Mohammed v City of Whittlesea Council (No.2)

[2017] FCCA 1283

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOHAMMED v CITY OF WHITTLESEA COUNCIL (No.2) [2017] FCCA 1283

Catchwords:
INDUSTRIAL LAW – General protections court application – claims of adverse action for prohibited reason/s – application dismissed.

Legislation:

Fair Work Act 2009, ss.340, 342, 346, 347, 351, 360, 361

Cases cited:

Mohammed v City Of Whittlesea Council (No.1) [2017] FCCA 1282
Board of Bendigo Regional Institute of Technical and Further Education Barclay and Another (2012) 290 ALR 647; (2012) 248 CLR 500
General Motors Holden Pty Ltd v Bowling (1976) 136 CLR 676
Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41
Khiani v Australian Bureau of Statistics [2011] FCAFC 109

Applicant: YOUSUFULLAH KHAN MOHAMMED

Respondent: CITY OF WHITTLESEA COUNCIL

File Number: MLG 2167 of 2015

Judgment of: Judge O'Sullivan

Hearing date: 15 May 2017

Date of Last Submission: 15 May 2017

Delivered at: Melbourne

Delivered on: 15 May 2017

REPRESENTATION

The Applicant: No appearance

Counsel for the Respondent: Mr Avallone

Solicitors for the Respondent: Piper Alderman

ORDERS

1. The application filed 21 September 2015 and the amended application filed 30 June 2016 be dismissed.

2. The respondent serve the applicant with a copy of these orders within 14 days.

AND THE COURT NOTES:

(A)Rule 16.05(2)(a) of the Rules.

(B)Any application for costs by the respondent should be made within 28 days of the date of the these orders.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2167 of 2015

YOUSUFULLAH KHAN MOHAMMED

Applicant

And

CITY OF WHITTLESEA COUNCIL

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction

1. On 21 September 2015 Yousufullah Khan Mohammed (“the applicant”) filed an application in the Fair Work Division of the Court alleging that the City of Whittlesea (“the respondent”) had contravened the Fair Work Act 2009 (Cth) (“the FW Act”). The respondent denied the applicant’s claims.

2. Earlier today the respondent was for the reasons given ex tempore granted leave to proceed with its amended response filed 25 August 2016.[1]  In support of the orders sought by his client Counsel for the respondent relied on the material contained in the court book[2], as well as two further exhibits marked R2 and R3 respectively.  The witnesses whose affidavits filed on behalf of the respondent (contained in exhibit R1), Ms McLeish and Ms Reardon were both called to give evidence.

   [1] Mohammed v City Of Whittlesea Council (No.1) [2017] FCCA 1282.

   [2] Exhibit R1.

Background

1. The applicant’s claims arise out of his employment with the respondent which began in April 2011 and ended in July 2015.

2. The applicant had begun working for the respondent in August 2010 through a labour hire agency. However the applicant was first employed directly by the respondent as a Local Laws Officer on 27 April 2011.

3. Between 2011 and 2013 it appears the applicant made no complaint about his employment or any issues arising in the workplace.

4. The applicant was granted leave between August and November 2013 to care for his wife as a result of an illness and surgery she had overseas before returning to Australia with the applicant to recuperate.  The respondent granted the applicant a period of one week ‘Special Leave’ during that period.

5. The applicant applied for a move to a part time position in November 2013 but this was refused.

6. In February 2014 the applicant applied for a position that was advertised internally by the respondent but was unsuccessful.  At or around that time the applicant made a complaint to the respondent about comments made to him by another employee that were allegedly racist.  The respondent undertook an investigation and interviewed those involved.

7. As a result of uncertainty regarding the applicant’s visa status (and concerns the respondent may breach legislation prohibiting employment of unlawful non-citizens) the applicant’s employment was suspended in March 2014 until his visa status (and ongoing eligibility to work) was established.

8. By the end of March 2014 the applicant was able to produce a bridging visa establishing his ongoing ability to work for the respondent and was reinstated.  In April 2014 the applicant raised issues regarding progressing up the band classification under the relevant enterprise agreement and why he had not been considered for another advertised position.

9. In May 2014 the applicant suffered an ankle injury in the workplace and when returning to see the respondent’s rehabilitation co-ordinator fell down the stairs and was seriously injured.

10. Notwithstanding that the applicant was on WorkCover he attended a meeting with the respondent and representatives from the Australian Services Union in June 2014 to address various issues raised by them on his behalf.

11. After he had obtained the bridging visa the applicant sought the respondent sponsor his application for a permanent visa and was advised in August 2014 this was unsuccessful.

12. Following non-compliance by the applicant with the requirements of the WorkCover insurer the applicant’s weekly WorkCover payments were suspended.

13. Between November 2014 and June 2015 the respondent attempted to establish the applicant’s ability to undertake the inherent requirements of his employment and/or what alternative positions he would be able to carry out.

14. By July 2015 the applicant’s own treating medical practitioner had certified that the applicant was unable to carry out the inherent requirements of his position, would be unable to do so indefinitely and be unable to carry out any other available jobs.

15. The applicant was requested to attend a meeting with the respondent on 7 July 2015 at which as a result of the medical evidence available to the respondent he was advised given this, his employment would be terminated.  The applicant was advised:

    “Dear Yousuf,

    Termination of Employment

    Thank you for attending a meeting on 7 July 2015 (meeting) to discuss your current capacity to carry out the inherent requirements of your position as a Local Laws Enforcement Officer. Present at the meeting was you, your support person Farouk, Jonathon Smallbone – ASU organiser, Anne McLeish – Team Leader Employee Relations and myself.

    At the meeting, Ms McLeish provided the following background in regards to your injury/absence from the workplace:

    ·On the 8 May 2014 you sustained an ankle injury in the workplace;

    ·You have been absent from the workplace since 2 July 2014;

    ·7 November 2014, your Workcover claim was terminated for non-compliance;

    ·20 January 2015, a letter was sent to you requesting information from your Doctor in regards to your capacity to carry out the duties of a Local Laws Enforcement Officer. In the letter you were advised that this information was required to help Council determine your ongoing employment;

    ·13 March 2015, a letter was sent to you advising that we had not received any information from your Doctor;

    ·4 May 2015, a letter was sent to you and Dr Elkafawi requesting information regarding your current capacity. You were again advised that this information was needed in considering your ongoing employment with Council;

    ·29 May 2015, Dr Elkafawi responded by fax, stating that you were unfit to carry out any duties and that he could not provide a time frame when you would have full capacity to carry out the duties of your position;

    ·18 June 2015, you were sent a letter requesting a meeting. You were asked to bring with you to this meeting any additional, relevant medical information or other information that could assist Council in determining your capacity to carry out the inherent requirements of your position.

    You were asked by Ms McLeish if you understood why you were requested to attend this meeting. You responded yes. It was again reiterated by Ms McLeish that the meeting was to determine you (sic) current capacity and that if you were unable to carry out the inherent requirements of your position you may be terminated.

    Yousuf you were then given the opportunity to respond. In your response, you said:

    ·You were still in a great deal of pain, especially in the morning and that your wife was providing you with assistance for showering and going to the toilet;

    ·You are not able to come back to work, even to do part time duties;

    ·Pain is constant and that medication is giving some relief, but making you very drowsy;

    ·Physiotherapy, even though you are attending is providing you with not much relief.

    When asked are there any duties or positions in Council that you think you may have the capacity to do, you replied no. You were also asked “do you think you will be able to return to the workplace, in any capacity”, you responded “not at the moment”.

    Yousuf based on the information provide (sic) by Dr Elkafawi and the information provided by you at the meeting, it is Councils’ understanding that you have no capacity to carry out the inherent requirements of your position, currently and in the foreseeable future.

    After assessing all of the information provided, Council regrets to inform you that they are unable to keep your position open and that your employment will be terminated effective immediately.

    The termination of your employment does not have any impact on potential Workcover claims or future entitlements as per the Workplace Injury and Rehabilitation Act 2013.

    …”

16. The applicant commenced these proceedings in September 2015 and there have been a number of unsuccessful mediations before the matter was fixed for trial by orders made 21 July 2016.  At the trial which began on 15 May 2017, there was no appearance by or on behalf of the applicant and Mr Avallone of Counsel appeared for the respondent.  The material the respondent relied on has been referred to earlier.

The applicant’s case

1. In the amended application filed 30 June 2016 the applicant had alleged:

   “..18.     The Respondent took adverse action against me, pursuant to section 342 of the Fair Work Act 2009 (the Act), by:

   - dismissing me from my employment; and/or

   - injuring me in my employment and/or discriminating between me and other employees by failing to appropriately assess my band classification under the enterprise agreement governing my employment;

   - injuring me in my employment and/or discriminating between me and other employees of the Respondent by failing to afford me with periodic appraisals providing me the opportunity for promotion; and/or

   - Discriminating between me and other employees of the Respondent by failing to maintain my employment while I was recuperating from injuries sustained in the course of my employment.

   19.    I was subject to the adverse action referred to in paragraph 9 in breach of sections 340 and 341 of the Act.  That is, I was subject to adverse action because:

   - I exercised a workplace right in taking leave between 22 August 2013 and 11 November 2013 to perform carer’s responsibilities;

   - I exercised a workplace right in requesting part-time employment in or around end of November 2013 to undertake carer’s responsibilities; and/or

   - Due to my IT qualification and experience I have been told to provide IT support such as

   a) Test the local laws software,

   b) Fix the PDA’s and printers,

   c) Test cameras using for GPS locations,

   d) Configure PDA’s and printers,

   e) Configure mobile with audio systems,

   f) Trained new staff with IT equipment,

   g) Analyse PDA for improved usage and development

   h) Local Laws Module Development (in house system).

   - I exercised a workplace right in making a complaint to the Respondent about offensive comments made to me by an employee of the respondent, Nigel Lewis, in the course of my employment.”

The respondent’s case

1. In the amended response filed 26 August 2016 the respondent opposed the orders sought by the applicant and did so on the following grounds:

   “1. The Applicant’s employment with the Respondent was terminated by the Respondent for the reasons and on the basis of the information described in the Respondent’s letter dated 7 July 2015 annexed to the Claim, being the incapacity of the Applicant to carry out the inherent requirements of the position in which he was employed by the Respondent.

   2. Termination of the employment in those circumstances is not unlawful, by virtue of the operation of section 351(2)(a) and 351(2)(b) Fair Work Act 2009 (the FW Act).

   3. Further and in the alternative:

   (a) at the time of the termination, the Applicant was not on a period of temporary absence due to illness or injury as defined under the FW Act;

   (b) the Claim does not identify any outstanding or relevant complaint or inquiry relating to the Applicant’s employment (including the complaint made by him in November 2013, which was resolved in the Applicant’s favour substantially prior to the termination of employment) which could have been temporally connected to and/or logically motivated a decision to terminate the employment in 2015;

   (c) the Claim does not establish that the Applicant had or proposed to exercise any workplace right to be allocated additional ‘special leave’; and

   (d) the Claim does not establish that the Applicant had or proposed to exercise any workplace right to be advanced to a higher band/classification, in that the Applicant did not have qualifications to meet the requirements of the higher band/classification.;

   (e) the Applicant’s claimed family or carer’s responsibilities and race, national extraction or social origin were not and could not have been a reason for termination of employment – those matters are irrelevant to the Applicant’s capacity to carry out the inherent requirements of his position in 2015;

   (f) the Respondent denies the Applicant was not provided with assistance to enable him to have the opportunity for promotion or an appropriate assessment of his band/classification and refers to and repeats paragraph 3(d) hereof; and

   (g) the Respondent denies other employees were treated more favourably than the Applicant in circumstances that were the same or not materially different in relation to the extent to which a positon was maintained despite incapacity.

   4. In relation to the remedies sought, the Respondent further says:

   (a) As to the order sought for compensation, the Applicant has been and remains incapacitated for work, has at all relevant times been unable to earn wages in employment with the Respondent so as to result in any actionable loss to the Applicant, and has been in receipt of income insurance protection payments in the period since the termination;

   (b) As to the order sought for reinstatement, the Applicant has been and remains incapacitated for work, and no reinstatement order is justified;

   (c) As to the order sought for special care leave, no entitlement to special care leave is established so as to result in any actionable loss to the Applicant; and

   (d) As to the order sought for underpayment, apparently on the basis of an entitlement to be advanced higher band/classification, no such entitlement is established so as to result in any actionable loss to the Applicant.

   5. The Respondent otherwise joins issue with the undated Amended Claim filed on 30 June 2016 dated 21 September 2015 filed in this proceeding.”

Respondent’s witnesses

Ms McLeish

1. Ms Anne McLeish is the respondent’s team leader, Human Resources. Ms McLeish adopted her affidavit filed 16 November 2016.  Ms McLeish elaborated, with leave, on the explanation given therein for why the applicant’s classification under the relevant enterprise agreement had not been changed during the course of his employment.  Ms McLeish’s evidence, which I accept, was the applicant did not meet the qualifications to progress to the next classification and she was not aware of any request by the applicant for part time employment.

Ms Reardon

1. Ms Yvette Reardon is the former Human Resources Manager for the respondent. Ms Reardon adopted her affidavits filed 19 November 2015 and 15 November 2016.  Ms Reardon also elaborated with leave on the evidence in her affidavit on issues raised in the applicants’ submissions.

2. Ms Reardon’s evidence, which I accept, was the applicant’s concern about the date of his position description were unfounded as they were only reviewed periodically.  Ms Reardon also gave evidence that the applicant had not completed the training necessary to progress to the next classification under the enterprise agreement and his union representative was advised of the outcome of the respondent’s investigation into his complaint about the behaviour of other employees (as he was absent due to a workplace injury).  Ms Reardon’s evidence was to the extent the applicant complained about redundancy, he was not made redundant and in relation to periodic performance reviews he was not financially disadvantaged by one not taking place.  Ms Reardon also gave evidence she had never been aware of any request by the applicant to move to part time employment.  Finally, Ms Reardon who on the evidence made the decision to terminate the applicant’s employment swore on her oath that that decision was not made for a prohibited reason or for a reason that included a prohibited reason.

The legislation

1. Relevantly for the purpose of the allegations made by the applicant subsection 340(1) of the FW Act provides:

   “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.”

2. The expression “adverse action against another person” is defined in s.342(1) of the FW Act. That subsection contains a table that “sets out circumstances in which a person takes adverse action against another person”. The table identifies in one column the persons by whom and against whom adverse action may be taken, and, in another column, the conduct that, if taken by and against such persons, constitutes adverse action. For the purposes of these proceedings, the relevant person who must take the adverse action is “an employer”, and the person against whom the employer must take the adverse action is “an employee”. And the employer takes “adverse action” 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.”

3. The expression “workplace right” is defined in s.341(1) of the FW Act 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.”

4. The expression “workplace law” is defined in s.12 of the FW Act to mean, among other things, “any . . . law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters)”.

5. To contravene s.340(1) of the FW Act, an employer must take adverse action “because”, among other things, the employee has a workplace right or has exercised or proposes to exercise a workplace right. The word “because” is interchangeable with the words “for a particular reason”.[3] Under s.360 of the FW Act, a person “takes action for a particular reason if the reasons for the action include that reason”.

   [3] Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284; (2010) 193 IR 251 at [26] (Tracey J)

1. In determining whether adverse action has been taken for a particular reason, s.361(1) of the FW Act is important. That subsection provides:

   “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, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.”

2. Section 351(1) of the FW Act provides:

   “An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual preference, age, physical

   or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”

Approach to adverse action allegations

1. The leading authority on the approach to the adverse action provisions of the FW Act is Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 290 ALR 647 (‘Barclay’).[4] The High Court (French CJ, Gummow, Hayne, Heydon and Crennan JJ) upheld an appeal against a majority decision of a Full Court of the Federal Court that adverse action had been taken “because” the respondent had engaged or proposed to engage in industrial activities, an attribute proscribed by s.346 in conjunction with s.347 of the FW Act.

   [4] at paragraphs [56]; [102]; [127].

2. In that case, the High Court confirmed that the question of whether a particular action or decision was taken because of a proscribed reason, or for reasons which included a proscribed reason, is a question of fact to be determined on the whole of the evidence.

3. What their Honours describe as the “correct approach” is set out at paragraphs [41]-[45] of their reasons:

   “41.The question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the Fair Work Act. These provisions must be construed together in accordance with the principles of statutory construction established by this Court, which must begin with a consideration of the text of the relevant provisions and may require consideration of the context including the general purpose and policy of the provisions.

   42.Determining why a defendant employer took adverse action against an employee involves consideration of the decision-maker's "particular reason" for taking adverse action (s 361(1)), and consideration of the employee's position as an officer or member of an industrial association and engagement in industrial activity ("union position and activity") at the time the adverse action was taken (ss 342, 346(a), 346(b), 347 and 361(1)).

   43.Clearly a defendant employer interested in rebutting the statutory presumption in s 361 can be expected to rely in its defence on direct testimony of the decision-maker's reason for taking the adverse action. The majority in the Full Court correctly rejected an argument put by the respondents that the introduction of the statutory expression "because" into a legislative predecessor to s 346, in place of the previous statutory expression "by reason of", rendered irrelevant the state of mind of the decision-maker.

   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.”

4. French CJ and Crennan J also considered the effect of s.360 of the FW Act at [57] to [59]. Their Honours adopted the reasons of Mason J in General Motors Holden Pty Ltd v Bowling (1976) 136 CLR 676.

5. At paragraphs [100] to [104], Gummow and Hayne JJ discuss the meaning of “because” in s.346 which is in similar terms to s.340 of the FW Act:

   “100.The application of s 346 turns on the term "because". This term is not defined. The term is not unique to s 346. It appears in s 340 (regarding workplace rights), s 351 (regarding discrimination), s 352 (regarding temporary absence in relation to illness or injury) and s 354 (regarding coverage by particular instruments, including provisions of the National Employment Standards).

   101. The use in s 346(b) of the term "because" in the expression "because the other person engages ... in industrial activity", invites attention to the reasons why the decision-maker so acted. Section 360 stipulates that, for the purposes of provisions including s 346, whilst there may be multiple reasons for a particular action "a person takes action for a particular reason if the reasons for the action include that reason". These provisions presented an issue of fact for decision by the primary judge.

   102.Reference was made in argument to Purvis v New South Wales. That litigation concerned the application of the Disability Discrimination Act 1992 (Cth) to the suspension and expulsion of a disabled student from a State school. Section 5(1) used the expression "because of the disability". Gummow, Hayne and Heydon JJ emphasised that s 10 of the statute stated that if an act is done for two or more reasons, one of which is the disability of a person, even if it not be the dominant or a substantial reason for doing the act, the act is taken to be done for that reason. This provision may be compared with s 360 of the Act just described.

   103.With respect to what became s 346 of the Act, paragraph 1458 of the Explanatory Memorandum to the Fair Work Bill 2008 stated:

   "Clause 360 provides that for the purposes of Part 3-1,
   a person takes action for a particular reason if the reasons for the action include that reason. The formulation of this clause embodies the language in existing section 792 which appears in Part 16 of the WR Act (Freedom of Association) and includes the related jurisprudence. This phrase has been interpreted to mean that the reason must be an operative or immediate reason for the action (see Maritime Union of Australia v CSL Australia Pty Limited). The 'sole or dominant' reason test which applied to some protections in the WR Act does not apply in Part 3-1." (emphasis added)

   The phrase "operative or immediate reason" used in CSL is relevantly indistinguishable from the phrase "a substantial and operative factor" used by Mason J in Bowling.

   104. In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised "a substantial and operative" reason, or reasons including the reason, for the employer's action and that this action constitutes an "adverse action" within the meaning of s 342.”

6. Their Honours warn at paragraph [121] of the dangers of an enquiry contrasting “objective” and “subjective” tests in applying s.346 of the FW Act. They conclude at paragraph [126]-[128]:

   “126.The relevant frame of reference in this case is a statutory provision in which neither the words "objective" nor "subjective" appear. There is an inherent risk of misguidance when seeking to imply tests or requirements in the application of a statutory provision absent some persuasive basis to do so. Nothing was put in argument, nor are there any decisions of this Court, to provide such a basis. Indeed, no direct challenge was made to what had been said by Mason J in Bowling.

   127.In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a "substantial and operative factor" as to constitute a "reason", potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.

   128.Whilst it is true to say, as do the respondents, that there is a distinction between discharging the onus of proof and establishing that the reason for taking adverse action was not a proscribed reason, there is nothing to suggest that the conclusions drawn by the primary judge, and the findings and reasons upon which these were based, did not take this into consideration. As Lander J concluded, if the reasons for the conclusions and the facts for which they were formulated are not challenged, then the contravention of s 346 cannot be made out. This proposition should be accepted. To hold otherwise would be to endorse the view that the imposition of an onus of proof on the employer under s 361(1) creates an rebuttable presumption at law in favour of the employee.”

7. Heydon J said at [146]:

   “To search for the "reason" for a voluntary action is to search for the reasoning actually employed by the person who acted. Nothing in the Act expressly suggests that the courts are to search for "unconscious" elements in the impugned reasoning of persons in Dr Harvey's position. No requirement for such search can be implied. This is so if only because it would create an impossible burden on employers accused of contravening s 346 of the Act to search the minds of the employees whose conduct is said to have caused the contravention. How could an employer ever prove that there was no unconscious reason of a prohibited kind? An employer's inquiries of the relevant employees would provoke, at best, nothing but hilarity. The employees might retort that while they could say what reasons they were conscious of, they could say nothing about those they were not conscious of.”

8. Given the nature of the applicant’s claim(s) it is important to note that Collier J in Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399 (“Jones”) explained the nature of the onus cast upon an applicant in an application, such as this as follows:

   “10.That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason, was explained by Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 at [161]-[162] and Moore J in Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585; [2008] 177 IR 306 at 321-322 [49]- [50]. To paraphrase observations of Moore J in Rojas [2008] FCA 1585; [2008] 177 IR 306 at 322, it is not sufficient for Ms Jones to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that Ms Jones is able to prove these allegations, the burden is then cast on to QTAC to prove that adverse action was not taken against Ms Jones because of her workplace right for the purposes of s 340 and s 361 of the Act.”

9. In State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 the Full Court of the Federal Court said:

   “32. As the trial judge recognised the leading authority on the operation of ss 360 and 361 of the Fair Work Act in the context of Part 3-1 of that Act (which includes s 351) is Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500. The principles which informed this decision were recently reaffirmed by a majority of the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41. Relevantly, these authorities establish that:

   ·     The central question to be determined is one of fact. It is: “Why was the adverse action taken?”

   ·     That question is to be answered having regard to all the facts established in the proceeding.

   ·     The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.

   · It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”

   · Even if the decision-maker gives evidence that he or she acted solely for non prescribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable. If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.”

10. Importantly, there must be more than a temporal connection between the protected attribute or activity and the taking of adverse action: see Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) [2012] HCA 32; 248 CLR 500 at [60]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243 at [19].

11. Those ‘principles’ have since been considered in a number of Full Court decisions.[5]

    [5] See Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25, Short v Ambulance Victoria [2015] FCAFC 55 and Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76.

12. Finally as the Full Court observed in Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31] said:

    “…A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts. In the present case, the question is whether the respondent has taken adverse action against the appellant because she had a workplace right to be on sick leave, or because she had exercised that right.”

Submissions

1. In submissions filed on 26 April 2017 the respondent’s case was summarised as follows:

   “2. Stripped of all the irrelevancies, this case concerns the decision by the Respondent’s Human Resources Manager, Yvette Reardon, to terminate the employment of the Applicant (Decision), an employee who had no capacity to perform the inherent requirements of his position due to an injury or illness. 

   3. It is not in dispute that the making of the Decision was ‘adverse action’ within the meaning of item 1(a) of s342 of the Fair Work Act 2009 (FW Act). The only issue to be determined by the Court is whether the Decision was taken for a reason which was unlawful as alleged by the Applicant. The Applicant relies upon s340(1) and s351(1) of the FW Act.

   4. The only reason for the Decision was the Applicant’s incapacity to perform the inherent requirements of the position. To the extent that this was related to a physical disability, the exception in s351(2)(b), and further and in the alternative s351(2)(a), of the FW Act applies. The Decision was not taken for a reason which contravened s340 or s351 of the FW Act as alleged.

   …

   7. The decision-maker who made the Decision was Ms Reardon. It is Ms Reardon’s reasons for her decision, and only Ms Reardon’s reasons, which are relevant to an assessment by the Court whether s340 or s351 was contravened.

   …

   10. The reasons for Ms Reardon’s Decision are set out in the termination letter dated 7 July 2016 (Exhibit YR-10 to the Affidavit of Yvette Reardon 19 November 2015 (First Reardon Affidavit).[6]  So too, the documents and the process leading to the Decision are referred to in the termination letter dated 7 July 2016.  That process is described in detail in the First Reardon Affidavit.

   [6] Paragraphs 15-17 of the First Reardon Affidavit; paragraph 35 of the Affidavit of Yvette Reardon 15 November 2016 (Second Reardon Affidavit)

   11. Aside from the termination letter dated 7 July 2016, the other critical document in this case is the medical assessment received from the Applicant’s treating doctor, Dr Elkafrawi, on or around 29 May 2015 (Exhibit YR-8 to the First Reardon Affidavit).  Dr Elkafrawi’s assessment was that the Applicant did not at that time have the capacity to perform any of the duties of his position, and that he could not provide a time frame for when the Applicant would have full capacity to carry out the duties of his position.[7]  In answer to a question whether there are any adjustments that the Respondent could make to assist the Applicant to safely perform the duties of his position, Dr Elkafrawi answered ‘not at this stage’.

   [7] Exhibit YR-8 to the First Reardon Affidavit

   12. The only reason for the Decision was Ms Reardon’s assessment that the Applicant was not able to perform the inherent requirements of the position.  This assessment was based on the medical evidence provided by the Applicant’s treating doctor, and after a rigorous process which included explaining to the Applicant her proposed decision and providing him an opportunity to respond, and also a final meeting at which the Applicant, his support person and his union representative were present.[8]

   [8] Paragraphs 15-16 of the First Reardon Affidavit; Exhibit YR-10 to the First Reardon Affidavit

   13. This is not an unfair dismissal case, and matters of procedural fairness are not determinative of whether a claim under s340 or s351 is satisfied.  However, the process that was followed lends support to a conclusion that the Decision was made only for reasons relating to the Applicant’s inability to perform the inherent requirements of the position.

   14. Ms Reardon’s evidence as the decision-maker is that the only reasons for the Decision are set out in the termination letter dated 7 July 2016,[9] and that the reasons alleged by the Applicant were not reasons for the Decision.[10]  Weighing up all of the circumstances, this evidence should be accepted, and the application should be dismissed

   The ‘inherent requirements’ defences apply

   15. Further and in the alternative to paragraphs 0 to 0 above, the exception in s351(2)(b) applies to the Decision. Subsection 351(1) does not apply, because the Decision was taken because of the inherent requirements of the Applicant’s position as a Local Laws Enforcement Officer. Those inherent requirements are set out in the position description (signed by the Applicant on 15 April 2011) attached to the Respondent’s letter dated 20 January 2015 (Exhibit YR-3 to the First Reardon Affidavit). The Respondent refers to and repeats paragraph Error! Reference source not found. above.

   16. In addition to the medical assessment by Dr Elkafrawi that Ms Reardon had before her when she made the Decision (Exhibit YR-8 to the First Reardon Affidavit), the Court now has before it the Certificates of Capacity which are marked as Exhibit YKM-2 to the Applicant’s Affidavit sworn on 30 June 2016 (Certificates of Capacity).  Those Certificates of Capacity were filed pursuant to paragraph 4(b)(ii) of the Court’s Order dated 10 June 2016

   17. The Certificates of Capacity relate to the period from 13 April 2015 (almost three months prior to the Decision) to 2 September 2016 (almost 14 months after the Decision).[11]  Each of those Certificates of Capacity states that the Applicant was “Unfit for any duties” for the duration of the period covered by the certificate.  On the Applicant’s own evidence, he was not able unable to perform the inherent requirements of his position, he was unable to perform any duties. It is difficult to imagine a clearer case for the operation of the exception in s351(2)(b) of the FW Act.

   18. Further and in the alternative to paragraphs 0 to 0 above, but for fundamentally the same reasons, the exception in s351(1)(a) of the FW Act applies. The Respondent refers to the “inherent requirements” defence in s21A of the Disability Discrimination Act 1992 (Cth), and to the medical assessment of Dr Elkafrawi,[12] the position description,[13] and the Certificates of Capacity.[14]  To the extent that the Decision was taken because of matters related to the Applicant’s disability, they were taken because he was unable to carry out the inherent requirements of his work as a Local Laws Enforcement Officer, and his treating doctor could not identify any adjustments that could be made that would enable him to perform those duties.

   No evidence to support assertion that extraneous matters relied upon by the Applicant were reasons for the Decision

   19. At paragraphs 10 to 14 of his Amended Application filed on 30 June 2016, the Applicant refers to special leave that he was granted in 2013 to care for his wife, and the Applicant’s job classification. To the extent that these matters are relied upon by the Applicant to support an allegation that the Decision was made in contravention of s340 and/or s351 of the FW Act, the Respondent refers to and repeats paragraphs 0 to 0 above, and the evidence of the decision-maker (Ms Reardon) referred to therein. The Respondent submits that the Court should accept Ms Reardon’s evidence that the only reason for the Decision was the inability of the Applicant to perform the inherent requirements of his position.

   20. To the extent that the matters of the Applicant’s pay progression and/or the Respondent’s granting to him of special leave are relied upon by the Applicant as separate forms of adverse action which themselves are alleged to have been taken in contravention of s340 or s351 of the FW Act, the Respondent says as follows. A decision of the Respondent to keep the Applicant at his extant classification is not an alteration of the employee’s position to his prejudice, or an injury, or otherwise ‘adverse action’ within the meaning of s342. So too, a decision of the Respondent not to grant discretionary special leave is not ‘adverse action’ within the meaning of s342. Further, the Respondent’s reasons in relation to these matters are set out in paragraphs 19 and 20 of the First Reardon Affidavit, paragraphs 7 to 16 of the Second Reardon Affidavit and paragraphs 3 to 4 of the Affidavit of Anne McLeish affirmed on 16 November 2016. The reason not to progress the Applicant to a higher classification was because he did not meet the requirements for that higher classification, including completion of a Certificate IV in Government (Statutory Compliance). The Respondent exercised its discretion to grant the Applicant special leave (which leave is not provided for in the relevant enterprise agreement) in 2013, and there is no evidence that the Applicant ever made a request for part-time work or flexible working hours to enable him to care for his wife.

   [9] Paragraphs 15-17 of the First Reardon Affidavit; paragraph 35 of the Second Reardon Affidavit

   [10] Paragraphs 18-20 of the First Reardon Affidavit; paragraph 35 of the Second Reardon Affidavit

   [11] One Certificate of Capacity, for the period 6 November 2015 to 4 December 2015, seems to be missing from Exhibit YKM-2 to the Applicant’s Affidavit sworn on 30 June 2016.  However, it is apparent from the text and context of the two Certificates of Capacity immediately preceding and following that period that the Applicant remained unfit for duties during that period.

   [12] Exhibit YR-8 to the First Reardon Affidavit

   [13] Exhibit YR-3 to the First Reardon Affidavit

   [14] Exhibit YKM-2 to the Applicant’s Affidavit sworn on 30 June 2016

   Conclusion as to liability

   21. The only ‘adverse action’ the subject of this proceeding is the Decision on 7 July 2015 to terminate the Applicant’s employment. The Applicant has not satisfied the requirements of s340 or s351, and the Applicant’s claim should fail…”

1. In final submissions Counsel for the respondent pointed to the evidence upon which his client relied that it did not take adverse action against the applicant and that the reason why the applicant’s employment was terminated was not challenged.

Consideration

1. The application falls to be determined within the rubric of the provisions at Part 3-1 of the FW Act. The respondent denied that adverse action was taken against the applicant for a prohibited reason as alleged, or otherwise. As the authorities that I have referred to in these reasons make clear, there must be more than a temporal connection between the protected attribute or activity, and the taking of adverse action.

2. As the respondent has acknowledged, insofar as there has been adverse action, the onus cast upon it as employer by section 361 of the FW Act falls to be discharged by the decision maker giving evidence the reasons for taking the adverse action did not include a prohibited reason. However, as the authorities also make clear, before that section is engaged an applicant must prove the existence of objective facts which are said to provide the basis for, in this case, the respondents’ contravening conduct. Section 361 is not engaged unless and until the applicant establishes the elements of each of the general protections upon which in this case he seeks to rely. It is not enough merely to make assertions but they must be determined objectively and have a foundation in evidence.

3. On the material before the Court I am satisfied to the extent the application for special leave, the unsuccessful reclassification request could amount to adverse action or given the evidence of Ms Reardon, the decision to terminate the applicants employment was not motivated by any protected attribute held by the applicant and not causally linked to an workplace right held or exercised by the applicant including the workplace right to make a complaint or inquiry in relation to his employment under s.341(1) or for any other proscribed reason.

4. Adverse action was taken against the applicant for the purposes of s.342(1) of the FW Act in that he was dismissed. The respondent, however, did not take adverse action either because of any workplace right exercised by the applicant pursuant to s.340(1) or because of the applicant’s alleged disability. The respondent took adverse action (i.e. dismissed the applicant) for the reasons, and only for the reasons, set out in the termination letter of 7 July 2015. The Court is satisfied from the evidence that the respondent has rebutted the presumption set out in s.361 of the FW Act.

5. The action that the respondent did take in July 2015 was caused by concern the applicant was unable to perform the inherent requirements of his role. This was on the evidence not action taken in breach of s.351 of the FW Act and not causally linked to any workplace right held or exercised by the applicant. To the extent that the circumstances of the case engage s.361 of the FW Act, I am satisfied that the respondent has demonstrated that it did not take any adverse action against the respondent for a proscribed reason or for reasons that included a prohibited reason.

Conclusion

1. Against that legal framework and on the basis of the evidence before the Court today, I am satisfied adopting as I do the respondents’ submissions, that to the extent that the circumstances of this case engage section 361 of the Fair Work Act, I am satisfied the respondent has demonstrated that it did not take any adverse action against the applicant for a proscribed reason and the application should be dismissed.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan

Associate: 

Date:  16 June 2017