FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
MJ v The Australian Criminal Intelligence Commission (No 2) [2023] FedCFamC2G 341
File number(s): CAG 54 of 2021 Judgment of: JUDGE W J NEVILLE Date of judgment: 10 May 2023 Catchwords: INDUSTRIAL LAW – Termination of long-term employee – Employee seeking relief including for alleged adverse action – Alleged contravention of provisions of Fair Work Act – Alleged lack of assistance to transfer within the department Legislation: Fair Work Act 2009 (Cth) ss. 50, 340(1), 341(1), 342, 361(1), 570 Cases cited: Alam v National Australia Bank Ltd (2021) 288 FCR 301
Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241
Australian Manufacturing Workers’ Union v Berri Pty Ltd (2017) 268 IR 285
Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd (2014) 245 IR 394
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Dibb v Commissioner of Taxation (2004) 136 FCR 388; (2004) 207 ALR 151
Jermiin v Commonwealth Scientific and Industrial Research Organisation [2021] FCA 1043
Kucks v CSR Ltd (1996) 66 IR 182
MJ v the Australian Criminal Intelligence Commission [2022] FedCFamC2G 671
National Tertiary Education Union v La Trobe University (2015) 254 IR 238
Short v FW Hercus Pty Ltd (1993) 40 FCR 511
Transport Workers’ Union v Coles Supermarkets Australia Pty Ltd (2014) 245 IR 449
Transport Workers Union of Australia v Linfox Australia Pty Ltd (2014) 318 ALR 54
Division: Division 2 General Federal Law Number of paragraphs: 134 Date of last submission/s: 13 January 2023 Date of hearing: 3 & 17 November 2022 Place: Canberra Solicitor for the Applicant Self-represented Counsel for the Respondent Ms P Bindon Solicitor for the Respondent Clayton Utz ORDERS
CAG 54 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MJ
ApplicantAND: THE AUSTRALIAN CRIMINAL INTELLIGENCE COMMISSION
Respondent
order made by:
JUDGE W J NEVILLE
DATE OF ORDER:
10 May 2023
ON A FINAL BASIS, THE COURT ORDERS THAT:
1.The Application, filed 18th November 2021, be dismissed.
2.Pursuant to s.570 of the Fair Work Act 2009 (Cth), there be no Order as to costs.
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 W J NEVILLE
Introduction
The scope of the contest in this matter under the Fair Work…
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Details
- Case
- [2023] FedCFamC2G 341
- Decision Date
CaseChat Overview and Summary
The case involves an application by MJ, a former employee of the Australian Criminal Intelligence Commission (ACIC), who is seeking to have the Federal Circuit and Family Court of Australia determine that his dismissal contravened provisions of the Fair Work Act 2009 (FW Act). MJ claims his dismissal was motivated by his application for a "stop bullying" order against his former supervisor, AM, and constituted a constructive dismissal. The ACIC denies these claims. The court was required to decide whether MJ's dismissal contravened the Fair Work Act, specifically whether it was taken for a proscribed reason and whether it breached the terms of the enterprise agreement. The court found that MJ's dismissal was not motivated by his application for a "stop bullying" order, and therefore, there was no contravention of the Fair Work Act. Additionally, the court found that the ACIC's actions were in compliance with the terms of the enterprise agreement.
The court's reasoning was based on the evidence presented by the ACIC, which included the testimony of AM, Mr. T Simpson, and DW. The court found that the ACIC's decision to declare MJ's position as excess was based on the decommissioning of the Clarity project management tool, for which MJ was primarily responsible. The court also found that the ACIC made efforts to redeploy MJ but were unsuccessful due to his skill set not being suitable for other available positions. The court concluded that the ACIC's decision to terminate MJ's employment was not taken for a proscribed reason and did not breach the enterprise agreement. The final orders of the court were that MJ's claim should be dismissed.
The court's reasoning was based on the evidence presented by the ACIC, which included the testimony of AM, Mr. T Simpson, and DW. The court found that the ACIC's decision to declare MJ's position as excess was based on the decommissioning of the Clarity project management tool, for which MJ was primarily responsible. The court also found that the ACIC made efforts to redeploy MJ but were unsuccessful due to his skill set not being suitable for other available positions. The court concluded that the ACIC's decision to terminate MJ's employment was not taken for a proscribed reason and did not breach the enterprise agreement. The final orders of the court were that MJ's claim should be dismissed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The written submissions on behalf of the Respondent prior to the Hearing, filed on the 18th October 2022, were as follows (emphasis in original; footnotes omitted):A. Background1. The Applicant is a former employee of the Respondent.2.On 7 December 2020, the Applicant was declared an excess and he was offered a voluntary redundancy.3.On 6 January 2021, the Applicant declined the offer of voluntary redundancy and, in accordance with the procedures for positions declared excess under the applicable Australian Criminal Intelligence Commission Enterprise Agreement 2016-19 (EA), he was required to work through a 13-month retention period commencing from the date he was notified his position was declared excess.4.On 8 September 2021, the Applicant requested that his employment be brought to an end and that he be paid out the balance of the retention period.5.On 10 September 2021, in accordance with the Applicant’s request, the Applicant’s employment with the Respondent was terminated pursuant to a notice issued by the Respondent under s 29 of the Public Service Act 1999 (Cth)(PS Act) (Termination Notice).6.On 28 September 2021, the Applicant lodged a “Form F8 – General protections application involving dismissal” in the Fair Work Commission (Commission) in which he alleged that his dismissal by the Respondent contravened Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act).7.On 5 November 2021, the Commission issued a certificate under s 368(3) of the FW Act, being satisfied that all reasonable attempts to resolve the dispute had been unsuccessful.8.On 18 November 2021, the Applicant lodged an application together with “Form 2 - Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection” (Claim) with the Federal Circuit and Family Court of Australia commencing the present proceeding.9.On 9 March 2022, the Respondent filed a response and defence, denying that it dismissed the Applicant in contravention of a general protection.B. Overview of Claim10.In the Claim the Applicant alleges:(a)his position was not surplus to needs (i.e. “excess”) within the meaning of clause 262(b) of the EA;(b)there were suitable positions available to which he could have been redeployed;(c)his redundancy and the failure to redeploy him were therefore a “sham” and a “constructive dismissal” motivated by:(i)“tensions” between the Applicant and his former supervisor, AM; and(ii)the Applicant’s application to the Commission for a “stop bullying” order against AM lodged on 10 April 2019 and determined on 20 May 2020 (which to this extent was an “adverse action”);(d)the Respondent breached Part H of the EA, in particular clauses 262(b), 264 – 269 and 286, in the manner in which it went about making the Applicant redundant and failing to redeploy him; and(e) the Respondent thereby breached civil penalty provisions.11.It appears then, that the Applicant alleges that the Respondent has contravened two civil penalty provisions of the FW Act (although the Claim does not specifically state as such), namely:(a)General protection contravention: breach of s 340(1)(a)(ii) of the FW Act by taking adverse action against the Applicant, namely dismissal from his employment, because he exercised a workplace right, namely lodging an application for a “stop bullying” order in the Commission; and(b)Enterprise agreement contravention: breach of s 50 of the FW Act by breaching clauses 262(b), 264-269 and 286 of the EA.12.For the reasons set out below, the Respondent denies that it has contravened either s 340(1) or s 50 of the FW Act and submits that the Claim should be dismissed.13.The Respondent notes that the Applicant’s outline of submissions filed on 26 September 2022 (AS) appears to assert:(a) potential other workplace rights allegedly exercised by him;(b) potential other adverse action allegedly taken by the Respondent;(c)potential other provisions of the FW Act allegedly breached by the Respondent; and(d)potential other terms of the EA allegedly breached by the Respondent;which were not alleged in the Claim.14.Upon receiving the Applicant’s outline of submissions, the Respondent brought the issue of the Applicant potentially seeking to raise new claims that were not alleged in the Claim to the Court’s attention. A directions hearing was held on 7 October 2022 during which the Court made orders for:(a)the Respondent to notify the Applicant in writing by close of business on 7 October 2022 of those aspects of the Applicant’s outline of submissions which appeared to raise new claims that had not been alleged in the Claim;(b)the Applicant to indicate to the Respondent by noon on 12 October 2022 whether he intended to raise new claims and make an application to the Court to do so; and(c)the Applicant to file any application to amend the Claim by noon on 14 October 2022.15.By close of business on 7 October 2022, the Respondent provided the notification as required in [14(a)] above in accordance with the Court’s directions. A copy of this communication appears at Annexure A to this outline of submissions.16.On 12 October 2022, the Applicant notified the Respondent that he wished to allege 4 or potentially 5 new claims as identified by the Respondent in its communication of 7 October 2022. A copy of this communication appears at Annexure B to this outline of submissions.17.However, on 14 October 2022, the Applicant informed the Court by way of correspondence to chambers that he does not seek to amend his Claim. In that communication he asserts “The Applicant has provided consistent details in his Application, Affidavits and Outline of submissions.” A copy of this communication appears at Annexure C to this outline of submissions. 18. For the avoidance of doubt, the Respondent rejects the apparent suggestion by the Applicant that he is entitled to raise the new claims identified by the Respondent in the correspondence of 7 October 2022 because he may have alluded to them in his evidence (which has not yet been read or admitted by the Court) or by way of an outline of submissions. The scope of the Applicant’s claim is confined to the contraventions he alleged at paragraph 15 of the Claim, in the absence of leave being sought by him and granted by the Court to amend his Claim to allege additional contraventions. Moreover, the Respondent rejects the assertions that the new claims (i) have all been canvassed in the evidence the Applicant has filed and served or his outline of submissions; or (ii) have all been responded to in the evidence the Respondent has filed and served. The Respondent respectfully seeks the Court’s assistance to clarify the scope of the Applicant’s Claim at the commencement of the final hearing to ensure the efficient and just conduct of the proceedings and to prevent prejudice to any party.C. Alleged general protection contraventionRelevant principles15. Section 340(1) of the FW Act provides as follows:A person must not take adverse action against another person:(a) because the other person:(i) has a workplace right; or(ii) has, or has not, exercised a workplace right; or(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or(b) to prevent the exercise of a workplace right by the other person.The note to the section indicates that it is a civil penalty provision.16. The circumstances in which “adverse action” is taken by an employer against an employee is outlined in Item 1 in s 342(1) of the FW Act as follows:[Adverse action is taken by] an employer against an employee [if] the employer: (a) dismisses the employee; or(b) injures the employee in his or her employment; or(c) alters the position of the employee to the employee’s prejudice; or(d)discriminates between the employee and other employees of the employer.17. The meaning of “workplace right” is described in s 341 as follows:A person has a workplace right if the person:(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or(c) is able to make a complaint or inquiry:(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or(ii)if the person is an employee—in relation to his or her employment.18. Section 361(1) of the FW Act provides that: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.19.The settled principles as to the application of the above provisions of the FW Act were recently comprehensively summarised by the Full Court of the Federal Court in Alam v National Australia Bank Limited [2021] FCAFC 178; (2021) 288 FCR 301 (White, O’Callaghan and Colvin JJ) at [12]-[14]:[12] Section 361(1) creates a rebuttable presumption: …Its purpose is to throw onto respondents the onus of proving that which is peculiarly within their knowledge: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 at [50] (French CJ and Crennan J), citing General Motors-Holden’s Pty Ltd v Bowling (1976) 136 CLR 676; (1976) 12 ALR 605 at 617. [13] As already noted, the appellant alleged that NAB had breached s 340(1)(a) of the FW Act by dismissing her because of her exercise of workplace rights in making complaints or inquiries and because of her foreshadowed exercise of a workplace right in making an application to the FWC, respectively. Accordingly, s 361 was engaged. It had the effect that it was to be presumed that NAB had terminated her employment because of her exercise (or foreshadowed exercise) of these rights unless NAB proved otherwise. [14] Several matters bearing upon the application of s 361 in relation to s 340 are settled:(a)in order to attract the application of s 361, an applicant should allege with sufficient particularity both the action said to constitute “adverse action” and the particular reason or particular intent with which it is said the action was taken: Short v Ambulance Victoria [2015] FCAFC 55; (2015) 249 IR 217 (Dowsett, Bromberg and Murphy JJ) at [55];(b)the party making the allegation that adverse action was taken “because” of a particular circumstance must establish the existence of that circumstance as an objective fact: Tattsbet Ltd v Morrow [2015] FCAFC 63; (2015) 233 FCR 46 at [119]. That is, it is for the applicant to establish all the elements of the alleged contravention other than the reasons of the respondent for taking the adverse action: Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 (ABCC v Hall) at [100];(c)an employer takes adverse action in contravention of s 340 if a proscribed reason is a “substantial and operative” reason for the action or if the reasons for the action include the proscribed reason: Bendigo v Barclay at [104] (Gummow and Hayne JJ).(d)the discharge of the s 361 onus requires proof on the balance of probabilities and usually requires decision-makers to give direct evidence of their reasons for taking the adverse action: Bendigo v Barclay at [43]-[44];(e)the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding: Bendigo v Barclay at [41], [45] (French CJ and Crennan J); at [101] (Gummow and Hayne JJ); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, (2014) 253 CLR 243 (CFMEU v BHP Coal) at [7] (French CJ and Kiefel J); Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, (2015) 238 FCR 273 (CFMEU v Anglo Coal) at [27]; ABCC v Hall at [19];(f)while the evidence of the decision-maker as to the reasons for the taking of the adverse action may, if accepted by the Court, satisfy the s 361 onus, such evidence is not a necessary pre-condition: CFMEU v BHP Coal at [192]; Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215, 273 FCR 332 at [72];(g)the Court’s rejection of the evidence of the decision-maker as to the reasons for the adverse action will ordinarily be “a weighty consideration and often a determinative consideration” in the determination of whether the reason alleged by the applicant was a substantial and operative reason for the action (Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 302 IR 400 at [116]), but such a rejection does not relieve the Court from considering all the evidence probative of whether the reason asserted by the applicant has been negated: ibid; CFMEU v Anglo Gold at [27]; Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333, (2011) 193 FCR 526 at [272]. When there is evidence of a broad range of facts and circumstances, which are not dependent on acceptance of the decision-maker’s evidence about his or her asserted reason for the dismissal, such evidence must be taken into account in assessing whether the reasons asserted by an applicant were a substantial and operative reason for the action; ibid at [113]; TechnologyOne Ltd v Roohizadegan [2021] FCAFC 137 at [105]-[106];(h)even if the reasons advanced by a respondent as the actual reasons for the decision are accepted, the absence of evidence that there were no additional reasons or that the actual reasons did not include the alleged proscribed reasons, may result in a failure to rebut the presumption: National Territory Education Union v Royal Melbourne Institute of Technology [2013] FCA 451, (2013) 234 IR 139 at [20]; PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15, (2020) 274 FCR 225 at [154] (Snaden J);(i)the decision-maker’s knowledge of the circumstance asserted by an applicant to be the reason for the adverse action, and even its consideration, does not require a finding that the action was taken because of that circumstance: Bendigo v Barclay at [62]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218 at [80] (Jessup J); Shea v TRUenergy Services Pty Ltd (No 6)[2014] FCA 271, (2014) 242 IR 1 at [777]. Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason: CFMEU v BHP Coal at [20], [87]-[88]; Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76, (2015) 231 FCR 150 at [32], [47]-[48] (Jessup J); and(j)adverse action taken against a person because of conduct resulting from the exercise of workplace rights may not offend the s 340(1) prohibition: CFMEU v BHP Coal; Endeavour Coal at [52] (Perram J).(emphasis added)20. In addition to the summary above, the following principles bear emphasis in the present proceeding:(a) It is not for the Court to conduct a broad inquiry into whether an applicant has been subjected to a procedurally or substantively unfair outcome. As Snaden J held in Wong v National Australia Bank [2021] FCA 671at [81]-[83]:Where, by way of rebuttal of the presumption established by s 361 of the FW Act, a respondent leads evidence as to why it engaged in the conduct that an applicant seeks to impugn, the relevant inquiry starts and ends with whether, in fact, those reasons relevantly actuated that conduct. It is not necessary for a respondent to prove that the reasons that actuated its conduct were procedurally or substantively fair: Khiani v Australian Bureau of Statistics [2011] FCAFC 109, [31] (Gray, Cowdroy and Reeves JJ). Thus where, as here, a respondent employer cites, as its reasons for taking adverse action against an applicant, opinions that it formed about his or her conduct or capacity, the relevant inquiry is not whether those opinions were fairly or properly formed, or vindicated in fact. Rather and more simply, the relevant inquiry is whether the opinions were formed at all and, if they were, whether the respondent was moved to act as it did in consequence of them. A claim under Pt 3-1 of the FW Act “...is not a broad inquiry as to whether the applicant has been subject to a procedurally or substantively unfair outcome” Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17, [48] (Bromberg J).(b) Further, as was reiterated recently in Mishra v Monash Health [2022] FedCFamC2G 240 at [62], even if it were established that the relevant decision-maker(s) “proceeded on a misunderstanding of the true state of the facts, that of itself does not establish that the relevant decisions or actions constituting the adverse action were taken for unlawful reasons” (citing Musgrove v Murrayland Fruit Juices Pty Ltd (1980) 47 FLR 156). In that case, where the employer asserted that the basis for the dismissal was a finding of misconduct, the Court emphasised (at [63]) that its role was not to “embark on a fact-finding exercise to determine whether or not the conduct of the Applicant which is said to form the basis for the decision to terminate her employment is established or not”. Rather, “the enquiry is directed at determining whether the decision-maker subjectively believed that the misconduct occurred” (emphasis added).21. In making relevant findings of fact, the Court should consider whether the civil standard of proof has been met in line with the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw), having regard to the fact that s 340 of the FW Act is a civil penalty provision. As Flick J held in Australian Building and Construction Commissioner v Parker [2017] FCA 64; (2017) 266 IR 340 at [58]:First, when making the findings of fact, due regard must be had to the gravity of the matters alleged: Evidence Act, s 140(2). …The contraventions alleged by the Commissioner have to take into account the fact that they are contraventions of civil remedy provisions of the Fair Work Act. They are, accordingly, properly to be regarded as “quasi-criminal”: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2002] FCA 1294 at [53]; (2002) ATPR 41–901 at 45,414 per Goldberg J; BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 1291 at [68] to [69], (2013) 239 IR 363 at 388 to 389 per Collier J. The standard of proof referred to in s 140(2) is a re-statement of the standard of proof referred to by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336: Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd [2010] FCA 770 at [15]; (2010) 188 FCR 221 at 225 per Logan J. Application of principles to the present proceedingEngagement of s 361 presumption22. The Respondent accepts that:(a)the termination of the Applicant’s employment was adverse action within the meaning of Item 1 of s 342(1) of the FW Act;(b)the lodging of the application for a “stop bullying” order against AM in the Commission in April 2019 was the exercise of a workplace right within the meaning of s 341(1)(b) of the FW Act (Identified Workplace Right); and(c)to engage s 361(1), all that was needed was that the Applicant allege that the Respondent took the action of terminating the Applicant’s employment for reasons that included the particular reason of the exercise of the Identified Workplace Right. It would then be for the Respondent to rebut that statutory presumption.23.It is not entirely clear that the Applicant makes the allegation in [22(c)] above insofar as the Claim:(a)appears, on one view, to make separate assertions of adverse action with respect to the Respondent (i) declaring the Applicant’s position as excess (or “redundant”) and (ii) failing to redeploy the Applicant; and(b)refers to the Respondent having a “motivation”, rather than taking action “because of” the Applicant’s exercise of the Identified Workplace Right, which arguably falls foul of the requirement to identify precisely and distinctly the alleged reason for the contravening conduct. As the Full Court of the Federal Court explained in Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 at [14]:[A]n allegation under s 361(1)(a) must precisely and distinctly identify the alleged reason, or the alleged intent, for the contravening conduct. This need for care and precision in making the allegations in connection with which the presumption may operate is similar to that required with respect to the analogous situation of averments in criminal prosecutions…24. Nonetheless, to the extent that:(a)the termination of the Applicant’s employment came about from his position being declared excess and there being no redeployment of him during the retention period (or that part of it which he served); and(b)the allegation as to the Respondent’s “motivation” is understood to refer to the reason (or one of the reasons) the Respondent took the above action,then the Respondent is prepared to treat the Applicant’s Claim as making the allegation in [22(c)] above sufficient to engage the operation of s 361(1) of the FW Act.25. For completeness, the Respondent rejects the contention (if it is intended to be made by the Applicant) that terminating the Applicant’s employment for reasons that included “tensions between the Applicant and AM” engages s 361(1) of the FW Act. “Tension” between employees does not constitute a workplace right for the purposes of s 341(1) nor any other proscribed reason under Part 3-1 of the FW Act. As such, the only relevant workplace right for present purposes is the Identified Workplace Right. Rebuttal of presumption26.The Respondent submits that the evidence it will lead at trial, key parts of which are summarised in the paragraphs that follow, will establish as a fact that neither:(a) the decision to declare the Applicant’s position as excess; nor(b) the failure to redeploy the Applicant, which resulted in the termination of his employment, were taken for the reason, nor for reasons that included the reason, that the Applicant exercised the Identified Workplace Right.27.The Applicant came under the supervision of AM following a reshuffle that occurred in the Technology Division in July 2018 after which the Commercially-off-the-shelf (COTS) products support team came within AM’s responsibility. One of those COTS products was Clarity, a project management tool used by an area of the Respondent known as the Project Management Office (PMO). The Applicant was principally responsible for supporting Clarity and thereby became supervised by AM following the reshuffle.28.AM was the Applicant’s supervisor after the reshuffle in July 2018 until January 2020 (AM Supervision Period), after which time the Applicant took extended leave and did not return to work until November 2020 when he was allocated a different supervisor. However, even within the AM Supervision Period:(a)there was a period of three months over November 2018 – February 2019 when AM temporarily acted in another role and was not supervising the Applicant; and(b)during the six months from July 2019 to December 2019, the Applicant took large amounts of leave and in fact only worked 58 days.29.During the AM Supervision Period, the Applicant’s duties were to support Clarity. While he may have occasionally assisted with other tasks from time to time, he had no other substantial duties during this time. This is plainly reflected in the goals / key deliverables set out in the informal performance improvement plan (PIP) and formal PIP that the Applicant was working under for most of that period (the formal PIP never ultimately being completed due to the Applicant taking extended leave).30.By February 2020, the Respondent made a decision to decommission Clarity. This was a business decision by [REDACTED] on the recommendation of the [REDACTED] and was informed by the [REDACTED] plans to acquire a new project management tool. By that stage, the Applicant had already commenced a period of extended leave which did not finish until he was given medical clearance on 21 October 2020 to return to work. It was not necessary for anyone to perform the Applicant’s role while he was on extended leave because of the decision to decommission Clarity.31.Once the Applicant was given medical clearance to return to work, in early November 2020, the Workplace Relations team made enquiries of AM and DW (who was an Acting Senior Advisor in the Technology Division at the time) as to the status of the Applicant’s role in the Technology Division. In the context of the matters outlined in [29]-[30] above, AM advised the Workplace Relations team that the duties of his role were no longer required. AM subsequently sought confirmation from DW that the statement she had made to the Workplace Relations team was correct. DW agreed with AM’s summation and confirmed as much to the Workplace Relations team.32.On 11 November 2020, the Workplace Relations team informed the Applicant that the duties of his role were no longer required by the Respondent and that it would work with the line area to identify any potential vacancies in the Technology Division. Meanwhile, he was given approved paid leave.33.Efforts to identify a new position for the Applicant during November 2020 were to no avail. This must be seen in the context of there already having been a restructure of the Technology Division in 2019 which resulted in a number of employees being declared excess.34.In late November 2020, the Workplace Relations team briefed Mr Timothy Simpson, as National Manager of Workplace Capability and Assurance and in charge of the Respondent’s human resources functions, that the duties of the Applicant’s role were no longer required and no suitable alternative role had been identified for him. Mr Simpson also had direct conversations with the senior executive team in the Technology Division (DW, Mr Sam Lewis and Mr Stewart Sibree) who confirmed to him that the Applicant’s role had been to support Clarity and he could not be readily transferred to any other vacant role in the Technology Division.35.On 7 December 2020, Mr Simpson made the decision to declare the Applicant as excess and to offer him a voluntary redundancy pursuant to Part H of the EA. In notifying the Applicant of this, Mr Simpson also informed the Applicant that he had one month to accept the offer and if he chose not to accept it then he would be required to work through a retention period performing meaningful work which had been identified as APS3 IT Support Officer work.36.On 6 January 2021, the Applicant declined the offer of voluntary redundancy and elected to work through the retention period in the APS3 IT Support Officer role, although he continued to be paid and accrue entitlements at the APS6 level.37.During the retention period, the Workplace Relations team advised the Technology Division that the Applicant should be considered for any APS5 or APS6 funded positions that became available. This occurred several times, and the Applicant also applied for other positions of his own accord. The recruitment panels established for each vacancy did not assess the Applicant as being suitable. Consequently, the Applicant was not redeployed prior to September 2021 at which time he requested that his employment cease and he be paid out the balance of the retention period, that request being granted by Mr Simpson.38.The circumstances set out above indicate that:(a)the reason Mr Simpson declared the Applicant to be excess to requirements was because, on the advice of the senior executive team in the Technology Division and the Workplace Relations team, the duties of the Applicant’s role had been to support a particular technology product, Clarity, which the Respondent had since decommissioned and there were no other vacant suitable positions in the Technology Division into which he could be moved; and(b)the reason that the Applicant was not redeployed during the retention period was that he had not been assessed as having the suitable skill-set by the recruitment panels assessing candidates for vacant APS 5 or APS6 positions in the Technology Division.39.The fact that the Applicant may believe, however honestly, that he had performed or was capable of performing other duties aside from supporting Clarity, or that he ought to have been redeployed to other positions, is not relevant to the question the Court must determine. Rather, that question requires the Court to determine whether:(a)Mr Simpson, based on the material conveyed to him, genuinely believed that Clarity was no longer being used by the Respondent, and that the duties of the Applicant’s role had been to support Clarity thereby leading to the conclusion that his duties were no longer required; and(b)the recruitment panels assessing the candidates for other vacant APS5 or APS6 roles for which the Applicant was considered during the retention period genuinely believed that the Applicant was not the suitable candidate to fill those roles.Ultimately, there will be no reason for the Court to doubt the Respondent’s evidence in this regard. That will be sufficient to rebut the presumption in s 361 of the FW Act.40.It is worth adding that, quite aside from the positive evidence to be adduced by the Respondent, there is an element of implausibility in the Applicant’s argument that the real reason for the decision to declare him excess and not redeploy him to another role was because of the Applicant’s application for a “stop bullying” order against AM. In particular:(a)that application was lodged in April 2019 and determined by the Commission on 20 May 2020 and was unsuccessful;(b)the Commission found that AM’s actions were not bullying and instead comprised reasonable management action undertaken in a reasonable manner;(c)no adverse findings were made against, nor any action required on the part of, either AM or the Respondent as a result of the application;(d)while Mr Simpson knew about the Applicant’s “stop bullying” application against AM, there is no evidence at all that he consulted or communicated with AM as part of the decision to declare the Applicant’s role as excess; and(e)there is no evidence that any of the persons assessing the candidates for other vacant APS5 or APS6 roles for which the Applicant was considered during the retention period knew about the Applicant’s “stop bullying” application against AM.It is difficult to see any prevailing logic in the Respondent making a decision to declare the Applicant’s position to be excess in December 2020 in response to an application made by the Applicant in April 2019 which was in any event unsuccessful. Certainly, those circumstances do not give rise to any compelling inference being available to support the Applicant’s assertion, much less one that could also outweigh the positive evidence to be adduced from the Respondent’s witnesses.41. It is also worth observing that the decision to declare the Applicant’s position to be excess was subject to a review of action process initiated by the Applicant in January 2021 pursuant to s 33 of the PS Act. An external provider, CPM Reviews, was engaged to conduct the review, report on the findings and make recommendations to assist the delegate in determining an outcome. CPM Reviews produced a 30-page report as a result of that process and relevantly concluded as follows in respect of the decision to declare the Applicant as excess:In considering the available evidence, it is recommended that there is no demonstrated basis on which an alternate decision should have been reached, as it related to MJ’s employment and the necessity to declare him as an excess employee. Clause 262 within Part H of the EA states that an ongoing employee is excess if: the services of the employee can no longer be effectively used because of technological or other changes in the work methods or structural or similar changes in the nature, extent or organisation of the functions [bolding added] of the ACICThe evidence indicates that the decision to declare MJ as excess was reasonably based on a conclusion that MJ’s services could no longer be effectively used because of technological or other changes in the work methods or structural or similar nature, extent or organisation of the functions of the ACIC. The available evidence is that the Clarity PPM tool is no longer in use and MJ’s direct role is no longer required. Accordingly, it is recommended that the Delegate confirm the original decision to formally declare MJ as an excess employee.42. The Respondent further submits that the process undertaken by CPM Reviews and the conclusions it reached reinforces the credibility of the evidence to be adduced from the Respondent’s witnesses as to the reason why the Applicant’s position was declared excess. It also adds to the implausibility of the Applicant’s argument that the real reason for that decision and the Applicant not being redeployed was because of the Applicant’s application for a “stop bullying” order against AM. That serious allegation will not be established to any standard, let alone to the standard required by Briginshaw. Accordingly, the general protection contravention aspect of the Claim ought to be dismissed.D. Alleged breach of enterprise agreementRelevant principles43.Section 50 of the FW Act provides that “a person must not contravene a term of an enterprise agreement”. Note 1 to the section provides that it is a civil penalty provision.44.The principles of interpretation of enterprise agreements may be shortly stated. WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197] (Tracey, Bromberg and Rangiah JJ) provides a pithy summary of key authorities:The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 (Holmes) at 378 (French J). The interpretation “turns on the language of the particular agreement, understood in the light of its industrial context and purpose”: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 (Amcor) at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-379, citing George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); Shop, Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).44. More recently, the High Court in Ridd v James Cook University [2021] HCA 32; (2021) 394 ALR 12 at [17] held, in relation to the interpretation of an enterprise agreement, that:… In that process of interpretation, an important matter of context is the industrial nature of the instrument. Industrial instruments are not always drafted carefully by lawyers or professional drafters, and hence the literal words of a provision might more readily be understood to have a meaning other than their ordinary meaning if the context so suggests.45. The footnote to the second sentence reproduced above cited City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 at [57] (French J). In that paragraph of City of Wanneroo, French J quoted an observation by his Honour in a prior judgment that:Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.46. Unlike the general protection contravention, there is no presumption which the Respondent is required to rebut for the purposes of defending an allegation of breach of an enterprise agreement for the purposes of s 50 of the FW Act.47.As with the alleged general protection contravention, the Court should consider whether the civil standard of proof has been met in line with the principles in Briginshaw, having regard to the fact that s 50 of the FW Act is a civil penalty provision.Application of principles to the present proceeding48.The Applicant alleges in the Claim that the Respondent did not comply with Part H of the EA but only refers particularly to clauses 262(b), 264-269 and 286. Part H of the EA deals with ‘Workforce Adjustment’.Clause 262(b)49.Clauses 262 of the EA provides:262.The following provisions will apply in relation to an excess Employee. For the purpose of this clause an ongoing Employee is excess if:a)he or she is employed substantively at a level or in a classification where there is a greater number of Employees than is necessary for the efficient and economical working of the ACIC;b)the services of the Employee can no longer be effectively used because of technological or other changes in the work methods or structural or similar changes in the nature, extent or organisation of the functions of the ACIC; orc)the duties of the Employee are to be performed at a different locality and the Employee is not willing to perform the duties at that locality and the CEO agrees that the Employee is excess.50.The Applicant has not particularised anywhere in the Claim in what respect the Respondent contravened clause 262(b). As such, this alleged breach does not rise above the level of bare assertion to which it is impractical properly to respond. Nonetheless, for completeness, the Respondent submits:(a)the ordinary meaning of the terms of clause 262(b) are straightforward and apt to cover a change in the technological products used by the Respondent and supported by its Technology Division;(b)the evidence to be adduced by the Respondent at trial, and already summarised above under discussion of the alleged general protection contravention, will establish that:(i)such a change in technological product occurred with the Respondent’s decision to decommission Clarity by the time the Applicant was medically cleared to return to work in November 2020; and(ii)the duties of the Applicant’s role in the Technology Division were primarily to support the Clarity product (and, indeed, no other employee had that responsibility); and(c)that being the case, the services of the Applicant could “no longer be effectively used because of technological or other changes in the work methods … of the ACIC” and the Applicant was “excess” within the meaning of clause 262(b).Clauses 264-26951. Clauses 264-269 of the EA provide:264.On becoming aware that any Employee is likely to become excess to requirements, the CEO will advise the Employee of the situation as soon as practicable in writing.265.Discussion with the potentially excess Employee will be held to determine:a)any redeployment opportunities for the Employee concerned; andb)whether voluntary retrenchment might be appropriate.266.During these discussions, an Employee may elect to be represented by an Employee representative of their choice.267.Where an Employee is likely to become excess the CEO will discuss the situation, where relevant Employees so request, with chosen Employee representatives.268.At the completion of the discussions or at the end of a period of one month (commencing on the date that the Employee is advised that they are potentially excess), whichever is the earlier, the CEO may:a)invite the potentially excess Employee to elect voluntary retrenchment; orb)declare the Employee excess.269.The CEO may, before the conclusion of discussion, invite other Employees who are not potentially excess to express interest in voluntary termination of employment, where those terminations would permit the redeployment of Employees who would otherwise be excess.52.Once again, the Applicant has not particularised anywhere in the Claim in what respect the Respondent contravened clauses 264-269. As such, this alleged breach (or beaches) does not rise above the level of bare assertion to which it is impractical properly to respond.53.Nonetheless, for completeness, the Respondent submits that the evidence to be adduced by the Respondent will establish compliance with these provisions of the EA, interpreted practically according to a purposive approach and not in any narrow or pedantic way, as follows:(a)Clause 264: The Workplace Relations team went about assessing the status of the Applicant’s role as soon practicable after being provided with the medical report on 21 October 2020 that confirmed the Applicant’s clearance to return to work. Following those enquiries, it was identified that the Applicant’s role was potentially excess because the Respondent had decommissioned the Clarity product and the Applicant’s role had been to support Clarity. The Applicant was informed about this in writing by 11 November 2020.(b)Clause 265: Upon being informed on 11 November 2020 that the duties of his role were no longer required, the Applicant was also informed that the Workplace Relations team was working with the Technology Division to identify another role to which the Applicant may be redeployed within the Technology Division. The Applicant was invited to provide an updated CV for this purpose, which he did. Further discussions in this regard also occurred on 26 November 2020, at which point it was also discussed that no other available role had been identified.(c)Clause 266-267: The Applicant did not elect to be represented by a representative and therefore no issue as to Mr Simpson or the Workplace Relations team having discussions with such a representative arises.(d)Clause 268: After the communication on 11 November 2020 and the discussions on 26 November 2020, on 7 December 2020 the Applicant was declared excess and offered a voluntary redundancy.(e)Clause 269: It was a matter for Mr Simpson’s discretion as to whether or not to invite other employees who were not potentially excess to express interest in voluntary termination of employment. Given the advice as to the Applicant’s role and skill-set as the only employee with primary responsibility for supporting Clarity, no such invitation would necessarily have enabled the Applicant to be redeployed. Further, important context was the fact that a number of employees in the Technology Division had already been declared excess as a result of the restructure in 2019. In those circumstances, it was appropriate that Mr Simpson exercised his discretion not to make such invitations.Clause 28654. Clause 286 of the EA provides:286. During the retention period the CEO:a)will continue to take reasonable steps to find alternative employment for the excess Employee; and/orb)may, with four weeks notice, reduce the excess Employee’s classification as a means of securing alternative employment for the excess Employee. Where an excess Employee is reduced in classification before the end of the appropriate retention period, he or she will continue to be paid at their previous level for the balance of the retention period.55. In the Claim, the Applicant alleges that:(a)“there were suitable redeployment [sic] for the applicant along with other members of the IT staff that were redeployed”; and(b)the Respondent failed to redeploy the Applicant or “make any efforts to do so”.56.With respect to the allegation in [55(a)], the Applicant has failed to identify or particularise the “suitable redeployment” positions he alleges to have been available, or the “IT staff” he alleges were redeployed. In this regard, the Applicant once again makes a bare assertion to which it is impractical properly to respond. If the Applicant’s intention is to suggest that the positions for which he was considered for redeployment during the retention period were positions to which he should have been moved contrary to the assessment of the personnel authorised to determine the suitable candidate, then he must articulate in what respect those assessments were incorrect.57.With respect to the allegation in [55(b)], the evidence to be adduced by the Respondent at trial will directly contradict the suggestion that the Respondent “made no effort” to redeploy the Applicant. In particular, the evidence of both Mr Simpson and DW records the process of the Workplace Relations team working with the Technology Division to identify available vacancies at the APS5 and APS6 level and requiring that the Applicant be considered for such roles. Ultimately, there will be no reason for the Court to doubt the Respondent’s evidence in this regard.58.In any event, it is for the Applicant to adduce the evidence to establish the alleged contraventions of the EA on the balance of probabilities in light of the principles required by Briginshaw. The Respondent submits that the Applicant’s evidence will not come close to meeting that standard. Accordingly, the enterprise agreement contravention aspect of the Claim ought to be dismissed.The Applicant’s Evidence
Evidence
Evidence Before The Court
The Respondent relied upon three witnesses: AM, Mr T Simpson, and DW. Summarised, their evidence was as follows.Evidence of AM At the time of swearing her Affidavit on 3rd August 2022, AM was the Acting Director of the Technology Collaboration and Co-ordination Unit at the Australian Criminal Intelligence Commission. Without going through all aspects of it, it is apposite to note the following from her Affidavit and its annexures before dealing with her oral evidence. The early part of AM’s Affidavit (pars.8-17) outline two periods where she was the supervisor of the Applicant, the latter from approximately July 2018. Pars.18-26 discuss the processes of performance of the Applicant, notably in the context of the plan to upgrade the Clarity application. The documentation regarding the Applicant’s PIP was Annexure AM-4 to AM’s Affidavit. Pars.27-29 outlined the Applicant’s extensive leave from mid-2019. Pars.30-39 set out what AM stated to be “events in the Technology Division during 2019.” These events included, for example, a small group of employees (perhaps 4 or 5) being made redundant as a result of a restructure. They also included notification of the PMO’s (project management office) decision to de-commission Clarity, which had been deemed not the best tool for the purposes of the Respondent. Pars.40-45 outlined the circumstances and steps taken that led to the Applicant being assessed and declared “excess.” The correspondence at Annexure AM-7 is particularly important, being communication between GM (from the Workplace Relations team), and DW, Acting Senior Advisor, Business System. Delivery, dated 9th November 2020. This correspondence, very succinctly, confirmed that the Applicant’s duties were to support the project management tool, Clarity; ACIC no longer used that tool; therefore, the Applicant’s duties “are no longer required by the ACIC.”[37] [37] See Court Book (Vol.2) p.621. The remainder of AM’s Affidavit (pars.46-64) responded to various matters raised in the Applicant’s Affidavit material. I do not need to traverse her comments and rebuttals, save to note that Annexure AM-9 is a copy of the CPM Reviews Report, prepared by SN and TVD, in relation to the Applicant, dated 22nd March 2021.[38] Otherwise, her evidence was as follows.[38] Among other conclusions reached by CPM Reviews, at par.10 in the Executive Summary, it concluded: “It is recommended that there is no evidence to suggest that the decisions [of the Respondent] were not made in accordance with the Enterprise Agreement and relevant ACIC policies and procedures.” See also pars.190 ff of this Report in more detail but to the same effect as recorded in the Executive Summary. At the outset of her evidence, AM confirmed that she had experience in ICT [information communication technology] in “two distinct areas: support and delivery.”[39] And consistently with his own evidence, the Applicant pressed AM about the importance (in his view) that support for Clarity was outsourced to Vendor, prior to 2018. She confirmed that this was so for about three years.[40][39] T 77.[40] T 83.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Finally, s.361(1) of the FW Act provides that:Reason 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.Consideration & Disposition Given what I have already noted in the course of these reasons, I can be quite summary in the remarks here. First, having accepted the evidence of Mr Simpson in particular,[82] and also the other witnesses on behalf of the Respondent (DW and AM), I am in no doubt that there was no prohibited or proscribed reason that informed or otherwise played any part in the Respondent’s decision to terminate the Applicant’s employment. The Applicant’s unsuccessful Application to the Fair Work Commission to seek relief in relation to the alleged bullying of him by AM formed no part in the decision-making of Mr Simpson in relation to the Applicant’s employment with the Respondent. Equally, the “tensions” between the Applicant and AM likewise formed no part of Mr Simpson’s decision-making in relation to the Applicant and his employment with the Respondent.[82] In Barclay, the High Court noted (and accepted) the trial Judge’s description of the decision-maker in that case as “convincing and credible”. See the reasons of Gummow and Hayne JJ at [110] and [127], and Heydon J at [141]. The same description applies to the Respondent’s witnesses in the current matter. Secondly, the reason(s) provided by the Respondent for the declaration of the Applicant being “excess” (a) relevantly complied with the terms of Section H of the Enterprise Agreement, and (b) were predicated upon, among other things, (i) a formal “business case” undertaken and presented by the Respondent’s [REDACTED], which was (ii) accepted by the Respondent’s [REDACTED], to de-commission the Clarity platform (on which the Applicant relevantly and predominantly worked, accepting that he had some “transferrable skills” but which ultimately did not assist him in the various attempts with re-deployment) and (iii) to implement and use a different project management tool that was not Clarity. Thirdly, the contentions of the Applicant additional to those just outlined, namely:(a)There were positions to which he could have been deployed;(b)The redundancy and the failure to redeploy him were a sham (which led to him being “constructively dismissed”); and (c)The determination by the Respondent that he was “excess” was unsupported or otherwise unsustainable,were not only not made out. They were also clearly and emphatically rejected and disproved, supported by contemporaneous documentation that was annexed to the Affidavits of the Respondent’s witnesses.