Payne v South Australian Water Corporation (SA Water)
[2016] FCCA 288
•26 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PAYNE v SOUTH AUSTRALIAN WATER CORPORATION (SA WATER) | [2016] FCCA 288 |
| Catchwords: INDUSTRIAL LAW – employment – alleged adverse action as a result of exercise of workplace right – applicant alleges he was terminated in his employment as a consequence of his industrial activities in the workplace – why was adverse action taken – standard of proof – finding that applicant was not dismissed because of his industrial activities – application dismissed. |
| Legislation: Fair Work Act 2009, ss.12; 342; 346; 347;360; 361; 539(1); 545(2) Evidence Act 1995, s.140(2) |
| Fox v Percy (2003) 214 CLR 118 Ermel v Duluxgroup (Aust) Pty Lty (No 2) [2015] FCA 17 Khiani v Australian Bureau of Statistics [2011] FCAFC 109 Briginshaw v Briginshaw (1938) 60 CLR 336 Brown v Dunn (1894) 6R67 (HL) Board of Bendigo Regional Institute of Technical and further Education v Barclay & Anor [1] (2012) 248 CLR 500 Shortv Ambulance Australia [2015] FCAFC 55 Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd [2014] HCA 41 Sayed v Construction, Forestry, Mining & Energy Union [2015] FCA 27 Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia & Ors (1998) 195 CLR 1 Transport Workers’ Union of Australia v Premier Motor Services Pty Ltd [2015] FCA 650 Street v Queensland Bar Association (1989) 168 CLR 461 |
| Applicant: | WILLIAM PAYNE |
| Respondent: | SOUTH AUSTRALIAN WATER CORPORATION (SA WATER) |
| File Number: | ADG 437 of 2014 |
| Judgment of: | Judge Brown |
| Hearing dates: | 6, 7, 8 & 9 October 2015 |
| Date of Last Submission: | 16 November 2015 |
| Delivered at: | Adelaide |
| Delivered on: | 26 February 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hardie |
| Solicitors for the Applicant: | AMWU |
| Counsel for the Respondent: | Ms Charlesworth |
| Solicitors for the Respondent: | EMA Legal |
ORDERS
The application filed on 18 November 2014 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 437 of 2014
| WILLIAM PAYNE |
Applicant
And
| SOUTH AUSTRALIAN WATER CORPORATION (SA WATER) |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, in these proceedings, William Heaney Payne, claims that he was subject to “adverse action” in contravention of section 346(a) & (b) of the Fair Work Act 2009 (Cth),[1] whilst in the course of his employment with the respondent, the SA Water Corporation (“SA Water”).
[1] Hereinafter referred to as the FWA or the Act
In general terms, section 346 renders it illegal for an employer to dismiss an employee because he or she was a member of an industrial association or engaged in some form of industrial activity.
Mr Payne is a fitter and turner by trade. He commenced employment, with the respondent, at its Mount Gambier engineering workshop, on 10 November 2008. In 2009, he became the workplace delegate, for members of the Australian Manufacturing Workers’ Union (the AMWU), at the Mount Gambier workshop.
SA Water is a statutory Corporation charged with providing water and sewage services to the people of South Australia. In 2013 and 2014, at the instigation of the South Australian Government, SA Water undertook a comprehensive view of its business and how it delivered its services.
As part of this review, it was decided that the Mount Gambier workshop would have its complement of mechanical trade employees, of which Mr Payne was one, reduced from six to four.
In August and September of 2014, management of SA Water put in place a process through which it proposed to select the two employees, at the Mount Gambier workshop, who were to be made redundant.
It was decided that the process would largely consist of each of the six workshop employees, in Mount Gambier, being interviewed by a panel consisting of Ken Heather, a recruitment consultant employed by the respondent; Costas Kokkoni, SA Water’s workshop manager; and Luke Norman, the co-ordinator of the Mount Gambier workshop itself.
As a consequence of this decision, the six mechanical trade persons concerned, including Mr Payne, were interviewed, at Mount Gambier, on 10 September 2014. On 19 September 2014, it was decided that Mr Payne and another tradesperson, Brian Klintberg would be made redundant.
It is the position of Mr Payne that the process through which he was selected for redundancy was flawed and unfair to him. He contends that he was made redundant because he was a trade union activist, who had previously “aggravated the respondent by initiating industrial disputation on behalf of his members.”[2]
[2] See respondent’s closing submissions filed 2 November 2015 at paragraph 1
Accordingly, it is Mr Payne’s case that he has been the subject of adverse action because of his membership of the AMWU and the industrial activities, which he has conducted on the Union and its members’ behalf in the Mount Gambier workshop of SA Water.
The expression adverse action is defined by section 342 of the FWA. It includes an employer dismissing an employee. Pursuant to section 346 of the FWA:
“A person must not take adverse action against another person because the other person:
(a) is or is not, or was or was not, an officer or member of an industrial association; or
(b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b);”
There is no controversy that, at all relevant times, the AMWU was an industrial association, as defined by section 12 of the FWA and Mr Payne was both a member and workplace delegate of the AMWU, at the Mount Gambier workshop of SA Water.
Section 347 of the FWA defines the expression engages in industrial activity. The expression includes membership of an industrial association; participating in activities organised or promoted by an industrial association; and representing the views, claims and interests of such an industrial association.
SA Water does not dispute the fact that, at the time of the interviews held at the Mount Gambier workshop, Mr Payne was a workplace delegate for the AMWU and had previously engaged in some industrial activities on its behalf.
However, the respondent denies that Mr Payne was in any way targeted because of his prior union activities. Rather, SA Water contends that its decision to make Mr Payne redundant was a legitimate and fair one and the interview process, which lead to the decision, was transparent.
Accordingly, one of the central evidentiary issues, in this case, concerns the reason or reasons why the SA Water Corporation decided to make Mr Payne redundant. Was it for legitimate operational reasons or was the decision tainted, at least in part, by Mr Payne’s trade union activity.
This issue engages sections 360 and 361 of the Act. Section 360 provides as follows:
“For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.”
Section 361(1) provides as follows:
“(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.”
It is the submission of Mr Hardie, who appeared on Mr Payne’s behalf, that there was, at relevant times, a systemic culture within SA Water, which was intolerant of the rights of its workers, particularly in respect of trade union activities. In this context, he contends that the respondent has failed to discharge the onus upon it, arising as a consequence of section 361 of the Act.
I will return to section 361 in more detail later in these reasons for judgment. However, at this stage, the task for the court can be summarised as follows:
·Did the applicant suffer adverse action within the meaning of section 342(1) item 1 of the FWA;
·Was the adverse action taken because the applicant was a member of an industrial organisation and/or had engaged in industrial activity;
·If the applicant establishes a prima facie connection between the alleged adverse action event and his industrial activities, then the onus shifts to the respondent. The court’s inquiry is to why the adverse action occurred. Did the adverse action occur because of the applicant’s industrial activities or otherwise;
·If there is a finding of adverse action, what loss or damage did the applicant suffer as a consequence.
Mr Payne commenced these proceedings on 18 November 2014. Pursuant to section 539(1) of the FWA, if the court determines that SA Water has taken adverse action against Mr Payne, because of his trade union activities, it is authorised to impose a pecuniary penalty, on it. In addition, pursuant to section 545(2) of the Act, the court has authority to make a range of orders as a consequence of a breach of section 342. These include an order for compensation and an order for reinstatement.
In his application, Mr Payne seeks reinstatement of his employment with SA Water; compensation at the rate of $1,350.00 per week from the date of his dismissal; and the imposition of a pecuniary penalty on the respondent.
In its response filed on 2 December 2014, SA Water seeks the dismissal of Mr Payne’s application. It denies that Mr Payne’s employment was terminated because he was a member and officer of an industrial association or for any other reason proscribed by the provisions of the FWA.
The evidence
Besides himself, Mr Payne called each of the other mechanical tradespersons, employed at the Mount Gambier workshop, who took part in the interview process, other than Mr Klintberg. These witnesses were Andrew Charles Kent; Malcolm Charlie McCade; Samuel John Auld; and Dale John Cagney. In addition, he called Stuart Thomas William Gordon, who was the AMWU organiser, for the workshop, at relevant times.
The respondent called Mr Heather; Mr Norman; Mr Kokkoni; Julie Pennetta, who was the senior human resources manager at SA Water at relevant times; and John Meakin, who is the senior manager asset maintenance and delivery, at the Corporation.
In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observations of the demeanour of each of the witnesses concerned.[3] I have tried to reach my conclusions as to credibility and reliability, on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[4]
[3] See Evidence Act (1995) (Cth) at section 140
[4] See Fox v Percy (2003) 214CLR 118 at 129 [31] per Gleeson CJ, Gummow & Kirby JJ
There is no dispute that Mr Payne’s employment, with SA Water, was terminated. Prima facie, this amounts to adverse action as defined by section 342(1) of the Act. The central issue is why the decision was taken and whether it was for a reason, at least in part, prohibited by the FWA.
As a corollary of this issue, it will be necessary to identify the trade union activities, in which Mr Payne engaged, whilst employed by SA Water and analyse whether this is any nexus between those activities and his subsequent termination.
At this stage, it is appropriate to point out that these proceedings are not concerned with the generic fairness or probity of the process which led to Mr Payne’s termination. In particular, I am not inquiring into whether the decision of SA Water to make Mr Payne redundant was procedurally fair or the correct one. This is not a broad inquiry as to whether Mr Payne has been “subjected to a procedurally fair or substantially unfair outcome.” [5]
[5] See Ermel v Duluxgroup (Aust) Pty Lty (No 2) [2015] FCA 17 at [48] per Bromberg J
As the Full Court observed in Khiani v Australian Bureau of Statistics:
“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.” [6]
[6] Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31] per Gray, Cowdroy & Reeves JJ
In this context, at the outset of the proceedings, I ruled that aspects of the applicant’s evidence and case, particularly regarding his view and the views of his colleagues, at the Mount Gambier engineering workshop, as to who of their workmates were the more competent tradespeople, to be irrelevant and otherwise inadmissible. It is not the function of the court to make its own decision as to whether the de-selection process was in itself a fair one or determine whether Mr Payne was amongst the two least competent of the workshop’s staff.
In general terms, I found the various witnesses, called by SA Water, regarding the process, which led up to the decision to make Mr Payne redundant, to be honest individuals of the highest integrity. In particular, each acknowledged that they had been charged, by the Corporation, with taking part in a personally unpalatable process, which each knew would have serious ramifications for all the individual employees concerned – both those who would be terminated and those who would be retained in the reduced workshop.
As such, I am satisfied that each member of the management of SA Water concerned approached the task allotted to him or her with a proper level of diligence, whilst being aware its moment for the employees of the workshop. In my view, each person concerned took part in this process conscientiously and transparently. I reject any submission, either explicit or implicit, that the process was informed by any ulterior or hidden motivation, particularly regarding alleged anti-union views of SA Water.
Mr Payne was shocked by the decision to end his employment with SA Water. I can understand why he would be aggrieved by the decision. He believes the decision was not the right one, as it is his opinion that he had previously discharged his responsibilities, for the respondent, capably and reliably and was also a highly qualified and experienced tradesperson – more so than others of his colleagues.
In these circumstances, it is only natural that he would wish to find some malign motivation for his termination. In this context, he has seized upon his membership of the AMWU and concluded that because he was both a member of the Union and was dismissed that there must be a logical connection between the two facts. However, when all the evidence is examined, in my view, there is no objective basis for this conclusion.
In my view, there are few major evidentiary controversies arising in the case. That is not to say that there are not differences in perspective between the management witnesses and those emanating from the shop floor. In her closing submissions, Ms Charlesworth, counsel for the respondent, elected to explore why it was likely to be the case that such differences had arisen and what the court could draw from them.
For the reasons which follow, I accept Ms Charlesworth’s submissions in this regard. In my view, the various employees called by SA Water are likely to be more reliable, in their recollection of significant events leading up to the decision to make Mr Payne redundant than the employees in the mechanical workshop, including the applicant himself.
Mr Payne’s colleagues presented as pleasant and generally honest individuals. Each of them is also a member of the AMWU. Mr Payne himself seems to have been a popular member of the Mount Gambier engineering workshop. In these circumstances, each of the witnesses called by Mr Payne was confronted by the dilemma of wishing to be loyal to both their colleague and union, whilst telling the truth.
I am satisfied that each of the workshop staff, who gave evidence in these proceedings, did so truthfully. However, in my view, the calls on their loyalty did, from time to time, have implications for their overall level of objectivity. In addition, as will become apparent, it is my view that once it became apparent that the de-selection interviews would occur, the workshop staff adopted their own subterfuge to ensure that the process would reach the outcome of their preference. This subterfuge subsequently came undone.
None of the workshop staff has any great experience of litigation and the process through which documents are prepared for court. In this regard, they relied on the guidance of the AMWU, which prepared Mr Payne’s case. For obvious reasons, all the workshop staff, as they were working in close proximity and had common affiliations, discussed their evidence, which was prepared through a common process.
In this context, each acknowledges that he had access to the affidavits of his colleagues prepared for these proceedings. The affidavits also share many common factors, which indicate that they had a common editor or guiding hand.
In my view, these factors must have implications for the overall objectivity of the evidence of these witnesses. By way of example, each witness deposes that he was able to corroborate the affidavits of his colleagues. However, Mr Auld, after indicating that he had chosen the word corroborate himself, for his affidavit, was unable to define accurately what the word meant in his oral evidence.
The various affidavits passed between the office of the AMWU and the Mount Gambier workshop in draft form. There is nothing untoward in this. However, Mr McCade conceded that he was not comfortable accessing documents via computer. In this context, when he became frustrated with the operation of a computer printer, he was likely to have said, in the presence of Mr Auld, that “We’re sorting out Bill’s union shit.” This may have been an unguarded comment, inspired by frustration arising from a recalcitrant machine. However, it is also likely to indicate the shared attitude of the group to Mr Payne’s case, which was one of solidarity with him and the Union.
Mr McCade and Mr Auld also accepted that the group had discussed their various affidavits in their hotel in the day prior to the commencement of the hearing. Accordingly, whilst Mr Payne’s witnesses, in affidavit, including Mr Gordon, are consistent, I approach this consistency with some caution enlivened by the suspicion that the affidavits are, at least in part, informed by a desire to act in solidarity with Mr Payne.
In addition, there was a level of dissatisfaction that the workshop staff themselves were not offered the opportunity to make their own decisions, based on their individual circumstances, as to who of them would seek a voluntary redundancy.
The evidence indicates that Mr Klintberg and Mr Cagney were open to being made redundant for personal reasons. This was well known to all the other mechanical tradespersons concerned, including Mr Payne. This information was conveyed to Mr Gordon, the AMWU organiser for the workshop, by Mr Payne.
Given these circumstances, Mr Gordon deposed that he advised Mr Klintberg and Mr Cagney to put their expression of interest in being made voluntarily redundant, in writing, to Mr Kokkoni and Mr Norman. This occurred towards the end of August 2014. In this context, it was the preference of both the Union and the staff at the Mount Gambier workshop that the de-selection interviews not take place, given the reduction in staff numbers could be achieved by the voluntary redundancies of Mr Klintberg and Mr Cagney.
However, it was not the policy of SA Water to allow voluntary redundancies in the overall setting of its re-structure. Its preference was to make terminations on its own assessment of the merits of the employees concerned in each discrete workplace. In this context, on 29 August 2014 the employees of the Mount Gambier workshop were advised that they were required to attend the interview process, which was initially scheduled for 4 September 2014.
As a consequence of these matters, it was Mr Payne’s view, which he subsequently conveyed to Mr Gordon, that SA Water was in breach of Clause 3.2 of the SA Water Corporation Enterprise Agreement 2013, which is the industrial instrument dealing with conditions of employment at the Corporation.
Mr Gordon accordingly informed Mr Kokkoni, in an email of 2 September 2014, that the union was in dispute with SA Water about the manner in which the redundancies were to be implemented.[7] As such, no members of the Mount Gambier workshop would attend the de-selection interviews scheduled for 4 September.
[7] See Exhibit F
In general terms, Clause 3.2 requires management to consult, in good faith, with the relevant unions concerned, in respect of major organisation change at SA Water, before any such change is implemented. It is alleged that the respondent failed to consult properly or genuinely about how the redundancies were to be implemented and Mr Payne was involved in this dispute.
There is considerable controversy as to what exactly occurred between late August and the date on which the interviews actually occurred, which was 10 September. The major area of dispute centring on the nature of a telephone conversation between Mr Gordon and Ms Pennetta, which occurred on or around 2 September, in which it is alleged that Ms Pennetta threatened some form of repercussions for Mr Payne, if he continued to oppose the 4 September interviews. I will return to this controversy at a later stage.
Regardless of this dispute, what is clear is that it was ostensibly resolved shortly afterwards. As a consequence, the full complement of the Mount Gambier workshop, including Mr Payne, agreed to attend for the interview process, which was re-scheduled for 10 September. It does not seem improbable to me that the staff of the workshop had an ulterior motive for agreeing to the interviews concerned, which had nothing to do with their previous complaints about the process concerned.
In my estimation, Mr Gordon was not an impressive witness. In his affidavit evidence, he made a serious attack on the credit of Ms Pennetta, alleging that she threatened Mr Payne. However, when asked to recount this incident, outlined in his affidavit affirmed on 30 July 2015, some three months or so prior to the trial, he could not recall what she said, responding defensively in my view, that he had neither a photographic memory nor a dictaphone in his head. Given the gravamen of his allegations against Ms Pennetta, it seems to me to be extraordinary that he could not recall them.
In these circumstances, Ms Pennetta, who gave evidence by telephone from overseas, as she was on holiday at the time of the hearing, was by a large measure the superior witness. I prefer her evidence. In my assessment, Mr Gordon was a partisan witness, whose evidence was on occasions clearly wrong. In particularly, it is plainly erroneous for him to claim that Mr Kokkoni “was unable to push through changes to working without the agreement of the employees” in respect of a dispute initiated by Mr Payne in respect of flexi time arrangements.[8]
[8] See affidavit of Mr Gordon filed 1 September 2015 at paragraph 3
This was not what occurred. It was the employees, at the Mount Gambier workshop, rather than management, which was not abiding by the relevant enterprise agreement. Essentially, some members of the staff were working through meal breaks to accumulate RDO’s, which was not in accordance with the relevant agreement. When Mr Kokkoni pointed this out to Mr Gordon, at both a toolbox meeting and in correspondence, the issue was resolved.
Mr Cagney was an engaging witness, who presented as a lovable larrikin. He conceded that he had initially approached the interview process with the intention of throwing it in order to achieve his desired outcome of a redundancy.
However, during the course of the interview, as a result of a combination of professional pride in his work and second thoughts about his financial position, he engaged more genuinely with the questions put to him and, as a consequence, as the interviews unfolded, was viewed more positively by the interview panel than other interviewees.
It seems to me to me more probable than not that all who took part in the interview process, as well as Mr Gordon, were aware that Mr Cagney intended not to acquit himself well before the interview panel. In this way, it was hoped that the workshop staff would achieve their desired outcome, vis-à-vis the proposed redundancies, through an unorthodox and somewhat devious means, unknown to the management concerned.
Mr Cagney’s subterfuge came unstuck. Ultimately, as will be discussed in more detail later, he was adjudged the third most successful interviewee, by Messrs Kokkoni, Heather and Norman, in the de-selection process held in Mount Gambier on 10 September 2014.
Mr Payne and Mr Gordon attack the bona fides of the interview process. However, given the fact that the union membership were themselves willing to attempt to subvert the process, this, in my view, significantly undermines the credibility of their own attacks on the validity of the process.
a)The decision of SA Water to re-structure its organisation
Mr Meakin and Mr Kokkoni both gave evidence about the decision of SA Water to re-structure its business. This decision was made at “the executive level and then cascaded down through every level of the business”.[9] I accept that the rationale for the re-structure was so that the Corporation could operate more efficiently, in terms of its service delivery, and at a reduced level of expenditure.
[9] See affidavit of Mr Kokkoni at paragraph 5
I also accept that the decision to re-structure emanated from government and was approved by the board of management of the Corporation. It affected every level of SA Water and all of its operations. It was implicit that the re-structure would involve redundancies.
Mr Meakin’s position is senior manager asset maintenance and delivery. He reports to the general manager of operations, who in turn reports to the chief executive officer of SA Water.
Amongst other responsibilities, Mr Meakin has oversight of SA Waters mechanical workshops, which are located across regional South Australia. They provide maintenance for both mechanical and electrical plant and equipment relating to the Corporations delivery of services within South Australia.
Ultimately, it was determined that the mechanical trade staff, of the Mount Gambier workshop, would be reduced from six to four. In his managerial role, Mr Meakin played a part in this decision. However, I also accept his evidence that this decision was informed by the direction, emanating from the executive and board of directors of SA Water, that it was to save money and deliver its services cheaper.
In giving effect to the directions of the executive of SA Water that the Corporations services be rationalised, Mr Meakin commissioned what he termed “a full comparative analysis” of the functions provided by the various mechanical workshops throughout South Australia. As I understand it, this analysis was statistical in nature and applied to all of SA Water’s workshops, throughout South Australia, not just Mount Gambier.
The aim of the analysis was to ascertain how costs could be reduced, without compromising the services offered to customers of SA Water. In his affidavit evidence, Mr Kokkoni deposes that the efficiency review of mechanical workshops determined that the Mount Gambier workshop would have a reduced function and so less work to do. It determined that the workshop would focus on operational responses and maintenance tasks, which would result in a reduced area of responsibility. Accordingly, the analysis necessitated the redundancy of two mechanical trade persons from the workshop.
Whenever this decision was an appropriate one or otherwise is beyond the remit of these proceedings. However, in general terms, I am satisfied that the executive of SA Water did not decide to rationalise its services or reduce its staff levels, either generally or in the Mount Gambier mechanical workshop in particular, because it wished to cull union members from its staff.
In addition, I am satisfied that the subsidiary decision to conduct a cost analysis of the Mount Gambier workshop in particular was not similarly motivated. Rather Mr Meakin and in turn Mr Kokkoni were following the directions provided to them by the executive of SA Water.
In my view, there is no evidence to indicate anything other than that the executive of SA Water wanted to reduce its level of staffing, at all levels of its operation and throughout the state as a whole. Within the sphere of his operations, Mr Meakin undertook this direction and in so doing obtained statistical evidence to guide his decision.
It was not specifically put to Mr Meakin, by Mr Hardie, counsel for Mr Payne, that one of the factors behind the restructure was a desire, emanating from any level within SA Water, that trade union members should be singled out for termination.
The decision to reduce staff and expenditure applied throughout all of SA Waters operations. As a consequence, the commission had a policy of “ring fencing” the process of job rationalisation. This involved the grouping of employees to the positions, which were to be made redundant.
The rationale being that redundancies should fall uniformly throughout the Corporations operations. I also accept that it was the respondent’s policy, at relevant times, that redundancies should be based on merit. As such, the Corporation had no policy of encouraging voluntary redundancies. Mr Meakin described the process of “ring fencing” as follows:
“A selection process was then implemented in line with SA Water’s procedure to “ring fence” the 6 affected positions and to reduce them to 4 positions. The process of ring fencing positions involves the grouping of employees who are matched to available positions and an objective selection process to identify which employees within that job should fill the positions. Employees from outside the group are not considered. Where there are more employees than positions, this results in the redundancy of those employees. This ring fencing process was implemented throughout SA Water where appropriate during its organisation-wide restructure, it was the policy of SA Water to implement forced rather than voluntary redundancies, and to reduce the number of employees by an objective merit-based selection procedure. If a tenured employees position was made redundant, SA Water would need that employees agreement to end their employment for redundancy”[10]
[10] See affidavit of Mr Meakin at paragraph 9
Mr Payne and other of his colleagues within the Mount Gambier workshop are critical of the Corporation’s policy not to facilitate voluntary redundancies. The evidence available to me indicates that Mr Klintberg and, at least at one stage, Mr Cagney were desirous of obtaining such a redundancy. Clearly, if their overtures, in this regard, had been accepted by SA Water, it would not have been necessary for the de-selection process, involving Mr Payne, to have continued.
However, as previously indicated, it is not my function to examine the probity of SA Water’s policy in respect of voluntary redundancies, rather, I must ascertain whether this policy is informed, in any material way, by any illegal considerations relevant to trade unionism.
Mr Kokkoni, at relevant times, was the workshop manager for SA Water. He was charged with implementing the decision to re-structure the workshops as a consequence of the statistical analysis undertaken. As a consequence, he convened a meeting, at the Mount Gambier workshop, on 1 August 2014.
The meeting was attended by the employees who were to be affected by the decision concerned. In conjunction with this meeting, the employees were also sent a letter and question and answer sheet, which outlined why the workshop was being re-structured.
In particular, the letter advised as follows:
“The purpose of this letter is to consult with you in relation to changes to SA Water’s organisational structure in Asset Maintenance & Delivery (AM&D) within the Operations & Maintenance Group.
You were advised about the Corporations need to restructure its business in a number of communications throughout the past year. At today’s meeting you were provided with information in relation to the impact of the AM&D restructure on your role.
As you know SA Water is undergoing major changes to ensure the Corporation is agile and can thrive in an environment that is already remarkably different from the one it was operating just a few years ago. The transition to economic regulation has become a catalyst for us to consider ways to do business more efficiently. The decision to restructure AM&D was made after extensive review and consideration, and will result in cost savings for the business, increased efficiencies and working more effectively across the State. The closure of the Happy Valley workshop and changes in Port Lincoln and Mt Gambier will deliver cost savings and provide specialisation at the four larger sites.
The Mt Gambier workshop’s service area will reduce and will focus on operational response. In the future the position (role) will remain unchanged but will be performed by fewer employees. Your position of (role) has been impacted by this change. The recruitment process for this position will be limited to those current Mt Gambier employees performing this position via a restricted internal recruitment call. A transparent recruitment process will be undertaken to select who will remain with the Corporation performing the position of (role). Please refer to the FAQs and the job advertisement for further information.”[11]
[11] See annexure “CK2” to Mr Kokkoni’s affidavit filed 25 September 2015
Mr Kokkoni determined the process by which two persons were to be selected for redundancy within the Mount Gambier workshop. He decided that it would be done through an interview to be conducted by a panel of three. Mr Kokkoni determined the make-up of the panel concerned.
As previously indicated, as well as Mr Kokkoni, the panel consisted of Mr Heather, who is a recruitment consultant employed by SA Water and Mr Norman, who is the workshop co-ordinator at Mount Gambier. Mr Heather and Mr Kokkoni determined the questions, which were ultimately asked of each of the mechanical tradespersons employed in the workshop. The questions were a mix of behavioural and technical questions.
Mr Heather began his employment with SA Water in 2009. Prior to that time, he was employed by two recruitment consultancies for approximately 21 years. He has a background as a mechanical tradesperson, having worked in power plants for approximately 17 years, whilst he lived in the United Kingdom.
Mr Heather had not previously met Mr Payne and I accept his evidence that, prior to the de-selection interview process, he was unaware that Mr Payne was a member of the AMWU.
Mr Heather describes his involvement in the selection of questions for the various interviews concerned in the following terms:
“Kokkoni selected the four behavioural questions from a list of questions that I provided to him that SA Water uses, which all relate back to SA Water core values. The two technical questions chosen by Kokkoni were originally developed by me and refined by two experienced Workshop Coordinators, who are both mechanical tradespersons with 40 years’ experience each, approximately three years ago. At the time of this restructure, we had been using these exact questions for approximately two years and are still in current use.
The panel was made up of me, Kokkoni and Luke Norman (Norman). Therefore, the panel was made up of a human resources representative (me), the manager once removed (Kokkoni) and the hiring manager (Norman). I estimate that this combination, a human resources representative, the manager once removed and the hiring manager was used by SA Water in 80% of the interviews that I have been involved with over the last six years”[12]
[12] See affidavit of Ken Heather filed 29 September 2015 at paragraph 12 & 13
b)Mr Payne’s union activities
In my view, it is clear that, ostensibly at least, the process through which SA Water intended to reduce its staff was not tainted by any illegal purpose. Essentially, for fiscal reasons, it wished to rationalise staff, including at its various regional mechanical workshops. For reasons of policy, the Corporation elected to spread the necessary redundancies over its entire workforce and determined, on the basis of merit, which of its staff were not to be retained.
These decisions emanated from within the highest level of corporate responsibility, within SA Water, and were not explicitly directed at any individual or group of individuals. SA Water was obviously entitled to undertake the efficiency review in question and put in place its recommendations.
The next question, which arises, is whether, at a local level, Messrs Kokkoni, Heather and Norman determined to target Mr Payne because he was known to be a trade union activist, who had previously been an irritant to them in the workplace because of his industrial activities.
Essentially, Mt Payne asserts that he was more qualified and capable than others within his cohort, at the mechanical workshop in Mount Gambier, and therefore, by necessary implication, he was selected for redundancy because of his trade union activism, by means of a skewed and unfair interview process. In his closing submission, Mr Hardie put his case in the following terms:
“All the decision makers were aware of his (Mr Payne’s) status of workplace delegate and his industrial agitation well prior to selecting him for redundancy on 19 September 2014 via a fatally flawed selection process designed to give the decision makers unfettered control and power to make a decision to select the applicant for redundancy without reference to or reconciliation with recent records of performance appraisals, performance awards and training/skills matrix.”[13]
[13] See applicant’s closing submission at paragraph 2
It also appears to me that it is Mr Hardie’s position the local decision makers (Messrs Kokkoni, Heather, Norman and Meakin) reached the decision to terminate Mr Payne’s employment with the tacit approval of the highest echelon of management within SA Water because the Corporation had fostered a workplace culture of overriding workers’ rights.
No evidence has been called or sought from the executive level of SA Water as to why it determined to rationalise its operations. The explanation provided by intermediate officers, such as Mr Meakin and Mr Kokkoni, was that it was to render the organisation more efficient at the direction of government. This is supported by documentary evidence produced at the time/the letter to employees and to the FAQ sheet.
In my view, there is no evidence to support Mr Hardie’s contention that an anti-union culture was rife in SA Water from the top down. I must be careful of reaching any such conclusion on the basis of innuendo or hyperbole. However that is not an end to the matter. It is also Mr Hardie’s submission that Messrs Kokkoni, Heather and Norman, with the approval of Mr Meakin, colluded against Mr Payne because he was a trade unionist.
Essentially, it is asserted that the interview process was a sham, which had a preordained outcome, namely Mr Payne was to be terminated. In support of this contention, Mr Payne contends that the de-selection process was not conducted in line with accepted recruitment practices, in that no regard was had to previous performance appraisals conducted in respect of him.
It is a serious matter to assert that decision makers acted improperly and dishonestly through collusion with one and other to bring about an unlawful outcome. Allegations of conspiracy cannot be established by mere suggestion.
In this context, I bear in mind s.140(2) of the Evidence Act, which indicates that in applying the prerequisite standard of proof, I am entitled to consider the nature of the subject-matter of the proceedings and the gravity of the matter alleged.
These criteria reflect the well-known comments of Dixon J, in the case of Briginshaw v Briginshaw[14] as follows:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
[14] Briginshaw v Briginshaw (1938) 60CLR 336 at 362
In addition, it is noteworthy that Mr Hardie did not elect to specifically put it to any of Messrs Kokkoni, Heather and Norman that they had directly colluded with one and other to rig the outcome of the interview process to secure an illegal outcome.
As such, none of these witnesses had an opportunity to contradict the assertion that he had illegally conspired with others to disadvantage Mr Payne because of his trade unionism. Ms Charlesworth, counsel for SA Water, contends that Mr Hardie has not complied with the well-known rule Browne v Dunn.[15] As such, Mr Payne is precluded from making a submission that he is the victim of such a conspiracy.
[15] Brown v Dunn (1894) 6R67 (HL)
Mr Payne, in his trial affidavit, did not provide specific details of his industrial activities, at the Mount Gambier mechanical workshop, prior to his dismissal. He deposed as follows:
“Since January 2009 I have been the AMWU work place delegate. I have actively represented members industrial interests and enforced enterprise agreement obligations.”[16]
[16] See affidavit of William Heaney Payne filed 1 September 2015 at paragraph 2
Mr Payne does assert however that he was active in opposing the de-selection process, so far as it pertained to the Mount Gambier workshop, and in so doing, involved Mr Gordon, who was, at relevant times, a state organiser for the AMWU.
In the circumstances, Mr Hardie was given leave to adduce further evidence, from Mr Payne, regarding his previous union activities, at the workshop. These can be classified into the following groups:
·A dispute relating to how rostered days off were to be accumulated;
·A dispute relating to the required provision of medical information, to management;
·Disquiet about the introduction of surveillance cameras into the workplace; and
·Finally, the dispute relating to the de-selection interview process.
In respect of the first issue, Mr Payne deposed that Mr Norman had called a toolbox meeting to advise that management had determined that “ADO hours accumulation was to be changed and the ability to accrue accumulated days off was to be reduced.” Mr Payne further deposed that he contacted Mr Gordon over the issue and an arrangement was negotiated between management and Mr Gordon, which was satisfactory to all concerned.
Mr Kokkoni was cross-examined about the RDO issue, which he played a part in resolving. Just as Mr Payne had referred the issue onto Mr Gordon, it seems that Mr Norman had also referred the issue onto Mr Kokkoni. From Mr Kokkoni’s perspective, which I accept, the issue was that different workshops had different policies as to how many RDO’s could be accumulated and these practices were not consistent with the negotiated protocol concerned.
As such, Mr Kokkoni deposed that there was no change in employees flex time conditions. Rather management elected to correct irregularities, which the union accepted had arisen. As such, there was no substantive dispute and what disagreement had arisen was consensually resolved.
The issues centred on employees working through their allotted lunch hour. From managements perspective, this was unacceptable for health and safety reasons, as well as being in contravention of the enterprise agreement. It is Mr Kokkoni’s evidence that he convened a meeting to discuss the issue, in which he pointed out these factors. It was this meeting that led to the resolution of the matter. Mr Kokkoni summarised the issues arising in respect of the RDO arrangements in a letter which he wrote to Mr Gordon on 4 July 2014.[17] Accordingly, in my view, Mr Payne’s involvement in the issue was peripheral.
[17] See Exhibit “CK9” to the affidavit of Mr Kokkoni filed 25 September 2015
The provision of medial information issue was also consensually resolved. Mr Norman accepts that Mr Payne raised the issue at a toolbox meeting at some time in 2013. His concern was the breadth of medical information sought by management and its detail. Mr Norman referred his (Mr Payne’s) concerns to the work, health and safety department for investigation.
Some months later, the WHS department responded to Mr Normans queries. Essentially, Mr Norman was advised that the health checks were required because of the potentially hazardous nature of the workplace, which included possible exposure to noxious gases and the requirement to work in confined areas, such as sewers. It was for these reasons that the health checks were extensive and the records held for a lengthy period of time.
Mr Norman conveyed this information to the workforce, at the Mount Gambier mechanical workshop, by placing a notice on the workshop notice board. The workforce accepted this information, and once again, the issue was amicably resolved through an exchange of information. Interestingly, in his oral evidence, Mr Payne described Mr Norman as approachable. He also noted that, as was the case between him and Mr Gordon, so to with Mr Norman, he referred workplace issues to those above him in the management structure.
Mr Norman himself raised an issue, which Mr Payne had raised with him, at a workplace meeting. This concerned the placement of security cameras, particularly in the area where chlorine bottles were stored. Mr Payne apparently voiced an objection to being potentially subject to surveillance.
From Mr Norman’s perspective, management had decided that the cameras should be installed for security reasons, due to the volatility of chlorine gas. As such, Mr Norman had no authority to change the arrangement.
In his oral evidence, Mr Norman indicated that he was pleased that Mr Payne had raised the issue, relating to security issues, so it could be properly ventilated in the workplace. From his perspective, the only area of conflict, which arose in respect of it, was when Mr Payne mimed the act of masturbation, in order to indicate how he personally felt inclined to respond to the cameras, which he considered an intrusion into his privacy.
Mr Norman did not feel this was appropriate behaviour, at a workplace meeting, particularly as there were a number of young apprentices present, whom Mr Norman believed were impressionable. In these circumstances, he admonished Mr Payne, for his behaviour, which he did not think appropriate.
Accordingly, prior to the de-selection interview process, the evidence available to me indicates that the Mount Gambier mechanical workshop was largely harmonious with management. In my assessment, Mr Norman was a contentious manager, with whom the mechanical tradespersons, including Mr Payne, had a good relationship.
Although Mr Payne was the workplace delegate, he had a low profile and whenever an industrial issue arose, it was his practice to refer it on to Mr Gordon, as the union organiser. Mr Norman likewise referred issues of this nature to his line supervisor. Significantly, the evidence available to me indicates that all issues raised by Mr Payne were of a minor nature and each was satisfactorily resolved.
In my view, the issue regarding the redundancies of two mechanical tradespersons from the Mount Gambier workshop falls into a different category. Initially, it was a major dispute, in which Mr Payne was significantly involved. However, as with the other workplace issues, it too was consensually resolved.
The process through which SA Water determined to re-structure its operations had a relatively lengthy gestation period of around two years, as change cascaded through the organisation. Change reached the Mount Gambier mechanical workshop on 1 August 2014, when Mr Meakin and Ms Pennetta met with the mechanical tradespersons there to advise them of the rationalisation. This followed the dispatch of a letter to staff from the general manager operation and maintenance and the FAQ sheet, the import of which was that staff levels would be reduced from six to four.[18]
[18] See annexure “CK2&3” to the affidavit of Mr Kokkoni filed 25 September 2015
There is some controversy about what exactly what was said and by whom at the 1 August meeting. Mr Payne asserts that Mr Kokkoni said that there would be no reduction in the amount of work going through the Mount Gambier workshop, notwithstanding the reduction in its staff. Mr Kokkoni disputes this, asserting that he disclosed at the meeting that there would be less work going through Mount Gambier because of overall changes to the workshop structure throughout the state as a whole.
Mr Payne also asserts that Ms Pennetta that the AMWU had already been informed of the proposed changes. Ms Pennetta disputes this, saying that it was SA Water’s policy to inform the employees directly affected any workplace change, prior to engaging any relevant union. This was done out of a sense of respect for such employees and so they heard any difficult news personally from management.
In my view, not a great deal turns on these issues but Mr Kokkoni and Ms Pennetta’s recollections are likely to be more reliable. However, it seems clear that the meeting did evince levels of disquiet from the workshop employees, particularly as to how quickly the de-selection interviews were to be scheduled, which is understandable in the circumstances. As a consequence, Mr Payne contacted Mr Gordon, as he had done previously, when industrial issues had arisen in the workshop. Mr Gordon subsequently telephoned Ms Pennetta.
At this point, it is necessary to establish that Ms Pennetta was the senior human resources manager at SA Water. In this capacity, she attended a number of road show meetings throughout South Australia which were organised to inform staff of the Corporations restructure plans.
However, Ms Pennetta was not personally responsible for any direct implementation of the restructure. In particular, she played no part in the process which led to Mr Payne being selected for redundancy. As such, she is not to be regarded as a decision-maker, so far as this particular case is concerned.
It was Mr Gordon’s view that SA Water had breached the terms of the enterprise agreement by failing to consult adequately about the proposed redundancies. As a consequence, on 26 August 2014, at 4:10pm, he emailed Mr Kokkoni requesting a meeting with him to discuss the redundancies and possible breaches of the enterprise agreement.
As previously indicated, at this stage, Mr Payne also made it known to Mr Gordon that Mr Klintberg and Mr Cagney wished to seek a voluntary redundancy, which obviously, from the perspective of Mr Payne and the other employees in the workshop, would solve any problems arising from the re-structure.
A meeting was scheduled for 29 August, which was attended by Mr Gordon, Mr Meakin, Mr Kokkoni and Ms Pennetta. Discussions referred to not only the Mount Gambier workshop, but also SA Water facilities at Happy Valley and Port Lincoln. Another HR person, from the Corporation, also attended.
It is Mr Meakin’s position that he explained to Mr Gordon the Corporation’s policy in respect of informing the workforce first, in respect of redundancies, prior to them engaging the union concerned. Mr Meakin also deposes that he told Mr Gordon that he and Mr Kokkoni had visited the workshop, on 21 August 2014, to discuss the process with the relevant employees concerned. On this basis, it is implicit, I think, that management intended the interviews, scheduled for 4 September 2014, would go ahead.
At the meeting of 21 August, Mr Kokkoni explained to the workshop staff the nature of the ring fencing process, particularly that no one from outside the workshop would be able to apply for the remaining positions there. In addition, he indicated to staff that there was no need for them to submit their curriculum vitae to management.
The next matter of significance occurred on 1 September. On this occasion, Mr Norman convened a toolbox meeting, in the Mount Gambier workshop, to advise the staff that the de-selection interviews would occur on the following Thursday following this meeting, Mr Payne deposes that, following consultation with the other employees, he informed Mr Norman that no member of the workshop would be attending such interviews and all further communications about the issue should be referred to Mr Gordon.
At this point, Mr Payne asserts that Mr Norman “rolled his eyes and threw his hands in the air whilst going red in the face.”[19] Mr Payne asserts that he interpreted this behaviour as anger, on Mr Norman’s part, directed at him.
[19] See affidavit of Mr Payne filed 1 September 2015 at paragraph 9
As previously indicated, it is my view that Mr Norman is a sensitive and thoroughly decent person. During his oral evidence, he was moved to tears, when he recollected his personal heartache at being involved in the redundancy process. He found this to be a deeply upsetting process, which he would have avoided, if at all possible. On a personal level, he was uncomfortable that any member of his team, with all of whom he enjoyed a good working relationship, should be made redundant.
Mr Norman accepts that he lost his composure, when Mr Payne informed him that the staff of the workshop would not be taking part in the interviews scheduled for 4 September 2014. He explains his loss of composure in the following terms:
“I was frustrated because I did not want the process to take any longer than necessary and thought that the refusal of employees to participate in the interviews would delay the process and potentially cause stress for those involved. Payne did not say that the union was formally in dispute about this process and I did not understand that this was the case.”[20]
I accept this evidence. In my view, there was no particular level of animosity between Mr Norman and Mr Payne, at this stage or indeed at any other stage, whilst the two were employed together at the Mount Gambier workshop.
[20] See Mr Norman’s affidavit filed 25 September 2015 at paragraph 49 (c)
As a consequence of these matters, Mr Gordon dispatched an email to Kokkoni, at 5:15pm on 2 September 2014. The email was copied to Ms Pennetta; Mr Meakin; and Mr Payne. It advised Mr Kokkoni that the union was invoking the dispute resolution procedures contained in the relevant enterprise agreement. The relevant portions of the email read as follows:
“The unresolved issues are how people are targeted for redundancy and how and why employees will need to reapply for their position and communication/consultation.
It is the AMWU’s understanding that 2 positions are to be made redundant in the Mount Gambier workshop and two employees have given notice that they would like to take the redundancy. The AMWU is supportive of voluntary redundancies in the first instance.
It is disappointing again that during our meeting on August 29th the AMWU was not consulted about interviews taking place this Thursday at the Mount Gambier site. It was made quite clear in the meeting by the AMWU we wanted further discussions/consultation around the Mount Gambier site redundancies. A meeting request was sent from you for the 9th September which I declined and we have now arrange a suitable time for all to meet on the 5th September. I had hoped we would come to some kind of agreement.”[21]
At the conclusion of the email, Mr Gordon indicated that no employee, of the Mount Gambier workshop, should be requested, by management, to attend the de-selection interviews, whilst the dispute remained in force. It is, I think, implicit in this statement that it was a given that the employees concerned would also decline to attend such interviews.
[21] See exhibit “F”
In his affidavit evidence, Mr Gordon claims that this email was ignored. This is patently not the case. Mr Kokkoni arranged a meeting, with Mr Gordon, which occurred very early the next day, 3 September 2014. Mr Gordon in fact informed Mr Auld, by email, of this meeting.
Mr Gordon does not refer to this meeting in his affidavit evidence. Rather, he accounts his version of the disputed telephone conversation, between him and Ms Pennetta of the same date, to which reference has already been made and in respect of which I prefer the evidence of Ms Pennetta.
I do not accept that she indicated to Mr Gordon that Mr Payne would be subject to repercussions if he continued to impose the workshop employees attending the de-selection interviews. It seems to me more probable that she indicated in more anodyne terms that the requirement for the employees to attend the interviews in question was a reasonable and lawful direction of management. In particular, I do not accept that Ms Pennetta made any specific comment regarding Mr Payne or that he was singled out in any way as some form of ringleader.
In any event, following the 3 September meeting, from the perspective of Mr Meakin and Kokkoni, the issue had been resolved, with the temporary deferral of the interviews, against a background of Mr Gordon being given the opportunity to consult further with his membership regarding the interview process.
This understanding was formalised in an email, emanating from Mr Kokkoni, which was sent to all concerned, including Mr Gordon. The relevant portion of the email in question reads as follows:
“During the meeting today we discussed the interview process in detail including appeals and grievance procedures. It was agreed that the interview process will proceed next week so Stuart has the opportunity to speak with his members this Friday morning over a telephone hook-up. After talking with the Mount Gambier AMWU members, we will meet again with Stuart to finalise a general communication to everyone.”
Throughout this process, I accept that Mr Meakin, Mr Kokkoni and Ms Pennetta made it clear to Mr Gordon that the de-selection process would occur on the basis of merit, which would be established through the interview process alone. It was also made clear that the overall policy of SA Water that there would be no voluntary redundancies and further that the de-selection process would occur via the ring fencing of groups of positions and would not be varied in the case of the Mount Gambier workshop.
Accordingly, in my view, the dispute concerning the adequacy of consultation regarding attendance at the de-selection interviews was resolved as a consequence of discussion between Mr Gordon and management. Mr Gordon confirms that there was a telephone hook-up, between him and the staff of the Mount Gambier workshop, on 5 September 2014.
At this stage, Mr Gordon deposes that the staff reluctantly agreed to attend the de-selection interview process. At this stage, Mr Cagney announced to the meeting that he would throw his interview to make sure that he got a redundancy.[22] For obvious reasons, no one on the interview panel was made aware of this intention.
[22] See affidavit of Stuart Gordon filed 1 September 2015 at paragraph 14
c)The interview process itself
Mr Heather was charged with the formal correspondence, which invited each of the members of the mechanical workshop team, at Mount Gambier, to attend at the de-selection interviews. He had had no involvement whatsoever in any prior managerial decisions relating to the workshop and had never met Mr Payne previously. He was unaware that Mr Payne was the AMWU delegate at the workshop.
By trade, Mr Norman is an electrician. He pursued this occupation for approximately 15 years before moving to what he described as a “role of middle management” at SA Water. He joined the Corporation in 2013. In this context, it was Mr Heather’s impression that Mr Norman was “uncomfortable” with the fact that two of his staff were to be made redundant.
It is Mr Heather’s evidence which I accept, that he explained to Mr Norman the fact that the de-selection process would be fairly applied to each of the employees concerned and this process had been utilised, by the Corporation, throughout the whole de-structure process.
In his oral evidence, Mr Norman confirmed his discomfort with the process. He deposed as follows:
“There were two people that had to go from our workshops, and I was extremely disappointed, and it caused me a huge amount of anxiety…it’s the worst thing I’ve been involved in with work.”[23]
[23] See transcript page 266
Mr Norman further indicated that he had sought counselling, through the employees assistance program offered by SA Water, to assist him with the stress, which he had experienced as a consequence of his involvement with the de-selection process. In addition, of his own volition, he had investigated potential job alternatives for the two persons, who were to be made redundant. He had made these enquiries prior to the interview process.
As previously indicated, I accept that Mr Norman was genuine in what I regard as his deeply held concern for the workforce, which he managed. His presentation was not of a person, who wished to seize upon the process concerned to dismiss arbitrarily Mr Payne because of his trade union affiliation. Rather, he presented as a sensitive and caring manager, who genuinely empathised with the situation of his staff.
Mr Heather and Mr Kokkoni selected the questions, which were to be asked at the interview. The questions were a mix of behavioural and technical questions. The former referring to the ethos of SA Water; the latter as to the technical requirements of the position, particularly in respect of the chemical dosing of water supply. It is Mr Heather’s evidence which I accept that all the questions selected had been previously used by SA Water job interview situations.
Mr Heather described the panel in the following terms:
“The panel was made up of me, Kokkoni and Luke Norman (Norman). Therefore, the panel was made up of a human resources representative (me), the manager once removed (Kokkoni) and the hiring manager (Norman). I estimate that this combination, a human resources representative, the manager once removed and the hiring manager was used by SA Water in 80% of the interviews that I have been involved with over the last six years.”[24]
[24] See affidavit of Ken Heather filed 25 September 2015 at paragraph 13
Messrs Kokkoni, Heather and Norman met prior to the holding of the interviews concerned. At this stage, the allotted questions were assigned between them. The rationale of this process, which I accept, was that each interviewee would be questioned and assessed in the same way. Mr Heather described his role in this meeting as follows:
“Prior to the interviews I discussed the process with Norman and Kokkoni. I emphasised the need for the interviews to be conducted objectively and for each candidate to be interviewed in the same way. To achieve this, we agreed that each of us would have assigned questions that we would ask each of the employees. Further, part of my role on the panel was to ensure that no appropriate or irrelevant questions were asked.”[25]
[25] See affidavit of Ken Heather filed 25 September 2015 at paragraph 21
Prior to the interviews taking place, a pro forma interview guide was prepared, on which was entered the various questions, which had been formulated, along with sufficient space for the interview panel member to note comments. Also on the form was a guide to how scores were to be allocated to scoring, with a score of five being for an outstanding answer and a score of one for one which was significantly below the relevant criteria for successful job performance.
In addition, the form indicates the steps to be followed in the interview process, starting with the candidate concerned being welcomed and an attempt made to put him at ease. Each of Messrs Kokkoni, Heather and Norman were provided with this pro forma document and each completed one such form in respect of each member of the mechanical tradespersons team, at the Mount Gambier workshop.
I have been provided with each of the pro forma documents concerned. Each of the interview panel members has deposed that they scored the candidates answers to the set questions independently of one and other. I have no reason to doubt the veracity of this evidence.
It is Mr Heather’s evidence that he found Mr Payne’s answers to the behavioural questions to be either average or below. He was also unimpressed with one of Mr Payne’s answers to a technical question. Mr Kokkini regarded Mr Payne’s answers to the behaviour questions to be superficial. Mr Norman regarded Mr Payne as being “a bit out of his depth” with some of the behavioural questions. However, in Mr Norman’s estimation, Mr Payne did better with the technical questions.
d)The decision-making process
Following the interview process, Mr Kokkoni and Mr Norman forwarded their respective scoring of each interviewee to Mr Heather for tabulation. Thereafter, the panel members conducted a telephone conference to discuss the scores and their respective impressions of each employee concerned.
Mr Kokkoni and Mr Heather had scored each employee in a similar fashion; whereas Mr Norman had been more generous. Significantly, however, each member of the panel ranked the interviewees in the same order, ranking Mr Kent highest; with Mr Klintberg being the lowest. Each ranked Mr Payne in fifth position.
Mr Cagney was ranked third. He was ranked, by the panel, better in his answers to technical questions than to the behavioural ones. In cross-examination, he acknowledged that he had entered the interview with the intention of throwing it, so as to have the best opportunity to obtain a redundancy. However, he accepted that the interviewers cottoned on to the fact that he was giving poor answers. After this, he agreed that he gave more considered answers, particularly in respect of the technical questions, giving the panel some of his ideas to assist the workshop to run better.
On 17 September 2014, Mr Heather drafted an email, in which he summarised the results of the interview process. In addition, he calculated an average score, for each candidate, in respect of each question asked of him. Each question was then given a different value, according to the applicable job description reflecting the weight attributed by SA Water to the different competencies required by the position. Mr Heather further deposed that the Corporation used this weighted score process “in order to make the process mathematical and objective and to minimise the chance that irrelevant matters interfered in the decision making”[26]
[26] See Mr Heathers affidavit filed 25 September 2015 at paragraph 40
In addition, Mr Heather has earlier asked each candidate to nominate an internal referee and to confirm that each had no objection to the interview committee having access to their respective past performance appraisals. Each candidate nominated Mr Matthew Fox, as an internal referee. Mr Fox had been the workshop supervisor, prior to Mr Norman.
Mr Heather subsequently contacted Mr Fox and completed a pro forma document, in respect of each candidate, on which he noted Mr Fox’s comments. He did not take into account any of the candidates past performance appraisals nor did he make these available to either Mr Kokkoni or Mr Norman. In these circumstances, it is clear that the interview performances of each of the relevant candidates was the determining factor as to who of them was selected for redundancy.
Mr Meakin was provided with Mr Heather’s email summary of the candidates performance at interview, together with their respective standardised scores. It is his evidence that he accepted the panel’s recommendation and therefore approved the decision to make the two worst performing candidates, namely, Mr Klintberg and Mr Payne redundant. He drafted the letter of redundancy, which was forwarded to Mr Payne personally on 19 September 2014.
Mr Payne is critical that his past performance appraisal was either rejected or not properly considered by the panel. I agree with his assessment that the appraisal in question, which was completed by Mr Norman, is extremely positive of his abilities as a tradesperson and his role in the workshop generally. However, I accept Mr Heather’s evidence that he elected not to consider any of the interviewee’s performance appraisals. I also acknowledge that Ms Pennetta herself indicated that this was not generally in line with recruitment.
In his evidence Mr Heather explained why, in this particular case, he had decided not to make reference to the various past performance appraisals of the various candidates concerned. He deposed that in a case where the interview scores of respective candidates were the same or very nearly so, he would use past performance as a means of differentiating between the candidates concerned. However, that was not the case here as the interview established an obvious hierarchy of candidates.
As such, in Mr Heather’s view, it was necessary for regard to be had to any extraneous materials. I accept this evidence. In particular, I reject any implication that the panel did not have regard to Mr Payne’s past performance appraisal because any member of it was aware of his good record in this regard and it was means of disadvantaging him because of his union associations.
As I indicated at the outset, it is not my role to determine whether the interview process was fair; identified the best employees; or was the best way to approach the issue of de-selection. Rather, my function is to determine whether or not there has been any contravention of the provisions of the Act on the basis that the decision in question was motivated, at least in part, by the fact that Mr Payne was connected with AMWU or otherwise because of his industrial activities.
In my view, it is axiomatic of the evidence relating to the interview process that it was not possible for the actions or views of one member of the panel to be determinative as to the panel’s outcome. Accordingly, if the interview process was tainted by illegality it could only have been as a consequence of collusion between all of the panel members concerned. There is no evidence that the panel engaged in any such conspiracy or discussed Mr Payne’s prior union activities.
Mr Heather had no prior relationship with Mr Payne and did not know he was a member of the AMWU. Mr Kokkoni and Mr Norman were each aware of Mr Payne’s union membership but each has sworn that this was not a factor, which influenced the manner in which they approached the interview process. In particular, Mr Norman deposed as follows:
“In deciding what scores to give Payne, I was influenced in any way by his status as a union delegate or member. Nor were my scores influenced in any way by Payne’s involvement in any industrial disputes or union activism. In giving the scores that I did, I relied solely on a comparison of Payne’s performance in his interview with the performance of the other interviews because that is what I had been instructed to do by Heather.”[27]
[27] See affidavit of Mr Norman filed 25 September 2015 at paragraph 30
Both Mr Kokkoni and Mr Heather made similar depositions in their respective trial affidavits. As previously indicated, it was not specifically put to any of the witnesses concerned that these statements were false and they had in fact colluded together. In addition, in my assessment, there is not a scintilla of collateral evidence, from which it might be inferred, that there was such a conspiracy.
In my view, the only rational explanation for the panel ranking Mr Payne fifth of the six interviewees was that this was how he was ranked in this way, by the panel concerned, after it considered objectively the answers provided by him to the panel questions. In these circumstances, I reject the submission that the de-selection process was in any way fatally flawed.
e) What happened after the decision was made
I accept that both Mr Norman and Mr Meakin were well aware of the moment which the decision would have for Mr Payne in particular. For this reason, Mr Meakin elected to come from Adelaide to Mount Gambier to inform him personally, as well as handing him the relevant correspondence about the decision.
I accept Mr Norman’s evidence that the terminology used to Mr Payne by Mr Meakin was that he had not been successful in his application to be retained. On the day in question, Mr Meakin informed Mr Gordon, as the relevant union delegate, that Mr Payne and Mr Klintberg had been made redundant.
For understandable reasons, Mr Payne did not react well to the news of his redundancy. I accept that he displayed his hurt and anguish. In particular, he said “fucking SA Water”. In my view, this was not a particularly extreme or troubling reaction in itself. It is however Mr Norman’s evidence that he was troubled by Mr Payne’s demeanour in the workshop during the remainder of the morning of 19 September.
Mr Payne was apparently due to take leave over the forthcoming weekend. He went home during the afternoon of that day. After having been contacted by Mr Norman and informed of his concerns, which included that Mr Payne was a risk if he remained at work, Mr Meakin determined that Mr Payne should remain at home for the remainder of the day. In this context, he contacted Mr Gordon and asked him to attempt to persuade Mr Payne to stay at home.
I accept that the situation was difficult and tense from everyone’s point of view. It is Mr Norman’s position that he was acting protectively both for his remaining staff and for Mr Payne. On the other hand, it is Mr Payne’s position that Mr Norman’s actions were vindictively motivated.
Ultimately, Mr Norman, in conjunction with Mr Meakin, determined that Mr Payne should not return to the workshop but be on paid leave until he had worked out his notice period of weeks. It is common ground that Mr Payne received his final entitlements on 17 October 2014. He was paid a further eight weeks’ notice in lieu and fifteen weeks redundancy pay.
On 23 September, Mr Payne attended at work as usual. On this occasion, he found that his security card had been cancelled and he could not enter the workshop. The tenor of his evidence is that he felt deeply humiliated by the decision not to permit him to work out his notice, which he believes was grossly out of proportion to his demeanour in the workplace on 19 September. As such, he contends that the actions of Mr Norman, in this regard, were motivated by his (Mr Norman’s) antipathy for unions in general and for Mr Payne in particular because of his union associations.
In his evidence, Mr Norman accepted that the decision to make Mr Payne redundant created an extremely traumatic situation for Mr Payne personally and so for all the other staff members of the workshop, who were also affected by it, as they had each worked with Mr Payne for many years.
Mr Norman described Mr Payne’s demeanour and why he decided to act in the manner in which he did as follows:
“Mr Payne was very negative. His body language was very negative. I had heard him say negative things to a couple of team member. He was frustrated. That’s why I made the decision. Because I didn’t want him to go spreading that bad vibe, the negativity, though our workshop team, or any of other internal customers in the business, during those next few weeks, between when he got the news and when his finish date was planned for. There had been enough stress and anxiety for everyone involved in the ring-fencing process, let alone for there to be more negativity.”
I accept Mr Norman’s evidence that, as with all his decisions relevant to this matter, he agonised over whether to place Mr Payne on paid leave and ultimately elected to do so because he thought it was the best thing to do in order to maintain the morale of the workshop. As such, I do not accept that he was motivated to penalise Mr Payne because of his trade union associations.
Conclusions
The relevant decision maker, in respect of the termination or Mr Payne’s employment, was Mr Meakin, informed by the report of the interview panel, which was compiled by Mr Heather. There is no doubt that Mr Payne’s redundancy was adverse action as defined by item 1 of section 342(1) of the Fair Work Act.
In this context, Mr Payne asserts that the decision in question was made either as a consequence of his membership of the AMWU; his involvement in the RDO dispute and the medical information issue; his involvement in the dispute about the de-selection interview process and whether the events leading up to it contravened the relevant enterprise agreement, during which Mr Norman became red faced, whilst interacting with him; or a combination of these factors.
Given the structure of section 346(1) of the FWA and particularly the use of the word because, the court is required to ascertain why this adverse action was taken and enquire as to whether it was for a reason relating to Mr Payne’s trade unionism, which renders the decision illegal.
The High Court has made it clear that this is not only an objective enquiry but also includes a consideration of any evidence, emanating from the decision maker concerned, as to why the particular decision in question was actually made.
Employers can take a particular action, against one of their employees, for a combination of reasons, some potentially illegal; some potentially not. The purpose of section 346 is to protect trade union officials from being unfairly targeted for exercising their legitimate industrial prerogatives. This purpose is emphasised by the provisions of section 361.
However, the section does not render the onus imposed on an employer to become heavier because the employee affected by the adverse action in question happens to be a member of an industrial association.[28] Bendigo Institute v Barclay French CJ & Crennan J said as follows in respect of the onus created by section 361:
“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 inquiry 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?
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.”
[28] See Board of Bendigo Regional Institute of Technical and further Education v Barclay & Anor [1] (2012)248 CLR 500 at 523[60]
In this particular case, in my view, there is ample direct evidence of why SA Water decided to terminate Mr Payne’s employment. The Corporation had decided to rationalise its services throughout the area of its operations.
As a consequence of this decision, it commissioned various enquiries, which included statistical analysis, as to how this could be done. Ultimately, it decided to rationalise its regional mechanical workshops. Following this process, it was recommended that the workforce, at the Mount Gambier workshop, be reduced from six to four.
Thereafter, the Corporation put in place a process of interviews to select the two persons who should be made redundant. In this context, the Corporation had earlier decided that when redundancies occurred, they were to happen on the basis of merit and in a ring barked environment. This process determined that Mr Payne was one of the employees, who satisfied the least attributes for the position in question.
It is implicit in Mr Payne’s case that the court should, in some way, infer that because there had at least been some form of friction, in the past, between Mr Payne and some members of management and Mr Payne himself was a member of the AMWU that his (Mr Payne’s) trade unionism played at least some part of the decision to dismiss him.
In my view, this submission requires the court to enter the realm of conjecture as to the subliminal or subconscious motivation of the interview panel. In Barclay Heydon J expressly prohibits the court from attempting to illicit any unconscious reason as to why an employer took the particular adverse action in question. His Honour rejected any notion that there could be a difference between “what actuated the conduct in question and what the person in question thought he or she was actuated by.”[29]
[29] See Board of Bendigo Regional Institute of Technical and further Education v Barclay & Anor [1] (2012)248 CLR 500 at 545-6 [144]
In Shortv Ambulance Australia[30] the Full Court of the Federal Court (Dowsett, Bromberg and Murphy JJ) provided an erudite and useful summary, in respect of the application of section 361 and the authorities which relate to it, as follows:
“Where adverse action is taken by one person against another, the task of a court in a proceeding alleging contravention of s 340 or s 351 is to determine why the person took the adverse action and to ask whether it was for a prohibited reason or reasons which included a prohibited reason (Barclay at [5], [44] per French CJ and Crennan J). The question is whether a prohibited reason was a “substantial and operative” reason for the respondent’s action (Barclay at [104] per Gummow and Hayne JJ, see also [59] per French CJ and Crennan J). The relevant inquiry is therefore into the “particular reason” of the decision-maker for taking action (Barclay at [42] per French CJ and Crennan J, [102] per Gummow and Hayne JJ), which is a determination of fact to be made by the court taking account of all the facts and circumstances of the case and available inferences (Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 88 ALJR 980 at [7] per French CJ and Kiefel J, Barclay at [45] per French CJ and Crennan J, [79] per Gummow and Hayne JJ).”
[30] Shortv Ambulance Australia [2015] FCAFC 55 at [55]
In my view, the obvious substantial and operative reason why the respondent took the action, which it did, was because the interview panel composed of Messrs Kokkoni, Heather and Norman ranked Mr Payne the fifth of the six candidates, whom they interviewed. In my view, the interview process was fair and transparent.
It cannot be inferred that any panel member had any particular animus against Mr Payne because of his prior involvement with the AMWU. In my view, it would be nonsensical to infer such animus because of Mr Norman’s display of frustration, in Mr Payne’s presence, when the interview process was temporarily delayed, as a consequence of the industrial processes of which Mr Payne was a part.
In any event, this dispute was resolved when Mr Gordon agreed with Mr Meakin and Mr Kokkini that the interview could go ahead. It was also at this stage that the Mount Gambier workshop staff became aware that Mr Cagney was intent on throwing his interview in order to secure a redundancy. As such, it seems probable that the workshop staff as whole, in these circumstances, considered that the positions of the remaining members, including Mr Payne, were safe.
In my view the applicant has been unable to adduce evidence that there was a systemic policy, emanating from the executive of SA Water, to discriminate against trade union members. In addition, here is no evidence available to me to substantiate the allegation that the Corporation either has or encourages a culture, which is anti-union.
In my view, the evidence is unequivocal that the members of the interview panel in question adopted the task allocated to them in a fair and objective manner. There was nothing extraordinary or unusual about how the panel was constituted or the questions which it posed of the interviewees who came before it.
In contrast, to the persons being interviewed, Messrs Kokkoni, Heather and Norman, were unaware that there was any scheme afoot to fix the outcome of the proceedings. They did what was required of them, according to the protocol which had been established for the interview process and conducted the resulting interview in good faith. In my view, there is no suggestion whatsoever that any of them had any preconceived view of what the outcome should be.
The construction of section 346 requires the court to enquire why adverse action was taken and determine whether it was because of an activity protected by the FWA. This determination must depend upon findings of fact, particularly the factors which motivated the person or persons who actually took the adverse action in question. As such, much of the court’s determination will involve an inquiry about the state of mind of the relevant decision-maker.
In Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd[31] French CJ and Kiefel J said as follows:
“Section 346 does not direct a court to enquire whether the adverse action can be characterised as connected with the industrial activities which are protected by the Act. It requires a determination of fact as to the reasons which motivated the person who took the adverse action.”
[31] Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd [2014] HCA 41
BHP Coal was concerned with the actions of a decision-maker, who had terminated the employment of a person, also as in this case, a long standing union member, who had held up a sign bearing the word scab during an industrial demonstration outside a workplace. It was the evidence of the decision-maker concerned that the use of the word scab, on the placard in question, offended a workplace conduct policy and the employer’s charter of values. On this basis, the employee was dismissed.
The High Court determined that although there was undoubtedly a connection between the termination and a protected industrial activity – the sign having been used in a workplace demonstration – that connection was not necessarily sufficient to found adverse action under section 346, as it was accepted that the reason for the dismissal was not for taking part in industrial activities per se.
In Sayed v Construction, Forestry, Mining & Energy Union [32] Perry J, after referring to BHP Coal and particularly that it was insufficient to found an action under section 346 on the basis of only a connection between the protected activity and the adverse action, said as follows:
“This difference between a “connection” and a “reason” may, with respect, be elusive. Possession of a protected attribute is clearly insufficient, and it may also be accepted that if the occasion for adverse action happens to coincide with manifestation of a protected attribute (such as political opinion or industrial activity), that is insufficient. If, however, more than this is meant by the use of the term “connection” then it seems to me as a matter of fact in a given case there may well be an overlap with a “reason” for the adverse action. So too the distinction between an employer not having to prove adverse action was “entirely disassociated” from a prohibited reason, but having to prove the prohibited reason was not a “substantive and operative” reason. Repeating that these will be questions of fact to be determined on the evidence in a particular case does not remove the difficulty of the somewhat fine distinctions being drawn in the authorities. With respect, they also illustrate the difficulties in paraphrasing, or moving away from, the statutory language which here relevantly requires that an employer prove action was not taken for reasons which “included” a prohibited reason.”
[32] Sayed v Construction, Forestry, Mining & Energy Union [2015] FCA 27 at 37 [188]
In my view, the current matter is not beset with the same degree of ambiguity or difficulty as in BHP Coal. In my view, the facts available to me are clear as to what was the state of mind of the relevant decision-makers. Messrs Kokkoni, Heather and Norman, on the basis of the interview process alone, decided that Mr Payne and Mr Klintberg were the least meritorious candidates for retention. Mr Meakin elected to accept their recommendation. Any connection between this decision and Mr Payne’s union activities is, in my view, purely fortuitous. It was not the reason for the decision.
The final matter for determination concerns whether Mr Norman’s decision, supported by Mr Meakin, to place Mr Payne on paid leave between 19 September and 17 October 2014 firstly constitutes adverse action and secondly arose because of Mr Payne’s trade union activities.
The expression adverse action is defined by a table set out in section 342(1) of the FWA. Relevantly, in the present matter, item 1 of the table reads as follows:
Meaning of adverse action
Item
Column 1
Adverse action is taken by …
Column 2
if …1
an employer against and employee
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
In this case the decision to dismiss Mr Payne occurred on 19 September 2014. I have already determined that this decision was not made as a consequence of Mr Payne’s industrial activities.
Accordingly I must examine whether the decision to place Mr Payne on unpaid leave constituted an injury to him; prejudicially altered his position; or constituted discrimination. Thereafter and more significantly, just as with the decision to make him redundant, I must examine the decision in question, particularly what was in the mind of the relevant decision-maker, when it was made.
In Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia & Ors,[33] the High Court discussed the expression injure an employee in his or employment and concluded that the expression encompassed:
“…a broad additional category which covers not only legal injury but any adverse affectation of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.”
[33] Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia & Ors (1998) 195 CLR 1 at [4]
In Transport Workers’ Union of Australia v Premier Motor Services Pty Ltd[34] Perry J characterised actions prejudicial to a person’s position as being “a broad additional category which covers not only legal injury but any adverse affectation of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.”
[34] Transport Workers’ Union of Australia v Premier Motor Services Pty Ltd [2015] FCA 650 at [33]
Necessarily, it is necessary to compare the position of the employee before the impugned conduct and their position afterwards, in order to determine whether there has been a detrimental alteration occasioned to him or her.
The issue of discrimination, in the sense envisaged in item 1(d) of column 1 in section 342 was canvassed by Perry J in Sayed v Construction, Forestry, Mining & Energy Union.[35]
[35] Sayed v Construction, Forestry, Mining & Energy Union [2015] FCA 27 at 31 [158]-[160]
In the case Her Honour adopted the analysis formulated by Gaudron J in Street v Queensland Bar Association[36] in which Her Honour said:
“Although in its primary sense “discrimination” refers to the process of differentiating between persons or things possessing different properties, in legal usage it signifies the process by which different treatment is accorded to persons or things by reference to considerations which are irrelevant to the object to be attained. The primary sense of the word is “discrimination between”; the legal sense is “discrimination against”.
[36] Street v Queensland Bar Association (1989) 168 CLR 461 at 570-571
In this context, Perry J concluded as follows:
In my opinion, the language in Item 1(d), and its use of the word “between”, suggests the conduct which is to be examined is the way in which the employer targets the particular employee. Is that employee treated differently from other employees? By s 351, the “irrelevant” reasons for the different treatment (to adopt the concept used by Gaudron J in Street) are then specified. The inquiry is thus a straightforward one, to that point, and does look only for differential treatment, as the applicant submits.
In a financial sense, Mr Payne was not rendered worse off than he would otherwise have been, if he had not been place on unpaid leave. I accept however that his position was materially altered, after the decision was made to place him on leave, because he was not required to attend at work.
The more difficult question is whether this was injurious, prejudicial or discriminatory conduct in the senses envisaged by item 1. If it was, in my view, it was only in the most limited of ways. The prejudice being that Mr Payne could not work out his notice with his long term colleagues and enjoy their company and the challenges of his work for a further period of four weeks. He was also deprived of the benefit of a dignified send off, if indeed one was to be planned for him.
However, in my view, it is not necessary for me to determine this question as I am of the view that the decision was not made for any reason related to Mr Payne’s trade union activities. In this context, I accept Mr Norman’s evidence that he decided to act in the manner in which he did because he believed that it would assist him to maintain the morale and integrity of the workshop after the trauma of the de-selection process had been concluded.
Mr Norman may be open to criticism for over-reacting to Mr Payne’s demeanour in the workshop on 19 September or being insensitive to his feelings at the time. However it is not my function to determine whether the issue of how Mr Payne was to complete his notice was to be handled. Rather I must determine whether the decision to place him on leave was motivated by his previous union activities. I do not believe that it was.
In addition, it is not my function to inquire into whether Mr Payne is entitled to feel hard done as a consequence of the circumstances, which led to his retrenchment. Nor it is my function to determine whether SA Water could have conducted the de-selection process in another fashion, which adopted different considerations or a different process of assessing workers.
Finally, it is not part of my responsibilities to hold a general inquiry into whether SA Water’s restructure plans were appropriate or fair or indeed whether it is or is not to be regarded as a model employer or one with some sort of anti-worker culture.
Rather, my statutory based function is to determine whether Mr Payne has suffered any adverse action because of his industrial activities in the workplace. For the reasons set out above, I am of the view that he has not suffered such adverse action as a consequence of any such type of activity. Accordingly, his application must be dismissed.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and seventeen (217) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 26 February 2016
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