Penglase v Allied Express Transport Pty Ltd [2015] FCCA 804 (20 April 2015) Last Updated: 21 April 2015 FEDERAL CIRCUIT COURT OF AUSTRALIA PENGLASE v ALLIED EXPRESS TRANSPORT PTY LTD [2015] FCCA 804 Catchwords: INDUSTRIAL LAW – Claim of adverse action – termination of employment – whether discrimination – whether actions taken for prohibited reason – reverse onus – costs. Legislation: Fair Work Act 2009 , ss.97(a) , 340 , 341 , 351 , 352 , 545 , 546 , 570 (2) 789FD. Accident Compensation Act 1985 (Vic) , ss.82 , 194 . Fair Work Regulations 2009 , regs.3.01, 6.04. Federal Circuit Court Rules 2001 , sch.1. Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 ; (2012) 248 CLR 500 Fair Work Ombudsman v Mildura Battery Company Pty Ltd & Anor [2014] FCCA 192 IEAU v AIAEI & Anor [2013] FCCA 1308 Applicant: TERESA PENGLASE Respondent: ALLIED EXPRESS TRANSPORT PTY LTD (ACN 001 787 962) File Number: MLG 399 of 2013 Judgment of: Judge F. Turner Hearing dates: 27 March 2014, 3 March 2015 Date of Last Submission: 19 March 2015 Delivered at: Melbourne Delivered on: 20 April 2015 REPRESENTATION Counsel for the Applicant: Mr Blakeman Solicitors for the Applicant: Taylor & Preston Lawyers Counsel for the Respondent: Mr Murphy Solicitors for the Respondent: Pendlebury Workplace Law THE COURT DECLARES THAT: (1) The respondent breached ss.340(1)(a) and 351 (1) of the Fair Work Act 2009 (the “FW Act”). THE COURT ORDERS THAT: (2) Pursuant to s.546 of the FW Act, the respondent pay the applicant the sum of $5,940.00 within 14 days. (3) Pursuant to s.570(2) of the FW Act, the applicant pay the respondent’s costs of one half day for hearing lost on 27 March 2014, in accordance with Schedule 1 to the Federal Circuit Court Rules 2001 , being the sum of $1,536.00 (Item 13(b) of $1,024.00 plus Item 12 of 50% for advocacy loading of $512.00). FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE MLG 399 of 2013 TERESA PENGLASE Applicant And ALLIED EXPRESS TRANSPORT PTY LTD (ACN 001 787 962) Respondent REASONS FOR JUDGMENT This is an application under the Fair Work Act 2009 (the “FW Act”). By Amended Statement of Claim filed on 19 March 2015, the applicant claims that: The applicant was employed by the respondent as a Sales Executive from July 2011 to December 2011; from 7 February 2012 to 21 January 2013 as an Internal Account Manager, and as an Account Manager from 10 April 2012 to 21 January 2013. The applicant had a medical certificate from Dr Dade for 19 to 23 November 2012. The applicant attended work on Monday 26 November 2012. The respondent’s State Manager Mr Chris Smale requested the applicant to attend a company doctor on 27 November 2012 to ensure that she was fit for work. The applicant saw Dr Mustafa on 26 November 2012 who issued a medical certificate of unfitness until 30 November 2012. The applicant attended on Dr Gee, the company doctor, on 27 November 2012 and went to work that day. Dr Gee reported that the applicant was suffering anxiety and stress disorder but was fit to return to her normal duties. On returning to work on 27 November 2012, the applicant told Mr Smale that she had attended the company doctor and that she would provide his report. The applicant told Mr Smale what Dr Mustafa had said. Mr Smale told the applicant to attend Dr Mustafa and obtain a clearance certificate. Dr Mustafa gave the applicant a certificate of fitness to work from 28 November 2012. The applicant handed that certificate to Mr Smale at work on 28 November 2012 and performed her normal duties for the remainder of that week. On 3 December 2012, Mr Smale told the applicant that, based on the company doctors report, the applicant could not perform her duties as Account Manager. Mr Smale offered the applicant three options: (1) Perform a telephonist role with a reduced salary of $30,000.00pa; (2) Move to the position of Sales Executive with a significant increase in workload; or (3) Resign. and to decide by close of business that day. The applicant said that she could not respond that day. Mr Smale advised the applicant that she could not perform her current role and that she had to make a decision. The applicant claims that due to the events on 3 December 2012, she was anxious and distressed and attended Dr Mustafa on 4 December 2012. The applicant completed a Workcover claim dated 4 December 2012 (Exhibit ‘A8’) and Dr Mustafa gave her a certificate of incapacity from 4 to 19 December 2012, which the applicant sent to the respondent on 5 December 2012. The applicant claims that under s.82 of the Accident Compensation Act 1985 (Vic) (the “AC Act”), she had a right to lodge a Workcover claim without fear of loss of employment, or other detriment. On 5 December 2012, Mr John Richardson (the respondent’s Human Resources Manager, Sydney) sent the applicant a letter advising that: The applicant had exhausted her personal leave entitlements, and would not be paid whilst absent; That the applicant was not medically fit to return to her position; and That she had to choose by 7 December 2012 which of the two alternative positions she wanted. The applicant replied to that letter on 7 December 2012, that she felt bullied and forced to resign, which was placing her under stress (the “applicant’s complaint”). (s.341(1)(c)(iii) of the FW Act relates to an employee making a complaint). On 19 of December 2012, the applicant attended Manor Lakes Medical Centre and obtained a certificate of unfitness for duties until 16 January 2013. On 11 January 2013, the respondent advertised a more senior position than that which the applicant had occupied. On 16 January 2013, the applicant sent Mr Richardson her latest medical certificate and stated that she would return to work on 21 January 2013. She returned to work on 21 January 2013 and had a discussion about her role with Mr Tim Rae (who was transitioning into Mr Smale’s role). Mr Rae told her that she should wait at her desk. Four hours later Mr Rae told her that her position had been made redundant, effective immediately; that the respondent had restructured, and that the applicant was not suitable for the new position. Mr Rae told the applicant to leave, and that he would send her a redundancy letter. On 22 January 2013, the applicant telephoned Mr Rae, having not received a redundancy letter. On 25 January 2013. the respondent deposited $1,627.00 into the applicant’s bank account with the reference “Termination”. By s.194 of the AC Act, the applicant had a right to expect ongoing employment in her previous position when she returned to work on 21 January 2013. The entitlement to Workcover weekly payments was a “workplace right” within s.341 of the FW Act. The respondent refused or failed to provide the applicant with suitable employment upon her return to work on 21 January 2013. Unlawful behaviour by the respondent Adverse Action The applicant claims that the respondent breached s.340 of the FW Act as it dismissed the applicant because of her Workcover claim or alternatively, because of the applicant’s complaint in her email of 7 December 2012 of being bullied and being forced to resign. Discrimination The applicant claims that the respondent breached s.351 of the FW Act as it dismissed her because of her physical and mental disability being her medical condition. Alternatively, that it altered her position to her prejudice by refusing to allow her to return to normal duties and requiring her to take a different role. Temporary absence for illness or injury (s.352 of the FW Act) The applicant claims that the respondent breached s.352 of the FW Act because of her temporary absence from work because of illness or injury (see also regs.3.01 and 6.04 of the Fair Work Regulations 2009 (the “FW Regulations”)). Damages The applicant seeks compensation pursuant to s.545 of the FW Act for: Loss and damage; and Shock and distress. Penalties The applicant seeks the imposition of penalties pursuant to s.546 of the FW Act. Adverse Action As decided in IEAU v AIAEI & Anor [2013] FCCA 1308 by the Court as presently constituted, there are three elements to a claim based on adverse action: First the applicant must prove that a person took adverse action against the applicant. Secondly, the applicant must prove that the action was taken because there was a relevant workplace right. Thirdly, there is a reverse onus on the respondent that the adverse action was not taken for a prohibited reason. If the respondent can show that it was not taken for such a reason, no actionable adverse action has been taken. In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 ; (2012) 248 CLR 500 the High Court held per French CJ and Crennan J at [5]-[6]: The task of a court in a proceeding alleging a contravention of s 346 is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason. This appeal was concerned with identifying the correct approach to that task. The respondents argued that the relevant provisions of the Fair Work Act require that such a proceeding should not be resolved in favour of a defendant employer unless the evidence in the proceeding objectively establishes that the employer's reason for taking adverse action was dissociated from any reason prohibited by s 346. For the reasons which follow, the respondents' interpretation of the relevant provisions must be rejected and the appeal upheld. The decision continued at [31]: The primary judge said: “The task of the court, in a proceeding such as the present is, then, to determine why the employer took the adverse action against the employee. Was it for a prohibited reason or reasons which included that reason? In answering this question evidence from the decision-maker which explains why the adverse action was taken will be relevant. If it supports the view that the reason was innocent and that evidence is accepted the employer will have a good defence. If the evidence is not accepted the employer will have failed to displace the presumption that the adverse action was taken for a proscribed reason. If an employer, who is alleged to have contravened one of the provisions of Part 3 - 1 in which the word ‘because’ is to be found, adduces evidence which persuades the court that it acted solely for a reason other than one or more of the impermissible reasons identified in a particular protective provision, it will have made good its defence. Because of the reverse onus provision the employer will normally need to call evidence from the decision-maker to explain what actuated him or her to act to the employee's detriment ... That evidence can be tested in the light of established facts. The credibility of the decision-maker will be assessed by the court.” And at [44]-[45] ... 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 Gummow and Hayne JJ agreed with the above reasons p.525 at [71]. Heydon J allowed the appeal. Even if the respondent took action against the applicant because there was a relevant workplace right (and the Court does not make those findings), there will be no actionable adverse action if the respondent gives acceptable evidence that it was not taken for a prohibited reason. The person who made the relevant decision of the respondent here is Ms Michelle McDowell. In her Affidavit filed on 30 May 2014, Ms McDowell stated: That she is the Managing Director of the respondent; and That in early 2013 she commenced a strategic review of the respondents account management team across Sydney and Melbourne, as the Managing Director, Operations (Mr Barry Hamilton) had resigned on 5 December 2012, and there was a need to ensure that the respondent’s customers were being serviced by experienced staff, and to streamline the account management team to make it more viable (Ibid [33]). Ms McDowell decided that due to Mr Hamilton resigning, the account management function for GM Holden, and other major customers in Melbourne and Adelaide would be handed by the newly created position of Senior Account Manager/Business Development Manager, based in Melbourne (Ibid [39]). This meant that there was no longer a need to maintain two Account Managers in the Melbourne office, and given that the applicant was the newest of the Account Managers to join the respondent, it was decided that her position would be made redundant (Ibid [41]). The person appointed to the new role was better qualified, more experienced and suited to this role than was the applicant (Ibid [46]). Ms McDowell states that in no way was the decision (to make the applicant’s position redundant) related to the applicant’s workers’ compensation claim (Ibid [56]). This was repeated in her Affidavit filed 3 March 2015. Nowhere in Ms McDowell’s Affidavits or evidence is there any statement that the applicant’s positon/duties were not changed due to the applicant’s medical condition or absence on leave. Ms McDowell gave oral evidence on 3 March 2015, and stated: The background to the restructure (Transcript “T” p.57, l.8) That she would not be prepared to pay the $110,000.00 salary to someone doing the applicant’s former role (Ibid l.37). The Court finds that there was a genuine restructure as the new position created was at a much higher level than that which had been occupied by the applicant, and had a much higher salary ($110,000.00pa compared with $75,000.00pa). Ms McDowell’s oral evidence continued: That the applicant’s employment was not terminated because she had made a worker’s compensation claim (T p.58, Ibid l.44), and that the respondent had never dismissed anyone on a worker’s compensation claim That Colin McDowell is Chief Executive of the respondent (T p.59, l.46) That she was concerned by Dr Gee’s report that the applicant had a “long term illness that had been escalating” (T p.67, l.35) That she was concerned for the applicant’s safety (T p.69, l.32) That they had an “employee (the applicant) who was unwell and we were trying to offer them alternative positions that they could carry out during that period of time until they got well” (Ibid l.40). The Court takes that to be an admission, that the applicant’s employment was altered due to the applicant being unwell. The applicant was offered two different positions that she could potentially go in to; one where she would have less responsibility – an easier job that might be easier for her during this period of time, and one that was on the same wages and the same type of job, just without responsibility. Both jobs were temporary (T p.70, l.15). The Court takes those statements to be an admission that the applicant was offered a change to temporary employment, both positions with reduced responsibilities and one with a reduced salary. Ms McDowell denies that the respondent chose the applicant for redundancy because she took time off for illness (T p.73, l.17) or for being mentally ill (Ibid l.20). Ms McDowell states that it is “categorically not true” that the strategic review happened so that the respondent could give the applicant “the sack” (Ibid l.28). The Submissions At the hearing on 3 March 2015 Mr Blakeman appeared for the applicant and Mr Murphy for the respondent Submissions for the Applicant The applicant claims: Adverse action – s.340 of the FW Act; Discrimination for mental disability – s.351 of the FW Act; and Dismissal from employment because of temporary absence for illness of injury – s.352 of the FW Act. The applicant alleges that there were three adverse actions taken by the respondent: (1) The conversation on 3 December 2012 when Mr Smale told the applicant she had to change to a customer service role, a sales executive role or resign; (2) Refusing to allow the applicant to return to her normal duties; and (3) The dismissal on 21 January 2013. The applicant alleges that there were three workplace rights: (1) The Workcover claim pursuant to the AC Act; (2) The complaint of bullying in the letter from the applicant to the respondent (Exhibit ‘A14’); and (3) The taking of personal leave pursuant to s.97(a) of the FW Act, being a National Employment Standard. The Court finds that the above were workplace rights of the applicant as defined by s.341 of the FW Act. Discrimination The applicant claims that the respondent took adverse action against the applicant because of her mental disability (s.351 of the FW Act) (T 3/03/2015, p.77, l.40). There is evidence that Ms McDowell did not make the applicant redundant because of her mental illness (T p.73, l.21) or because she took time off her illness (T p.73, l.18). The Court accepts the evidence of Ms McDowell as to the redundancy resulting from a restructure but finds that the respondent changed the applicant’s position to the applicant’s detriment due to the applicant being unwell (T p.69, l.40). It is clear that Ms McDowell was aware of the applicant’s mental illness (T p.73, l.21). There is no evidence that the respondent did not “alter” the position of the applicant to the applicant’s prejudice, because of the applicant’s mental condition or absence on sick leave. The reverse onus had not been met on these claims. The Court finds a breach of s.340(1)(a) and s.351(1) of the FW Act. It is claimed that the respondent dismissed the applicant because she was temporarily absent from work for illness or injury (T p.77, l.44). The Court finds that the applicant was made redundant because of the restructure. The reverse onus had been met on this claim. This claim is dismissed. Mr Blakeman submits that the Court should infer that the evidence of Mr Smale would not have assisted the respondent as Mr Smale was not called. The Court does not draw that inference, as the person who made the decisions for the respondent was called; There is no need to call witnesses who did not make the relevant decisions. The same applies to Mr Richardson. The applicant seeks compensation pursuant to s.545(2) for economic loss. The applicant’s aggregate salary on 21 January 2012 was $75,000.00pa.; her new salary at Nissan from 18 February 2013 was $56,680.00pa. The difference is $18,320.00pa. The applicant claims 11 months at that annual difference. 21 January 2013 is when the applicant returned to work and was told that her position had been made redundant. The Court has found that the applicant was not made redundant for a prohibited reason. It was not a contravention; therefore an order awarding “compensation for loss that a person has suffered because of the (redundancy) contravention” is not available (s.545(2)(b) of the FW Act). The next component of the remedies sought is the imposition of penalties pursuant to s.546 of the FW Act, and an order that they be paid to the applicant. It is alleged that there were five breaches of the FW Act that could be considered as a “continuing transaction” (T p.80, l.29), or that they arose out of the one course of conduct. As most of the conduct complained of occurred before 28 December 2012, when the value of a penalty unit was increased from $110.00 to $170.00. The appropriate value here is $110.00. Section 340 of the FW Act is a civil remedy provision. Part 4.1 of Chapter 4 of the FW Act deals with civil remedies. The maximum penalty for a breach of s.340(1) of the FW Act is set out in the table following s.539(2), at 60 penalty units. Mr Blakeman submits that the maximum applicable penalty for the five breaches is $57,000.00 ($170 x 60 x 5 breaches). The Court decides that there was one breach which arose out of the one course of action as the changes to the applicant’s employment arose out of the one course of conduct, the Court decides that the maximum penalty is $6,600.00 ($110 x 60). The Court applies the following observations made in Fair Work Ombudsman v Mildura Battery Company Pty Ltd & Anor [2014] FCCA 192 at [17] - [23] : Steps in Assessing Penalties Step 1 The Court is to identify each of the separate contraventions involved.... Step 2 The Court is to consider whether the breaches constitute a single course of conduct.... Step 3 The Court is to identify where two or more breaches have common elements so that the respondents are not penalised more than once for the same conduct.... Step 4 The Court is to consider the appropriate penalty for each group, taking into account the relevant circumstances (post). Step 5 The Court is to look at the aggregate penalty and consider whether it is an appropriate response to the conduct that led to the breaches. This is the ‘instinctive synthesis’ or ‘totality principle’. The Court accepts that the following considerations are potentially relevant in determining penalty: a) The nature and extent of the conduct which led to the breaches; b) The circumstances in which the conduct took place; c) The nature and extent of any loss or damage sustained as a result of the conduct; d) Any similar previous conduct by the respondent; e) Whether the breaches were properly distinct or arose out of one course of conduct; f) The size of the business involved; g) Whether the breaches were deliberate; h) Whether senior management was involved; i) Whether the party committing the breach has exhibited contrition; j) Whether the party committing the breach has taken corrective action; k) Whether the party committing the breach has cooperated with the enforcement authorities; l) The need to ensure compliance with minimum standards by providing effective means for investigation and enforcement of employee entitlements; and m) The need for specific and general deterrence. These factors were set out in Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 at [26] – [59]. The list is not exhaustive and the Court must fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred, and the need to sustain public confidence in the statutory regime which imposes the obligations: see Kelly v Fitzpatrick (2007) 166 IR 14 at [14]. It is necessary for the Court to give careful consideration to the circumstances in the case before it: Rojas v Esselte Australia Pty Limited (No 2) [2008] FCA 1585. Relevant Circumstances The relevant circumstances are: The nature and extent of the conduct. The conduct attacked the heart of the applicant’s employment, as she was to be reduced temporary, have her salary reduced, and accept lower responsibilities and standing with her employer. The circumstances are those in (a) above. The loss resulting from the prohibited conduct. Figures have not been provided by the applicant as to the financial loss suffered, other than through the redundancy (which is not actionable). It is not alleged that there has been similar previous conduct by the respondent. As decided above the breaches arose out of one course of conduct. The size of the business. Ms McDowell gave evidence that the respondent has 351 employees and 748 contractors with an annual turnover of $120 million; with offices in NSW, Darwin, Hobart, Canberra, Brisbane, Melbourne, Adelaide and Perth; with 8000 odd customers (T p.60, l.27). It therefore is a substantial business. The breaches were deliberate to the extent that the Managing Director Ms McDowell decided not to act according to the medical certificates provided, but acted on her own assessment of the applicant’s capacity to work. Senior management was directly involved in the conduct. Ms McDowell has exhibited absolutely no contrition for the harm caused to the applicant. The respondent has taken no corrective action to compensate the applicant. Not relevant. Minimum standards must be complied with. The Court decides that there is a need for specific and general deterrence. The Court decides that if Ms McDowell was motivated solely by a desire to protect the health and welfare of the applicant, the respondent would be entitled to a substantial discount of the maximum penalty of $6,600.00. However, the Court has doubts about the veracity of the witness on that issue and applies a discount of 10%. The Court therefore imposes a penalty of $5,940.00 which is to be paid to the applicant. The Court considers that to be an appropriate response to the conduct that led to the breaches. The Court orders that the respondent pay a penalty of $5,940.00 to the applicant within 14 days. Mr Blakeman abandoned the applicant’s claim for damages for shock and distress (T p.81, l.6). Submissions for the Respondent Mr Murphy submits that the applicant has not suffered economic loss (T p.82, l.49). The Court has found that the termination by reason of redundancy is not litigable. There is no evidence of economic loss from the other events. Mr Murphy submits that Ms McDowell in effect, knew better than the doctors did, whether the applicant was fit for work (T p.87, l.35). The Court rejects that contention. Mr Murphy relied on the following passages in Barclay (supra) at [82]-[91]” By 1976, the 1904 Act had undergone substantial amendment. Relevantly, through a process of renumbering, s 9 had become s 5 of the Conciliation and Arbitration Act 1904-1976 (Cth) (‘the 1976 Act’). Section 5(1) was in the following terms: “An employer shall not dismiss an employee, or injure him in his employment, or alter his position to his prejudice, by reason of the circumstance that the employee — (a)is or has been, or proposes, or has at any time proposed, to become an officer, delegate or member of an organization, or of an association that has applied to be registered as an organization; or ... (f)being an officer, delegate or member of an organization, has done, or proposes to do, an act or thing which is lawful for the purposes of furthering or protecting the industrial interests of the organization or its members, being an act or thing done within the limits of authority expressly conferred on him by the organization in accordance with the rules of the organization. Penalty: Four hundred dollars.” Under the 1976 Act, the onus remained with the defendant employer to prove it was “not actuated” by the reason alleged in the charge. Section 5 of the 1976 Act was considered by this Court in General Motors Holden Pty Ltd v Bowling. By majority (Gibbs, Stephen, Mason and Jacobs JJ, Barwick CJ dissenting), the Court dismissed an appeal from the Industrial Court of Australia. The Industrial Court had convicted the appellant company of contravening s 5(1) in dismissing Mr Bowling. Mason J, with whom Stephen and Jacobs JJ agreed, began his analysis of s 5 by remarking that the section had “a legislative history which extends back to the turn of the century when the trade union was a more fragile institution than it is today and when it stood in need of a large measure of protection from employers”. [63] His Honour went on to say that: “The protection of trade unions and their representatives from discrimination and victimization by employers does not require an interpretation as extreme as that favoured by Isaacs J [in Pearce]. It would unduly and unfairly inhibit the dismissal of a union representative in circumstances where other employees would be dismissed and thereby confer on the union representative an advantage not enjoyed by other workers, to penalize a dismissal merely because the prohibited factor entered into the employer's reasons for dismissal though it was not a substantial and operative factor in those reasons.” Mason J preferred the construction that: “[Section] 5(1) does not proscribe the circumstances which it lists as the sole or predominant reasons for dismissal. It is sufficient if the circumstance is a substantial and operative factor. And it does not cease to be such a factor because it is coupled with other circumstances or because regard is had to it in association with other circumstances not mentioned in the section.” (emphasis added) With respect to the onus borne by the employer, Mason J stated: “Section 5(4) imposed the onus on the [employer] of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the [employee], in order to succeed, was not bound to adduce evidence that the [employer] was actuated by that reason, a matter peculiarly within the knowledge of the [employer]. The [employee] was entitled to succeed if the evidence was consistent with the hypothesis that the [employer] was so actuated and that hypothesis was not displaced by the [employer]. To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the [employer] the onus of proving that which lies peculiarly within his own knowledge.” Turning to the facts of the case, Mason J held: “Once it is said that the appellant dismissed [the respondent] because he was deliberately disrupting production and was setting a bad example it is not easy to say without more that this had nothing to do with his being a shop steward. Although the activities in question did not fall within his responsibilities as a shop steward his office gave him a status in the work force and a capacity to lead or influence other employees, a circumstance of which the appellant could not have been unaware. It would be mere surmise or speculation, unsupported by evidence, to suppose that the appellant's management, if concerned as to the bad example he was setting, divorced that consideration from the circumstance that he was a shop steward.” Gibbs J accepted the “substantial and operative factor” criterion adopted by Mason J, and added: “The onus of proving that the fact that the employee held the position was not a substantial and operative factor in the dismissal is to be discharged according to the balance of probabilities and is not to be made heavier by any presumption that if an employee who is dismissed for disruptive activities happens to be a shop steward the latter circumstance must have had something to do with his dismissal. If in the present case evidence had been given by the directors responsible that the employee was dismissed because he was guilty of misconduct or because his work was unsatisfactory, and that in dismissing him they were not influenced by the fact that he was a shop steward or indeed that he was dismissed in spite of that fact, and that evidence had been accepted, the onus would have been discharged.” (emphasis added) The construction of the legislation accepted in Bowling was subsequently applied by Morling J in Lewis v Qantas Airways Ltd. This case concerned the dismissal of an employee, Mr Lewis, around the time of an industrial dispute which resulted in a twelve-day strike. Mr Lewis was a delegate of the Transport Workers' Union of Australia. Another employee, Mr Macfarlane, was dismissed at the same time. The central question for determination was whether the fact that Mr Lewis was a union delegate constituted a “substantial and operative factor” which actuated his dismissal. The case presented by Qantas was that the dismissal of Mr Lewis (and Mr Macfarlane) had been prompted by timekeeping mispractice with respect to the bundy card system utilised by Qantas to record time spent by employees at work. In holding that Qantas had not contravened s 5 of the 1976 Act in dismissing Mr Lewis, Morling J assessed the reliability and weight of the evidence adduced by both parties. His Honour made findings that Mr McLean, the dismissing officer, “bore no ill-will to the prosecutor”, and that: “It is significant that McLean did not single out the prosecutor for treatment different from that meted out to Macfarlane, who was not a union delegate and who had not taken any special part in the quarantine dispute. ... I am satisfied that neither Macfarlane nor the prosecutor was unfairly treated. If facts favourable to the prosecutor did not emerge at the interview, that failure was due entirely to his own refusal to say anything in his own defence.” Morling J concluded that the evidence was sufficient to draw a reasonable inference that Mr Lewis had directly or indirectly requested Mr Macfarlane to “clock” his bundy card. His Honour agreed with the statement by Northrop J in Hyde v Chrysler (Australia) Ltd, that being a member, delegate or officer of a union organisation: “‘does not confer on that employee an immunity from dismissal by reason of the circumstance that he is a delegate of an organization’. ... The timekeeping offence for which the prosecutor was dismissed had no relation to his position as a union delegate or to the part which he had played in the industrial disputation with the company. His position as delegate gave him no immunity from dismissal for the offence.” And at [102]-[104]: Reference was made in argument to Purvis v New South Wales. [77] That litigation concerned the application of the Disability Discrimination Act 1992 (Cth) to the suspension and expulsion of a disabled student from a State school. Section 5(1) used the expression “because of the disability”. Gummow, Hayne and Heydon JJ emphasised that s 10 of the statute stated that if an act is done for two or more reasons, one of which is the disability of a person, even if it not be the dominant or a substantial reason for doing the act, the act is taken to be done for that reason. [78] This provision may be compared with s 360 of the Act just described. With respect to what became s 346 of the Act, paragraph 1458 of the Explanatory Memorandum to the Fair Work Bill 2008 stated: “Clause 360 provides that for the purposes of Part 3 - 1 , a person takes action for a particular reason if the reasons for the action include that reason. The formulation of this clause embodies the language in existing section 792 which appears in Part 16 of the WR Act (Freedom of Association) and includes the related jurisprudence. This phrase has been interpreted to mean that the reason must be an operative or immediate reason for the action (see Maritime Union of Australia v CSL Australia Pty Limited [79] ). The ‘sole or dominant’ reason test which applied to some protections in the WR Act does not apply in Part 3-1.” (emphasis added) The phrase “operative or immediate reason” used in CSL is relevantly indistinguishable from the phrase “a substantial and operative factor” used by Mason J in Bowling. In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised “a substantial and operative” reason, or reasons including the reason, for the employer's action and that this action constitutes an “adverse action” within the meaning of s 342. These passages are of little of relevance to the impact of the passages already quoted (supra). The respondent seeks that the applicant pay its costs of 27 March 2014 when the hearing had to be adjourned because the applicant wanted to amend her claim to include a claim that lodging a “worker’s compensation claim” was part of the reasons that she was made redundant. By s.570(2) of the FW Act, a party may be ordered to pay costs of another party if the Court is satisfied that a party’s unreasonable act or omission caused the other party to incur costs. The proceedings on 27 March 2014 were adjourned at 2.43pm to enable the applicant to file an amended statement of claim due to the omission of the claim based on the lodgment of the Workcover claim. That unreasonable act or omission caused the respondent to incur the costs of an adjournment for half a day. The Court therefore orders that the applicant pay the respondent costs of one half of a day’s hearing lost on 27 March 2014 in an amount to be calculated in accordance with Schedule 1 to the Federal Circuit Court Rules 2001 , being Item 13(b) of $1,024.00 plus Item 12 – 50% advocacy loading of $512.00 equals $1,536.00. On the evidence, and submissions, the Court finds that the applicant’s employment was not made redundant because she made a Workcover claim. The content of the email to her on 10 December 2012 (Exhibit A15) is supportive of that conclusion when, after noting the receipt of the “workers’ injury claim form” , the respondent states “we hope to meet with you, and discuss your return to work” and later “The Company has no intention of forcing you to resign.” However, the respondent has not established that the applicant’s employment was not changed to her prejudice by reason of her absence on leave or because of her mental condition. Bullying The applicant claims that she was bullied when she was told that her position was being changed and that she had the option of accepting a different position or resigning. Section 789FD of the FW Act provides as follows: (1) A worker is bullied at work if: (a) while the worker is at work in a constitutionally-covered business: (i) an individual; or (ii) a group of individuals; repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and that behaviour creates a risk to health and safety. (2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner. 66. The Court finds no evidence that the respondent “ repeatedly behaved unreasonably towards the applicant, and that the behavior created a risk to health and safety”. (emphasis added) The claim for bullying is dismissed. I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge F. Turner Associate: Date: 20 April 2015