any workplace right relating to him raising issues of occupational health and safety.
Rather, QGC alleges that the applicant’s employment was terminated as a consequence of a process which began in mid-December of 2019 and was largely concluded by this date.[14] At this stage, Mr Harland raised concerns with Mr Stevens, which Mr Stevens in turn raised with Mr Lutton about what he (Mr Harland) perceived to be problems with Mr Lintvelt’s work performance, which included the following:
·He failed to assist other team members with work, as required;
·He browsed eBay, when he should have been working;
·He applied for roles in a related company to QGC, after having been told by Mr Harland that he required the approval of his line manager to do so;
·He failed to change his flights to ensure he was present for shift handovers; and
·Some of Mr Lintvelt’s colleagues had expressed an unwillingness to work with him.
[14] The response consistently and erroneously refers to dates in 2020. I have utilised the correct dates.
On 19 December 2019, Mr Lutton discussed these issues at a meeting chaired by Mr Mooren, at which it was decided that Mr Lintvelt would not be retained beyond his probationary period. As a consequence, Ms Melrose and Mr Westgarth were requested by Mr Lutton to proceed with offboarding prior to the 6 month period finishing.[15]
[15] See Exhibit KL-6 to Affidavit of Kevin William Lutton filed on 6 April 2021.
On 22 January 2020, Ms Melrose wrote to Mr Lutton to advise him and Mr Stevens as to what steps should be taken regarding the process of termination. As a consequence, QGC assert that Mr Harland arranged for a meeting to occur on 2 February 2020 between him and Mr Lintvelt, at Windibri, regarding the former’s concerns about the latter’s work performance. Mr Lintvelt vehemently denies that the meeting took place and characterises any notes purportedly made by Mr Harland in respect of it as a fabrication and falsehood.[16]
[16] See Affidavit of the Brett Lintvelt filed 6 August 2021 at [1aa].
QGC asserts that at this meeting, he (Mr Lintvelt) was advised of the following:
·The need to speak to colleagues in a civil and professional manner and in accordance with Shell’s values;
·The need for him to spend more time at three designated field stations in order to demonstrate his knowledge of plant process and if this was not evidenced, he might not be offered employment beyond his qualifying period;
·It was expected that he comply with QGC’s values, code of conduct and lifesaver rules.
Thereafter QGC alleges that the applicant did not improve his employment performance in that he failed to assist at a shutdown; continued to fail to follow instructions or complete tasks; take direction from more experienced employees. As a consequence, it is alleged two employees indicated an unwillingness to work with him.
It is the combination of these factors, which QGC assert led it to terminate Mr Lintvelt’s employment, which it summarises as follows:
·Mr Lintvelt failed to develop practical knowledge and understanding of gas field compression stations;
·He applied for other roles after twice being advised not to do so by Mr Harland;
·In November of 2019 he was asked to change his flights from Brisbane to make handover with the shift he was replacing. This request was repeated in December. It was important that he be present at such handovers for salient issues, including safety, to be discussed; and
·His conduct and behaviour in the workplace did not accord with QGC’s values.
Mr Lintvelt elected to file an affidavit to reply to the response.[17] He denies that there were multiple discussions, between him and Mr Harland, as claimed in the termination letter, involving the provision of feedback to improve his performance. In fact, as previously indicated, Mr Lintvelt denies that the seminal meeting of 2 February 2020 in fact took place.
[17] See Affidavit of Brett Lintvelt filed 29 January 2021.
In his oral evidence, Mr Lintvelt indicated that it is his practice to take notes of all important workplace meetings. He points to the absence of any contemporaneous notes on his part, regarding these alleged discussions, as being supportive of his position that they either did not occur or were as significant as now alleged.
Mr Lintvelt further denies the allegation that he failed to improve his knowledge and understanding of field compression stations. In this context, he points to the fact that the electronic record indicates that he had successfully completed all the on-site e-training required of him but had been restricted from attending sites alone as a consequence of QGC’s green hat policy.
In general terms, this requires designated staff regarded as being neophyte to wear green helmets to distinguish them from more experience staff who wear white helmets. It is a practice rather than a written policy. It is based primarily on safety considerations. When a new employee is determined to be competent, by a supervisor, they can move to a white hat, which allows them to access a site without supervision.
As previously indicated, it is my impression that the Windibri plant is a complicated industrial site. Not a great deal of evidence was provided in respect of the intricacies of the process undertaken there. However, as I understand it, the plant consists of a major processing plant (PO1), which is analogous to an overall control room and is highly technical and complex in nature. It is fed by a number of field compressor sites, which are more basic in nature and distributed around the gas field.
In addition, safety issues, at the various field compression sites, are managed by a permit system. Permits are issues to qualified staff who are designated as area owners. They determine who comes onto the site and for what purposes. Mr Lintvelt asserts that he was prevented from attending at field compressor sites alone because of the green hat policy and this retarded his capacity to learn practical skills.
Mr Harland, in particular, asserts otherwise. This is a central controversy in the case. Mr Harland asserting that Mr Lintvelt had a bad attitude towards attending at field compression sites, as he (Mr Lintvelt) perceived operation of field compression stations was beneath him.[18] The implication being that Mr Lintvelt resisted gaining the requisite experience required of him.
[18] See Affidavit of Anthony John Harland filed 6 April 2021 at [74].
Mr Lintvelt does not dispute that he applied for at least two other roles, within related entities to QGC, whilst working at the Windibri plant. He also concedes that this was an issue raised with him by Mr Harland. However, it is his contention that he was unaware of the policy when he applied for the first position as it was not disclosed to him in his contract of employment.
In these circumstances, he asked for a copy of the policy from Mr Harland, which was not forthcoming. In these circumstances, he felt under no compunction not to apply for other positions, including on Shell Prelude and made no secret of the fact. From his perspective, he regards the unarticulated policy to be an arbitrary restriction on his freedom to seek whatever employment he chooses. In addition, he asserts that when he tried to find the relevant policy, on the Shell intranet, he could not find it.
There is no controversy that this restriction did not form an explicit component of Mr Lintvelt’s contract of employment. However, the contract does stipulate that employees are required to abide by the company’s policies and procedures. In this context, Ms Melrose has deposed that Mr Lintvelt signed a declaration that he had received copies of Shell’s Code of Conduct; and its Standard of Behaviour Guide; on 30 July 2019, when he executed his contract of employment.[19]
[19] See Annexure KM – 2 to Kimberley Melrose’s affidavit filed 6 April 2021.
The rationale of the policy is apparently to ensure that one Shell project does not garner the workforce talent of another project to the latter project’s detriment. For this reason, potential recruitment is subject to scrutiny and approval. Ms McGonigle produced a copy of the actual policy concerned, which is entitled Availability Date Business Rules.[20] She agreed that it was not the most accessible and coherent of documents.
[20] See Exhibit D.
Ms Melrose agreed that to apply for a job, in these circumstances, was probably not all that significant. More significant was if an employee persisted in doing so after being directed not to do so, as this could amount to insubordination. From Mr Lutton’s perspective, a more significant aspect of the process was that, in completing the necessary on-line application, an applicant was required to enter yes/no in response to the question of whether the application had been approved by the manager of the applicant concerned.
In these circumstances, it was his view, that Mr Lintvelt, in entering yes on his job application, to this question, whilst knowing he did not have Mr Harland’s explicit approval, had fallen short of the standards of ethics, respect and honesty expected of QGC employees.
Mr Lintvelt also challenges the claim that he failed to make appropriate travel arrangements to travel to Chinchilla on multiple occasions starting from 15 November 2019 onwards. Again, it his position that the evidence provided by Mr Harland in respect of this issue is, at best, misleading and, at worst consciously fabricated.
He denies any discussion about flights until 15 December 2019, after which date he modified his flight arrangements as requested. Prior to this time he had mirrored the previous arrangements, which had begun with his first flight to Chinchilla which had been arranged for him by administration, as he could not himself access the internal system used to book flights between Brisbane and Chinchilla.
It is the effect of Mr Lintvelt’s evidence that no issues were identified about his arrival time prior to 15 December. Mr Harland deposed that employees arrived at Chinchilla routinely between 10.30am and 12.30pm. In this context, Mr Lintvelt deposes that the latest he ever arrived was at 3.00pm and he always sent a text message, in advance, to the leading hand, to ascertain whether he was required earlier.
He further asserts that he was never given a formal directive regarding the requirement that he attend at handovers. More significantly, he asserts that he booked his flight to arrive at Chinchilla through QGC’s administration, which required and received Mr Harland’s approval. The implication being that, if it was a problem, Mr Harland could have raised it with him earlier than he did.
In respect of the more general and more recently raised criticisms that he has not demonstrated the necessary values of integrity, honesty and respect required of QGC employees, Mr Lintvelt asserts that raising issues of workplace, health and safety are congruent with these values and he has been victimised for so doing.
In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observations of the demeanour of each of the witnesses concerned.[21] I have tried to reach my conclusions as to credibility and reliability, on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[22]
[21] See Evidence Act (1995) (Cth) at section 140.
[22] See Fox v Percy (2003) 214CLR 118 at 129 [31] per Gleeson CJ, Gummow & Kirby JJ.
The relevant standard of proof is the balance of probabilities. In addition, I bear in mind section 140(2) of the Evidence Act, which indicates that in applying this standard of proof, I am entitled to consider the nature of the subject-matter of the proceedings and the gravity of the matters alleged.
In respect of the standard of proof required of the employer to satisfy the onus lying upon it pursuant to section 361 of the FWA, it is the establishment of a reasonable satisfaction on the preponderance of probabilities.[23]
[23] See Transport Workers’ Union of Australia v Qantas Airways Ltd (2021) 308 IR 244 at [284].
LEGISLATIVE PROVISIONS
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 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 table provides as follows:
Meaning of adverse action
Item Column 1
Adverse action is taken by …Column 2 if … 1 an employer against and employee the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer
Section 341 provides the definition of workplace right. A person has such a right if, amongst other matters, he or she:
(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.
The expression workplace law is defined within section 12 of the Act. It includes any law of a state or territory that regulates the relationship between employers and employees, including dealings in respect of occupational health and safety matters.
In the current matter, there can be no doubt that adverse action was taken against Mr Lintvelt. In the current matter, QGC does not contest that he had a workplace right to complain and agitate about issues relating to occupational health and safety matters.
As a consequence of the use of the word because in section 340 there must be a factual link between the taking of the adverse action against the applicant concerned and a protected attribute relating to that applicant as a consequence of a workplace right exercised by him or her.
In a general protection claim, sections 360 and 361 of the FWA are of central importance. As previously indicated, the latter section creates what is often described as the reverse onus. It reads as follows:
361 Reasons for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
Clearly, adverse action can be taken for one reason or a variety of reasons, some potentially proscribed, some not. In these circumstances, section 360 is relevant. It reads as follows:
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reason for the action include that reason.
As will become more evident in due course, where there are number of reasons for a particular incident of adverse action, the requirement on the court is to determine the substantive or operative reason for the action in question.
The controversy in this case is easily articulated. QGC assert that it terminated Mr Lintvelt for reasons relating to his poor performance in the workplace; what it perceived to be his poor aptitude to work at its Windibri Plant; and specific and generalised failings of character and integrity. None of these are attributes protected under the Act.
On the other hand, Mr Lintvelt contends that he was terminated because he raised issues to do with occupational health and safety at Windibri. QGC does not dispute that he did raise issues regarding the competency of some of its operational methods vis-à-vis safety issues. Although some specific matters remain controversial, it agrees Mr Lintvelt raised issues about how isolations were conducted and about the fitting of a brass plug. However, it disputes that these were the issues which led to it, through its various decision making processes, to the taking of the relevant adverse action.
The effect of section 361 is to reverse the legal onus in relation to the establishment of the reason or reasons for which the adverse action was taken. That is to say, at the end of the evidentiary process, the question for the court will be whether the first respondent has established, on the civil standard of proof, that Mr Lintvelt’s employment was not terminated for a reason, or for reasons, which included a reason, proscribed by the Act.
Section 361 of the Act comes into operation only after it has been established that adverse action was taken” and “that a relevant workplace right exists” “as an objective fact”.[24]In Jones v Queensland Tertiary Admissions Centre Limited (No 2) Collier J explained the operation of section 361 in the following terms:
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.[25]
[24]See CFMEU v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 at [76].
[25] See Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399 at [10] (Collier J).
Necessarily, after adverse action has been established and its relation to a workplace right, the reverse onus must involve an analysis, by the court, of the reason or reasons why the adverse action was taken by the person or persons who made the relevant decision to take the adverse action.
Where there is only one person who made the relevant decision, this process is relatively simple. It involves an inquiry in the reasoning process leading to that person’s decision to take the adverse action. Albeit in a different kind of adverse action case (one concerning industrial organisation) Gageler J said as follows in respect of the onus arising under section 361:
Where the adverse action taken is in consequence of a decision made by a responsible individual within a corporation, the existence or non-existence of a particular reason as an operative and immediate reason for taking that adverse action turns on an inquiry into the mental processes of that individual.[26]
[26] See CFMEU v BHP Coal Pty Ltd (2014) 314 ALR 1 at 18 [85].
Necessarily, it becomes more complex if a number of individuals are involved, with varying degrees of knowledge about the relevant issues and the decision making process can be described as collaborative – essentially one involving the thought processes of more than one person. This complexity is intensified if there is controversy about the identity of the various decision makers in question – essentially who decided what and on what bases.
In the current matter, QGC assert that Mr Lutton and Ms McGonigle were the decision makers. Mr Lintvelt asserts that operative decision was made at a lower level of QGC’s operations, which were based on his raising of industrial health and safety issues at Windibri. Essentially, Mr Lintvelt contends that the operative decision maker was a subordinate, either Mr Harland or Mr Cooper, which was then merely approved or rubber stamped by the manager located away from the day to day operations of the plant.
In Gibbs v Palmerston Town Council[27] Gray J identified this issue in the following terms:
…there is still a difficult question of the extent to which the improper purpose of one person may be a substantial and operative factor in the decision of another. Clearly, if the actual decision maker simply “rubber stamps” a decision in fact made by another, the purpose of that other will be a substantial operative factor. At the other, if the actual decision maker truly believes the false and innocent reasons advised by the other person, the mind of the decision maker will not be tainted by the improper purpose of the other person. The problem assumes greater complexity when the decision is made by more than one person, as might be the case with the board of directors of a company, and as is often the case when the decision is made by a local government authority.
[27] See Gibbs v Palmerston Town Council [1987] FCA 477 at [114].
It is Mr Lintvelt’s position that the effective decision to terminate his employment was made by Mr Harland/Mr Cooper and this decision was motivated by the fact that he had raised issues related to safety in the workplace and was essentially rubber stamped by others higher up the management chain on the confected grounds advanced by them.
On the other hand, the senior management decision-makers, at QGC, assert that they genuinely believed, on reasonable grounds, that Mr Lintvelt was unsuited for his probationary position at Windibri, on the basis of credible information provided to them and this was the substantive and operative reason for his termination, which had nothing to do with any health and safety issue raised by Mr Lintvelt.
In this context, it is necessary to detail the jurisprudence relating to both cases involving an individual decision maker and those involving decisions which are disbursed throughout an organisation. In each case, the emphasis is on the reasoning process underpinning the decision to take the relevant adverse action.
It is clear that in both such scenarios, the focus of the inquiry is on the reason why the decision to take the adverse action was made. This remains the focus whether the fact making scenario relies on a sole decision-maker or where the decision making is disbursed through a collegiate group. The inquiry is centred, in each case, on what was the operative reason for the relevant decision. This arises as a consequence of the use of the word because in section 340(1). Matters are potentially further complicated, in a group making decision process, where the relevant adverse action is predicated upon more than one specific item of conduct, on the part of the employee concerned.
Leading High Court authority, namely Board of Bendigo Regional Institute of Technical & Further Education v Barclay[28] and CFMEU v BHP Coal Pty Ltd,[29]which focus on an analogous provision in the FWA relating to industrial action (section 346 of the Act), dealt with single decision makers and one specific episode of conduct leading to the taking of adverse action.
[28] See Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR 500.
[29] See CFMEU v BHP Coal Pty Ltd (2014) 253 CLR 243.
In Barclay Heydon J expressed the nature of the inquiry required in the following terms:
The word "because" requires an investigation of Dr Harvey's reasons for her conduct. Section 360 provided that "a person takes action for a particular reason if the reasons for the action include that reason." The Explanatory Memorandum makes it clear that to satisfy s 360 the particular reason must be an "operative or immediate reason for the action". Under s 361 of the Act, it is presumed that action was taken for a prohibited reason, unless the employer proves otherwise. Examining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action.[30]
[30] See Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR 500 at 544 [140] (footnotes omitted).
French CJ and Kiefel J provided a similar analysis in BHP Coal as follows:
The focus of the enquiry as to whether section 346 has been contravened is upon the reasons for Mr Brick taking the adverse action. This is evident from the word "because" in section 346, and from the terms of section 361. The enquiry involves a search for the reasoning actually employed by Mr Brick. The determination to be made by the court is one of fact, taking account of all the facts and circumstances of the case and available inferences.[31]
[31] See CFMEU v BHP Coal Pty Ltd (2014) 253 CLR 243.
Given this is an inquiry into a factual state of affairs – why did someone make a decision to do something – caution must be taken to avoid converting the relevant inquiry into an examination of either the objective or subjective circumstances surrounding what occurred. As their Honours indicated the application of the reverse onus does not involve an objective test. Rather,
To speak of objectively ascertained reasons risks the substitution by the court of its own view, rather than making a finding of fact as to the true reason of the decision-maker.[32]
[32] See CFMEU v BHP Coal Pty Ltd (2014) 253 CLR 243.
Accordingly, in this case, I must be careful to avoid any conflation between Mr Lintvelt’s subjective views as to why his employment was terminated with any inadvertent objective assessment of the possibly different motivations and actions of the various actors concerned, which may be influenced by the context in which the decision was made. Rather the court must focus on the reasoning process which led to the impugned decision. It is an issue of fact. What is the substantive and operative reason leading to making of the decision in question?
In Barclay, French CJ and Crennan J made it clear, in so doing, the Court is required to take into account all the relevant facts and circumstances of the case, as established by the evidence. They said as follows:
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in section 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.[33]
[33] See Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR 500 [45] (footnotes omitted).
In similar vein, Gummow and Hayne JJ said that:
In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a "substantial and operative factor" as to constitute a "reason", potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under section 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.[34]
[34]See Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR 500, 542 at [127] per Gummow and Hayne JJ
Given the need to focus on the substantial and operative reasons germane to the relevant decision, in order to ascertain whether it is affected by the alleged prohibited reasons, an employer:
·Need not negate every reason, however immaterial it was to the decision to dismiss the employee concerned;
·Is not a roving search into the minds of relevant employees;
·Is not in the nature of an objective inquiry;
·Nor can it entail some attempt to elicit the unconscious reasoning of the ultimate decision-maker.[35]
[35] See CFMEU v Clermont Coal Pty Ltd [2015] FCA 1014 at [121] per Reeves J
As indicated in Gibbs, it is axiomatically a more difficult task to analyse the rationale for an adverse action, in an employment situation, when more than one individual is involved in the decision-making process. The was the situation arising in Elliott v Kodak Australasia Pty Ltd.[36] The factual situation in that case had some similarities to the present matter but was not strictly on all fours with it.
[36] See Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804.
It involved a redundancy process. Two supervisors were tasked with ranking Mr Elliott by reference to criteria and then a third person, the general manager was charged with making the ultimate decision to terminate Mr Elliott. Necessarily, the outcome of the ranking process was influential in the ultimate redundancy decision.
Thus, if the thought processes of one of the supervisors could be characterised as having been influenced by an improper consideration, the ultimate decision was liable to being impugned, even if the ultimate decision-maker was unaware of it. The court said as follows of this scenario, involving two rankers, who provided information to the ultimate decision maker:
The first difficulty with this argument is that Lay made an indispensable contribution to the rankings. He and Shannon co-operated in a joint assessment, with each giving an account of what influenced them individually. If it were the fact that Lay was influenced in giving a low mark by a prohibited reason, it can be assumed that if the ranking were done without having regard to that prohibited reason, it is likely that a different ranking would have been given by Lay. This, inevitably, would have affected the ranking process, whatever the views of Shannon. It would have been a different assessment process. Furthermore, whatever debate there might be about the extent of Walshe’s power or involvement in the decision, his evidence was that he took the Lay/Shannon assessment and worked from there. It follows that if the Lay/Shannon assessment is affected (or infected) by either Lay or Shannon having held an undisclosed prohibited reason, then he would have, in effect, inadvertently adopted it so that its force continued regardless of the lack of any express prohibited reason in the mind of Walshe.[37]
[37] See Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804 at [37].
Essentially, the import of Mr Lintvelt’s case is that if Mr Harland’s (and Mr Cooper’s) reports to superiors were affected by a prohibited reason, once the process of his (Mr Lintvelt’s) offboarding had commenced, even if Mr Lutton and Ms McGonigle were unaware of this fact and acted only on other legitimate information provided to them, their decision is open to impeachment.
The implication of his submission being that if any one of QGC’s employees, who were involved in providing information to the management team was actuated or influenced by a prohibited reason in taking the action, the respondent will not have discharged its onus of proof.[38]
[38] See CFMEU v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [78] per Katzmann J.
In Clermont Coal, Reeves J summarised the implications of Kodak as follows:
…where the reasoning process is dispersed through an assessment process involving a number of persons, the task is much more complicated. In that situation, I consider the judgment in Kodak requires me to examine the reasoning process employed by each person whose involvement had a material effect on the ultimate decision. This inquiry does not involve a roving search of the minds of the employees of the kind rejected by Heydon J in Barclay. Nor does it involve an objective inquiry of the kind rejected in Barclay, nor import some “unconscious” reasoning to the ultimate decision-maker that was also rejected in Barclay …Instead, it focuses on the conscious reasoning processes of those who had a material effect on the ultimate outcome to determine whether their reasoning processes were free of the alleged prohibited reason or reasons. If one or more of the reasons employed by one or more of them was a prohibited reason that will impugn the ultimate decision. This is what I consider the Full Court meant by “inadvertently” adopting an “undisclosed prohibited reason” in Kodak…[39]
[39] See CFMEU v Clermont Coal Pty Ltd [2015] FCA 1014 at [121].
Accordingly, as outlined by Reeves J, in Clermont, I consider the scope of the inquiry in this matter should proceed in two parts. Firstly, an inquiry to ascertain from the evidence of Mr Harland, Mr Cooper, Ms Melrose, Mr Lutton and Ms McGonigle, whose reasons had a material effect on the reasoning process which preceded Mr Lutton and Ms McGonigle’s ultimate decision to dismiss Mr Lintvelt.
Secondly, an inquiry to examine the thought process or reasoning employed by those people to ascertain whether they were affected by a prohibited purpose or in the terms of section 360, whether QGC has established to the requisite standard of proof that none of the reasons identified by Mr Lintvelt, namely his complaints relating to occupational health and safety, was a substantial and operative reason for the decision made by Mr Lutton and Ms McGonigle to terminate his employment.[40]
[40] See CFMEU v Clermont Coal Pty Ltd [2015] FCA 1014 at [122].
The central question of why adverse action was taken is neither objective nor subjective. It is fundamentally a question of fact to be determined by reference to all the facts established in the case. The court should be careful not to be distracted by suggestions that some proscribed reasons has subliminally or subconsciously influenced the decision in question.
The effect of section 361 is to place an onus on the applicable respondent to establish that a proscribed characteristic was not a substantial and operative factor leading to the taking of the adverse action in question.
The applicable principles are summarised by the Full Court in State of Victoria (Office of Public Prosecutions) v Grant in which the relevant principles were summarised 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.[41]
THE EVIDENCE
The two most important witnesses in the case are Mr Lintvelt and Mr Harland. Mr Harland was the person on the ground at the Windibri Plant and he reported his impressions of Mr Lintvelt to those above him in the QGC management chain, who, in turn, relied on what was told to them.
For the reasons that follow, on balance, I have concluded that Mr Harland is the more reliable historian, apart from in respect of significant aspects to do with his involvement in how HR directed the offboarding of Mr Lintvelt was to be approached. These issues are significant and will be explored in further detail as these reasons are developed.
In reaching this conclusion, I am aware that Mr Lintvelt is at a disadvantage in not being legally qualified and not being particularly adept at preparing his affidavit material. In contrast, Mr Harland and the other members of the QGC management chain were able to apply a coherent chronology of what happened vis-à-vis the company’s relationship with Mr Lintvelt and its concerns about him.
In contrast, Mr Lintvelt’s case was reactive in nature. It lacked any independent corroboration. Without wishing to be disrespectful, he took the correlation of events to be the same as one event being causative of the other, namely the fact that he was vociferous in his complaint about isolation procedures that this was ipso facto the reason why he was dismissed. It is not sufficient for Mr Lintvelt to establish he had a workplace right and then point to being the subject of adverse action and therefore assert his cause of action is made out. He must establish a connection between the two events not merely their correlation.
Mr Lintvelt views himself as being unfairly done by QGC, particularly in respect of what he regards as its failure to deal with him transparently and openly, including in respect of how it conveyed its decision to terminate his employment to him, which he characterises as being brutal and disrespectful. I consider it is more likely than not that QGC could have conducted its termination processes more openly but that issue is not the subject of these proceedings and therefore cannot be an operative factor in their determination.
In these circumstances, I am concerned that Mr Lintvelt lacks a significant degree of objectivity, in his analysis of what occurred to him at Windibri, because of the animus which he now feels for QGC and its various actors, who were involved in the decision-making process to not extend his probation.
I have no reason to doubt the honesty of the other witnesses called by QGC, namely Mr Lutton, Mr Cooper, Ms Melrose and Ms McGonigle. Apart from Mr Cooper, none of these individuals had day to day involvement at the plant and were far removed from Mr Lintvelt personally. As such, they had no motivation to act malignly against him. Rather, in my view, each of them performed the administrative tasks expected of them by the company.
In so doing, their primary responsibility was to Shell and its corporate ethics. They were each well removed from the actual workplace concerned and, as such, relied on others to tell them about salient matters. They also relied on the confirmations provided to them that the directives issued by them had been followed and understood. None of them had any reason to adopt any hidden and malign motivation towards Mr Lintvelt. Rather each was doing what they believed was the requirements of their respective positions at QCG. To all intents and purposes, Mr Lintvelt was a stranger to them.
As is the common practice in modern business, one of the major means through which the various executive within QGC communicated with one another and indeed with operational staff was via emails. Given the fact that QGC and its controlling entity Shell had offices in both Brisbane and Perth, and Windibri was in outback Queensland, in reality this was the most expedient way for formal communications to take place.
I have been provided with very many emails, passing between Mr Lutton, Mr Cooper, Ms Melrose, Ms McGonigle and others. I have tried, as best I can, to place those emails in context. I also recognise that there have been many oral communications between the various individuals concerned, which are not so easily reconstructed.
However, one of the major issues in the case is that those on the ground in this case, who were most intimately affected by the various decisions and actions taken in it, were geographically far removed from those who were technically responsible for implementing decisions made.
Mr Lintvelt and Mr Harland interacted together on a daily basis, when both were on-site at Windibri. It is clear to me that the two never hit it off. There is a significant difference in their age and level of experience in the oil and gas industry. Mr Harland was responsible for directing an older person, who had worked in a variety of settings, including on off-shore rigs. My impression is the Mr Lintvelt regarded the off-shore rig environment to be the crème de la crème of the industry and he was keen to return to it. Whether he meant to or not, he conveyed a sense of his industrial superiority, not only to Mr Harland but others at the plant, which did not endear him to them.
Mr Harland’s general criticisms of Mr Lintvelt’s performance and conduct at Windibri are somewhat amorphously stated in his affidavit. He deposed as follows:
From about late October 2019, I had concerns with Mr Lintvelt’s performance and his attitude generally. Mr Lintvelt did not carry out tasks as instructed and was difficult to work with.
Mr Lintvelt also did not demonstrate QGC’s values of integrity, honesty and respect.[42]
[42] See Affidavit of Anthony Harland filed 6 April 2021at [22] – [23].
Mr Lintvelt is aged in his early sixties. At the time of the commencement of his employment with QGC, he had approximately twenty years’ experience in the oil and gas industry, with companies outside of the Shell Group. He also has qualifications in work health and safety.
In answer to questions from me, Mr Lintvelt gave evidence of his fifteen years’ experience at Santos, which included training others, as well as controlling the flow of gas from the Moomba Basin to the eastern states of Australia and later, working for Inpex, on what he described to be the largest off shore oil and gas platform, at the time, in the world. In an understated way, I accept that Mr Lintvelt is proud of his achievements in the industry and regards himself as at the top of his game.
In his affidavit, Mr Lintvelt describes himself as an autonomous senior production operator technician. These seems to me to be apposite ways to describe Mr Lintvelt’s view of himself in the gas industry. He is not a person accustomed to being directed within areas in which he perceives himself to have an exceptional level of experience. His perception is that his seniority in the industry should be self-evident and so respected.
I accept that the extent of Mr Lintvelt’s qualifications and expertise were major factors in QGC’s decision to recruit him. Mr Lintvelt was unfailing in his courtesy towards me during the court proceedings. He struck me as an honest witness but not one who was able to easily assess the strengths and weaknesses of his criticisms of QGC’s operational procedures. Rather, he has a somewhat blinkered view that his opinion in respect of such matters is unassailable. In my view, this led him to lack objectivity about many aspects of his case.
In addition and I intend no disrespect but Mr Lintvelt also presented as a proud and somewhat punctilious person, who is not naturally inclined to be reticent about expressing his opinion about matters to others, particularly within areas about which he perceives himself to hold particular expertise and to disregard the views of others. He is also a person who is prepared to argue his corner if he feels he is in the right. These are admirable qualities but not necessarily workplace rights in themselves.
As will become apparent as these reasons unfold, Mr Lintvelt has reason to believe that QGC treated him cavalierly and callously in the manner in which it handled his dismissal. I consider that that the overall process of his dismissal lacked transparency and, as a consequence, an outsider looking upon it would have grounds for thinking it was unfair. Mr Lintvelt certainly does so.
In employment terms, it was a significant thing that the dismissal occurred in the first six months of Mr Lintvelt’s employment, when he was in his probationary period (or as Mr McGonigle preferred to categories it – the qualification period). In these circumstances, the HR team of QGC provided advice that there were no legal dangers arising from the dismissal.[43]
[43] See Annexure KM-11 to the Affidavit of Kimberley Melrose filed 6 April 2021.
The tenor of much of Mr Lintvelt’s evidence was that he felt emotionally stung by the brutality and, from his perspective, dishonesty implicit in what was conveyed to him at the physical time of his dismissal, particularly in the formal letter from Mr Lutton. I can understand why this was so. But I also consider that his emotional reaction to this incident has had consequences for the overall objectivity, particularly in terms with coming to grips with the not uncomplicated legal implications of a general protection case. Essentially, just because the dismissal process was botched, it cannot necessarily be concluded that Mr Lintvelt must have been dismissed for a protected reason.
It is clearly the case that Mr Lintvelt, on several occasions, voiced his concerns about issues to do with the safety of the plant and equipment at Windibri, as he was entitled to do. I have no independent expert evidence available to me to gauge the seriousness of the various issues raised by him. Just because Mr Lintvelt asserts that they represented serious infractions of occupational health and safety does not necessarily mean that they were or more importantly were perceived by management at Windibri to be so.
Essentially, it seems to me that individuals, within the industry, are likely to hold different but equally valid opinions about such matters. This is also likely to be the case in respect of how maintenance procedures were to be carried out, particularly how isolations were to be conducted.
I accept, in general terms, the consequences of doing such things incorrectly is potentially catastrophic but disagreement about these issues does not automatically convert Mr Lintvelt into some form of industrial whistle blower.
I am simply not in a position to make findings of this kind. The fact remains that the independent regulator was not engaged in respect of any of the infractions identified by Mr Lintvelt and he himself did not take the matters further with relevant authorities.
In this context, I accept that Mr Lintvelt did raise issues, with his immediate superiors, about the use of a brass plug and this was not good practice. He also made other complaints about other issues of health and safety and how isolations should be conducted. It is not beyond the bounds of probability that Mr Harland found these perceived criticisms to be pettifogging and irritating and felt undermined as a result. It is apparent to me that the two men did not bond in the workplace.
It is beyond the role and scope of these proceedings for me to attempt to make any findings about the workplace culture, particularly in terms of its adherence to occupational health and safety standards, applicable to the Windibri Plant at relevant times. Rather, the central issue, for the court, is whether Mr Lintvelt’s raising of these concerns was the substantial and operative reason for his dismissal, rather than for some other factor.
It is not beyond the bounds of possibility that Mr Lintvelt on the one hand and Mr Harland and other workers, on the other, had different views about issues to do with health and safety and this led to tensions in the workplace, which were exacerbated by mutual resentment.
Mr Lintvelt did not accept the proposition that his employment at Windibri represented something of a come down for him, given the extent of his previous experience. Rather, he candidly indicated that he had needed the job. However, at the same time, Mr Lintvelt conceded that his preference was to move on from Windibri as soon as he was able to do so and return to an off-shore oil and gas environment.
Mr Folie wrote to Ms Melrose on 17 February 2020 requesting the issue be wrapped up before Mr Lintvelt left the site at the end of his rotation. Ms Melrose indicated, in response, that she was still trying to secure the relevant approvals but it was her preference that the termination be done face to face with Mr Lintvelt.
Mr Cooper confirms that the meeting of 19 February 2020 did take place, which he describes as informal conversation in which it was merely indicated that the probationary period was coming to an end. With the benefit of hindsight, Mr Lintvelt suspects that nothing more concrete was discussed either because HR failed to phone in or they were not ready. Accordingly, he left the plant and returned to his home in Adelaide without being formally told that his probation was not going to be extended.
In his affidavit, Mr Cooper deposes as follows:
Between 2 February and 19 February 2020, Mr Lintvelt was given an opportunity to improve his performance and meet QGC expectations but he did not improve. I know this because Mr Harland told me he had a discussion with Mr Lintvelt about the gaps in his performance and where he needed to improve. I also reviewed an email from Mr Joyce outlining his observations of Mr Lintvelt, which confirmed to me that Mr Lintvelt’s performance had not improved.[71]
[71] See Affidavit of Steven Cooper filed on 6 April 2021 [44].
In my view, this assertion is based on a false premise. In my finding, Mr Lintvelt was not given the formal warning and opportunity to improve and there was no follow up meeting as recommended by Ms Melrose. It is unclear, from the evidence who, if anyone, at HR told Mr Harland that the follow up meeting need not occur. It seems unlikely that Mr Harland would have wished it to take place.
Mr Lutton deposes that between 12 and 19 February 2020, he spoke to either Mr Cooper or Mr Folie, on a daily basis by telephone and in these conversations Mr Lintvelt’s employment was discussed. However, he cannot now recall what specifically was discussed. Mr Lutton also asserts that he reported to Ms Melrose his understanding that Mr Lintvelt’s behaviour had not improved.[72]
[72] See Affidavit of Kevin Lutton filed on 6 April 2021 at [37] – [39].
Ms Melrose did not check with anyone at Windibri as to whether her instructions concerning the need for Mr Lintvelt to be given directions as to how he could improve his performance in order that proper deference was paid to notions of procedural fairness in the termination process. Rather, she, as did Mr Lutton and Mr Cooper, relied on what she had been told in this regard. Certainly, she did not see it as part of her function to make any direct overtures to either Mr Lintvelt or any of the on-ground managers at Windibri.
Ms McGonigle is the Industrial Relations Manager for the Shell Group. She is based in Perth. It is her evidence that she and Ms Melrose met on a weekly basis to discuss the cases for which Ms Melrose was responsible. In January of 2020, this included the management of Mr Lintvelt’s termination from an HR perspective. Ms Melrose told Ms McGonigle that she had been informed that she informed that Mr Lintvelt’s supervisors had raised concerns about his performance and conduct with her and she (Ms Melrose) wished guidance as to how the issue was to be approached.
In this context, Ms McGonigle deposes as follows:
I told Ms Melrose that Mr Lintvelt was entitled to receive performance feedback so that he was aware of the issues that had been raised. I also told Ms Melrose that Mr Lintvelt should be made aware that his probationary period was under continuing review.[73]
[73] See Affidavit of Catherine McGonigle filed on 6 April 2021 at [15].
Ms McGonigle indicated that there is no formal process required to be followed by QGC in respect of how employees are to be terminated. However, a matrix of decision making dictates that two individuals should be involved and they should be at least one level or preferably two levels of seniority above the relevant employee’s direct supervisor. In addition, as previously indicated, it is Shell’s policy that any termination be cleared by its HR department. She and Mr Lutton fulfilled these various criteria so far as Mr Lintvelt was concerned.
Given the tenor of our various email discussions with Mr Lutton, Mr Cooper and Mr Folie, in January and February of 2020, following the People Decide Meeting of mid-December the previous year, Ms Melrose took it upon herself to do what was necessary to get the required sign off from Ms McGonigle so that Mr Lintvelt could be terminated. In Ms McGonigle’s terminology, this involved her providing the business case for the termination. This she did on a letter forward to Ms McGonigle on 17 February 2020, which included a summary of any legal risks to which the company might be subject.[74]
[74] See Annexure KM-11 attached to the Affidavit of Kimberley Melrose filed on 6 April 2021.
In effect, the business case summarised the various written documents provided to Ms Melrose from Mr Harland. It indicated the view that Mr Lintvelt has behaved in a negative way, including displaying insubordination; lack of commitment; had not completed work; and had not compiled with Shell’s values of honesty and integrity. It specifically indicated that he had been given a date to conform to the company’s expectation, although the date on which this was said to have occurred was incorrect.
As previously indicated, Ms Melrose did not check the veracity of these concerns and nor did Ms McGonigle, who acknowledged in her oral evidence that she relied on the veracity of what was reported to her. As a consequence of what she had been informed, Ms McGonigle supported the decision to terminate Mr Lintvelt’s employment from an HR perspective.
Ms McGonigle informed Mr Westgarth, who is the Senior Manager of QGC of the decision and he too gave it his support. In her email[75] to him and to Ms Melrose, of 18 February 2020, in which the decision is made, Ms McGonigle provides the following bases for the decision:
·Expectation of the role had been clearly outlined to Mr Lintvelt, with clear examples of when he had not met those expectations;
·On 29 January 2020 there was a formal discussion with him in which those expectations were re-confirmed and he had been advised his probation period was under review;
·There had been no improvement since 29 January 2020;
·Mr Lintvelt remained in his six month qualifying period and so had no access to unfair dismissal.
[75] See Annexure CM-2 attached to the Affidavit of Catherine McGonigle filed on 6 April 2021.
In my estimation, the veracity of the first three of these propositions is open to question. Regrettably, in practical terms, it occurs to me that the fourth and final of these is likely to have been the most compelling in business terms from an HR perspective. In this context, both Ms Melrose and Ms McGonigle conceded that their primary responsibility was to ensure that Shell and its related entities were not subject to the possibility of any adverse legal action.
Thereafter, Ms Melrose was tasked with complying the relevant letter of dismissal to be provided to Mr Lintvelt. She prepared two drafts for Ms McGonigle’s approval – one more detailed and one more streamlined. Ultimately, Ms McGonigle elected to compile her own version, which adopted what she described as a middle course.
I have set out the contents of this letter in the background section of this judgment. Clearly, Mr Lintvelt takes exception to the letter. In my view, he is entitled to be aggrieved given, in my assessment, it contains a number of factual inaccuracies. Concerns were not raised by him on 2 February 2020 by Mr Harland. I doubt that he was given an opportunity to improve.
It is, at best hyperbole that Mr Harland met with Mr Lintvelt on multiple occasions to provide feedback and, at worst disingenuous. I accept Mr Lintvelt’s evidence that he had completed all the relevant e-learning required of him to understand field compression stations. It is a point of contention between him and Mr Harland as to whether he had the necessary level of hands on experience in this regard.
As Ms McGonigle and Ms Melrose have stated, the fact of applying for another job within the Shell Group is not the most serious of infractions, particularly as it would have almost immediately been discovered given the electronic nature of the process. From their perspective and indeed from that of Mr Harland, the more serious aspect of the incident was that Mr Lintvelt did so after being directed not to do so. In addition, in my view, the evidence regarding the alleged problems regarding his airflights is unclear, it being Mr Lintvelt’s view that when asked to change them he did.
After Ms McGonigle had prepared her own draft of the termination letter, it was sent to Mr Lutton for his execution. As previously indicated, Mr Lutton has deposed that the letter did not properly reflect the real reasons for Mr Lintvelt’s termination, which was due to his poor attitude, behaviour and lack of respect for his superiors. Mr Lutton professes himself unsure why these seminal matters were not included in the letter.[76]
[76] See Affidavit of Kevin Lutton’s filed on 6 April 2021 at [44].
It is Mr Lintvelt’s position that the termination letter has been trumped up and, as such, the only inference which can be drawn is that it represents a smoke screen to mask the true reasons for his dismissal, which was because of his vocal activism in the workplace regarding all manner of health and safety issues.
For the reasons that follow, although I consider that there was a certain degree of sloppiness in the manner in which the HR side of QGC interacted with the operational side so far as the issue of the termination of Mr Lintvelt was concerned, and the actual process of conveying the decision to him was not well handled, I do not believe that such an inference is reasonably open to me, on balance, given all the other evidence available in the case, particularly that provided by Mr Harland and Mr Lutton.
After all, it is their evidence which is central in determining what were the operative reasons for the decision to dismiss Mr Lintvelt and if the relevant portions of their evidence is accepted as reliable in this regard, even if other aspects of their testimony are not, it will be sufficient to discharge the onus resting upon them
Essentially, I am not persuaded, notwithstanding my concerns about the reliability of other aspects of the decision-making process, that the evidence provided by Mr Harland and Mr Lutton, to support their assertion that they acted solely for non-proscribed reasons in deciding that Mr Lintvelt did not fit into the Windibri workplace, should be rejected or disbelieved.
It is apparent to me that, in practical terms, there was a complete bifurcation between what operations did and what HR did in respect of how Mr Lintvelt’s termination was approached. The HR side was directed to ensure that the termination brought no adverse legal consequences for QGC.
In this context, Ms Melrose had nothing to do with its practicalities, being concerned only with the appearance of fairness and trusting that what she recommended in this regard would be implemented on the ground. Whilst Mr Lutton, Mr Cooper and, impliedly, Mr Harland only wanted Mr Lintvelt gone and, as such, were not unduly interested in procedural niceties, other than they accepted Shell and QCG protocol required HR involvement.
I confess that I have been greatly troubled about this aspect of the case, particularly the failure in respect of the 2 February 2020 counselling meeting and what followed. The meeting described simply does not accord with how I have assessed Mr Lintvelt would react to it. For obvious reasons, a finding of some level of deception in a termination process is concerning.
In this context, I am mindful of the standard of proof and the significance of making such an allegation. I am aware that it is a case of Mr Lintvelt’s word against that of Mr Harland, in circumstances where there was no other person present and no electronic record was taken.
It is also the case that I am entitled to accept other aspects of Mr Harland’s evidence, whilst rejecting some others. I must recognise the ordinary exigencies of human frailty. In my assessment Mr Harland is a person more likely to avoid conflict than seek it out. He is not an experienced HR person and it seems probable that he found Mr Lintvelt to be a difficult person with whom to interact. In particular, he did not have ready direct access to a person such as Ms Melrose to assist him in the difficult task of providing direction to Mr Lintvelt.
More significantly I must not lose sight of the task conferred upon me under the applicable provisions of the FWA, namely to determine the actual reason which motivated the relevant decision maker to do what was done. It is not an inquiry into whether the decision was made fairly or otherwise or can be criticised for being procedurally flawed.
For the reasons that follow, I do not consider that the various potential procedural irregularities which I have found are of such moment to throw other doubt into other aspects of the probity and rationale for Mr Harland’s decision that Mr Lintvelt’s on-going presence, in the Windibri workplace, was untenable because of his disruptive influence there.
In my view, this was the substantive and operative reason which led to Mr Harland engaging firstly Mr Cooper, and in turn Mr Lutton, to take the necessary procedural steps to ensure that Mr Lintvelt’s probationary employment was not confirmed. They are the substantive decision-makers and their reasons for doing what they did which must be subject to the court’s scrutiny.
In my view, in terms of the general protection legislation, QGC was under no obligation to convey this decision in any particular way to Mr Lintvelt or to give him an opportunity to comment upon it. What the legislation prescribes is the taking of adverse action on the basis of a protected attribute applicable to an employee. It is not directed to determining whether a termination is procedurally reasonable or whether the employer concerned is a corporate good citizen, either in terms of its human relations or industrial health and safety policies.
CONCLUSIONS
There can be no doubt that Mr Lintvelt was subject to adverse action in terms recognised by section 342(1) of the FWA. In addition, there can be doubt that Mr Lintvelt had a right, under relevant work, health and safety legislation to agitate issues to do with the industrial safety of his workplace and he did, from time to time, complain about the manner in which QGC went about several of its work processes, within the context of a highly regulated and inherently dangerous workplace, namely a natural gas compression plant.
The evidentiary questions in this case turn on the degree of causal connection between these two actualities, which frame the court’s fundamental obligation, pursuant to the provisions of section 361, namely to determine why the decision to end Mr Lintvelt’s employment was made. The onus to provide this reason is on the person or persons who made the decision.
Related to this question, in a case like the present, is the identity of the relevant decision-maker or makers. In cases involving complex corporations or organisations, this may be difficult, particularly as the court is not entitled to intuit the reason or delve into the mind of any individual concerned in an effort to determine whether some malign or subconscious factor was in play.
QGC is a subsidiary of a large multi-national corporation. It employs many employees over many sites. Its executive administration is spread over at least two cities in Australia and its parent company, Shell provides at least some of its executive governance. Necessarily its decision making functions are both widely dispersed geographically and shared between many individuals, some of whom meet, for decision-making processes, collegiately.
In my view, relevant decision-making, at QGC in employment terms, can be best described as being bottom-up, diffuse, hierarchical and disbursed. In practice, to effect HR decisions, information passed up from the floor of the industrial workplace, via immediate workplace supervisors, to middle and then upper management, which was removed from the immediate workplace and therefore reliant on those below to enable it to make appropriate decisions.
In this sense, in my view, it is inaccurate to describe either Mr Lutton or Ms McGonigle as being the actual decision makers in this case. Many individuals, with varying degrees of agency, were involved in the process, which took time to be crystallised and occurred over several locales independent of one another. Indeed some of the relevant decision-makers, namely Mr Mooren and Mr Westgarth, and indeed other unidentified members of the People Decide committee, have not given evidence in this case because of the peripheral nature of their involvement.
In these circumstances, I consider that Mr Harland and Mr Cooper were influential decision-makers in the case just as was Mr Lutton. Given Ms McGonigle’s role was essentially to ensure that Shell and its subsidiaries were not later subject to legal consequences for any decision made in the HR context, I consider her to be a less influential decision maker.
As Reeves J observed in Clermont Coal[77], where a decision making process is disbursed through a wide group of people the task of determining the rationale for any particular decision is rendered more problematic particularly given the risk that one decision maker, particularly at a lower level is influenced by some prohibited reason in the information he or she provides and such contamination is concealed from other decision makers, higher up the chain and who are possibly more influential in direct managerial terms. In Kodak[78] this was described as a decision maker inadvertently adopting an undisclosed prohibited reasons.
[77] CFMEU v Clermont Coal Pty Ltd [2015] FCA 1014 at [121]
[78] Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251 at [37]
In these circumstances, I would be naïve to think that Mr Harland’s opinion of Mr Lintvelt, which he conveyed to Mr Cooper, who in turn conveyed it on to Mr Lutton and then he to the People Decide Meeting, did not have a material effect on the ultimate decision which has been sheeted home to Mr Lutton. Clearly, the reports provided by Mr Harland were material in this sense.
Section 361 is a response, by the legislature, to the essential difficulty faced by a person such as Mr Lintvelt, in the workplace. He has no window into Mr Harland’s mind and cannot intuit what he directly says or implies to others above him in the industrial decision making chain. He can only rely on his impressions of the context in which the adverse action, of which he is the subject, takes place.
In my assessment, in this particular case, the relevant context is of an older, somewhat opinionated employee, who somewhat forcefully demonstrates his disdain for how things are being done in his new workplace, particularly, as he see it, in regards to the implementation of health and safety. In these circumstances, Mr Lintvelt points to this context to argue that the onus has not been discharged, as far as his termination is concerned.
In my view, I must exercise caution in distinguishing between context and what I find to be the substantive and operative factors leading to the particular decision being made. I am not entitled to ascribe subconscious motivations to a decision maker. Rather I must assess the reliability or otherwise of the reasons proffered for the relevant decision in the light of all the available evidence. Given his influential role, in this particular case, this exercise must focus on the involvement of Mr Harland in the process entailed.
In Wang v National Australia Bank Ltd[79] Snaden J spoke of
[T]he distinction to be drawn between a person’s reasons for doing something and the contextual influences that might bear in some way upon those reasons. In a case such as the present, although the latter might inform the court’s assessment of the former, it is the former that remains the central issue to be determined.
[79] See Wang v National Australia Bank Ltd [2021] FCA 671 at [86].
As I have previously observed, Mr Harland did not take kindly to what he perceived to be many of Mr Lintvelt’s carping criticisms of how isolations were done and his harping on about other aspects of health and safety. This is part of the context of the case but it is not necessarily illustrative of the reason why Mr Harland made the decision which he did to advice Mr Cooper and Mr Lutton that Mr Lintvelt was not appropriate to remain employed by QGC.
Lee J referred to the above passage in Wang in Transport Workers’ Union v Qantas Airways Ltd[80] where he said as follows:
[T]he point is not without difficulty but at least in some cases, it may be artificial to maintain any bright-line distinction between a person’s reasons for doing something and contextual influences that might bear upon the reasoning process and its result. This is not to suggest an objective test be adopted, nor the taking into account of any unconscious reasons (and hence detract from the principles explained in Barclay). But some decisions (like in Leahey) are the culmination of a long process involving the input of others. It is easy to conceive of cases where influences which may be characterised as “contextual” may matter, and subjectively bear upon a reasoning process. It all depends. Every decision is made in a context and is the work of a human actor; and decisions can be complex things involving the application of rational thought, but can also involve confusion and illogicality that are part of the human experience. In the end it is all a fact dependent analysis.
[80] See Transport Workers’ Union v Qantas Airways Ltd (2021) 308 IR 244 at 314 [233]
In my respectful view, these comments are apposite to the present matter. The process leading to Mr Lintvelt’s termination was a long and tortuous one, involving many actors. At the end of the day, what was the reason or reasons why the decision was made (and by whom and to what degree) is dependent on an analysis of the all the facts.
In some cases, context is more important than in others. But the focus must always be on why the adverse action was taken. In these circumstances, the court is not entitled to determine whether there was some subconscious reason influencing the relevant decision-maker.
In this matter, Mr Harland was the most significant actor. It was he who interacted most with Mr Lintvelt and he conveyed his impressions of him to those above him in the decision making structure at QGC. It was also to him, as Mr Lintvelt’s most immediate supervisor, to whom Mr Lintvelt expressed his concerns about how QGC performed certain aspects of its business.
Mr Harland’s evidence is that his assessment of Mr Lintvelt was that he had a poor attitude to working in the team at Windibri, was oppositional and unwilling to be directed. In addition, Mr Harland perceived that he was disrespectful of him and Shell’s corporate ethos.
Although some aspects of Mr Lintvelt’s conduct, which Mr Harland viewed as incompatible with workplace culture at Windibri, involved his (Mr Lintvelt’s) view about occupational health and safety issues, in my view, the ventilation of these issues was not the substantive and operative reason or reasons for Mr Lintvelt’s dismissal. Rather, in lay terms, it was Mr Harland’s view, which he reported to Mr Cooper and then Mr Lutton that Mr Lintvelt, due to his attitude, did not fit in at Windibri and was inimical to the values of the work team there. These are not protected attributes under the FWA.
Mr Lintvelt’s letter of dismissal was poorly worded and the process of his termination was not well handled. But this is not an inquiry into procedural fairness nor the industrial culture of QGC. The reasons given by Mr Lutton, in his affidavit and oral evidence, for Mr Lintvelt’s dismissal was poor attitude and bad behaviour. In Mr Harland’s more homespun terminology the reason was attributable to Mr Lintvelt’s arrogance and not give it his nth.
Mr Lintvelt is not in a position to indicate that any other person, in the workplace, supported his current view about QGC’s attitude to health and safety. In addition, there is no evidence to indicate that complaints, in this regard, were made to the relevant regulatory authorities. In these circumstances, I am in not in a position to resolve the issue as to whether the issues ventilated by Mr Lintvelt were, as he asserts potentially catastrophic or mostly differences of opinion, in which equally qualified technicians might have differences of opinion about how procedures were to be applied, as Mr Harland, Mr Cooper and Mr Lutton contend.
At the end of the day, it is not my function to make findings about the occupational health and safety culture at Windibri, even if the evidence was available. It is to determine, firstly why Mr Lintvelt was dismissed and secondly was it for a reason prohibited under the Act.
The context may indicate that Mr Harland found Mr Lintvelt’s frequent complaints about occupational health and safety irritating and gratuitous but, in my view, this does not elevate them to the substantial and operative reason for his dismissal. It also may be perceived as petty and unduly bureaucratic that a person should be penalised for applying for an internal position at Shell. But again, it is not the court’s function in these proceedings to determine the probity or otherwise of the stricture.
The process leading up to Mr Lintvelt’s dismissal was a long and involved one, which had many aspects, but the major theme of all involved in the decision-making process, was that Mr Lintvelt would not take direction and was difficult to work with.
In all these circumstances, I am satisfied that QGC has discharged the onus upon, pursuant to section 361 of the FWA and has established, on the preponderance of probabilities, that the reasons Mr Lintvelt was dismissed was because he was found not to fulfil the requirements of the position, for which he had been recruited, for operational reasons. He was not the subject of adverse action because he raised health and safety issues in the workplace or for any other protected attribute.
For all these reasons, I have reached the conclusion that Mr Lintvelt’s application should be dismissed. For these reasons, the orders of the court will be as set out at the commencement of these reasons for judgement.
I certify that the preceding three hundred and thirty five (335) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 20 April 2022
SCHEDULE OF PARTIES
ADG of 214 of 2020 Respondents
Fourth Respondent:
KIMBERLEY MELROSE
[41] See State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32].
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