MJ v The Australian Criminal Intelligence Commission (No 2)
[2023] FedCFamC2G 341
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
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited [2020] FCAFC 205
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 [2020] FWC 2572
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 Act 2009 (Cth) (“the FW Act”) is modest. The self-represented Applicant contends that, contrary to s.340(1) of the FW Act, the Respondent (the Australian Criminal Intelligence Commission – “the Commission”) terminated his employment. This was in circumstances where the Applicant contended that his termination was because of:[1]
(a)“tensions” between the Applicant and his former supervisor, AM; and
(b)The Applicant’s Application to the Fair Work Commission (“the FW Commission”) for a “stop bullying” Order against AM lodged on 10th April 2019 and determined on 20th May 2020.
(c)The Applicant also generally contended that the Commission’s determination that his position was excess to requirements, and that his primary or main employment focus was in relation to the IT product “Clarity”, were both erroneous, if not shams, which thereby resulted in him being “constructively dismissed”.
[1] The details of the Applicant’s claim(s) are set out in his Applications, both filed 17th November 2021, his two Affidavits (dated 5th July and 9th September 2022 respectively), the Applicant’s Tender Bundle, and in his Outline of Submissions, filed 26th September 2022 set out below. Final Submissions filed by the Applicant at the conclusion of the trial are noted later in these reasons. Each of the documents mentioned here is located in Volume 1 of the Court Book, helpfully provided by the Respondent’s lawyers. Copies of (a) the Respondent’s Enterprise Agreement is Annexure TS-2 to the Affidavit of Mr T Simpson, which is in Court Book Vol.2 commencing at p.304, and (b) the decision of the Fair Work Commission (in MJ [2020] FWC 2572) is in Volume 3 of the Court Book, commencing at p.1023.
Two comments should be made at the outset.
First, to state the obvious, “tensions” between staff are not, do not, and cannot, without more, constitute the exercise of a “workplace right” for the purposes of Part 3-1 of the FW Act. They are simply “tensions”, unfortunate and regrettable to be sure, but they do not, without considerably more, give rise to formal complaint and redress under the FW Act. Nowhere in the FW Act in general, or in Part 3-1 of the same Act in particular, is there any reference to “tension” or “tensions” as a relevant ground for relief.
Secondly, as already noted, much of the Applicant’s focus in the current litigation was on an Application he lodged with the Fair Work Commission regarding what he said was bullying conduct by his supervisor at the time, AM, who denied such conduct and claims relating to it. In the result, his Application was dismissed. Nonetheless, the Applicant consistently averred that this Application to the Fair Work Commission was, if not a principal reason for his dismissal, a significant factor for the ultimate termination of his employment. The Respondent denied such claims. Its consistent evidence clearly supported its contentions regarding the reasons for the Applicant’s termination.
It is apposite to record the following comments by the Fair Work Commission from the decision to dismiss the bullying Application. For example, at [8] of the decision, Deputy President Kovacic said (emphasis added):
… I am satisfied that the various actions/conduct of which MJ complains were reasonable management action carried out in a reasonable manner. As such, I do not consider those actions/conduct to be bullying conduct …
In more detail, at [44] of the decision, the Deputy President also said (emphasis added):
In summary, the material before the Commission supports a finding that the feedback provided to MJ, the decisions not to offer him the opportunity to act in AM’s position and to place him on a PIP and AM’s behaviour/conduct were all reasonable management action carried out in a reasonable manner. While some aspects might have been better handled, that does not make the particular management action unreasonable or mean that it was not carried out in a reasonable manner.
While the Respondent Commission acknowledged repeatedly that the Application to the Fair Work Commission was the exercise of a “Fair Work” right, it also confirmed that the Application to the Fair Work Commission played no part at all in the decision to terminate the Applicant’s employment. The evidence set out below plainly supported this proposition.
The Applicant also argued strongly that the Respondent’s contentions that (a) the software application known as “Clarity” was being phased out by the Commission, and (b) the Applicant’s primary work was in relation to the Clarity product, and since it was being phased out, his position was “excess to requirements”, were inaccurate, and insufficient to justify the termination of his employment. He argued that his qualifications and experience showed that he worked on a wide variety of products and applications. While there is no doubt that the Applicant had broad experience, the strong evidence summarised below, again firmly supported the Respondent’s decision and submissions.
The Applicant sought relief of monetary compensation for distress and humiliation (by way of pecuniary penalty), a declaration that the termination of his employment was a “sham”, an Order setting aside his redundancy, and finally an Order reinstating him to a stated position at the Respondent.
The Respondent’s evidence was that the reason(s) for terminating the Applicant’s employment were solely because:[2]
(a)his position was excess (i.e. surplus to needs) within the meaning of Clause 262(b) of the Australian Criminal Intelligence Commission Enterprise Agreement 2016-2019 (“the EA”); and
(b)there were no positions to which he could be suitably redeployed during the retention period.
[2] I need not canvass earlier interlocutory proceedings between the parties in relation to certain suppression Orders sought by the Respondent and ultimately granted by the Court regarding the identities of certain employees of the Respondent. See MJ v the Australian Criminal Intelligence Commission [2022] FedCFamC2G 671.
It is not being hyper-critical to observe that, as a self-represented litigant, the Applicant’s focus in his cross examination of witnesses, and in his submissions, was clearly and understandably upon the clear sense of grievance and perceived injustice he felt in his treatment by the Respondent. Again, without being unduly critical, the Applicant’s understanding and appreciation of crucial aspects of legal principle in relation to his claim, which were helpfully and clearly set out in the Respondent’s submissions, were regularly awry.
In accordance with principles articulated by the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (“Bendigo v Barclay”),[3] and by the Full Court of the Federal Court of Australia in Alam v National Australia Bank Ltd,[4] (a) I accept the evidence given on behalf of the Respondent regarding the reason(s) for the termination of the Applicant’s employment; and (b) in my view, the reasons given by and on behalf of the Respondent do not contravene any relevant provision or section of the FW Act (or the EA) as claimed by the Applicant. Moreover, to the degree relevant and apposite, I agree with the decision and remarks of the Deputy President of the Fair Work Commission, noted above, to the effect that the various decisions made by the Respondent in relation to the Applicant were “reasonable management action carried out in a reasonable manner.” As such, the action(s) of the Respondent complained of by the Applicant do not constitute any breach of the FW Act.
[3] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, discussed later in these reasons.
[4] Alam v National Australia Bank Ltd (2021) 288 FCR 301.
Should it also need to be noted, the independent review conducted by CPM Reviews, at the request of the Respondent, also supported the contentions of (and the management decisions by) the Commission. This Review is also canvassed briefly later in these reasons.
For the following reasons, the Application, filed 18th November 2021, must be dismissed. In accordance with s.570 of the FW Act, there should be no Order regarding costs.
The more detailed arguments and contentions of the parties are set out in the primary, pre-hearing submissions set out immediately below.
Primary, pre-Hearing Submissions on Behalf of the Applicant
The written submissions on behalf of the Applicant prior to the Hearing, filed on 26th September 2022, were as follows (emphasis in original):
PART I INTRODUCTION
1.On 16 November 2021, I filed an application pursuant to part 3-1, General Protections of the Fair Work Act 2009 (Cth), in which I requested the Court make orders in relation to dismissal from employment in contravention of general protection.
2. The Respondent filed the affidavit evidence of:
2.1. AM sworn in on 03 August 2022
2.2. DW sworn in on 03 August 2022
2.3. Mr Timothy Jon Simpson sworn in on 03 August 2022
3. I filed the affidavit in reply, sworn in on 06 September 2022.
Issues for Determination
4. These submissions will be developed as follows:
Part II Legislative Framework
Part III Matters relevant of the factual issues Evidence
Part IV Evidence
Part V Termination.
PART II LEGISLATIVE FRAMEWORK
Division and Sections relevant in the present matter
5.Division 3- Workplace rights, part 3-1 General Protections, chapter 3 of the Fair Work Act 2009.
6.Division 4 - Requests for flexible working arrangements. Part 2-2- The National Employment Standards of Chapter 2 of the Fair Work Act 2009
7.Paragraphs 129 to 140 of Part D: 'Leave' of the ACIC Enterprise Agreement 2016-2019 sets out the meaning of Personal/Carer's leave
8.Part H: 'Workforce Adjustment' of the ACIC Enterprise Agreement 2016-2019 (EA), sets out the meaning of Redeployment and retrenchment
9. The ACIC Rehabilitation Management System and Injury Management policy
10. Fair Work Act, s 539(2), table, item 11.
Standing
11. In the present case, the applicant was a worker as defined in the FW Act, i.e. I was an employee of the Commonwealth.
PART IIIMATTERS RELEVANT OF THE FACTUAL ISSUES
12. I exercised workplace rights that included:
12.1. I pursued a review of the action process to get my performance assessment reviewed for the period ending Jun 2018. The outcome of the review set the manager's decision aside.
12.2. In December 2018, I filed a complaint with ACIC HR requesting that the decision of my direct supervisor, AM, to fill a short-term acting role be reviewed.
12.3. On 18 February 2019, I wrote a letter to the team manager, JK, detailing my concerns about working with AM due to her treatment of me. I highlighted the incident of 20 September 2018 in my complaint and bolded the words that AM threatened me that I could have lost my job how trivial the error could be, although the change was successful and a major milestone was achieved.
12.4. On 28 March 2019, I lodged a formal complaint to the Manager, People Services Team ACIC, MC, to resolve the conflicts with my supervisor, AM.
12.5On 10 April 2019, I filed an application under s.789FC of the Fair Work Act 2009 seeking an order to stop bullying against AM.
12.6In 2019, I applied to avail personal (sick) leave producing suitable evidence provided by the medical professionals.
12.7On 16 December 2022, I applied for flexible work arrangements (Flex-hours).
PART IV EVIDENCE
13.The Australian Administrative Tribunal (AAT) decided that I suffered an 'aggravation of generalised anxiety disorder' that was significantly contributed to by my employment, with the injury date deemed 20 September 2018. The entire period when AM frequently clashed with me. The decision was made on 21 February 2022.
14.Between July 2018 and March 2019, I completed the project, upgrading Clarity (a project management tool). The tool was re-platformed on a robust platform integrated with the corporate ancillary tools and introduced a modern user experience. I delivered its customisation tailored to suit the ACIC risks framework by June 2019.
15.The ACIC transferred me to the Engineering Services Division during July 2019 restructure.
16.My health started deteriorating due to conflicts, which began in September 2018 with my then supervisor, AM.
17.The ACIC treated some of the absences as unauthorised though I produced the certificates issued by the medical practitioners. I did not get paid for the leave marked unauthorised.
18.In February 2020, the ACIC approved the procurement of ServiceNow ITBM, a project management solution and considered discontinuing using Clarity PPM.
19.The state of Clarity and /or ServiceNow ITBM PPM software at the ACIC were irrelevant to my role. In July 2019, I got transferred into the BSD Engineering Services Team, which was not responsible for supporting Clarity and / or Service ITBM.
20.During most of the calendar year 2020, I was declared unfit for duty by the treating GP.
21.The ACIC arranged an Independent Medical Examination (IME) of me by a psychiatrist.
22.Dr Antonella Ventura, a Consultant Psychiatrist, carried out the assessment. In her report, dated 21 October 2020, Dr Ventura stated: "MJ is not currently fit to be supervised by AM. He is, however, fit to work in the same team and be supervised by a different manager, work in the same branch, division and building as AM.".
PART VTERMINATION
23.Following this report, on 09 November 2020, AM emailed DW, Senior Advisor Business Systems Delivery Division, stating that: "The ACIC no longer uses that tool (Clarity), and therefore the duties previously performed by MJ are no longer required by the ACIC." "MJ did not demonstrate any transferable skills to me in his time under my supervision.", she further quoted to SN of CPM Reviews.
24.I was declared excess on 7 December 2020 with a formal letter from Mr Tim Simpson stating that: "… Clarity will no longer be used by the ACIC. As your role was to support this tool, your duties are no longer required to be performed.".
25.The Respondent made the decision based on the premise that I exclusively supported the Clarity software that the ACIC will no longer use. Clarity, on the contrary, was supported by Service Desk, Vendor (a managed service provider) and the intelligence and Corporate Services line.
26.The ACIC WHS team did not provide me with a graduated return to work (GRTW) plan.
27.I did not accept the offer of voluntary redundancy and decided to serve through my retention period.
28.Upon resumption of duties in December 2020, the ACIC
28.1. altered my job to APS 3 level to my disadvantage.
28.2. withdrew flexible working arrangements. The workplace relations team, GM, stated, "Flex is not to be accrued whilst on a graduated return to work as per the policy.".
29.The ACIC alleged a violation by me of the APS Code of conduct and issued me a warning letter. The allegation was vague. The ACIC exerted undue pressure.
30.My duties included a wide range of responsibilities. The Respondent did not consider the substantive functions I delivered relatively independent of technologies.
31. The ACIC failed to redeploy me during the retention period.
32. The ACIC terminated my employment with the APS on 10 September 2021.
Primary, pre-hearing Submissions on Behalf of the Respondent
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. Background
1. 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 Claim
10.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 contravention
Relevant principles
15. 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 proceeding
Engagement of s 361 presumption
22. 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 presumption
26.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 ACIC
The 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 agreement
Relevant principles
43.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 proceeding
48.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; or
c)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 264-269
51. 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; and
b)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; or
b)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 286
54. 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/or
b)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
Summarised, the Applicant’s oral evidence was as follows.[5]
[5] All Transcript references will simply be “T” followed by the page number.
The Applicant confirmed that he was first employed by CRIM-TRACK, and that this agency, which later became part of the Respondent, used “Clarity” as a software project management tool. Clarity was known as an “off the shelf” (“OTS”) product. He denied, consistently so, that his primary focus and role was in relation to Clarity.[6]
[6] T 20 – 21.
Much “sparring” ensued between Counsel for the Respondent and the Applicant about the extent of his involvement with Clarity, such as with a proposed “upgrade” of this product, on the one hand, and on the other, the technical support for it. This distinction was regularly stressed by the Applicant. In my view, this was his determined way of minimising his degree of involvement with Clarity, which he sought to do on every possible occasion. In my view, the distinction between involvement with Clarity for one purpose and not for another was, in reality, of little actual difference. This is especially since his position title was “specialist application support”, which the Applicant acknowledged.[7]
[7] T 22 – 23.
The Applicant further acknowledged that he was asked (in 2016/2017) by his then supervisor (AR) to investigate a potential upgrade for Clarity and that, in response to this, the Applicant created an activity plan, obtained quotes for the upgrade, and prepared a brief for the Chief Technology Officer of the Respondent. The Applicant confirmed that he did each and all of these tasks.[8] Vendor was one group that provided a quote for the Clarity upgrade. The Applicant considered that the quote provided by Vendor was too high.[9]
[8] T 23.
[9] T 26 & 27.
These operations undertaken by the Applicant were the subject of significant critique by AR who confirmed in writing that the Applicant was very familiar with and supportive of Clarity and its uses.[10] Part of this critique by AR was put to the Applicant in detail, which included the Applicant disagreeing with AR and the decision by management regarding what was to be done with Clarity. I need not go into very much detail about the significant discussion with the Applicant about his disagreement with the management decision regarding Clarity and the like.
[10] See, for example, T 24.
I should however note that ultimately the Applicant recommended to the Commission that the upgrade for Clarity, and its support, should both be brought “in-house.” It was not to the point, as he sought to comment, that his recommendations were not accepted by management.[11]
[11] T 28.
Although it took a little time because of the difficulty of the Applicant to agree with various propositions from historical documents, “we” got to the stage where the Applicant agreed that, pursuant to a decision by the Project Management Office (“PMO”), in July 2018 he was engaged to deliver the project whereby Clarity was to be upgraded “in-house”. He maintained that the upgrade was his responsibility, while “support and maintenance” remained with Vendor. The Applicant acknowledged, with some diffidence, that he was the leader of the upgrade team, albeit (in his words) “in the lower environment.”[12]
[12] T 31 & 32.
The Applicant confirmed that AM became his supervisor and “team leader” in July 2018.[13] He also agreed that, at this time, his sole responsibility was the upgrade of Clarity;[14] he insisted that the upgrade was a “project”, presumably again to distinguish it from IT support.
[13] T 32 & 33.
[14] T 34.
The Applicant accepted that, in a limited sense, AM stated in August 2019 that the Applicant did not meet the deadlines he had set for the upgrade.[15]
[15] This discussion went on for a little time, but need not be canvassed in detail here. See T 34 – 36.
Another matter canvassed with the Applicant, in my view, of not immense moment, related to AM moving to act in another role in a different team for three months. The Applicant thought he (and/or others) should have been offered to act in her role. The Applicant wrote a note in November 2018 which recorded that he considered AM to be “more confrontational”. When AM came back to her original position in February 2019, the Clarity upgrade remained behind schedule. By this time also, the Applicant was on leave.
In March 2019, AM placed the Applicant on an informal performance improvement plan (“PIP”).[16] This PIP was extended, firstly to 9th July 2019, then again until 9th August 2019.[17] I need not canvass the detail traversed with the Applicant regarding various comments by AM regarding his performance, particularly in relation to disagreements of certain “upgrades.”[18] For current purposes, it is sufficient to note the following representative exchanges:[19]
[16] See T 36 & 38.
[17] Details of this PIP are set out in Annexures AM1 – AM3 of AM’s Affidavit, filed 5th August 2022, at Tab 14 in Volume 2 of the Court Book.
[18] See, for example, T 38 – 41.
[19] T 40 & 41.
So you will see on the left-hand side, there’s goal key deliverable, and then on the right-hand side, there’s a list of strategies to assist performance improvement against this deliverable. Now, I will just put to you that, I mean, the document goes on for some pages, but there are six goals or deliverables that are listed down the left-hand side in this document and every single one of those relates to Clarity. Do you want to check through the document yourself just to confirm that’s the case?‑‑‑It does relate to Clarity. It does not relate to Clarity support.
I don’t care what aspect of Clarity it relates to, MJ?‑‑‑But I do.
I’m asking you, everything that you were doing that was set for your performance plan related to tasks on Clarity, whether it’s support or the upgrade doesn’t matter, it’s all Clarity. Yes?‑‑‑Just give me a minute. It’s more than Clarity. For example, on page 563 – on page 563, it says Single Sign On – SSO, and Single Sign On is a different product and there are two Single Sign Ons. Is, yes, it’s a single sign on, and what I mean single sign on is, once you log into the network you don’t have to relog in to another product.
But it was still connected to Clarity, wasn’t it, MJ?‑‑‑But the product was Single Sign On.
It was about recommissioning the Clarity SSO instance, and replacing it with a non-Clarity one, the ACIC SSO instance, right?‑‑‑Yes, yes.
…
MJ, the document is about Clarity landscape. It is about documenting, for the purposes of Clarity, isn’t it?‑‑‑Yes. It’s a documentation skills, rather than any matter. So it could have been anything, but it’s a documentation skills.
Yes, but the only thing you’re documenting is Clarity, not any other COTS?‑‑‑Yes, but that is all about not in respect to the support. This is purely about using either ..... or Microsoft Word or you name whatever, but it’s a documentation skills different from Clarity.
Yes. No one I suggesting, MJ, that you don’t have to generic skills like being able to create a document, okay. We’re talking about what duties you were performing, okay?‑‑‑Sorry, I defer again.
And all the duties relate to Clarity, don’t they?‑‑‑No, I – I defer again.
All right. On page 565, one of the goals or deliverables is production support to clarity users, agreed?‑‑‑That is the only production support goal that she set.
Okay. But, nonetheless, it’s production support, isn’t it?‑‑‑She said, but, I mean, that was not delivered.
She’s your supervisor, and she’s specifying the duties that you have to perform over this period in order to demonstrate your improved performance?‑‑‑So she did say, yes. She did.
Yes. All right. So if the case isn’t for this period until 9 August, all of your duties were concerned with Clarity?‑‑‑We have specified that it is – yes, Clarity was the product, but there are so many different goals set. Documentation – as AR did mention, that documentation required improvement, and my documentation of proficiency on English was not that professional and, you know, I think I did go to writing skills training course, so it was all a – you know, a development of the skills. So the goals were not only Clarity. It was relating to other skills as well.
Sure, because she’s saying you’re not performing at APS6 level?‑‑‑She did say.
Yes?‑‑‑Yes.
Okay. And the duties that she’s providing you in order to give you the opportunity to demonstrate improvement in your skills, even generic ones, are all connected to the Clarity project or support?‑‑‑Because that was the project that got completed, yes.
Next, while the Applicant agreed that there had been a “re-shuffle or re-structure” in July 2019, which led to him being moved to the engineering services team, and that AM remained his “practice lead”, and further that his position remained one of “senior application support”, he denied that he continued to work on the Clarity application.[20]
[20] T 41 & 42.
The Applicant confirmed that the informal performance improvement plan resulted in his performance being found to be unsatisfactory, which led to him being placed on a formal PIP, which was supervised by AM. It commenced in September 2019. Again he denied that his primary duties were Clarity-related. Notwithstanding his denials, upon being taken through the minutiae of the formal PIP (which commenced at p.584 of the Court Book), again it was plain that his formal duties related to Clarity. He continued to distinguish between his labours in relation to the “Clarity landscape”, which he accepted, but not in relation to Clarity support.[21] In my view, and as confirmed by Counsel for the Respondent, this was a distinction without a difference. There followed this brief exchange:[22]
[21] T 43.
[22] T 43 – 45. Among other similar exchanges, see also T 50.
Deliverable 3:
Complete the options paper outlining the options for the baselining of the Clarity development and test environments.
You agree that ‑ ‑ ‑?‑‑‑So I would say it’s an options paper, that’s more important. Options paper skills are very different from writing an essay.
But it is still ‑ ‑ ‑
HIS HONOUR: And it’s still about – it’s still related to Clarity?‑‑‑Clarity product, yes.
MS BINDON: Deliverable 4 is another options paper relating to the decommissioning of Clarity and the archiving of Clarity data?‑‑‑Yes.
Okay. So that’s concerned with Clarity, isn’t it?‑‑‑Yes.
…
So you would agree with me, wouldn’t you, that your primary duties in this period, at least for the formal performance improvement plan, are concerned with Clarity?‑‑‑Yes, but not with support of clarity. Only one aspect is Clarity support.
Okay. Whether support or otherwise ‑ ‑ ‑
HIS HONOUR: Yes. No, no, but there’s a difference, or for current purposes, as I understand Ms Bindon’s argument, is that whether it’s for production or otherwise, it’s still Clarity related?‑‑‑Yes.
In fact, only two out of seven “deliverables” were not Clarity-related matters that Applicant was required to be working on.[23]
[23] T 45.
The Applicant confirmed that, in fact, he only worked 58 “working days” days between 1st July 2019 and December 2019.[24] The Applicant said that most of his leave during this period was personal leave, supported by a doctor’s medical certificate. He was firm that his leave was not recreational. It necessarily followed that there was not – because it was not possible to complete – much of his performance improvement review during the eight weeks or so while the Applicant was on leave between September and December 2019.
[24] T 46.
The Applicant said that he did not know if his formal PIP was ever completed. He confirmed that his bullying Application to the Fair Work Commission was heard during this period. He confirmed further that he never returned to work under the supervision of AM, saying that he was advised not to do so by his doctor. He attended work for four days in January 2020 when AM was on leave.[25]
[25] T 47.
Having earlier said that he did not know if the formal PIP was ever completed, the Applicant confirmed that it was never re-activated. Moreover, in correspondence attached to AM’s Affidavit, she directed that the duties set out in the Applicant’s PIP were to cease until she returned to work.[26] In short, she suspended the Applicant’s PIP. During the period that AM was on leave, she set out the tasks that the Applicant was to perform, and to whom he was to report. He confirmed that all of the tasks set by her for the Applicant were all Clarity-related.[27]
[26] There was also a period at this time when the Applicant was on annual leave.
[27] T 48.
The apparently intractable or polarised views of the Applicant and AM were neatly captured in the following extract from her Affidavit, and exchanges relating to it:[28]
[28] T 51 – 52.
And then finally, manage work requests and incidents to grant appropriate access [REDACTED]. They were tasks – that was a duty that you performed when you had returned from your long period of leave and you were performing an APS3 role?‑‑‑That’s correct.
Yes. Okay. And that APS3 role you were performing because your APS6 role had already been made redundant?‑‑‑That’s correct.
Excess, I should say. Okay. So do you agree with me that what you’ve listed there at MJ2 is not an accurate reflection of your substantive duties since 1 July 2019 in your substantive role supervised by AM?‑‑‑No, I don’t. It’s more accurate than the deflection given by AM.
So what she states – AM states at paragraph 52 is:
From the time I began supervising the applicant in mid-2018 until he was declared excess, he was employed for the purpose of managing Clarity. Whilst he may have occasionally assisted with other tasks from time to time, he had no other substantial duties during this period of his employment.
That’s correct, isn’t it?‑‑‑No, it’s not at all correct.
There are no other substantial duties that you performed other than Clarity related tasks?‑‑‑That is partially correct. It’s only Clarity project configurations, but not support.
You had four days where you performed work that wasn’t Clarity related, correct?‑‑‑In January 2020, yes.
So you would agree with me, wouldn’t you, that in the space of 18 months, four days – duties done on 4 days does not represent a substantial duty?‑‑‑That is incorrect, because it’s not only January 2020, but, you know, we need to look at from July until December 2019 as well.
Well, July to December 2019, you were performing your informal and formal performance improvement plan?‑‑‑And there were a number of tasks we saw that were not relating to Clarity that was performed during IPIP. Sorry, that’s informal PIP.
HIS HONOUR: Sorry, but it – that’s the purposes of the respondent, am I right, Ms Bindon, that whether it’s exclusive Clarity work, however described, production or project or support, or whether it’s a majority, it really doesn’t make any difference from the respondent’s perspective, correct?
MS BINDON: That’s so. That’s so, your Honour.
HIS HONOUR: Yes.
MS BINDON: Yes. AM’s evidence is that he had no other substantial duties during the time.
HIS HONOUR: Yes. No, I understand.
The Applicant maintained that he was unaware that the Project Management Office of the Respondent had decided that Clarity would no longer be used. Further, he insisted that because he was working on Clarity configurations until June 2019, it was patently false that such a decision, outlined in AM’s Affidavit at pars.36 – 39, could have been made, and certainly not without his knowledge.[29] All of this said, the Applicant acknowledged that, because he was on leave in late 2019 and early 2020, he was not in a position to know about relevant management decisions, such as the running of a pilot of a different system to Clarity.[30]
[29] T 53.
[30] T 54.
The Applicant confirmed that on 20th May 2020 he received the decision of the Fair Work Commission that AM’s conduct did not constitute bullying. Following this decision, the Applicant was asked to be assessed by Dr Ventura regarding his fitness to return to work. Dr Ventura’s report, dated 21st October 2020 assessed the Applicant as being fit to return to work but not to be supervised by AM.[31]
[31] Dr Ventura’s Report was attached to the Affidavit of Mr Simpson. See p.400 of the Court Book.
There was some discussion regarding the regime that was put in place regarding the Applicant’s return to work. I need not canvass this detail.[32] By the time of the Applicant’s return to work, Clarity was no longer being used by the Respondent. To this the Applicant simply said that “He didn’t care.” He said that he did not know if Clarity was still being used.[33]
[32] See T 55 ff.
[33] T 56.
The latter part of the Applicant’s evidence related to the attempts, ultimately unsuccessful, by the Respondent to find alternative employment, within its organisation, for the Applicant. The following exchanges were typical and representative of this discussion:[34]
[34] T 60 – 62.
HIS HONOUR: Can I ask; did the CPSU – was the union regularly in touch with you, or you were regularly in touch with them to provide support, or not?‑‑‑From – I believe after this application lodged with ..... commission, I became a member of the CPSU. So since then CPSU were regularly in contact.
But they weren’t able to, or they didn’t provide you with any legal assistance, correct?‑‑‑Only one hour of free assistance from one of the lawyer.
Right. Nothing else?‑‑‑Nothing more.
Thank you?‑‑‑Thank you, your Honour.
MS BINDON: Now, GM had been undertaking these inquiries in the background with – about vacancies that we’ve just been through. On 11 November, she provided an email to you where she explained what the status of your role was. Do you recall receiving that? It’s on page 409. She says:
I’ve been advised that you’re fit to return for four hours a day. Your previous duties were to support the project management software tool Clarity. For a variety of reasons, the ACIC no longer uses this tool, and therefore the agency no longer requires you to perform these duties. What this means for you is that we will need to be able to identify another role you can perform that fits your skillset. I’m working with the line area on the available funded vacancies within the technology division. In the meantime, I will need you to provide an updated CV for consideration.
And so forth, asks for medical certificate and confirms that you will be put on paid leave until they can come up with a role. And you respond the next day:
As requested, please find attached medical certificate and current CV.
Now, you don’t take any issue at that time with what she has described about your – the status of your role, do you?‑‑‑I did not have any other choice. I mean, I forwarded the medical – my medical condition was not that vigilant, or sharp enough to understand the decisions taken by the ACIC before that.
DW in his affidavit at paragraph 19 on page 449 says that when he came into the role – his role in September 2020, you had been on extended leave since, he thought, the end of October 2019. He says that:
Your duties had not been reassigned to another employee and they were not performed at all and didn’t have any significant business impact because of the ACICs decision to decommission Clarity, as I explain below.
You have no reason to doubt what DW says there, do you?‑‑‑I don’t agree with this statement at all.
Okay. But you just told me that you didn’t know what was happening while you were away. But now you want to say you disagree with that?‑‑‑I disagree with – yes.
Okay. But it’s the case, isn’t it, that you’re not aware of an employee filling your role, performing Clarity related duties while you were on extended leave?‑‑‑But I was not doing Clarity related duties, so I did not – I don’t know what – his perception – DW’s’ perception about duties I was performing I don’t know, because he never had any contact, supervision of me, direct or indirect. So he possibly must have heard from AM. But his perception about anything, I really don’t know.
Okay. But that’s the reality, isn’t it ‑ ‑ ‑?‑‑‑But, I mean, now, when I read this, I think if he assumed that I worked on Clarity from July onwards in Clarity support, then that’s totally wrong assumption that he made.
The reality is, MJ, you don’t want to agree with him, but you don’t have any evidence to the contrary of what he says?‑‑‑No, I do have.
Now, GM continued to engage with you after she informed you about the status of your role. As we’ve already been through the emails, she let you know on 24 November, that was on page 500, that you had been assessed by Mr Lewis for a role and he determined that you were not suitable. So then on 7 December you received the letter from Mr Simpson formally advising you that your role was excess. Do you recall receiving that letter? It’s on page 212?‑‑‑Yes. Yes, I do acknowledge. But, you know, a question before that you ask me about on DW’s’ statement.
Yes?‑‑‑So on page 459 he has provided ..... chart. So – and that is ..... and DW did not have any direct contact with me. So whatever he believed, possibly from other sources, and I don’t agree with him.
…
… Now, Mr Simpson in his letter to you of 7 December explains – or refers to discussions that you’ve already had with GM about the status of your role as being excess?‑‑‑Yes.
And the fact that they hadn’t been able to find a vacant role in the IT division to move you to?‑‑‑Yes, he did mention this.
And he indicates that he’s declaring you excess and offering you a voluntary redundancy?‑‑‑Yes, your Honour.
And you were given a month to accept it?‑‑‑Yes, that’s correct.
Then there was this exchange:[35]
[35] T 63.
You then say GM stated the business area will not provide any further reasons behind the decision to remove Clarity. And you would ask if you – if they would provide the date for when the ACIC ceased to use Clarity, and switch to another tool?‑‑‑Yes, your Honour.
But you don’t dispute, now, that they ceased using Clarity?‑‑‑I mean, did not bother me. I was not part of Clarity support at all. So I don’t dispute ‑ ‑ ‑
You don’t dispute it. Yes. Okay. Now, you did return, then – you didn’t accept the voluntary redundancy, so you were then – when you came back to work, you were supervised by RE, as GM had flagged?‑‑‑Yes, your Honour.
And the role that you were performing for him was, obviously, not the role that you had been performing before you went on extended leave?‑‑‑Yes, your Honour.
It was a APS3 role?‑‑‑Yes, your Honour.
And you were never again – once you came back in December 2020 – under the supervision of AM?‑‑‑Yes, your Honour.
That’s right. Okay. So in your first affidavit, you say at paragraph 16 that despite Ms – Dr Ventura’s report that you’re not to be supervised by her, the ACIC kept her as your supervisor?‑‑‑Yes, your Honour.
Now, that’s just wrong, isn’t it?‑‑‑It is correct. Till the report from Dr Ventura came on 21 October, and AM remained my supervisor till the later date. So after the – getting Dr Ventura’s report, AM was still my supervisor.
But you weren’t working. Correct?‑‑‑Yes, I was not.
So what you really mean is that she was formally on the record as your supervisor, until you were declared excess?‑‑‑Yes. That’s correct.
Yes.
HIS HONOUR: But then also, for a significant – pardon me – for a significant period of time when you weren’t attending the office, effectively, you and AM had no day-to-day contact. Correct?‑‑‑In year 2020, there was hardly any interaction ‑ ‑ ‑
No?‑‑‑There were zero interactions.
The Applicant confirmed that although he was working, for a time, at an APS 3 level, he continued to be paid at an APS 6 level.[36] There was further discussion about attempts by senior staff and management of the Respondent to make inquiries and generally to look out for other employment opportunities for the Applicant. The Applicant confirmed that he had two interviews regarding other positions, but he was unsuccessful in these applications. Otherwise, I do not need to outline these further discussions.
[36] T 65.
By way of general observation, the Applicant was an earnest, thoughtful, intelligent and highly respectful witness. As already noted, quite understandably in terms of his understanding and justifying of his Application, he harboured, indeed almost nurtured, a significant sense of grievance and deep injustice at the way he felt he had been treated by the Respondent in the latter years of his employment with the Commission. To say that circumstances were unfortunate would be an understatement. Nearly everything was seen by him through the jaundiced lens of his strained relationship with AM. This seemed to colour almost everything else. It is also true to say that certain elements or stages in the process of assessment of the Applicant, and his transition out of the organisation, could have been handled somewhat more sensitively. At the same time, the Applicant’s hyper-sensitivity (no disrespect intended) made him prone to react and discern error and fault on the Respondent’s part when such was not actually there, and where, in fact, the Respondent endeavoured to find alternative employment for the Applicant, without success. Moreover, as far as the Court can discern, at no level, and at no time, was there, for example, any “plot” to get rid of the Applicant. More than anything else, from the Respondent’s perspective, all decisions made were essentially and only from a business-case and efficiency perspective. Personalities, and all such things, played no role at all in the decisions that directly affected the Applicant. As is often the case when business and management decisions are made, some individuals effectively become, to speak somewhat colloquially and in no way disrespectfully, “collateral damage” arising from those decisions. As noted in the evidence from one or more of the Respondent’s witnesses, the Applicant was not the only person who became “excess to requirements”.
Evidence on behalf of the Respondent
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.
Next, AM was taken through a number of other Applications, apparently to confirm (or otherwise) which (if any) of them were related to Clarity. For example, he suggested that a program called [REDACTED] was not a [REDACTED]. AM disagreed stating that it was “part of the function of supporting Clarity.”[41]
[41] T 85. There were similar or related discussions between the Applicant and the witness at T 86 – 89.
Much of the Applicant’s focus in his cross examination of AM in particular, but other witnesses also, was to endeavour to highlight a more diverse range of responsibilities he undertook as opposed to him being primarily responsible for the Clarity platform or application. I noted this feature of his labours on more than one occasion and pointed out the difficulties he faced in putting often-times very general questions to a witness across a range of areas.[42]
[42] See, for example, T 89.
As well, sometimes the basis for his question as factually awry. For example, on one occasion he asked AM about some matters set out in an email she sent to him, dated 19th December 2019 (Court Book Vol.1 p.218), which set out various work that had been allocated to him for completion. He put to AM that none of the allocated tasks were associated with Clarity. She agreed with him but pointed out that this was because Clarity was not in use at that time.[43]
[43] T 92.
Further still, not infrequently, the Applicant took AM to a document that provided an assessment of his performance. In one instance, the Applicant’s supervisor was RE. Again, it was necessary to point out to the Applicant that there was no utility (among other things) in asking AM, who was otherwise unfamiliar with such document (Court Book Vol.2 p.777), about whether she agreed with the assessment made by RE.[44] Other, similar difficulties are exemplified in the following exchange:[45]
[44] T 93.
[45] T 94.
Could you please go to page 136 of volume 1, please. As you can see, it was a document ..... by Vendor for Clarity upgrade and on page 139, Vendor charged for phase 1. They stated at the last line of page 139:
The service delivery budget for phase 1 upgrade is $160,000 and .....
And the task was the upgrade of Clarity. Does it indicate that Vendor did not consider the upgrade of Clarity as a support work? Those support contract was in place but you not take – consider this as a project work?
HIS HONOUR: Sorry. How can this witness comment on what Vendor did or did not understand their work to be, etcetera?
…
HIS HONOUR: No, no. I understand. I understand. But my question again – I know I’m being very tedious, but it’s the nature of the job description. Let me ask you again. I’m sorry.
Have you seen this document before?‑‑‑No.
And the first time that you would have seen it was in the course of these proceedings?‑‑‑Yes.
Right.
MJ: Would you have ..... been support work, Vendor would not have charged this money that we see now.
HIS HONOUR: Sorry. How can this witness answer that question?
MJ: I mean, because she has got an experience of more than 20 years in support and delivery at the very beginning of her affidavit, she has stated.
HIS HONOUR: No. I understand that. But, again, given the issues that I’ve got to decide, you’re asking this witness to comment, as I understand it, very generally, based on her experience, what Vendor would or would not have done; correct?
MJ: Yes, your Honour.
HIS HONOUR: Are you able to comment at all or not, AM?‑‑‑No, your Honour.
Thank you.
There were various discussions between the Applicant and AM regarding their interactions over a period of time, including notably after the Applicant undertook proceedings involving Comcare, which were conducted before the AAT. Of some moment is that AM denied that, from her perspective at least, there was any strained relationship between the Applicant and her from 20th September 2018.[46]
[46] See T 102. The terms of the agreement between the parties before the AAT are at Court Book Vol.1, pp.192-193.
Another issue arose in the questioning of AM in relation to the proceeding before the Fair Work Commission. The Applicant’s questions were often out of context and on a point that was not formally in issue before the Court.[47]
[47] See, for example, T 104 where AM was asked questions about the Applicant’s description of conduct before the Fair Work Commission, as opposed to the Commission’s description and findings. Ultimately, little turned on this discussion.
AM confirmed that none of the issues that arose under the Applicant’s Performance Improvement Plan (PIP), informal and formal, were discussed with her in her capacity as a Union Delegate. Such matters she discussed with him only as his supervisor.[48] She also confirmed that the PIP never actually finished because the Applicant went on extended sick leave, and ultimately he was “made redundant.”[49]
[48] T 109.
[49] T 109 – 110.
There was an extended discussion, firstly with Counsel for the Respondent, then more particularly with the Applicant, regarding the provenance of the unsuccessful bullying proceeding brought by the Applicant. In this regard it is sufficient to note the following from that discussion (emphasis added):[50]
[50] T 112 – 113.
MS BINDON: Your Honour, can I just indicate – if MJ is going to take AM through this series of incidents that form the subject of the bullying complaint ‑ ‑ ‑
HIS HONOUR: Yes.
MS BINDON: ‑ ‑ ‑ I object on the basis of relevance.
HIS HONOUR: And also on the basis of the findings in the Fair Work Commission.
MS BINDON: Well, it’s not – it’s conceded by the respondent that an application was made ‑ ‑ ‑
HIS HONOUR: Yes.
MS BINDON: ‑ ‑ ‑ to the Fair Work Commission and that that is an exercise of a workplace right, so the only relevance of the bullying proceedings is the exercise of a workplace right, and it has been conceded.
HIS HONOUR: But in terms of any of the findings made in the Fair Work Commission, am I going to be asked, either directly by the respondent or, to your knowledge, by the applicant, to have specific regard to specific findings?
MS BINDON: Your Honour, the only point the respondent makes with respect to the findings of the Fair Work Commission are that the bullying allegation was found not to be substantiated.
HIS HONOUR: Yes.
MS BINDON: And that makes even more implausible the suggestion that that is the – that the complaint ‑ ‑ ‑
HIS HONOUR: Was the reason.
MS BINDON: ‑ ‑ ‑ was the reason why his employment was terminated, but that’s as far as we put it, your Honour.
HIS HONOUR: I see. No. Thank you. So, MJ ‑ ‑ ‑
MJ: Yes, your Honour. In response to the objection, there are two workplace rights MJ executed: one internally, to get the previous year’s rating reviewed.
HIS HONOUR: Yes.
MJ: That came in favour. But then the actions were followed – their reactions following that – MJ’s execution of the workplace right internally. Then MJ went to the Fair Work Commission. He went to the external board and exercised the workplace right. And ‑ ‑ ‑
HIS HONOUR: But as Ms Bindon says, that’s acknowledged by the respondent.
MJ: Yes, your Honour. So the ..... actions taken by the employer for the applicant going to Fair Work Commission or for exercising the workplace right, basically – they’re detrimental, and it was in breach of section 540 of the Fair Work Act 2009, your Honour.
HIS HONOUR: But what are the questions you now want to ask this witness? What do they go to – bearing in mind – again, could I just flag – my understanding is that AM was not then and is not now a relevant decision-maker for the purposes of your employment.
MJ: Your Honour, these are relating to the cause of the action that they have taken about MJ – was his duties fair supporting Clarity – which is, in fact, not the cause, and that is what I would like to establish.
HIS HONOUR: But they’re more matters of submissions. I mean, you’ve already taken AM through a whole range of documents, some of which she has seen previously, a range of which she had not seen previously, whether it was the purchase of this system or that system, or this happened, or this didn’t happen…
Then followed questions again relating to the Applicant’s PIP and the general role of Clarity within the Respondent, thus:[51]
MJ: So sticking to the same PIP in my – being mindful of the court’s time, I would not go through each and every pages of the informal PIP, but in the informal PIP basically, there were six goals set that included modification of the user experience is launching – the soft-launching ..... of the ..... environments, decommissioning of the ACIC ..... sign-on, documenting the landscape of the complete infrastructure and one of the goal was production support. So after six goals, there was one goal set for the production support to begin by MJ. So does it indicate that Clarity was alive during that time between 7 June and 9 July? Because you did mention that production support was required?‑‑‑The system was still operational. There were very few users, if anybody, using it, but it was included in MJ’s plan in case someone did actually need support, because the PMO – because part of the plan was actually in upgrading the system and so if the PMO needed support in looking at the system while that was happening, then MJ was required to provide production support to the system.
[51] T 116. In the same place, AM confirmed that in approximately March 2019, AC, who was director of the Project management office of the Respondent “instructed everybody from using [Clarity], apart from his team.
AM confirmed that at this time four or five “specialists” were made redundant; none of these specialists were from her team. Accordingly, she did not inform the Applicant of these redundancies. She also confirmed that she was not part of the “re-structure team.”[52]
[52] T 117.
In answer to some questions in re-examination, she said that, in her view, the Applicant’s tasks were (a) to lead the upgrade of Clarity, and (b) pretty much 100 per cent of his time was intended to be focussed on this upgrade.[53]
[53] T 121. See also further related discussion at T 123.
Thus ended AM’s oral evidence. She was a good, competent and straight-forward witness. She was fair in her responses and showed not the slightest sign of opposition to, and certainly no mala fides towards, the Applicant notwithstanding the multiple contentions made by the Applicant about or against her, including the bullying litigation in the Fair Work Commission, and now the current proceeding. I have no reason to doubt any of her evidence.
Evidence of Mr Simpson
Mr T Simpson: Mr Simpson is the national manager of Workforce Capability and Assurance at the Respondent, the Australian Criminal Intelligence Commission.[54] Again for context, it is helpful to outline Mr Simpson’s Affidavit evidence before considering his oral evidence.
[54] Mr Simpson’s Affidavit, is at Court Book Vol.2, commencing at p.304.
At the outset (par.8), Mr Simpson confirmed that his Affidavit was primarily a response to the issues and documents set out in the Applicant’s Affidavits.
Pars.9 – 15 outlined Mr Simpson’s direct involvement with the Applicant, which arose primarily because part of his professional responsibilities included “IT security”, which in turn covered (par.9) “the security of the IT system as well as access and risk issues.” Mr Simpson confirmed that he was aware of but not directly involved in the Applicant’s bullying claim in the Fair Work Commission, but came to have more direct knowledge of the Applicant as a result of his increasing leave-taking with Mr Simpson having responsibility for the Work Health and Safety Team as well as IT issues. At par.15, Mr Simpson confirmed that his most direct and main involvement with the Applicant was in making the decision in December 2020 to declare him to be “excess.”
Pars.16 – 21 canvass Mr Simpson’s knowledge of the use of Clarity and, following a business case put forward by the Project Management Office, the decision by the PMO to purchase a new project management system (called “ServiceNow”). Mr Simpson confirmed (par.21) that, as far as he knows, there are now no active uses of the Clarity product at the Respondent Commission.
Pars.22 – 25 outlined the process by which employees are determined to be “excess” at the Respondent. Part of Mr Simpson’s responsibilities involved “managing redundancies” of employees who have been declared excess. Par.25 set out relevant parts from Part H of the ACIC Enterprise Agreement (“EA”); (Annexure TS-2 to this Affidavit). This Part set out the prescribed processes in the event an employee is determined to be excess. The six steps involved as set out in the EA were as follows:[55]
(a)Identification of the employee as potentially excess
(b)Consideration of whether redeployment is possible
(c)Invitation to the potentially excess employee to take voluntary redundancy and/or declaration that the employee is excess
(d)For employees who elect to take voluntary redundancy, termination of their employment and payment of the redundancy benefit
(e)For employees who do not elect to take, or were not offered, voluntary redundancy, continuation of their employment for the retention period, during which time the ACIC will continue to take reasonable steps to identify alternative employment
(f)If alternative employment does not occur by the end of the retention period (or nay earlier date by agreement), termination of their employment
[55] See Court Book Volume 2, p.310.
Pars.26 – 42 set out in detail the processes and the decision that led to the Applicant being declared excess. The first step noted by Mr Simpson was an organisational restructure of the Technology Division in mid-2019. MC, the Manager, Workplace Conditions at the Respondent, listed a number of employees (24 in number) likely to be impacted by this restructure resulting in them being declared excess. The Applicant was on this list, which is Annexure TS-3 to this Affidavit (Court Book Vol.2, pp.396 – 398).
Mr Simpson confirmed that MC arranged an independent medical assessment of the Applicant in approximately August 2020 with Dr Ventura. This assessment was, in part, the result of the Applicant’s extended, ongoing and extensive leave due to psychological stress and interpersonal issues. The Report from Dr Ventura is Annexure TS-4 to this Affidavit.
At par.32, Mr Simpson said that his recollection was that in perhaps early November 2020 he first became aware of the possibility that the Applicant’s position might become excess to requirements. He was notified of this possibility by MC. This was in circumstances where the Clarity program had been decommissioned “and therefore the Applicant’s duties were no longer being performed by anyone.”
Par.33 noted that GM, a member of the Workplace Team, notified the Applicant on 11th November 2020 of the decommissioning of Clarity and that he was considered to be excess. In the same correspondence, set out at Annexure TS-5, confirmed that the Workplace Team was making inquiries to identify any potential vacancies within the Technology Division.
Mr Simpson confirmed (par.34) that he was advised in late November 2020 that efforts to find alternative positions for the Applicant had been unsuccessful. On 7th December 2020, Mr Simpson advised the Applicant in writing that his position had been declared excess; Mr Simpson offered the Applicant a voluntary redundancy. This correspondence is at Annexure TS-6. The matters considered by Mr Simpson in coming to this decision regarding the Applicant were set out in par.35 (a) and (b) of his Affidavit, which were in the following terms:
(a)Advice from the relevant business area in which the Applicant was employed, the Technology Division, as to its business needs. In particular, based on conversations with DW (Acting Senior Advisor Business Systems Delivery), Sam Lewis (Acting Chief technology Officer), and Stewart Sibree (Acting Executive Director Technology), I understood that the Applicant had a unique skill set that was quite niche to Clarity, and he could not easily transfer to any position within the Technology Division. I understand that the Applicant may have had some transferable skills, but they did not align with any vacancies within the ACIC at the time. This matter was discussed in detail at a meeting on 17 November 2020. This was a regular meeting that occurred between myself, DW, Sam Lewis and Stewart Sibree to discuss potential issues and collaboration between my branch and Technology division. The meeting was titled HR monthly update.
(b)Advice from MC and GM that they had attempted to identify a new position for the Applicant in consultation with the Technology Division, and there were no suitable options for redeployment.
Par.36 of Mr Simpson’s Affidavit referred to correspondence with SN of CPM reviews regarding the decision-making process he had undertaken. This correspondence is at TS-7.
Mr Simpson confirmed (par.37) that he did not consult with AM in coming to the decision to declare the Applicant to be excess.
Pars.38 and 39 outlined further correspondence with the Applicant, for example, regarding what would unfold if he declined the voluntary redundancy offer, which the Applicant ultimately did by notification to Mr Simpson dated 6th January 2021.
In pars.40 and 41, Mr Simpson set out what transpired subsequent to the events just narrated, included the further attempts to find alternative employment for the Applicant via the labours of GM and DW. Ultimately, nothing came of some possible positions.
Par.42 confirmed that in September 2021, the Applicant requested to end his employment with the Respondent, advising that he had found employment in the private sector. Accordingly, Mr Simpson terminated the Applicant’s employment on 10th September 2021. Relevant correspondence regarding the termination is Annexure TS-8.
Pars.43-44 of Mr Simpson’s Affidavit set out briefly two incidents that resulted in “warning letters” to the Applicant. I need not canvass any detail in relation to these quite minor incidents.
Finally, pars.46-49 set out correspondence with the Applicant, while employed by the Respondent, in relation to his agitation for “more flexibility in his work arrangements.” Correspondence at Annexure TS-10 and 11 set out relevant details but which otherwise do not need to be set out here.
Mr Simpson’s relatively brief oral evidence was as follows.
At the outset of his evidence, Mr Simpson was asked about the circumstances that led to the Applicant being placed on a list of employees likely to be affected by the restructure in May 2019. The exchange was as follows:[56]
MJ: So my question, Mr Simpson, is do you have the reason why MJ’s name appeared on the list, other than the one that, you know, a month ago he had lodged an application with the Fair Work Commission?‑‑‑I am. Yes, so that – that predates my time in this position. However, I am aware of the background to that. So that was a – a broader restructure of the technology division that was occurring in early-2019, when the new senior executive came into those positions and those roles, and that list was about staff that were potentially going to be impacted by that structural change, and your name, yes, was on that list, with a number of other people, and so that list predates any kind of other action.
…
HIS HONOUR: Sorry. Maybe the question needs to be rephrased, because, in the same way with the previous witness, witnesses usually can only give evidence based upon their own – pardon me – their own knowledge, and that if Mr Simpson was not the person who prepared the list, how can he give any evidence on behalf, effectively, of someone else?
MJ: I understand, your Honour.
HIS HONOUR: So I mean, he has already said that he – he knows about the list. My understanding is that it was simply a list of people potentially impacted by the restructure. But am I right in assuming that no decisions have been made about any of them at that stage when the list was prepared?‑‑‑At that stage, that is correct. Yes.
[56] T 126. Mr Simpson confirmed that he was not responsible for the compilation of the list of possible employees affected by the restructure. T 127.
Much of the early part of Mr Simpson’s cross examination related to whether or not the Applicant was under the supervision of AM. On multiple occasions the Applicant had to be corrected about (a) when he was on leave and therefore not under any day to day supervision, and (b) ultimately upon his return to work, and in accordance with the recommendations of Dr Ventura, the Applicant reported to, for example, RE. Indeed, after January 2020, the Applicant never reported again to AM.[57]
[57] Generally, see T 128 – 129.
Another issue that arose somewhat regularly was the Applicant pressing Mr Simpson to seek comment on various medical reports which ultimately said that he was fit for work. The disjuncture arose because it is one thing for an employee to be declared medically fit for work, but it is quite another, from a business perspective, that the same employee is declared excess to the requirements of the employer, as was the case here. The following brief exchanges highlight the regular misunderstanding by the Applicant and the overlap in his mind of these separate matters:[58]
[58] T 131 & 132. See also T 147 for another reference, in a slightly different context, to the Report of Dr Ventura.
MJ: It was a reasonable workplace. I just meant that it was provided or recommended by multiple health professionals. A general practitioner in April 2019 – ’19, sorry. In April 2019, a general practitioner recommended that it is imperative for the ACIC to, you know, look after his requirements. No actions were taken. Followed by Dr Simpson’s – Dr Watson’s certificate in late 2019, early 2020, and followed by Dr Ventura’s report in October 2020. So the ‑ ‑ ‑
HIS HONOUR: What flows from the involvement of both the GP, the psychiatrist, what flows from that?
MJ: Only one thing, that they all certified MJ to be medically fit. They did not declare medically unfit, and they requested for the reasonable workplace adjustment and that was not carried out by the ACIC.
HIS HONOUR: To the degree that it’s relevant, how can Mr Simpson’s evidence assist or comment on any of those things?
…
Right. Okay. And on 7 December, in the first four days of assuming this role you took the decision to declare the applicant redundant; is that correct?‑‑‑Sorry, the first four days of assuming the role of national manager workforce capability and assurance?
Yes?‑‑‑That could have been in that timeframe, however, I was in the role since November 2019. It changed names and the scope of the role expanded which is why the name changed. So I was actually in that head of HR role since November 2019.
There was a transition phase, but you – officially you – okay. That’s fine. Let’s go to the next one. Your Honour, the questions will be now leading questions, so your answer is yes, no should suffice to being mindful of the court’s time, so. In the redundancy of year later on page 412, you stated:
Clarity will no longer be used by the ACIC. As your role was to support his tool and your duties are no longer required to be performed.
Let’s go to page 412.
HIS HONOUR: So what’s your question to Mr Simpson?
MJ: The question is that you stated that MJ’s duties were to support Clarity and Clarity is not being used at the ACIC, hence your duties are not required to be performed; is that correct?‑‑‑Yes.
There was a somewhat prolonged discussion as to when and why Clarity was decommissioned. I do not need to outline the details of it.[59] Next was a discussion regarding the consultation and decision-making processes undertaken by Mr Simpson. For example, after referring to DW and Mr Lewis, with those two persons having spoken with RJ, Mr Simpson said:[60]
Right, and in the discussions that you had with these three people named in your affidavit, did you ask them to do any other investigations or check in with any one else?‑‑‑I – I did. So – so they – well, more so just to canvass their areas and understand the broader implications. So one is about confirmation of the Clarity no longer being used, and two is about the broader employment of MJ. So both specialist roles within that, or whether his position was still available, as that Clarity support role. But more broadly, because I had to consider whether or not he would be potentially excess, what other roles, both at level and lower, did they have that he could potentially undertake on his return to work.
And in these discussions with these three people, the other list of people potentially affected by the restructure, did these instructions also cover other people, not just MJ?‑‑‑So – so that – that is a previous thing. So those – those people were in a broader restructure back in 2019.
Yes?‑‑‑By the time we were having this conversation about MJ, that – that had all played out. So either those people were already redeployed, or some of them that had been declared excess had either finished out their 13-month period or apply for new jobs and moved to other organisations. So there was no conversation about them, because that was a completely separate piece of ‑ ‑ ‑
I see?‑‑‑ ‑ ‑ ‑ work.
Is my recollection correct, and I – and I appreciate you may not know, that out of that previous list, and I am speaking about it in those terms, that only two people were able to be re-employed? Does that ring any bells or not?‑‑‑No, I think it was a lot more than that. When I look at the names, and I had a – a look earlier today again, there is more than two names that are still within the agency from that list.
I see?‑‑‑Well – well, more than two. I think it’s more on the other end of the spectrum, where probably only two to five were actually declared excess out of that big long list, and didn’t have a role.
[59] See T 133 – 134 and again at T 135 – 138.
[60] T 139 – 140.
Mr Simpson confirmed that the Applicant had some “transferrable skills”.[61] After much other more discursive matters, Mr Simpson confirmed to the Applicant that he was not directly involved in the PIP – either formal or informal.[62] He confirmed further that he was involved in the Fair Work Commission “bullying Application, however this was only in seeking, on behalf of the Respondent, a suppression Order. Otherwise he was not involved in that matter.[63]
[61] T 140.
[62] T 144.
[63] T 145.
Mr Simpson further confirmed, as noted in his Affidavit, that the recommendations regarding the Applicant (including ultimately the declaration that he was “excess”) all came from the Team Leader of Workplace Relations, GM, supported by her Manager, MC.
Regarding the attempts to re-deploy the Applicant, Mr Simpson said:[64]
And during the retention period, MJ proactively applied for a number of positions as well as the recruitment team of the ACIC also tried hard to find a suitable position for MJ, but none were successful.’
HIS HONOUR: Sorry, you’re aware of this?‑‑‑I am. Yes, they did try hard to find him a position, and every position that was going to be advertised in tech division that had kind of similar roles and functions, MJ had to be assessed against first by the business area.
But you were not involved in any of those processes?‑‑‑Not – not at the technical level. No. No, I’m not involved in the process at all. I – I do know and did see evidence that it had occurred.
[64] T 149.
Finally, the Applicant asked Mr Simpson about his consultation with his supervisors. To this, directly and somewhat matter-of-factly (which is not a criticism) fairly and cogently, as well as somewhat matter-of-factly, Mr Simpson pointed out that such consultation was irrelevant to matters such as someone being declared excess. He said:[65]
MJ: Sure. Okay. Mr Simpson, you did mention that you did not contact any of the direct supervisor of MJ, with AM or any other that you did not contact. Before making this decision, did you check any of the records held by the HR team, especially the PDS, the Performance Development System? This would have description of the ..... did you check any of the past records of MJ?‑‑‑No.
You did not?‑‑‑Not – not independently, but I have people that work for me that – that – if needed to, but that – the performance process is not in consideration as far as whether you are declared excess or not ‑ ‑ ‑
Sure. May ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ anyway.
[65] T 151.
Mr Simpson was a calm, clear and responsive witness. I have no reason to doubt his evidence and every reason, supported by the documentation attached to his Affidavit, to accept it.
He was often faced with a range of questions that were not formally within his purview, as well as a former employee of the Respondent who was and is, understandably, aggrieved at losing his employment and, in his view, what he perceives to have been his less than satisfactory treatment by the Respondent. Nonetheless, as with MJ, there was not the slightest hint of discord or animus towards the Applicant. Likewise, both the “paper trail” of his decision-making regarding the Applicant, and more briefly in the witness box, made clear that the decision to declare the Applicant excess to the requirements of the Respondent was simply and solely based upon the “business case” put forward initially by the Project Management Office, and in the light of the Respondent’s decision not to retain the IT platform Clarity, as well as having regard to the Applicant’s responsibilities, notably in relation to Clarity.
It was also patently clear from the evidence of Mr Simpson that the Applicant’s Application to the Fair Work Commission (which was unsuccessful) regarding a bullying claim involving AM played no part at all in the decision to declare the Applicant excess. Likewise, the Applicant’s contentions that (a) “tensions” with AM were part of (or behind) the Respondent’s decision to declare him excess was not established and firmly rebutted; (b) the business case to decommission the Clarity platform was erroneous if not a sham, was itself erroneous, and in consequence (c) the business case regarding Clarity, and in turn the Applicant’s involvement with that platform or product, were plainly the primary factor(s) in declaring the Applicant excess.
It follows from Mr Simpson’s evidence, and what has just been stated, that the procedures prescribed in Part H of the EA were relevantly and properly followed by the Respondent. It follows further that, as a matter of fact, as well as in the light of legal principle discussed below, there was, and has been, no relevant breach or contravention (including the general protection claim by the Applicant under s.340(1)(a)(ii) FW Act, and under s.50 FW Act for alleged breach of certain clauses in Part H of the EA) of any other part of the FW Act by the Respondent in any of its dealings with the Applicant.
The Respondent’s final witness was DW, Principal Specialist Intelligence and Information Systems with the Respondent.
Evidence of DW
An overview of DW’s’ Affidavit, filed 5th August 2022, is as follows.
As with Mr Simpson, DW’s’ Affidavit was responsive to the claims made by the Applicant.
Pars.9 – 13 set out summarily the two branches of the Technology Division of the Respondent, which he joined in 2017. The two divisions, broadly described, were responsible for ICT infrastructure and the IT Helpdesk; the second branch was responsible for managing and implementing new ICT systems and for maintaining them across the various sections of the Respondent. It was in this second branch (known as “BSD” – Business Systems Delivery) that DW was the Acting Senior Adviser at all relevant times. It was also the section in which the Applicant worked.[66]
[66] The organisational chart of BSD Engineering Services Technology Division of the Respondent is Annexure DW-1 to DW’s’ Affidavit.
Pars.14 – 19 outline DW’s’ engagement with the Applicant and his responsibilities with the Respondent. For example, at par.17, DW confirmed that “from the time I held the Acting Senior Advisor, BSD role, the Applicant’s position was to support Clarity PPM. … Clarity is the name of a software product which was used at the ACIC by the Project Management Office (“PMO”) as a project management tool.” DW confirmed that he was aware from his Acting Senior Advisor position within BSD that the Applicant had been and was on extended leave from approximately October 2019.
At par.19, DW deposed as follows:
I recall that when I came into the Acting Senior Advisor role in September 2020 when the Applicant had been on extended leave since the end of October 2019, his duties had not been reassigned to another employee. They were not performed at all. This did not have any significant business impact because of the ACIC’s decision to decommission Clarity …
Pars.20 – 30 outline in some detail the process by which (a) [REDACTED] determined the need for a more user-friendly project management platform and how the business case for change to a new and improved system was made. This case was commenced, he said (par.26), in November 2019 and presented to the [REDACTED] for approval on 18th February 2020. A copy of the business case was Annexure DW-2 to this Affidavit. The business case was approved by the [REDACTED].
DW confirmed that Clarity is no longer used at the Respondent. This has been the case, he said, since late 2019.
Essentially, there are three areas of legal principle that the Court must address:
(a)principles regarding “redundancy”;
(b)principles of interpretation that apply to enterprise agreements, for the purpose, then, of considering the proper construction of, and the actions of the Respondent arising under, the EA that was relevantly in place in this matter; and
(c)the principles that apply to the consideration of “reasons” for the termination of employment and which may give rise to a contravention under s.340 of the FW Act.
I will set out principles regarding (a) and (b) together.
First, sitting as the Full Federal Court, Rares J noted the following in Jermiin v Commonwealth Scientific and Industrial Research Organisation, at [38], regarding redundancies generally:[71]
Redundancy cases can be particularly distressing for an employee who is in a situation where the relationship of employment is one of an ongoing and continuing nature. This arises in circumstances where an employer no longer requires the job that the employee performs to be done by anyone. In Concut Pty Ltd v Worrell (2000) 176 ALR 693 at 697– 698 [17], Gleeson CJ, Gaudron and Gummow JJ noted that employment relationships are not usually purely contractual. They said statutes could impose obligations to observe industrial awards or agreements and, in some instances, relevant terms of the employment relationship can be found in an industrial award that binds the parties at a particular time. They also observed that employment relationships are not static in their terms, but evolve over time …
[71] Jermiin v Commonwealth Scientific and Industrial Research Organisation [2021] FCA 1043.
Secondly, in Dibb v Federal Commissioner of Taxation (“Dibb”), the Full Federal Court (Spender, Dowsett and Allsop JJ), set out at some length, the basic principles to determine whether a redundancy was “genuine”.[72] The decision in Dibb was in the context of a dispute regarding the characterisation of a termination payment, for the purposes of s.27A of the Income Tax Assessment Act 1936 (Cth) (“the ITA”), following the termination of employment and whether it was a “bona fide redundancy.” The Full Court’s main point of reference regarding what was and what was not a “genuine redundancy” was the earlier Full Federal Court decision in Short v FW Hercus Pty Ltd (Keely, Burchett and Drummond JJ).[73] It was not disputed in Dibb, at [33], that there was no definition of “redundancy” in the ITA. At [33] – [37] and [41] – [42] in Dibb, the Full Court said (emphasis added):
[72] Dibb v Federal Commissioner of Taxation (2004) 136 FCR 388.
[73] Short v FW Hercus Pty Ltd (1993) 40 FCR 511.
[33] … there is no definition of the term "redundancy" [in the ITA Act]. The word is often used in the context of industrial relations to describe benefits payable in certain circumstances pursuant to industrial legislation and/or awards. However we do not understand Mr Dibb to claim any such entitlement. Paragraph 42 of TR 94/12 (cited above) refers to the decision of this Court in Short v F W Hercus Pty Ltd (1993) 40 FCR 511. That decision relied heavily upon an earlier South Australian decision, R v Industrial Commission (SA); Ex parte Adelaide Milk Supply Co-operative Ltd (1977) 16 SASR 6. In Short, at 520-521, Burchett J said:
‘The starting point may be taken to be the decision of the Full Court of the Supreme Court of South Australia in R v Industrial Commission (SA); Ex parte Adelaide Milk Supply Co-operative Ltd (1977) 16 SASR 6, although it would certainly be possible to go back much further. The Supreme Court of South Australia was concerned with the question of the jurisdiction of the State’s Industrial Commission to make provision by award for redundancy. There was no issue about the substance of the proposed provision, but members of the court made clear their understanding of what was involved. It is convenient to look first at the judgment of Mitchell J, who cited (at 34) the following statement from a decision in the previous year of the New South Wales Industrial Commission:
"It can fairly be said that in industrial circles the term redundancy payment has come to mean compensation for losses of various kinds suffered by employees who have given substantial services to an employer and whose services are terminated because, for one reason or another, the employer no longer needs them."
Mitchell J accepted this statement. Bright J, who dissented on the jurisdictional issue, said (at 26-27):
"The word ‘redundant’ does not occur in the Act. In its industrial sense it is not defined in the Oxford Dictionary. The application which I have already set out attempts the definition for the purpose of the proposed award. A consideration of the cases leads me to think that the question of the redundancy of any employee is linked to the question of the continued utility of the job which he is performing. In other words it does not relate to the personal competence of the employee in the job which he is performing. If I am right in this, then in its widest form the concept of redundancy connotes that an employee becomes redundant whenever (and for whatever reason) his employer no longer desires to have performed the job which that employee was doing. A wide variety of instances are contained in the definition clause in the application but they all seem to fit into this connotation, even the reference to retrenchment of employees for any reason whatsoever."
The definition clause to which Bright J referred embraced (as appears at 16) dismissal by reason of diminishment of the requirements of a business for work of particular kind through:
"technological automation, mechanisation change, reorganisation, rationalisation or centralisation in the processing industry; fall in demand of products for whatever reason; or retrenchment of employees or an employee for any reason whatsoever."
It was in connection with this statement of Bright J and the passage quoted by Mitchell J (to each of which he referred at 8-9) that Bray CJ made (at 8) a statement that has since become in part embedded in a number of awards, including the subject award:
"I should begin by saying that I agree with Bright J that the concept of redundancy in the context we are discussing seems to be simply this: that a job becomes redundant when the employer no longer desires to have it performed by anyone. A dismissal for redundancy seems to be dismissal, not on account of any personal act or default of the employee dismissed or any consideration peculiar to him, but because the employer no longer wishes the job the employee has been doing to be done by anyone."
Here the expression containing the words "no longer wishes" was first composed. In its original setting, it is plain that it was not meant to convey the limitation for which the respondent contends. On the contrary, it was meant to capture the full breadth of the concept elaborated by Bright J and referred to in the passage quoted by Mitchell J.’
[34] We note also the observations of Ryan J in Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308 as follows:
‘However, it is within the employer’s prerogative to rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. It is inappropriate now to attempt an exhaustive description of the methods by which a reorganization of that kind may be achieved. One illustration of it occurs where the duties of a single, full-time, employee are redistributed to several part-time employees. What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant in the sense in which the word was used in the Adelaide Milk Co-operative case.’
[35] Similarly in Quality Bakers of Australia Ltd v Goulding (1995) 60 IR 327, Beazley J said at 332-333:
‘There was no dispute that "the operational requirements" of a business may include redundancy. A redundancy will arise where an employer has labour in excess of the requirements of the business; where the employer no longer wishes to have a particular job performed; or where the employer wishes to amalgamate jobs.... As was said in Bunnetts’ case (Bunnett v Henderson's Federal Spring Works Pty Ltd) (1989) AILR 356:
"Organisational restructuring may result in a position being abolished and the functions or some of them being given to another or split amongst others."
[36] The Macquarie Dictionary (3rd Ed) now relevantly defines "redundant" as meaning:
‘... denoting or relating to an employee who is or becomes superfluous to the needs of the employer ... .’
[37] In the Oxford English Dictionary (2nd Ed) the word is defined relevantly as:
‘The condition of having more staff in an organization than is necessary. Hence, the state or fact of losing a job because there is no further work to be done; a case of unemployment due to reorganization, mechanization, loss of orders, etc.’
…
[41] In Jones, Ryan J observed that a job involves ‘a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organisation, to a particular employee.’ We accept that view. Ryan J then observed that where such duties are re-assigned, the question is whether any function or duty remains to be performed by the employee. We do not understand his Honour to have meant that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant. His Honour’s meaning appears clearly from the following paragraphs at 308-9:
‘In this case, the respondent led evidence of the major changes which were made to the Department between September 1993 and late 1994. According to Mr Downie, the applicant’s former position as Director, Mining Inspectorate, was abolished and the duties attached to it were combined with those of the previous Director, Environmental Management. In addition to a number of other, newly-created functions, those pre-existing duties were to be performed by a newly created General Manager, Mineral Operations. Thus, it is clear that although some of the tasks previously assigned to Mr Jones still had to be carried out, the employer’s rearrangement of its operational structure had the consequence that they be combined with other functions and performed by the holder of a new, more generally-oriented position.
On this basis, it appears that Mr Jones’ former position was rendered "generally redundant". When it became apparent that he could not be redeployed, Mr Jones was found to be surplus to the respondent’s personnel needs. This amounted to a reason for dismissal which was clearly based on his employer’s operational requirements.’
[42] As Beazley J observed in Quality Bakers:
‘A redundancy will arise where an employer has labour in excess of the requirements of the business; where the employer no longer wishes to have a particular job performed; or where the employer wishes to amalgamate jobs ...’
Regarding the interpretation of enterprise agreements generally, it is sufficient to note the following. Indeed, there is a significant body of jurisprudence regarding the construction and interpretation of industrial instruments, in which term must be included enterprise agreements of the kind currently under consideration.[74] For immediate purposes, it is sufficient to note the following general principles.
[74] In this regard, see the important discussion by Jessup J in NTEU v La Trobe University at [30] regarding various legal distinctions between “awards and orders, on the one hand, and enterprise agreements, on the other.” In my view, noting that his Honour was in dissent in the result, nothing set out in the paragraph cited relates to the issues currently before this Court. National Tertiary Education Union v La Trobe University (2015) 254 IR 238.
First, in Amcor Limited v Construction, Forestry, Mining and Energy Union (“Amcor”), the High Court (Gleeson CJ and McHugh J) said, at [2]:[75]
The resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose, and the nature of the particular organisation.
[75] Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 (“Amcor v CFMEU”). See also the comments by Kirby J to similar effect, at [77].
Secondly, in Amcor at [96], Kirby J referred to a long-cited passage from the Federal Court decision in Kucks v CSR Ltd (“Kucks”) (Madgwick J):[76]
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
[76] Kucks v CSR Ltd (1996) 66 IR 182 at 184. The same passage was also cited by Callinan J in Amcor v CFMEU, at [129]. See also the summary of principle in Australian Manufacturing Workers’ Union v Berri Pty Ltd (2017) 268 IR 285 at [38], [65], [83] and [113] – [114]. Other regularly cited authorities include: Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd (2014) 245 IR 394; Transport Workers Union of Australia v Linfox Australia Pty Ltd (2014) 318 ALR 54; and City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426.
I note that in Transport Workers’ Union v Coles Supermarkets Australia Pty Ltd (“TWU v Coles”), the Full Federal Court referred to this same passage from Kucks, but noted in particular a less regularly cited passage that immediately follows it:[77]
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.
[77] Transport Workers’ Union v Coles Supermarkets Australia Pty Ltd (2014) 245 IR 449 at [39] quoting from p.184 in Kucks.
Thirdly, still in AMCOR, at [97], Kirby J observed that it was appropriate to consider the agreement before the High Court using a “broad interpretation” but at the same time cautioned that a more precise document, with a different context, history and purpose, may give a different result. Pointedly, Kirby J stated, at [97] (emphasis added):
In a more precise document, with a different context, history and purpose, the opposite conclusion might be reached. But giving this document the broad interpretation that is appropriate to a certified agreement under the Act, the submission advanced by Amcor is acceptable. But does it represent the preferable construction?
Most recently, in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited (“Qantas Airways”), reflecting principles generally from earlier decisions, the Full Federal Court said, at [99] (emphasis added):[78]
The principles to be applied in interpreting an enterprise agreement were summarised in WorkPac Pty Ltd v Skene (2018) 264 FCR 563 at [197]. They emphasise the practical character of such instruments which are to be read in a manner that is informed by the circumstances of the relevant industry rather than according to legal nicety.
[78] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited [2020] FCAFC 205.
Regarding the proper approach of a Court to determine the basis for the decision to terminate an employee, the seminal principles were outlined by the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (“Barclay”).[79] At [44] and [45], French CJ and Crennan J said (internal citations omitted; emphasis added):[80]
[44] There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression "because" in s.346, or the statutory presumption in s.361, as requiring only an objective enquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s.361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?".
[45] 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 s.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.
[79] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500.
[80] See also their Honours’ comments at [50]. Gummow and Hayne JJ commented to similar effect at [104] and [105] and [127] and [128].
The principles outlined by the High Court in Barclay have been repeatedly summarised and applied. For example, and as noted by the Respondent, in Alam v National Australia Bank Limited, the Full Court set out such an outline in significant detail at [12] – [14].[81] That helpful summary was in the following terms:
[81] Alam v National Australia Bank Limited (2021) 288 FCR 301.
[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).
For completeness, I note the following statutory provisions from the FW Act, notably ss.340(1), 341(1), 342(1), and 361(1):
s.340(1) 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.
s.341(1) (1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee—in relation to his or her employment.
Section 342 of the FW Act describes what constitutes “adverse action” as follows:
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.
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.
Moreover, more often than not, the Applicant misconceived the nature and details of both his own claim(s), and the evidence and reasons of the Respondent. Consistently, the Applicant focussed upon his capacities, albeit there was some challenge to them, rather than appreciating the documented business case that the Respondent produced, without reference to the Applicant and without any agenda let alone no “malice a forethought” or mala fides directed towards him. This business case, organised and reviewed by others in the senior employ of the Respondent, guided the Respondent in its decision-making at a business, organisational, and operational level. As such, all of the principles outlined earlier in these reasons, for example, regarding redundancies based on the operational requirements of an organisation, in my view, plainly and readily apply here.
Otherwise, and in addition to these reasons, I accept and adopt the submissions on behalf of the Respondent.
For the reasons given, the Application filed on 18th November 2021 must be dismissed, with no Order as to costs.
I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 10 May 2023
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