Case: General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 233
Outcome: followed
para 31(ii) it is submitted that, "An explicit denial from the relevant decision-makers that a prohibited reason formed part of their decision-making will not generally discharge the onus of showing the conduct was not for a prohibited reason". Reliance is placed upon the decision of Buchanan J in Seymour v Saint-Gobain Abrasives Pty Ltd [2006] FCA 1452 at [128] - [129] and to that of Merkel J in Australian Municipal, Administrative, Clerical and Services Union v Ansett Australia Ltd [2000] FCA 441 ; (2000) 175 ALR 173 at [76] . However neither citation supports the proposition. Both references contain observations concerning the evidence of particular witnesses. It would be curious if witnesses appearing on behalf of an employer were to be put into a special category in which their evidence was to be treated as generally not discharging the onus of proving a matter which was peculiarly within their knowledge. It is one thing to say that denials which are self-serving should be closely scrutinized in the light of all other evidence. It is quite another to say, as the applicants have in the present case, that a particular class of evidence will not generally discharge an onus to which it relates. In General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 233, at 239, Gibbs J expressly disapproved of such an approach. His Honour said: ... However, it would in my opinion be wrong to think that there is any special difficulty in the way of an employer who seeks to prove that in dismissing an employee he was not actuated by the fact that the employee was a shop steward or other delegate of an organization. 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 later 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. It is then submitted that by analogy to the position addressed by the High Court in Bowling , the evidence indicated that Mr Harrison was treated as a troublemaker, and that such categorization of him must have had something to do with his position in the union. I will deal with the decision in Bowling at a later stage. For present purposes it is sufficient to say that even if Mr Harrison could be accurately described as a troublemaker, he was not a troublemaker in the sense in which that expression is generally used in the context of industrial relations. Whatever else he might have done, there is no suggestion that his conduct provoked industrial unrest directed against One Steel. One Steel's concern was, at all times, that he was causing conflict amongst employees. It is then submitted that Mr Harrison's dismissal was "so disproportionate to [his] conduct ... as to confirm that factors other than the sticker incident were operative". For reasons which I have touched upon, I do not accept that proposition. I similarly do not accept that the acceleration of the disciplinary process was inexplicable. I do not accept that in the circumstances of this case Mr Harrison's conduct in wearing the sticker was "a relatively trivial matter". Nor do I accept that it was arguable that One Steel had no lawful right to direct Mr Harrison to remove the sticker, or that such direction was unreasonable. I do not accept the characterization of the final warning given in connection with the incident on 27 October 2007 as being inexplicable other than by reference to Mr Harrison's union activity. It is said that Mr Harrison was not given an opportunity to respond or comment before he was given the final written warning. However he was absent on sick leave from shortly after the incident and was called in specifically to be given the warning. He had been interviewed by Mr Hasemann on 27 October 2007, in the presence of Mr Croxford, Mr McGuire and Mr Antal. He subsequently filed a written complaint with Ms Rankin. It is difficult to see that any useful purpose would have been served by a further interview. There were clear differences between his and Mr Tavita's versions. There was some, apparently independent, support for both versions. Mr Lawson supported Mr Tavita's version. Mr Wally supported Mr Harrison's version. However he said that he had not heard what was said, and that it was "something along the lines of, 'What if we take it outside?' ". He heard Mr Tavita say, "Shut up!" Mr Frahm's evidence supported aspects of both versions. In any event, it was open to Mr Harrison to raise any further concerns at the meeting on 28 November 2007 when he was given his warning. It may have been prudent for management to have asked Mr Harrison if he had any further comments, but I do not accept that the failure to do so could, in the circumstances, be taken as indicative of some prejudice against him, attributable to his union position or otherwise. Concerning the warning, it is submitted (at para 54) that, "Mr Allard stated that other matters (which were never mentioned to Mr Harrison even at the time of issue of the Final Warning but were raised for the first time in subsequent AIRC proceedings) were taken into account". This is said to be supported by Mr Allard's evidence at TS 20 ll 25-43. The page reference is incorrect. It should be TS 80. Mr Allard said that in issuing the final written warning he took into account the matters which were subsequently raised in the AIRC. I have demonstrated that those matters, or most of them, had been previously raised with Mr Harrison. I do not accept that Mr Harrison was treated unfairly in connection with the final warning. The thrust of Mr Allard's evidence was that the decision was based upon the ongoing friction between him and Mr Tavita and a desire to stop it. As I have previously said, much of the applicants' criticism of One Steel's conduct in connection with the final written warning was based upon the misconception that the incident on 27 October 2007 was provoked by Mr Tavita when it was, at least in part, provoked by Mr Harrison. Mr Tavita's response may have been extreme (if Mr Harrison's version be accepted), but he did not initiate the confrontation. For reasons which I have given, I also do not accept that Mr Harrison was singled out for special treatment when he was directed not to discuss union matters on the shop floor. I decline to draw any adverse inference from his allegation that he was docked half-an-hour's pay for being two minutes late for work. At para 59 reference is made to Ms Rankin's note of a meeting concerning the incident on 1 June 2007. The note said: Shane Harrison is a Union member and has talked to the Union on the phone after this incident saying that 'they are trying to fuck me over'. Graham H said that Shane is a ring leader to push union involvement and membership and he has his followers. The applicants submit that analogues of s 793(1)(a) in earlier legislation have been construed as protecting conduct, and that there is no justification for giving it a narrower operation. It is therefore necessary to examine the cases. A convenient starting point is the decision of the High Court in Bowling . That was an appeal from a decision of the Australian Industrial Court convicting the appellant of an offence against s 5(1) of the Conciliation and Arbitration Act 1904 (Cth) (the "1904 Act") which provided relevantly: 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 purpose 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. The 1904 Act contained an evidentiary section similar in effect to s 809(1) of the Act. The appellant had dismissed the respondent who was a shop steward. The putative reason for the dismissal was that he was a "bad operator", meaning that he was not competent in his work. There was also some suggestion that he was considered to be a troublemaker, deliberately disrupting production and thereby setting a bad example to others. Although the plant superintendent was called to give evidence as to the reason for his dismissal, it appeared that the decision had actually been made at head office in Melbourne. At first instance the Industrial Court concluded that the dismissal was not for the stipulated reason, namely the respondent's poor work record and attitude to his job, this conclusion being based upon an assessment of the credibility of the witnesses. One member of the Industrial Court (Woodward J) concluded that the superintendent had been influenced in his decision by a belief that the respondent had deliberately disrupted production on several occasions and was setting a bad example to others. On appeal the appellant asserted that this was the real reason for the dismissal. The majority (Gibbs, Stephen, Mason and Jacobs JJ) appear to have accepted such assertion. However, as Mason J observed at 241: It is to my mind a very considerable leap forward to say that this finding in itself is a comprehensive expression of the reasons for dismissal and that they were disassociated from the circumstance that the respondent was a shop steward. No doubt this is an advance which could be made if officers of the appellant had said in evidence "We dismissed him because he was a troublemaker, because he was deliberately disrupting production and setting a bad example and we did so without regard at all to his position as a shop steward" and that evidence had been accepted. Yet this evidence was not given and, even if it had been given, there may have been a question as to its reliability. Once it is said that the appellant dismissed him 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 workforce and a capacity to lead or influence other employees, a circumstance of which the appellant could not have been unaware. It would be mere summise 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. Of more general importance is the following extract which appears at 242: It was suggested that even if the appellant's management had regard to the respondent's position as a shop steward in dismissing him, that was not enough to bring the case within s 5(1)(a). The short answer to this suggestion is that s 5(1)(a) 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. The appellant sought to give emphasis to the distinction to be drawn between section 5(1)(a) and s 5(1)(f) and argued that the activities of a shop steward fall under par (f) and not par (a). So much may be conceded, but this does not avail the appellant in the present case because we are concerned not with activities undertaken by the respondent in his capacity as a shop steward but with activities otherwise undertaken and the example that he set to others in which his position as a shop steward was of particular significance. The submission appears to be inconsistent with the observations made in Bowling as explained in Ansett . The applicants also rely upon the decision of the Full Court in Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 ; (1999) 91 FCR 463 at [107] , that of Merkel J in Ansett at [63] and that of Wilcox J in Greater Dandenong City Council v Australian Municipal and Clerical Services Union [2001] FCA 349 ; (2001) 184 ALR 641 at [72] - [73] , citing his Honour's earlier remarks in Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008. I suspect that the applicants have misunderstood these cases. The proposition identified at [107] in Davids related to the purpose of the former Act as a whole and, in particular, Part XA. It was not concerned with the distinction between status as a member, office holder or delegate, on the one hand, and actions in advancing the industrial interests of the union, on the other. Further, I note that the quotation of the relevant extract in the applicants' opening outline is inaccurate in one respect. In the report the relevant extract is as follows: In the context of the Act, Part XA does not stand alone. It is aimed at ensuring that employees may band together, if they wish, for collective bargaining of the type provided for in the Act to achieve the broader objectives of the Act as contained in s 3. ... That which is protected by such legislation is more than the right to be a member. It is the right to participate in protected union activities, including the taking of collective industrial action against an employer to seek to obtain better industrial conditions ... . This proposition, too, was concerned with the overall effect of the sections and not with the areas of operation of the individual paragraphs of s 298K, the predecessor of s 793(1). Similar comments apply to the extract from the judgment of Wilcox J in BHP Steel to which his Honour referred in Greater Dandenong . In Finance Sector Union of Australia v Australian &amp; New Zealand Banking Group Limited (2002) 114 IR 352 , Wilcox J applied the decision in Bowling as I have explained it. See that decision at [173] and [187]. See also the decision of Branson J in The Community and Public Sector Union v The Commonwealth of Australia [2007] FCA 1397 at [114] . The applicants also refer to the decision of Marshall J in Elliott v Kodak Australasia Pty Ltd [2001] FCA 807 ; (2001) 108 IR 23 and to that of North J in Australasian Meat Industry Employees' Union v Belandra Pty Ltd [2003] FCA 910 ; (2003) 126 IR 165 at [150] . Each case involved an examination of the history of the relevant industrial legislation. Both North and Marshall JJ concluded that s 298L(1)(a) of the Act, itself an analogue of s 793(1)(a), had an analogue in s 9(1) of the 1904 Act. Their Honours concluded that s 298L(1)(a) should be given the same breadth of operation as had been attributed to s 9(1), notwithstanding the fact that in s 298L(1) (as in s 793(1)) subsequent provisions might suggest that s 298L(1) should be given a narrower meaning. In Kodak , this view led Marshall J to conclude that the word "delegate" in s 298L(1)(a) should have a wider meaning than might be suggested by other parts of s 298L(1). In Belandra North J concluded that s 298L(1)(a) was intended to cover "conduct taken against employees because they had taken action as members of a union, and because a union had taken action as an incident of that employee's membership of a union." To the extent that this implies that s 793(1)(a) addresses conduct as well as union membership or standing as an officer or delegate, it is inconsistent with the observations made by Mason J in Bowling . Unfortunately, it seems that neither his Honour nor Marshall J was referred to that decision or to the decision of Merkel J in Ansett . I proceed upon the basis that ss 792(1)(a) and 793(1)(a) proscribe dismissal because of union membership or status as an officer or delegate, but not because of conduct. However conduct is relevant to the question in the way explained by Mason J in Bowling .