MH v Australian Capital Territory - [2016] FCCA 563

FEDERAL CIRCUIT COURT OF AUSTRALIA

MH v AUSTRALIAN CAPITAL TERRITORY & ORS

[2016] FCCA 563

Catchwords:
INDUSTRIAL LAW – Application for alleged contravention arising out of dismissal of worker employed as a health professional in care and protection services – evidence of employer accepted in preference to the evidence of Applicant worker – poorly pleaded claims by the Applicant that hampered the Respondents (and the Court) properly or reasonably understanding the nature and details of all the claims – failure of Applicant to cross examine Third Respondent thereby formally leaving the Third Respondent’s evidence unchallenged – consideration of claim under s.362 Fair Work Act 2009 regarding “advising, encouraging, inciting or coercing action” in the light of High Court decision in Yorke v Lucas – contravention not established.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 342, 361, 362, 545, 546, 550, 570(1) & (2)

Workplace Relations Act 1996 (Cth), ss.298L, 298K, 298P
Fair Work Bill 2008, Explanatory Memorandum, pars.1463 - 1467
Children & Young People Act 2008 (ACT)
Public Sector Management Act 1994 (ACT), ss.9(a), (d) & (f)

Allied Pastoral Holdings Pty Limited v Federal Commissioner of Taxation [1983] 1 NSWLR 1
Australian Securities and Investments Commission v Rich (2009) 236 FLR 1
Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No.3) [2013] FCA 525
Banque Commerciale SA (en liq) v Akhil Holdings Limited (1990) 169 CLR 279
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Browne v Dunn (1893) 6 R 67
Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243
Construction, Forestry, Mining and Energy Union v Coal Alliance Operations Pty Ltd (1999) 140 IR 131
Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150
Dahler v Australian Capital Territory [2014] FCA 946
Employment Advocate v Williamson (2001) 111 FCR 20; 185 ALR 590; 108 IR 71
Reid v Kerr (1974) SASR 367
R v Beckett (2015) 90 ALJR 1
State of Victoria (Office of the Director of Public Prosecutions) v Grant (2014) 246 IR 441
Stevenson v Murdoch Community Services Inc (2010) 202 IR 266
Unsworth v Tristar Steering and Suspension Australia Ltd (2008) 216 FCR 122; 175 IR 320
Yorke v Lucas (1985) 158 CLR 661

Applicant:

First Respondent:

AUSTRALIAN CAPITAL TERRITORY

Second Respondent:

MINISTER FOR COMMUNITY SERVICES AND CHILDREN & YOUNG PEOPLE (ACT)

Third Respondent:

Fourth Respondent:

JANSCI

File Number:

CAG 69 of 2014

Judgment of:

Judge Neville

Hearing date:

28, 29 & 30 October 2015

Date of Last Submission:

6 November 2015

Delivered at:

Canberra

Delivered on:

14 April 2016

REPRESENTATION

Counsel for the Applicant:

Ms J Keys

Solicitors for the Applicant:

n/a

Counsel for the First, Second & Third Respondents:

Ms H Robinson

Solicitors for the First, Second & Third Respondents:

Solicitors for the Fourth Respondent:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read MH v Australian Capital Territory and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] FCCA 563
Decision Date: 14 April 2016

CaseChat Overview and Summary

This matter concerned an appeal by MH against a decision of the Australian Capital Territory. The dispute centred on the termination of MH's employment, with MH alleging the termination was for a prohibited reason under the relevant legislation. The court was required to determine whether the employer, the Australian Capital Territory, had discharged its onus of proving that the adverse action taken against MH was not for a prohibited reason.

The central legal issue was whether the decision-maker, Ms Chapman, had acted for a prohibited reason when terminating MH's employment. This required the court to assess the evidence presented by both parties, particularly the credibility and reliability of Ms Chapman's stated reasons for the termination, and to determine if those reasons were genuinely held and not influenced by any proscribed considerations, such as MH's lodging of a bullying claim.

The court applied the principles established in *Bendigo and District Aboriginal Co-operative Ltd v Cruickshank*, emphasising that the focus of the inquiry is on the reasons of the decision-maker at the time the adverse action was taken. The court noted the significant advantage a trial judge has in assessing the state of mind of a witness, drawing on the reasoning of Heydon J in *Bendigo*. The court accepted Ms Chapman's evidence, both affidavit and oral, finding it convincing and credible. It was satisfied that Ms Chapman did not act for any proscribed reason, but rather for the reasons she articulated, which were that the decision to terminate MH's employment was made well before MH's bullying claim was lodged and without consideration of any prohibited reason. The court concluded that MH's bullying claim played no part in Ms Chapman's decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

At [127] in Bendigo, Gummow and Hayne JJ said (emphasis added): In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry. Finally, at [141], Heydon J said of the decision-maker in Bendigo and the findings made at trial (after commenting on the fact-finding process of a trial court) (internal citations omitted; emphasis added):The assessment of a witness's mental processes is an assessment of that witness's state of mind. It is pre-eminently a matter in which a trial judge has a considerable advantage over an appellate court. In the course of his great speech in Nocton v Lord Ashburton, Viscount Haldane LC said: “it is only in exceptional circumstances that judges of appeal, who have not seen the witness in the box, ought to differ from the finding of fact of the judge who tried the case as to the state of mind of the witness.” The trial judge possesses great learning in the present field. He has considerable experience of oral hearings. He said that Dr Harvey “provided convincing and credible explanations of why it was that she took the steps she did.” He said that she “maintained her denials of having acted against Mr Barclay for any reason associated with his union membership, office or activities.” He concluded: “I accept her evidence. I am satisfied that she did not act for any proscribed reason. Rather, she acted for the reasons which she gave.” Of course, “mere declarations” by a witness as to his or her “mental state” may not be sufficient to discharge the appellant's burden of proof under s 361. External circumstances could put into question the reliability or credibility of those declarations. But Dr Harvey's evidence did not consist only of “mere declarations.” There was nothing to suggest that her evidence was incorrect. Just so here: to quote again the trial Justice in Bendigo (Tracey J) as cited by Heydon J (at [141]) but this time in relation to my assessment of the decision-maker’s evidence (Ms Chapman) in the present matter: “I accept her evidence. I am satisfied that she did not act for any proscribed reason. Rather, she acted for the reasons which she gave.” Those reasons were set out in her letter to the Applicant dated 14th August 2014. In my view, from any of her evidence – affidavit and oral – there “was nothing to suggest that her evidence was incorrect.” As is examined and explained in these reasons, I accept Ms Chapman’s evidence that her decision to terminate the Applicant’s employment was made (a) well before 1st August 2014 (when the Applicant’s bullying claim was lodged with the Fair Work Commission), and (b) without consideration or reference to any prohibited reason as set out in the Act. In my view, it is clear that the Applicant’s bullying claim played no part in Ms Chapman’s decision to terminate the Applicant’s employment.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.