Case: General Motors-Holden's Pty Ltd v Bowling 51 ALJR 235
Outcome: cited
the appeal to the High Court in General Motors-Holden's Pty Ltd v Bowling 51 ALJR 235, Mason J (Gibbs, Stephen and Jacobs JJ agreeing; Barwick CJ dissenting) observed that: The unexplained failure of the appellant to call the two Melbourne directors then becomes significant. It left uncontradicted the possibility that the respondent's position as a shop steward was an influential, perhaps even a decisive, consideration in their minds to a lesser extent the appellant's omission to tender the telex messages, other than the telex dispatched at 4.13pm on 5 February which recorded the dismissal and events subsequent thereto, creates another difficulty. I acknowledge that the appellant in its evidence disclosed the evidence of telex messages and that the respondent was at liberty to subpoena them. But to say that this is no answer to the criticism that the onus being on the appellant it was for the appellant to show that the telex messages, comprehensive as we know them to be, did not support the existence of a reason falling within s 5(1)(a). In Bowling , a Mr Gould had made a recommendation to two directors who took the actual decision to dismiss the particular employee. The failure to call evidence from those who took what was described as the "effective decision to dismiss" left uncontroverted the hypothesis that dismissal had taken place for, in the context of the relevant legislation, a prohibited reason. Gibbs J also made this observation: 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 organisation. 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 it 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 he was dismissed in spite of the fact and that evidence had been accepted , the onus would have been discharged. [emphasis added] These are observations made, of course, in relation to the quality of the evidence adduced at trial. Nevertheless, in weighing the strength of the prima facie case on the interlocutory application, it is important to note that Blue Star has not put on evidence from the actual decision-maker who is necessarily in the most advantageous position to say precisely what factors influenced the decision to terminate the employment of Mr Coombs and Mr Brown on 19 June 2009. Moreover, it seems to me that on the interlocutory application it is open to the Court to draw an inference that the failure to adduce evidence from the actual decision-maker is consistent with the decision-maker not wishing to say on oath or by affirmation before the Court that the fact of Mr Coombs and Mr Brown having given evidence in the CEPU proceeding before Reeves J was not an operative reason, among other reasons, for the termination of their employment on 19 June 2009. The respondent criticises the formulation of the case for interlocutory relief on the footing that the applicants have not undertaken analysis of the field of employees whose employment was terminated and then sought to demonstrate differential treatment by the employer as against Mr Coombs and Mr Brown. The respondent says that no evidence has been filed by the applicants going to the circumstance of the other eight employees nor any evidence as to how many other persons have recently ceased employment with the respondent. The respondent also says that the applicants have ignored the current economic reality affecting the employment relationship between Blue Star and its employees. It is true that the applicants have not sought to forensically examine the circumstances of those employees within the cohort whose employment has been terminated in recent times. Nor have the applicants examined in detail the circumstances of the 13 employees who gave evidence before the Federal Court. The respondent says that the failure to join any other employees as applicants in the proceeding gives rise to an inference that no contention can be made of termination for a prohibited reason on the part of any of the other employees. It seems to me that the focus must be upon whether the particular applicants, in the circumstances of the case as it is presented on the affidavit evidence, have established a sufficient likelihood of success to justify the preservation of the status quo pending trial. For all the reasons indicated previously, I am satisfied that the applicants have demonstrated a prima facie case in that sense. Moreover, I am further satisfied that if Blue Star is not in a position to file evidence which rebuts the presumption contained in s 809(1) of the Act, there is a real likelihood that the applicants will be entitled to the final relief sought in the proceeding. It may be that evidence from the decision-maker will be forthcoming in the sense contemplated by Gibbs J in General Motors-Holden's Pty Ltd v Bowling which rebuts the presumption. The respondent contends that the balance of convenience is influenced by this consideration. The respondent is required as a matter of economic necessity to reduce its workforce. Accordingly, if a decision is made to reinstate Mr Coombs and Mr Brown on an interlocutory basis pending trial, the respondent will find it necessary to terminate the employment of two other employees and thus those employees will be displaced from employment by operation of the order. The respondent says that the effect of an interlocutory order of reinstatement on third parties unconnected with the proceedings means that the balance of convenience does not favour the granting of an interlocutory order. It seems to me that this consideration is misplaced. If Mr Coombs and Mr Brown have established a sufficient prospect of success in the proceeding and thus demonstrated a basis upon which there is a sufficient probability of success at trial on the question of whether their employment was terminated unlawfully, it cannot be an answer to interim remedial relief which addresses that serious question of unlawful termination to say that two other employees might be dismissed from employment for, what would be, lawful reasons relating to staff numbers, work demands and other such economic matters. If the termination of the employment of Mr Coombs and Mr Brown occurred unlawfully, the remedy of reinstatement is a remedy available to them. It was not open to Blue Star to terminate their employment for a reason that involved a prohibited reason and thus those employees would have remained part of the employment cohort with the result that if the cohort exceeded the requirements of the company, other employees would have been subject to a termination of employment for non-prohibited reasons, or alternatively, those same employees would have become subject to a dismissal decision for non-prohibited reasons.