In Board of Bendigo Regional Institute of Technical and Further Education v Barclay  HCA 32 (Barclay), the High Court held that the question whether an employer has taken adverse action for reasons prohibited under Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act) is answered by focusing on the decision maker’s actual reasons for making the decision.
The Federal Court decision in Construction, Forestry Mining and Energy Union v BHP Coal Pty Ltd  FCA 1097 (24 October 2013) provides insights into how employers, when the subject of adverse action claims, can place themselves in a position to provide compelling evidence that their decisions were not motivated by prohibited reasons.
On 12 May 2011, BHP Coal terminated the employment of Mr Judd Crompton. Mr Crompton worked at the Peak Downs BMA Mine as a fitter in the maintenance department and was a shift delegate for the CFMEU. Mr Crompton’s role as a shift delegate meant that he participated in the process of coordinating overtime arrangements at the mine. Mr Crompton claimed that he was dismissed because of his role or responsibility in coordinating the overtime list under the applicable enterprise agreement, and this amounted to a contravention of section 346 of the FW Act.
The incidents which led to Mr Crompton’s dismissal involved the overtime work arrangements of Mr Darren Bright (a contractor at the mine), and Mr Matthew Moore (an employee at the mine and CFMEU member).
On 5 March 2011, Mr Crompton discovered that Mr Bright had worked overtime following his regular shift. It was alleged that Mr Crompton directed Mr Bright not to come to work the following day as this would put him in breach of the BMA Safe Hours of Work Policy (BMA Fatigue Policy), which prescribed maximum shift lengths and working times. Mr Bright proceeded to work the following day after confirming with his supervisor that this would not actually place him in breach of the BMA Fatigue Policy. Mr Crompton denied instructing Mr Bright not to attend work.
It was also alleged that on 22 March 2011, Mr Bright went to the office of his supervisor to talk about job security. As Mr Bright tried to leave the office and return to work, Mr Crompton and Mr David Smith (another employee) were standing in his way and intimidated him. Mr Crompton denied that he and Mr Smith deliberately blocked the path of Mr Bright in an intimidating manner.
On 22 March 2011, Mr Moore organised to work a second overtime shift for his roster before taking annual leave. This would have put him in breach of the CFMEU’s own overtime “policy”, which had been implemented separately to the BMA Fatigue Policy and limited CFMEU members to one overtime shift per roster. The CFMEU’s policy was not endorsed or approved by BHP Coal.
It was alleged that when Mr Crompton realised that Mr Moore was completing an additional overtime shift on 22 March 2011, he called him a scab (a word with significant negative connotations at the mine) and yelled a number of other profanities at him. It was further alleged that Mr Crompton grabbed Mr Moore by his shirt, forcefully dragged him to view the union overtime policy and threatened to punch him. Mr Crompton denied that he had acted aggressively and that he had used threatening and profane language. Mr Crompton also claimed he had referred to the BMA Fatigue Policy, while Mr Moore asserted that Mr Crompton only mentioned the CFMEU’s overtime policy.
Following an investigation into the various allegations referred to above, BHP Coal terminated Mr Crompton’s employment for serious misconduct. The CFMEU then brought an adverse action claim against the company on behalf of Mr Crompton.
Did Mr Crompton engage in industrial activity?
BHP Coal submitted that Mr Crompton’s role of coordinating overtime as a CFMEU delegate did not extend to the conduct complained of, and that the reverse onus in section 361 of the FW Act was therefore inapplicable. Justice Collier of the Federal Court of Australia agreed with BHP Coal, stating that the argument that Mr Crompton had engaged in industrial activity (within the meaning of sections 346-347) was “dubious at best.”
Justice Collier held that Mr Crompton’s role as a CFMEU delegate did not extend to directing workers not to attend work or physically and verbally abusing workers. Her Honour also pointed to Mr Crompton’s insistence that he had only referred to the BMA Fatigue Policy, and held that it was difficult to see how Mr Crompton could be representing the union’s views if he was “relying on [BHP Coal’s] policy:”
… indeed … this is the essence of [the company’s] case – namely that Mr Crompton had purported to assume authority to enforce [its] rules, when he had no authority to do so.
If Mr Crompton engaged in industrial activity, did BHP discharge the onus of proof?
Justice Collier noted that if she was wrong and that Mr Crompton had engaged in industrial activity, then BHP Coal bore the onus of proving that it did not dismiss Mr Crompton for that reason. Her Honour referred to the decision of Chief Justice French and Justice Crennan in Barclay, affirming that “the question of why the decision maker [in an alleged case of adverse action] has acted is one of fact.”
Justice Collier accepted BHP Coal’s submission that it had discharged that onus, and found that BHP Coal’s decision makers were satisfied that Mr Crompton had engaged in serious misconduct by “improperly directing co-workers when to work or not work” and “engaging in physical and verbal abuse of a co-worker.”
A reason for this conclusion was that Justice Collier preferred the evidence of BHP Coal’s representatives over Mr Crompton’s testimony. In choosing to accept the BHP Coal personnel as credible witnesses, Justice Collier placed considerable emphasis on the thorough internal investigation conducted by Ms Jorja Roberts (HR Adviser) and Mr Mark Stroppiana (HR Manager) of BHP Coal.
This investigation included interviews of Mr Moore and Mr Bright by Ms Roberts, meetings with Mr Crompton and a formal disciplinary hearing. Ms Roberts and Mr Stroppiana reported to the ultimate decision maker Mr Brandon Craig (General Manager and Site Senior Executive of the Peak Downs Mine). In finding that Ms Roberts, Mr Stroppiana and Mr Craig were credible witnesses, Justice Collier specifically referred to “the investigation of the incidents involving Mr Crompton by Ms Roberts, including the detailed records of interviews and events made by her. I found her evidence particularly persuasive.”
The importance of internal investigations
The post-Barclay landscape will see decision makers within organisations forced to give evidence about their reasons for taking adverse action, and this will inevitably be contradicted by the testimony of the person bringing the adverse action claim. As Justice Collier’s reasoning shows, the ability of decision makers to establish their credibility will be far easier if a thorough internal investigation has occurred that corroborates the decision maker’s oral evidence.
The importance of internal investigations in adverse action claims is further underlined by another recent Federal Court decision that also involved the BMA Peak Downs Mine and was also heard by Justice Collier. In Construction, Forestry Mining and Energy Union v BHP Coal Pty Ltd (No 4)  FCA 762 (2 August 2013), BHP Coal was found to have dismissed two employees, who were officials with the CFMEU, for union-related activities. BHP Coal claimed that it dismissed the employees because they bullied and threatened another employee over his decision to resign from the union. However Justice Collier found that, on this occasion, BHP Coal’s decision makers lacked credibility and failed to discharge the reverse onus because there was no evidence to support the alleged threats; and BHP Coal had actually ignored an internal investigation that revealed this.
Where to from here?
The Report of the 2012 Fair Work Review Panel recommended that the FW Act should be amended to give greater weight to the subjective intention of employers in adverse action cases. Although the High Court’s decision in Barclay arguably renders this reform unnecessary, the Coalition’s “Policy to Improve the Fair Work Laws” indicates that the new Government will nevertheless seek to implement this recommendation.
More broadly, employer groups have consistently expressed dissatisfaction with the burden of adverse action claims. The Fair Work Commission’s latest quarterly data show that these claims continue to rise, with 3,182 claims lodged in the year to 30 September 2013 (up from 2,756 for the whole of 2012). However, any further reforms in this area will likely have to await the proposed Productivity Commission review of the FW Act, scheduled to commence in March next year.