MH v Australian Capital Territory

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FEDERAL COURT OF AUSTRALIA

MH v Australian Capital Territory [2016] FCA 1355

Appeal from: MH v Australian Capital Territory & Ors [2016] FCCA 563
File number: ACD 34 of 2016
Judge: FLICK J
Date of judgment: 16 November 2016
Catchwords:

INDUSTRIAL LAW — workplace rights — action not taken by reason of exercising

PRACTICE AND PROCEDURE — appellable error — findings of fact
Legislation: Fair Work Act 2009 (Cth) ss 340(1), 340(1)(a)(i), 340(1)(b), 361, 362
Cases cited:

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 31, (2012) 248 CLR 500

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833, (2001) 117 FCR 424

Browne v Dunn (1893) 6 R 67

Construction, Forestry, Mining and Energy Union v Alfred [2011] FCAFC 13, (2011) 203 IR 78

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, (2014) 253 CLR 243

Dahler v Australian Capital Territory [2014] FCA 946

Farrington v Deputy Commissioner of Taxation [2002] FCA 1013, (2002) 50 ATR 429

Fox v Percy [2003] HCA 22, (2003) 214 CLR 118

Kowalski v Domestic Violence Crisis Service [2005] FCA 12

MH v Australian Capital Territory & Ors [2016] FCCA 563

Robinson Helicopter Co Inc v McDermott [2016] HCA 22, (2016) 90 ALJR 679
Date of hearing: 12 October 2016
Registry: Australian Capital Territory
Division: General Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 61
Counsel for the Appellant: Ms J Keys
Counsel for the First and Second Respondents: Mr D R Jarvis
Counsel for the Fourth Respondent: The Fourth Respondent appeared in person

ORDERS

ACD 34 of 2016
BETWEEN:

MH

Appellant
AND:

AUSTRALIAN CAPITAL TERRITORY

First Respondent

MINISTER FOR COMMUNITY SERVICES AND CHILDREN AND YOUNG PEOPLE

Second Respondent

JANCSI

Fourth Respondent

JUDGE:

FLICK J

DATE OF ORDER:

16 NOVEMBER 2016

THE ORDER OF THE COURT IS:

1.The appeal is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

  1. The Appellant, known as MH, was formerly a case-worker with Care and Protection Services in the Australian Capital Territory.

  2. Disciplinary proceedings were commenced against her on 17 December 2012.  On 17 July 2014 she was advised of the “findings in relation to allegations of misconduct against you” and the proposed termination of her employment.  She was invited to respond to the findings and the proposed course of action. She failed to respond.

  3. On 1 August 2014 the Appellant filed an Application with the Fair Work Commission alleging (inter alia) that the disciplinary process “amounted to bullying”.

  4. On 14 August 2014 a decision was taken by the then Director-General of the Community Services Directorate (Ms Chapman) to terminate the Appellant’s employment.

  5. On 15 August 2014 the proceeding before the Fair Work Commission was discontinued.

  6. The Appellant commenced proceedings in the Federal Circuit Court of Australia on 20 October 2014.  The…

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Details
Case
[2016] FCA 1355
Decision Date

CaseChat Overview and Summary

In the case of MH v Australian Capital Territory, the appellant sought to appeal the decision of the Federal Circuit Court, which found that she was lawfully dismissed from her employment with the Australian Capital Territory. The appellant contended that her dismissal was unlawful due to various errors made by the primary Judge. The appeal was heard by the Full Court of the Federal Court.

The primary legal issue before the Court was whether the primary Judge erred in finding that the appellant's dismissal was lawful. This involved examining whether the primary Judge erred in finding that the appellant's dismissal was not due to her exercising her workplace rights, whether the primary Judge's findings were based on credibility considerations or objective facts, whether the primary Judge failed to consider responsibility under the workplace behaviours process, whether the primary Judge erred in construing and applying section 362 of the Fair Work Act, and whether the complaint to the Fair Work Commission was a reason for the termination of the appellant's employment.

The Court found that the primary Judge's findings were not solely dependent on credibility considerations or impressions, but also on an assessment of objective facts and inferences. The Court further found that no appellable error was exposed by the primary Judge preferring the evidence of one witness over another. The Court rejected the argument that the primary Judge failed to consider responsibility under the workplace behaviours process, stating that such a failure was not established. The Court also found that the primary Judge did not err in construing and applying section 362 of the Fair Work Act, as there was no evidence to support the appellant's claim of "entrapment" or coercion.

The Court ultimately rejected all grounds of appeal and affirmed the decision of the primary Judge that the appellant's dismissal was lawful. The appeal was dismissed with costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The first Ground of Appeal is rejected. Conclusions dependent upon credibility The second Ground of Appeal contends that the findings of the primary Judge are “dependent” upon credibility considerations or impressions and not upon an assessment of “objective facts or inferences to be drawn from facts as found”. This Ground of Appeal is again, with respect, without substance. It should be rejected for either of at least two reasons. First, the findings as made by the primary Judge are not solely “dependent” upon credibility considerations or impressions. A fair and balanced review of the reasons for decision of the primary Judge expose a careful consideration of both the affidavit and oral evidence and the submissions advanced before that Court. Second, although the primary Judge did make comments as to the “emotional involvement” of the now-Appellant in his consideration of her evidence ([2016] FCCA 563 at [131]), no appellable error is exposed by the primary Judge preferring the evidence of the Respondents and Ms Chapman over that of the now-Appellant ([2016] FCCA 563 at [203]). No appellable error is exposed merely by reason of a primary judge preferring the evidence of one witness to that of another. To employ the language of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22 at [29], (2003) 214 CLR 118 at 128, the findings of fact made by the primary Judge were not “glaringly improbable” or “contrary to compelling inferences”. The second Ground of Appeal is rejected.A failure to consider responsibility under the ‘workplace behaviours’ process The third Ground of Appeal adds nothing to Ground 1. This Ground is similarly rejected.The complaint to the Fair Work Commission The fourth Ground of Appeal similarly overlaps Ground 1 and should be likewise rejected. It should, however, be further noted that Ground 4 asserts that the bullying application being a reason for the termination of the Appellant’s employment is “presumed by virtue of s 361”. That Ground places emphasis upon the reverse onus of proof imposed on the Respondents. It is nevertheless concluded that Ground 4 simply reiterates other Grounds and adds nothing of substance to those other Grounds. The construction & application of s 362 The fifth Ground of Appeal asserts error on the part of the primary Judge in construing and applying s 362 of the Fair Work Act. The rejection of the first Ground of Appeal, and the acceptance of the evidence of Ms Chapman, dooms this Ground to failure. The substance of the Ground of Appeal seems to be that Jancsi’s complaint about the conduct of the Appellant constituted “advice” or “encouragement” to Ms Chapman to bring about the termination of the Appellant’s employment. The argument should be rejected for either of at least two reasons. First, in addition to the findings of the primary Judge at para [208] of his reasons for decision, the primary Judge also made the following findings (without alteration): [73] Among other things, given the evidence of Ms Chapman (noted below) that (a) she set out in her letter of 14th August 2014 to the Applicant the [actual] reasons for her decision to terminate the Applicant’s employment, and (b) she did not know and had never met the Fourth Respondent, and would not know the Third Respondent if she “literally fell over her in the hallway” (and otherwise the actions of the Third Respondent had no bearing on the Director-General’s decision), the Applicant’s claim in relation to some sort of conspiracy or something that would attract the terms of s 362 of the Act, is impossible to sustain. [74] In the light of authorities discussed later in these reasons, at its highest, the Applicant’s attempt (and submission — which I confess to have found rather opaque) to link Ms Chapman’s decision to terminate the Applicant’s employment with the action(s) of the Third and Fourth Respondent, requires actual (and not constructive or implied) knowledge in order to attract the operation of s 362 — whereby they “advised, encouraged or incited, or took any action with intent to coerce” Ms Chapman (or either of the First or Second Respondents) to take adverse action against the Applicant. As explained below, the evidence to support such a claim is simply not available. Further, it is contradicted clearly by the evidence of Ms Chapman — whose evidence I accept unequivocally. It is also contradicted by the evidence of the Third and Fourth Respondents. At its highest, causally their action(s) were only relevant to the investigation undertaken by CPM Reviews.….[128] I accept that Ms Chapman did not know (and does not know), and has had no dealings with, either the Third or Fourth Respondents. Accordingly, as a matter of fact, there is no evidence to support the Applicant’s claim regarding some form of “entrapment” or that might otherwise arise under or be caught by s 362 of the Act in relation to “advising, encouraging, inciting or coercing action.” There is no relevant link (or knowledge by Ms Chapman) between the conduct of the Third and Fourth Respondents and the decision-maker, Ms Chapman, that could or would attract the terms of s 362. I return to this provision later in these reasons.Upon the facts as presented, it was open to the primary Judge to conclude that there was no “link” between the conduct of Jancsi and that of Ms Chapman. No appellable error is exposed in making that finding.

Ratio Decidendi

Legal Principle Established

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