Qube Ports Pty Ltd v McMaster  FCAFC 123
In July 2013, Qube terminated the employment of a stevedore for refusing a direction to perform temporary higher duties. The employee brought a general protections claim, asserting he was dismissed because he exercised a workplace right (that is, his refusal of a direction to perform temporary higher duties). On appeal, a Full Bench of the Federal Court found the employee did not have a ‘workplace right’ to refuse a direction to perform higher duties and so his dismissal was not a breach of the general protections provisions, based on their varying interpretations of the higher duties clauses in the enterprise agreement. Significantly, two of the judges added commentary about the consequences of decision makers being mistaken as to fact or being ignorant of the law: • Justice Bromberg stated that people are presumed to know the law and do not escape liability where they do not know that the elements motivating their decision could constitute a workplace right • Justice Jessup disagreed, stating that people are not presumed to know the law, rather it is ignorance of the elements that constitute adverse action that is no excuse and this requires the court to assess the decision maker’s reasoning process.
CFMEU v Anglo Coal (Dawson Services) Pty Ltd  FCAFC 157
In May 2014, Anglo Coal dismissed an employee based on what proved to be a mistaken belief that the employee had dishonestly represented that he was sick during two days of personal leave. Despite the mistaken belief, a majority of a Full Bench of the Federal Court concluded that the decision was not motivated by the fact that the employee had taken personal leave, accepting instead that the decision to terminate the employment was based on a belief that the employee was not sick and therefore being dishonest with the employer. The majority held that what is important is what the employer knew or believed at the time of the decision. The dissenting judge, however, concluded that the circumstances of the workplace right (to take personal leave) and the objective circumstances could not be realistically separated from the action under examination.
These decisions provide important lessons for employers, including:
• What matters when attempting to discharge the reverse onus is what is in the mind of the decision maker at the time of the decision, specifically what facts they base their decisions upon
• Courts remain concerned with the factors that motivate decisions, not the subjective facts which may be unknown at the time
• Employers should be cautious about challenging the validity of medical certificates and/or other reasons for employee actions without supporting evidence
• Employers will not necessarily be required to call evidence from every person involved in the disciplinary process.