High Court declines to hear third “adverse action” case in four years
– CFMEU -v- Anglo Coal (Dawson Services)  FCAFC 157
By Stephen Mackie
On 20 June 2016, the High Court declined the CFMEU’s application for special leave to appeal from CFMEU -v- Anglo Coal (Dawson Services).  This is significant because, despite a number of recent high profile decisions dealing with s340 of the Fair Work Act 2009 (Cth) (FW Act) (not least of all the seminal Barclay decision ) there has been surprising confusion over precisely what it means for a person to take adverse action “because of” a workplace right.
The High Court’s tacit endorsement of the Full Court’s approach in Anglo Coal provides a clear example of the current approach to s340 and Part 3-1 of the FW Act, and emphasises the importance of the findings at trial in “adverse action” cases.
Legal background - what is “adverse action”?
“Adverse action” is a colloquial term for one of the 16 separate causes of action listed in Part 3-1 of the FW Act. These causes of action are more accurately called “general protections”.
By far the most common general protections claim is found in s340, which is contravened if the following elements are met:
- two parties have one of the relationships listed in s342 (usually employer/employee or principal/contractor);
- one party takes “adverse action” against the other, which is broadly defined in s342 to include various kinds of negative treatment (such as dismissal); and
- the party who took adverse action did so “because of” the other party’s workplace rights, or a third party’s workplace rights. “Workplace rights” are broadly defined in s341 as benefits under workplace laws or industrial instruments, or the ability to make certain complaints.
The FW Act also states that, when determining whether a party took action “because of” a workplace right:
- it is sufficient if the workplace right is one of multiple motivating factors (s360); and
- the respondent bears the onus of proof on the issue of causation (s361).
In Barclay, the High Court found that the issue of causation is to determine, as a question of fact, the subjective motivations of the relevant decision-maker or makers. The High Court affirmed that approach in BHP Coal,  finding that (in that case) because the decision-maker was motivated by a person’s irregular attendance and not their use of sick leave, s340 had not been contravened.
Facts of CFMEU -v- Anglo Coal (Dawson Services) and findings at first instance
Mr Stephen Byrne was employed at the Respondent’s Dawson mine in Moura. On 21 April 2014, he applied for two days’ annual leave from 24 to 25 April 2014, but was refused. This led to the following exchange between Mr Byrne and Mr Andrew Lawn of the Respondent:
Byrne: Fine, I’m going to be sick anyway.
Lawn: Mate, you have asked for annual leave, it is not within the time period, it’s not approved.
Byrne: I will get a medical certificate. You will find that very hard to challenge.
Lawn: If you get a certificate from a medical practitioner, that is fine but you have already told me that you are going to be sick. If you take sick leave, we will have to have a completely separate discussion based on the discipline policy.
Mr Byrne supplied a medical certificate and was absent on 24 and 25 April 2014. This eventually led to his dismissal.
Justice Collier found that Mr Byrne was in fact sick on 24 and 25 April 2014 and that his use of sick leave was entirely legitimate, but he was dismissed because the decision-maker (a Mr Tony Power) believed “that Mr Byrne had been dishonest in first threatening to obtain and then seeking a medical certificate to support two unauthorised days absent from the workplace”. The fact that this belief was wrong was, for the purposes of s340, irrelevant.
Justice Collier concluded that, as the reasons for dismissal did not include that Mr Byrne had taken sick leave, s340 had not been contravened.
Appeal to the Full Federal Court
The CFMEU appeal raised a number of issues, but for present purposes the most significant was that it was “glaringly improbable” that Mr Power’s reasons were solely that he believed that Mr Byrne had been dishonest. The CFMEU submitted:
“The finding that the Respondent had discharged the onus was wrong in circumstances where the reasons asserted by Mr Power in his affidavit…were not either investigated or put to Mr Byrne in the show cause meeting. The finding that the Respondent had discharged the onus was wrong in circumstances where Mr Power was unable to recall adequately, if at all, matters to which he deposed only some weeks earlier”.
Justices Jessup and Rangiah, of the majority, each dealt in some detail with the fact that Mr Power’s belief about Mr Byrne’s absence was wrong. Both concluded that this finding made it impossible for the CFMEU’s case to succeed. Justice Jessup noted:
“The simple fact was that Mr Power said that he believed neither Mr Byrne nor Dr Farahamand, and her Honour accepted that he was telling the truth...Once that bar was crossed, the conclusion that Mr Byrne’s absence on account of illness was not a reason why he was dismissed by Mr Power followed almost as a matter of course.”
Justice Buchanan, in the minority, upheld the appeal. He found that Mr Byrne’s absence was unquestionably part of the reason he was dismissed, and because that absence arose from a workplace right, s340 was contravened. Mr Power’s mistaken belief about the validity of that leave “does not break the causal connection otherwise present, nor serve to illustrate that the workplace right (which was in fact exercised) was an irrelevant consideration”.
Effect of the decision and unsuccessful application for special leave
The CFMEU’s unsuccessful application for special leave, and the High Court’s tacit endorsement of the majority approach, shows that the High Court is uninterested in revisiting its comments in Barclay and BHP Coal. For the foreseeable future the focus of Part 3-1 will be solely upon the mind of the decision-maker.
This means that the findings of fact at first instance will be of primary importance. Once a Court has determined what the decision-maker’s reasons were, it will be almost impossible to overturn that finding unless it was not open on the evidence. Often, this will make a successful appeal impossible. It will also limit the usefulness of precedent when determining what the reasons for any particular decision are, because each case will turn entirely on its own facts.
Parties to litigation under Part 3-1 will need to ensure that, even if an appeal is almost certain, they devote appropriate resources to trials at first instance, as those findings of fact will normally be central to the ultimate decision.
  FCAFC 157.
 Board of Bendigo Regional Institute of Technical and Further Education -v- Barclay (2012) 248 CLR 500 (Barclay).
 Or because a party had or had not exercised their workplace right, or proposed to exercise or not exercise their workplace right, or to prevent the workplace right being exercised.
 Although the workplace right must be a “substantial or operative factor” or an “operative or immediate” reason; Barclay.
 Although the applicant must prove both that “adverse action” occurred and a “workplace right” existed. See Tattsbet -v- Morrow  FCAFC 62 per Jessup J at .
 CFMEU -v- BHP Coal (2014) 253 CLR 243.
 CFMEU -v- Anglo Coal (Dawson Services) Pty Ltd (No 2)  FCA 265 at .
 At .
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