Case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298
Outcome: cited
Because the starting point of an examination of the conduct of the respondents involves conduct concerning the termination of the entire cohort of employees at the South Grafton Abattoir at the material time, the respondents contend the termination conduct does not involve conduct directed to any one employee or a class of employees. Therefore, there is no conduct by an employer which can be characterised as discrimination or victimization of that employee. In other words, there is no conduct by a respondent employer qua an employee which attracts the operation of s 298K of the Act. That is said to be the end of the matter. 92 Accordingly, I propose to address the totality of the evidence, examine the inferences that are open on the evidence, determine whether any inferences can be drawn from the failure by Mr Ramsey to give evidence, assess the submissions put to me concerning the evidence of Mr Davis and Mr Broadway and make dispositive findings. A further question is the extent to which inferences might be drawn from the failure of Mr Ramsey to give evidence in circumstances where the respondents have been put to an election. Since the 'no case' submission rests on the grounds I have identified, '... it is difficult to understand, as a matter of principle, why, in such a case, once the respondents have made the election not to call evidence, the material to be taken into account should not include any inferences that may be available on the principle of Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298, by reason of the failure to call evidence' : Prentice v Cummins (supra) per Sackville J at [114]. Nevertheless, I propose to analyse the evidence adduced by the applicant, determine what inferences might be drawn from that evidence and determine whether the statutory presumption conferred by s 298V operates. I will then consider, additionally, whether the failure to call evidence might be taken into consideration. In The Trustees of the Property of Cummins v Mary Cummins (supra) the High Court in considering the inferences drawn by Sackville J in Prentice v Cummins (from which the appeal came), was invited to consider the applicability of the reasoning that inferences are available to be drawn by reason of the application of the principles in Jones v Dunkel when the party against whom those inferences might be drawn has elected to adduce no evidence in its case. Their Honours found it unnecessary to embark upon that matter as Sackville J did not err in putting his conclusion on its primary basis unassisted by Jones v Dunkel . 305 See also, Luxton v Vines [1952] HCA 19 ; (1952) 85 CLR 352 per Dixon, Fullagar and Kitto JJ at pg 358; Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 at pgs 304 305 per Dixon CJ; pg 310 per Menzies J; and pgs 318 319 per Windeyer J; Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15 ; (1982) 149 CLR 155 per Stephen J at pgs 161 162 and per Mason J at pg 168; The Trustees of the Property of John Daniel Cummins v Mary Cummins [2006] HCA 6, 7 March 2006 per Gleeson CJ and Gummow, Hayne, Hayden and Crennan JJ at [33]. In drawing these inferences I have had regard to the scope of the allegations, the standard of proof and the characterisation of the conduct for the purposes of the Act. 370 The applicant contends that the evidence establishes contraventions of s 298K both independently of and having regard to s 298V. As to the state of the evidence generally, I am satisfied the evidence supports the inferences I have drawn. The evidence giving rise to those inferences and the ultimate facts in issue have not been the subject of any evidence from the respondents and in particular, from Mr Ramsey. It seems to me, consistent with the approach adopted by Sackville J in Prentice v Cummins (supra) that as a matter of principle, an election by the respondents in the circumstances of the foundation for the 'no case' submission provides a proper basis for drawing inferences consistent with the principles identified in Jones v Dunkel (supra), adverse to the respondents. 375 However, even if the view put by the respondents is accepted that such an evidential burden does not arise until the applicant establishes an hypothecated case of a prohibited reason, the evidence in this case establishes at least a basis for an hypothesis that the conduct was carried out for the prohibited reasons alleged. No recourse to inferences in accordance with the principles in Jones v Dunkel (supra) is necessary to make out a basis for such an hypothesis. The tests, for example, articulated by their Honours Barwick CJ and Mason J [340] [343] in the context of the formulation of the particular provisions in question in that case, reflect a slight threshold of evidence. 376 Accordingly, each of the respondents has failed to demonstrate the alleged prohibited reasons were not an operative reason for the dismissal conduct. The First, Second and Fourth Respondents have failed to demonstrate that the alleged prohibited reasons were not an operation reason for a refusal to employ any one of the 11 individuals in these proceedings (that is, all claimants apart from Susan Young). 377 I am satisfied that the evidence demonstrates there is no relevant differentiation between the respondents in terms of the dealings between employees and the broad operation of the South Grafton Abattoir. No doubt, particular entities associated with or related to Mr Ramsey or entities controlled by Mr Ramsey employ particular individuals and equally, there is very likely to be particular administrative or domestic arrangements between those companies in the provision or performance of services and tasks in connection with the operation of the abattoir. However, whatever the content of those internal arrangements might be, an abattoir requires individuals to perform work in order to function. Those individuals might be employed by any one of a number of companies and be supplied or deployed under contractual arrangements with other entities either related to or, in a practical sense, connected with the operator of the abattoir. For all practical purposes, the question is whether the abattoir as a functional operation, required a cohort of individuals in order to perform the various task specific functions and whether steps were put in place during the period of re-engagement to offer employment to individuals, irrespective of the particular recruiting vehicle or entity used for that purpose. The evidence does not establish whether the Third Respondent was seeking to employ any person in the relevant period. Accordingly, the conduct of refusing to employ is confined to conduct on the part of the First, Second and Fourth Respondents.