What the decision-maker says goes? Decision overturned for inferring reasons of decision-maker

State of Victoria v Grant [2014] FCAFC 184

WHAT YOU NEED TO KNOW

• State of Victoria v Grant [2014] FCAFC 184, which is one of the first Full Federal Court decisions on adverse action since a landmark High Court decision in late 2014, reaffirmed that the existence of a close relationship between the adverse action and a prohibited reason does not mean that the two cannot be disaggregated.
• Consistent with recent key High Court decisions, the Full Federal Court found that it is possible for an employer to satisfy its reverse onus of proof and show that an employee was not dismissed for unlawful reasons, even where those unlawful reasons seem to be tangled up with the reason for dismissal.
• The case shows that the most important component of the employer's evidence in an adverse action defence will be the decision-maker's own evidence of his or her reason for taking action against the employee.
• The central question in an adverse action case will always be why the employer took the adverse action. This is a question of fact, to be answered by what actually, consciously, motivated the decision-maker.
• This does not mean that the courts will always accept the decision-maker's evidence at face value. Inconsistencies in the decision-maker's evidence or other objective evidence may prove the decisionmaker's evidence to be outright wrong, or just unreliable.
• If, however, the court accepts the decision-maker's evidence as honest, and has properly tested that evidence against the surrounding circumstances for consistency and reliability, then the decision-maker's evidence must stand and will be a good defence. The applicant cannot ask the court to "go behind" the decision-maker's evidence or guess at his or her subconscious reasons.

WHAT YOU NEED TO DO

• Ensure that decision-makers understand that they cannot dismiss employees (or take any other adverse action against them) for the protected reasons set out in the Fair Work Act 2009 (Cth).
• Remind decision-makers to ensure that they properly document the reasons for all disciplinary and other decisions that could amount to adverse action .
• When disciplining an employee (up to and including termination), ensure that there are proper grounds for doing so. Those grounds may be factually present, but must not be causally connected to a protected characteristic or activity, such as illness, industrial action or union activity (for example, the employee concerned may be a union member). Protected characteristics do not create "protected species".

An employer defending an adverse action claim must prove that the adverse action against the employee was not taken for a protected reason. When the facts surrounding the termination of an employee's employment involve a protected reason – such as union activity, involvement in industrial action or disability – it can be difficult for an employer to succeed against the reverse onus of proof. However recent High Court decisions, and now a Full Federal Court decision, should reassure employers that it is possible to take action against an employee who has protected characteristics, where there is another, separate and genuine reason for taking that action.

High Court decisions on the evidence of a decision-maker

Recent years have seen the High Court hand down key decisions on some of the central elements of the general protections provisions in the Fair Work Act 2009 (Cth) (FW Act). The two key High Court cases on adverse action concerned employers who dismissed employees involved in union activities or industrial action. In each case, the employers were able to show that although the protected activities were related to the facts that gave rise to dismissal, they were not the cause of the dismissal.

First came Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, in which the High Court found that when considering the decision-maker's reasons for taking alleged adverse action, the decision-maker's evidence is critical. That evidence must be tested in light of the surrounding circumstances and facts, but if the decision-maker establishes to the satisfaction of the Court that his or her motivation for taking adverse action was free from any unlawful consideration, this will be a successful and complete defence to an adverse action claim.

More recently, in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, the High Court applied the Barclay test to an employer's decision to dismiss an employee who waved a sign with offensive words on it during a picket at the employer's mine. The High Court accepted the evidence of the decision-maker, who said that the employee was dismissed for breaching company policies and not his involvement in union activities. The High Court accepted that this evidence was capable of discharging the employer's statutory reverse onus of proof. Fundamentally, BHP Coal demonstrated that engagement in industrial activity may be closely related to a decision to take adverse action without necessarily being the cause of such a decision.

Was adverse action due to underlying medical condition?

In State of Victoria v Grant [2014] FCAFC 184 the Full Federal Court applied Barclay and BHP Coal. The Full Court found that the existence of a close relationship between the adverse action and a different prohibited reason – illness and disability – does not mean that the two cannot be disaggregated.

The employee was employed as a solicitor by a Victorian government department. For the first three years of his employment the employee performed his duties well and there were apparently no issues with his attendance or performance. That began to change towards the end of 2010.

Problems started when the employee broke his leg. This required months of medical treatment (for the original injury and for subsequent complications) during which his attendance at work was sporadic. Even after the treatment was finished, the employee's absences continued.

These absences caused problems relating to the preparation of cases, which in turn led the employer to start managing the employee's performance. Following an initial performance discussion with his supervisor in February 2012, the employee supplied a medical certificate of his unfitness to work at all for a short period. The employee disclosed that he was suffering from depression.

Later in February 2012, the employer wrote to the employee about his absences and performance, directing him to take leave without pay and to provide a detailed medical report on his condition and the impact of it on his ability to perform his duties.

The employee provided a report which noted that he had a long term anxiety condition which had been complicated by excessive consumption of alcohol and bouts of depression, that he had recently lapsed into a "depressive bout", that he was starting to respond to treatment and that his prognosis was excellent.

However in March 2014, the employer authorised and conducted an investigation into allegations of misconduct by the employee, including allegations that the employee had disobeyed lawful directions.

The investigation found that each of the allegations were substantiated, and that the employee had been guilty of misconduct which warranted disciplinary action under the relevant industrial instrument and the Public Administration Act 2004 (Vic). On the strength of the investigation, the employer terminated the employee's employment.

First instance decision: misconduct was manifestation of illness

The employee commenced proceedings in the Federal Circuit Court in which he alleged that by dismissing him, the employer took adverse action against him because of his mental disability. The decision-maker gave evidence that the only reason he had dismissed the employee was because of the employee's misconduct. He denied that the employee's mental illness played any part in the decision.

The Court at first instance upheld the claim, finding that the misconduct for which the employee had been dismissed was a clear manifestation of his illness. The trial judge was dismissive of the decision-maker's evidence, and refused to accept that he did not take the employee's illness into account when making the decision to terminate.

The employer appealed to the Full Court of the Federal Court.

Appeal overturned first instance decision: no evidence that decisionmaker considered illness

The Full Court allowed the appeal. All three judges found that the trial judge, in deciding that the evidence given by the decision-maker was unreliable, had engaged in forms of reasoning prohibited by, or disapproved in, Barclay and BHP Coal.

The problems with the primary judge's reasoning stemmed from the way he treated the decisionmaker's evidence. Tracey and Buchanan JJ described this as a "tension" between the trial judge's assessment of the decision-maker as an honest witness, and his finding that the decision-maker's evidence was "unreliable". The Full Court found that it was wrong to find that the witness was honest and that his evidence was not contradictory, and then at the same time to find that he could not be believed.

The Full Court held that the each of the following lines of reasoning was contrary to the tests established in Barclay and in BHP Coal:

1. reasoning that since the decision-maker knew of the employee's poor health, the decision-maker's evidence that he did not take the poor health into account was unreliable.
2. assuming that it must have been clear to the decision-maker that the employee's misconduct arose from, or was at least in part caused by, his mental condition; and
3. assuming that the decision-maker may or may not have been aware at the time he made his decision that he was taking into account the employee's ill health.

The first line of reasoning could not be accepted because the mere fact that the decision-maker knew of the employee's health condition did not, by itself, mean that his evidence as to the reasons for the termination were unreliable. Consistent with the majority decisions in Barclay and BHP Coal, the Court held that a decision-maker’s knowledge of a protected attribute (such as a mental disability) is a necessary, but not a sufficient, condition for a finding that adverse action was taken for a prohibited reason.

The second line of reasoning was also flawed because it was not supported by the other evidence, and because it required the judge to find that the decisionmaker had made an assertion which the decisionmaker simply had not made. Nothing in the decisionmaker's evidence, and nothing in the documents, suggested that the decision-maker had drawn a link between the employee's medical condition and his misconduct, let alone that there was a link such that the employee's misconduct arose "wholly" out of his illness.

Finally, the Federal Court was particularly critical of the third finding, because it raised the prospect that the decision-maker acted for a reason of which he was not conscious at the time. That reasoning was expressly disapproved by the High Court in Barclay and BHP Coal. The Court stressed that it is incorrect to look for a difference between the "superficial" and the "unconscious" or "subconscious" reasons for a decision.

The only factors which can render a decision-maker's evidence unreliable are internal contradictions in that evidence or other objective evidence. As White J put it, in a separate concurring judgment, "it is unsound to find a witness' evidence to be unreliable by reference to evidence imputed to the witness, but which the witness did not give".

Implications for employers

Ultimately, consistent with Barclay and BHP Coal, the Full Court found that the existence of a close relationship between the adverse action and a prohibited reason does not mean that the two cannot be disaggregated. What is important is the decision maker's evidence. If that evidence is reliable and accepted by the court, the employee will not be successful in any argument which requires the court to "go behind" the evidence or otherwise to assume what was in the decision-maker's mind when they made the decision.