Industrial Relations Commission New South Wales Medium Neutral Citation: Paula Lee and Ausgrid (No 6) [2013] NSWIRComm 62 Hearing dates: 24 May 2013 Decision date: 24 July 2013 Before: Walton J Vice-President; Harrison DP; Staff J Decision: 1. Leave to appeal is granted. 2. The decision of Commissioner Tabbaa given on 21 December 2012 is quashed. 3. The appeal is allowed. 4. It is determined that the respondent has failed to rebut the presumption, pursuant to section 210(2) of the Industrial Relations Act 1996, that the appellant has been victimised by the respondent because of her complaint the subject of her application dated and filed 2 September 2009 in proceedings IRC 1371 of 2009 in the Commission. 5. The remainder of the matter is referred to a Member of the Commission (allocated by the President) to determine whether and, if so, what orders for relief should be made in the proceedings. Catchwords: APPEAL - leave to appeal - victimisation - application and operation of s 210(2) - applicable principles - complaint made by employee of unsafe workplace due to bullying and intimidation - investigation undertaken - employer found complaint not substantiated - employee redeployed - whether employer rebutted presumption that complaint was not a substantial and operative cause of the detrimental action of redeployment - held - failure at first instance to give adequate reasons - findings at first instance fundamentally inconsistent - delay in delivering decision - Commissioner lost advantage in seeing witnesses - review of credit finding at first instance by Full Bench appropriate - - leave to appeal granted - appeal upheld - Notice of Contention dismissed - Industrial Relations Act 1996, s 210, s 213 - Full Bench to consider itself whether presumption under s 210(2) rebutted and if victimisation found - assessment of evidence - found that presumption not rebutted - victimisation - orders per amended application Legislation Cited: Conciliation and Arbitration Act 1904 (Cth) Fair Work Act 2009 (Cth) Industrial Relations Act 1996 Uniform Civil Procedure Rules 2005 Workers Compensation Act 1987 Cases Cited: Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212; 274 ALR 570; [2011] FCAFC 14 Bindaree Beef Pty Ltd v The Australasian Meat Industry Employees' Union, Newcastle and Northern Branch on behalf of Riley [2012] NSWIRComm 74 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 290 ALR 647; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) BC201206652 Bull v Lee (No 2) [2009] NSWCA 362 D'Amore v Independent Commission Against Corruption [2013] NSWCA 187 Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189; (2002) 6 VR 1 Fox v Australian Industrial Relations Commission [2007] FCAFC 150; (2007) 97 ALD 617; (2007) 161 FCR 263; (2007) 166 IR 85 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Humphries v Cootamundra Ex-Services and Citizen's Memorial Club [2003] NSWIRComm 211; (2003) 128 IR 37 Paula Lee and EnergyAustralia [2010] NSWIRComm 1016 Lee and EnergyAustralia [2010] NSWIRComm 157; (2010) 99 IR 350 Lee v EnergyAustralia No 2 [2011] NSWIRComm 1014 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470; (2005) 80 ALJR 367; (2005) 223 ALR 171 Paula Lee v Ausgrid (formerly Energy Australia) [2012] NSWIRComm 1027 Paula Lee v Energy Australia (No 4) [2011] NSWIRComm 120 Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92; [2003] HCA 62 Twentieth Superpace Nominees Pty Ltd (t/as Specialised Container Transport) v Transport Workers' Union (NSW) [2006] NSWIRComm 218 (2006) 156 IR 323 Category: Principal judgment Parties: Paula Lee (Appellant) Ausgrid (Respondent) Representation: J L Trew QC (Appellant) J S Darams of counsel (Respondent) Toomey Pegg Lawyers (Appellant) Herbert Smith Freehills (Respondent) File Number(s): IRC 28 of 2013 Decision under appeal Citation: Paula Lee v Ausgrid (formerly Energy Australia) [2012] NSWIRComm 1027 Date of Decision: 2012-12-21 00:00:00 Before: Tabbaa C File Number(s): IRC 1371 of 2009 DECISION 1This application for leave to appeal and appeal is the culmination of a set of proceedings which were commenced by Paula Lee ('the appellant') by an application filed on 2 September 2009 pursuant to s 213 of the Industrial Relations Act 1996 ('the IR Act'). The appellant sought relief from victimisation. 2Bishop C dismissed the application, finding that EnergyAustralia, now known as Ausgrid ('the respondent') had rebutted the presumption found in s 210(2) of the IR Act: Paula Lee and EnergyAustralia [2010] NSWIRComm 1016. 3The appellant successfully appealed the decision of Bishop C: Lee and EnergyAustralia [2010] NSWIRComm 157; (2010) 99 IR 350 ('Lee (No 2)'). 4The Full Bench in upholding the appeal stated at [34]: In our opinion, it is clear that the Commissioner focused on the question of whether, because of a decrease in the work, one of the employees had to leave the relevant section. However, as we have stated, what the Commissioner did not address was why it was the appellant. At its highest, the evidence of the respondent was that there was insufficient work for three persons. Although the appellant complained that she was singled out for redeployment, the Commissioner failed to consider in her conclusions, why the appellant was chosen for redeployment and not one of the other employees. We agree with the submission of Mr Trew that the Commissioner applied the wrong test, or misunderstood the test that should have been applied in its application to the evidence. That was an error of law and must result in the appeal being upheld. 5It was common ground, albeit for different reasons, that if the Full Bench found error, it should remit the matter to Bishop C to determine in accordance with law. The Full Bench so ordered. 6On 23 March 2011, Bishop C, in the remitted proceedings, determined an interlocutory application brought by the respondent seeking leave to adduce further evidence from the appellant's Manager, Mr Colin Locking. This application was granted: Lee v EnergyAustralia (No 2) [2011] NSWIRComm 1014 (the decision should have been properly numbered as decision 'No 3'). 7The appellant lodged an appeal against the decision of Bishop C, which was dismissed by the Full Bench on 2 September 2011. In dismissing the appeal, the Full Bench directed that the remitted proceedings receive expedition: Paula Lee v Energy Australia (No 4) [2011] NSWIRComm 120 ('Lee (No 4)'). 8The remittal proceedings were heard by Tabbaa C on 21 and 22 November 2011 and 20 January 2012. The Commissioner delivered her decision on 21 December 2012, dismissing the application: Paula Lee v Ausgrid (formerly Energy Australia) [2012] NSWIRComm 1027 ('Lee (No 5)'). It is from this decision leave to appeal and appeal is sought by the appellant. 9The actual circumstances giving rise to the proceedings was described by the Full Bench in Lee (No 2) at [13] and [14] as follows: [13] In summary, the factual background was that during the life of a project that involved fitting field computing technologies into vehicles of employees working in the field, Mr S Newbery, the Manager, Field Computing, Engineering Transmission and Technology Division of the respondent, said to the appellant, at a point in time when there was no work to be carried out (17 April 2008), "We can't have people sitting around doing nothing". It was this comment that led the appellant to claim that she was being bullied and subjected to intimidating behaviour by Mr Newbery, which she regarded as a risk to her health and wellbeing at work. She lodged a complaint of victimisation. [14] In August 2009, the appellant was redeployed. She contended this was as a result of making a complaint against Mr Newbery. The evidence of Mr Colin Locking, Manager, Business Services (Acting) Engineering and Technology Division, was that the reason why the appellant was redeployed was because the respondent had no work for the appellant to carry out because the project had been completed. 10Although the 12 month period of salary maintenance normally associated with redeployment expired a number of years ago, the appellant continued to be treated as having been redeployed. However, the appellant has been given what was described Mr JL Trew QC, who appeared for the appellant, as "very little work" (it should be noted that the appellant has been offered a number of positions which she has rejected on the basis that they do not meet her skill set). 11It is this history, including the lengthy delay by Tabbaa C delivering her decision, and the circumstances to which we have referred, which resulted in the Full Bench, at the culmination of hearing this appeal, foreshadowing that it intended to make the orders sought by the appellant in her amended appeal (leave was given to amend the orders sought, by consent, during the course of the hearing of the appeal). Those orders were as follows: 1. Leave to appeal is granted; 2. The decision of Commissioner Tabbaa given on 21 December 2012 is quashed; 3. The appeal is allowed; 4. It is determined that the Respondent has failed to rebut the presumption, pursuant to section 210(2) of the Industrial Relations Act 1996, that the Appellant has been victimised by the Respondent because of her complaint the subject of her application dated and filed 2 September 2009 in proceedings No. IRC 1371 of 2009 in the Commission; 5. The remainder of the matter is referred to a member of the Commission (allocated by the President) to determine whether, and if so what, orders for relief should be made in the proceedings. 12Having taken this step, the Full Bench advised the parties that it would publish its reasons for its decision and make the orders as soon as practicable. In light of proposed Order 5, the Full Bench raised with the parties the utility of engaging in a further conciliation, making it clear that this was a matter for the parties and that the Full Bench did not propose to impose conciliation on them. Both parties embraced this proposal. Conciliation concluded before Harrison DP on 13 June 2013 after three separate conciliation conferences, with the parties to advise by 19 June 2013 whether the matter had resolved. It remains unresolved. It would not be our expectation that there would be any further conciliation in this matter. 13It, therefore, follows that we will make the foreshadowed orders and provide our reasons for so doing in this decision. Submissions of the Parties on the Appeal 14Mr J L Trew QC, who appeared for the appellant, commenced his submissions by referring the Full Bench to Lee (No 4) where the Full Bench observed: [87] The extent to which reasons were required depended on the nature of the case. It was not always necessary to provide a detailed and exhaustive analysis of each and every matter raised in a proceeding. Nor did a judicial officer have to expose every step in his or her chain of reasoning. The obligation was to give reasons adequate enough to enable the parties to identify the basis of the decision and the extent to which their arguments have been understood and accepted: Lord v Flight Centre Limited (No 2) [2006] NSWIRComm 282; (2006) 156 IR 420; Webb v Goulburn Masonic Village [2004] NSW IRComm 258; (2004) 136 IR 309); see also Drake Personnel Ltd t/a Drake Industrial v Workcover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 459. ... [136] Not only did this not address the seminal issues raised by the appellant, the reasons misunderstood what was fundamentally required to be considered in the remitter proceedings vis vis the receipt of evidence. [137] The assessment of the adequacy of reasons does require an examination of the whole of the decision below, and not just the seminal areas of judgment (often appearing in the conclusion of the decision) attacked on appeal. However, in this case, despite an extensive setting out of the issues in the proceedings and the submissions of the parties by the Commissioner, there was no form of reconciliation of the competing arguments or reasons given for the resolution of the ultimate question raised for adjudication. The Commissioner's attention seems, rather, to have been focussed upon her prior error, as found in Lee (No 2). Erroneously, the Commissioner seems to have been influenced by the notion that the Full Bench decision required the admission of evidence so as to avoid the decision in Lee No 2 reaching a result by 'default'. 15In summary, Mr Trew put the following contentions in support of leave to appeal and appeal: (a) The aforementioned statements made by the Full Bench in Lee (No 4) applied with equal force to the way in which Tabbaa C dealt with this particular case; (b) The issue in this case was whether or not a statutory presumption had been rebutted and that depended on the evidence of the respondent. The evidence called by the respondent was contested extensively in cross-examination and by reference documents which were put to at least one of the witnesses, none of which is referred to in the decision; (c) To form a view about whether or not a statutory presumption had been satisfied or rebutted required a consideration of the reasons why the evidence of the respondent should be accepted. No such reasons appeared in the decision below; (d) In respect of leave, this failure gives rise to a sense of injustice felt by a losing party which undermines the administration of justice: Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189; (2002) 6 VR 1 (at [100], [102] - [104] and [106]); (e) Tabbaa C gave no explanation as to why she made a positive finding in respect of the evidence of Mr Locking and Mr Newbery (see [90], [98] of the decision); (f) Because of the delay, Tabbaa C failed to use the particular advantage she had in assessing the credibility of witnesses: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470; (2005) 80 ALJR 367; (2005) 223 ALR 171; (g) The work in the appellant's work area was declining for the whole of her work team. The appellant was selected for redeployment rather than her colleagues because of her complaint which was coincident in time with the redeployment; (h) Tabbaa C correctly stated the issue to be decided at [31] of Lee (No 5), but demonstrated at [34] and [35] that she did not understand the question to be determined; (i) The issue that Tabbaa considered was whether the appellant's complaint was a substantial and operative cause of the redeployment. That question invited a mere balancing of the evidence unencumbered by the statutory presumption. This question placed the onus of proof on the appellant to establish unlawful victimisation. Section 210(2) presumes that the victimisation was unlawful and requires the respondent to displace that presumption; (j) Tabbaa C did not address the contention that the lack of availability of work was not the reason for the appellant's redeployment; (k) Tabbaa C wrongly assumed the work of the team in which the appellant had previously worked had to be reduced; (l) For the Commission to determine whether it was satisfied that the conduct of the respondent was not a substantial and operative cause of the appellant's redeployment, it was necessary to assess the evidence. However, it did not do so. That consideration included reconciling any inconsistencies and determining any issues raised by the submissions of the parties in the context of making a determination about whether the respondent had rebutted the statutory presumption; (m) At all material times, Mr Locking was aware that the applicant had made a complaint about being bullied by Mr Newbery. He was also aware that Mr Newbery believed there was a breakdown in relations between the appellant and himself; (n) In his first affidavit (before Bishop C), Mr Locking stated that he requested Ms Buscombe to verify if there was still a position in Field Computing for the appellant. He then said that Ms Buscombe confirmed there was not a role and so the respondent's redeployment process was implemented. The respondent's documents which came into existence at about that time are consistent with the circumstance that the only enquiry made was in relation to the appellant; (o) Mr Locking's evidence in this regard was evasive. If Mr Locking's evidence was assessed by the Commissioner in respect of what he said in his second affidavit, the Commissioner could not have been satisfied that he had made the decision to redeploy the appellant in the way he deposed. The documentary evidence and cross-examination completely undermined this evidence; (p) Mr Locking's assertion that the respondent's redeployment Policy was implemented does not accord with the evidence; (q) The respondent's documents disclose that although the decision to redeploy the appellant was made on 24 July 2009, Mr Newbery was interviewed one week later, on 31 July 2009, to determine whether the appellant's position was redundant; (r) As a result of the lengthy and unexplained delay between the hearing and the decision, the fact finding process miscarried. 16Mr J S Darams of counsel, who appeared for the respondent, made submissions in resisting the appeal, which may be summarised as follows: (a) The appeal involved a challenge to factual findings made by Tabbaa C. Leave is rarely given in such circumstances, particularly where there is no public interest; (b) There was only ever one complaint made by the appellant which was considered by the respondent; (c) Tabbaa C asked the correct question in respect of s 210(2) of the IR Act; (d) The evidence of Mr Locking was sufficient to rebut the statutory presumption and the attacks made by the appellant on his credit cannot be made out. The Commissioner's findings, in this respect, should be sustained; (e) The Commissioner was entitled to accept Mr Locking's evidence was that he did not take the complaint of the appellant into account in making his decision to redeploy her; (f) The appellant properly applied its redeployment policy. The Appeal 17As mentioned earlier, the Full Bench reached a firm conclusion at the hearing of the matter that leave to appeal should be granted and the appeal upheld. Our reasons for that conclusion may be shortly stated. 18Firstly, Tabbaa C failed to give adequate reasons for her decision. That failure constituted appealable error. The Commissioner's reasons were insufficient to enable the parties to understand the basis of her decision and the extent to which their arguments had been understood and accepted or rejected. In effect, this constituted a failure to exercise jurisdiction. In this respect, we refer to the discussion of the Full Bench in Lee v Energy Australia (No 4) setting out the applicable principles (at [84] to [89]). 19The conclusion of Tabbaa C is found in Lee (No 5) at [103] as follows: There is no doubt that the complaint made by Ms Lee against Mr Newbery played a part in the decision to redeploy Ms Lee. Nevertheless, on balance, the Commission is not satisfied the complaint was a "substantial and operative cause" of the redeployment. 20Tabbaa C did not proceed to explain anywhere in her decision how she had arrived "on balance" at this decision which was critical to the determination of the proceedings before her. In short, the Commissioner did not explain why the respondent's reliance upon the complaint to redeploy the appellant, as found by the Commissioner, did not constitute, in fact, a substantial and operative cause for that decision. 21Earlier, at [98], Tabbaa C had stated: No finding can be made that Mr Locking or Mr Newbery were not truthful in their evidence - in fact, they were quite blunt in providing answers during cross-examination and did not resile from their respective positions. 22The statement made by Tabbaa C that "no finding can be made that Mr Locking or Mr Newbery were not truthful" did not consider the submissions made by the appellant that they were unreliable witnesses (and why that may be so). At the very least, the Commissioner needed to grapple with the appellant's contentions that the documentary evidence (and concessions made by Mr Locking in cross-examination), which we will later discuss, raised significant doubts about the reliability of his testimony that the complaint made by the appellant had played no part in his decision to redeploy her rather than the other officers in her work area. 23In D'Amore v Independent Commission Against Corruption [2013] NSWCA 187, the Supreme Court of New South Wales, Court of Appeal (Bathurst CJ, Beazley P, and Basten JA) considered various challenges by the appellant, including whether the primary judge erred in holding that jurisdictional error had not been established in wrongly assessing the sufficiency of the Independent Commission against Corruption's ('ICAC') consideration of the matter. At [107] and [108] their Honours stated: [107] ... The question of the content and detail of judicial reasons was discussed in Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430. Meagher JA observed, at 441, that the source of the requirement to give reasons differed as between an administrative decision-maker and a judicial officer, the former requirement being based in legislation and the latter being an incident of judicial duties. Nonetheless, his Honour considered: "... [t]here is no reason in principle or as a matter of policy why the content of reasons for both types of decision should not be similar, if not the same: they essentially serve the same purpose." [108] His Honour, at 443, noted that there was no universal statement that could be made as to the content necessary for reasons to be adequate. However, his Honour considered, at 443-444, that there were three fundamental elements to a statement of reasons, including, as is relevant to the present argument, that there should be a reference to relevant evidence. His Honour further observed that there was no need to refer to such evidence in detail, "especially in circumstances where it is clear that the evidence has been considered". His Honour continued: "However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate Court may infer that the trial judge overlooked the evidence or failed to give consideration to it." (citation omitted) 24Further, the Commissioner did not provide reasons which reconciled her finding as to the "truthfulness" of Mr Locking with her findings that, not withstanding Mr Locking's assertion to the contrary, the appellant's complaint formed part of the reason for her deployment. This leads us to the second factor. 25In substance, the contrary conclusions reached by the Commissioner (as referred to in the previous paragraph) represent an unreconciled inconsistency in the reasons given for her decision. The Commissioner's findings concerning the truthfulness of Mr Locking (in [98]) cannot be reconciled with her further conclusion (at [103]) that Mr Locking had denied completely that the complaint made by Ms Lee against Mr Newbery played a part in his decision to redeploy her. 26Further, the findings at [103] are inconsistent and impugn other findings reached by Tabbaa C, for example in [95] where Tabbaa C stated: There is no doubt from the evidence before the Commission that no thought was given to which of the three members of the team would be redeployed. It is obvious from the evidence that Ms Lee was considered to be the most obvious choice because she was no longer working within the team and, in the absence of a successful mediation, there was no likelihood of Mr Newbery and Ms Lee working together amicably. Indeed, Mr Newbery made that concession in cross-examination. Unfortunately, by the time Ms Lee agreed to participate in mediation, work with Mr Newbery and comply with instructions from Mr Newbery, the decision to deploy her had been made. 27It is clear, in our view, that the findings made at [95], [98] and [103] cannot stand together. They are fundamentally inconsistent and (as we will later discuss) contrary to the evidence. 28Thirdly, the significant advantages held by the decision-maker at first instance in assessing credibility or reliability of the primary witnesses for the respondent were, in this case, lost or significantly reduced for three reasons: (1)The inconsistency in the findings made by the Commissioner undermined the veracity of her credit findings; (2)Those credit findings were further undermined by the Commissioner's failure to consider and reconcile Mr Locking's account of why he selected the appellant for redeployment over her co-workers (and that the complaint formed no part of the appellant's redeployment) with the contradictory evidence forcefully pressed by counsel for the appellant, including concessions made by Mr Locking himself. Part of that evidence was documentary, which, in our view, when considered in the light of the oral testimony, was of the character discussed in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [27] to [29]) making it permissible for an appellate Bench to form a contrary view to a first instance decision based on credit assessments. In short, for reasons we will later develop, we consider the Commissioner's decision (in accepting the reliability of Mr Locking's evidence) to be contrary to compelling inferences available from documentary and other evidence in the proceedings including the cross-examination of Mr Locking. (Indeed, the decision may be described as "glaringly improbable".); (3)This is a case where, regrettably, we must also conclude that delay has undermined the acceptability of the credit assessments and other factual findings made by the Commissioner. We discuss this further in the following paragraphs. 29In NAIS, the High Court considered the unfairness that can arise as a result of delay in delivering a decision. Gleeson CJ at [9] and [10] pointed to the risk that a delayed decision could be flawed because it affected the decision-maker's capacity to make a proper assessment of the witnesses. His Honour observed that if unreasonable delay created a real and substantial risk that the decision-maker's capacity for competent evaluation was diminished, it was not fair that an appellant should be at that risk: see also Gummow J at [44] and [55]. 30Kirby J stated at [85] to [88]: [85] Relevance of delay: The significance of delay, depending as it does on the issues for decision, necessitates examination of the matter actually decided. If this involved no more than the construction of a written document, the interpretation of a statutory provision applied to agreed facts or other like questions, undue delay, whilst regrettable, might not affect the acceptability or validity of what has been done. The court conducting the appeal or judicial review could judge that matter for itself. Where, however, the matter for decision involves an assessment of the truthfulness of a party or important witnesses, the resolution of competing versions of the facts and the differentiation of truth and falsehood, delay, especially protracted delay, in the provision of a reasoned decision may cast doubt on the validity of that decision. Commonly, this is explained by reference to the need to ensure that "the trier of fact can recall the testimony and the demeanor of the witnesses as well as the dynamics of the trial". [86] In a particular case, more may be at stake than distinguishing between the credibility of parties and other witnesses. Thus, in litigation involving detailed and complex evidence, protracted delay in the provision of a reasoned decision may undermine acceptance by the parties and the community that the decision-maker has given careful consideration to all of the evidence, viewed in its context, and remembered its detail when finally putting the decision on paper. Even appellate judges, like myself, who are cautious about the significance of demeanour in the assessment of truth-telling, willingly accord to primary decision-makers significant advantages derived from their function in considering all of the evidence, perceiving its parts in relation to the whole and reflecting upon it all, as it is adduced. Such advantages, together with those which demeanour is conventionally held to accord to primary decision-makers, are lost, or significantly reduced, by protracted delay in providing a reasoned decision. [87] In addition to these considerations, there is another factor that is repeatedly mentioned in authority concerned with judicial delay. It is equally applicable to decision-making by members of quasi-judicial tribunals, such as the Tribunal. Extensive delay may sometimes tempt (or appear to tempt) the decision-maker to take the path of easy resolution. In Expectation Pty Ltd v PRD Realty Pty Ltd, the Full Court of the Federal Court, in an appeal against delayed judicial reasons, explained the problem in terms of the increasing pressure which prolonged delay occasions to publish a decision. That pressure will bear upon the decision-maker as time passes, leading to the possibility that: "[t]hat pressure could well unconsciously affect the process of decision-making and the process of giving reasons for decision. The decision that is easiest to make and express will have great psychological attraction." These comments are addressed to a human propensity. They are not confined by the legal character of the body in which the propensity may be manifested. [88] Where there is a possibility that the foregoing might have occurred, it is incumbent on a court, reviewing the impugned decision in an appeal or on judicial review, to approach its task with vigilance. Where the decision-maker reaches a decision in reliance upon considerations of the credibility of parties or witnesses, significant delay undermines the acceptability of such assessments. Where there is lengthy delay in the provision of a reasoned decision, whether by a judge or a tribunal, it may not be enough for the decision-maker simply to announce conclusions on credibility. It may then be necessary to say why the evidence of a witness is believed or disbelieved, in effect to demonstrate that any countervailing evidence has not been forgotten or overlooked. That it has not been would, in a timely provision of the decision, more readily be assumed. See also Hayne J at [13] and [136], and Callinan and Heydon JJ at [166] to [168]. 31Mr Trew submitted, correctly in our view, that the Commissioner's decision had many of the flaws referred to in NAIS. Senior counsel pointed to the Commissioner misstating the evidence about the appellant's bullying complaint suggesting it was made only in 2008 (at [34] and [91]). The evidence discloses that the complaint was repeated up to and including an email to Mr Ross Callas dated 29 July 2009. The Commissioner also misstated, it was submitted, the evidence by finding that the appellant did not agree to participate in the mediation process for several months prior to her redeployment. The evidence disclosed that the appellant agreed to participate in the mediation on 6 April 2009 and never withdrew her consent. The Commissioner was mistaken in stating at [95] that by the time the appellant agreed to participate in the mediation and comply with Mr Newbery's instructions, the decision to redeploy her had been made. Her evidence was that until the mediation addressed the fact that she felt threatened and intimidated by Mr Newbery it was not safe for her to return to work in the team. 32The inconsistency in the conclusions reached by the Commissioner is also further evidence that the length of the delay affected the veracity of her decision making. We note the finding that the appellant's complaint about Mr Newbery played a part in the decision to redeploy the appellant (as the Commissioner found at [103]) can only be properly based upon what emerged in the cross-examination of Mr Locking and Mr Newbery (and the documentary evidence) and is, in fact, an implicit recognition of the unreliability of their evidence. 33Tabbaa C's failure to offer any explanation for her conclusion regarding the credit of Mr Locking and Mr Newbery, raises, in our minds, the same doubt that the majority of the Full Court of the Federal Court of Australia had about a Commissioner's credit findings in Fox v Australian Industrial Relations Commission [2007] FCAFC 150; (2007) 97 ALD 617; (2007) 161 FCR 263; (2007) 166 IR 85 at [32], namely, whether a Commissioner has the capacity to recall observations and impressions about witnesses after a delay of about 12 months between the hearing and the decision. 34Fourthly, we do not consider that the Notice of Contention by the respondent can be sustained. 35The respondent filed a Notice of Contention in which it sought to uphold the decision of Tabbaa C on a different basis. The respondent submitted that the logical and compelling result that followed from accepting Mr Locking as a truthful witness was that the appellant's complaint played no part in the decision Mr Locking made to redeploy her. 36The respondent, therefore, submitted that part of the finding of Tabbaa C at [103] in which she found the complaint did play a part in the decision was an error. The respondent contended that, in light of Mr Locking's direct evidence, the complaint made by the appellant formed no part of his decision to redeploy the appellant and that the evidence of the decision-maker should therefore be accepted as rebutting the presumption. 37The Uniform Civil Procedure Rules 2005, r 50.11 provides: 50.11 Notice of contention (cf SCR Part 14, rule 3, Part 51A, rule 13) (1) This rule applies if the defendant wishes to contend that the decision of the court below should be affirmed on grounds other than those relied on by the court below, but does not seek a discharge or variation of any part of that decision. (2) In the circumstances referred to in subrule (1), the defendant need not file a cross-summons but must instead file notice of that contention, stating, briefly but specifically, the grounds relied on in support of the contention. ... 38In Bull v Lee (No 2) [2009] NSWCA 362, the Supreme Court of New South Wales, Court of Appeal, in referring to the UCPR Rules in respect of a Notice of Contention, observed at [14]: [14] If there had been a mistrial in the court below the effect would be either that a new trial was required or, in the unlikely event that the Court of Appeal was able to remedy adequately the respect in which a mistrial had occurred, the substitution of different orders by the Court of Appeal itself. Neither of those is the type of outcome that flows from success on a Notice of Contention. For that reason, the alternative relief that the Respondent seeks in para 2 of her Notice of Motion is inappropriate. 39In the disposition of this appeal, we will conclude that the complaint did form part of the decision to redeploy the appellant and the Commissioner's conclusion was, in this limited respect, correct. There is, in our view, no proper basis for the contention. 40In any event, the Notice of Contention underlines the central ground relied upon by the appellant, being an absence of reasons given by the Commissioner, that is, a failure to reconcile the decision to find the complaint was a basis for the decision to redeploy and an acceptance of the evidence of Mr Locking that the complaint played no part in his decision to redeploy, and, ultimately, the determination that the presumption had been rebutted. In the context of this appeal, the failure to provide adequate reasons must result in the decision at first instance being found to be unsafe. 41We note that we have had regard, in reaching our conclusion as to the contention, to our later findings regarding the failure by the respondent to rebut the presumption in s 210(2) (see the reasons given for the making of Order 4). 42In light of the errors we have identified, leave must be granted to correct them and for the proper administration of justice: see Humphries v Cootamundra Ex-Services and Citizen's Memorial Club [2003] NSWIRComm 211; (2003) 128 IR 37 at [78]. The appeal must be upheld. 43We note that the Notice of Contention filed by the respondent was filed out of time. We grant an extension of time but otherwise dismiss the Notice. The Disposition of the Appeal 44A question arose during the proceedings as to "what was the appropriate disposition of the appeal in the circumstances that the appeal was upheld?". Both parties opposed a remitter simpliciter and contended that the Full Bench should determine the primary question raised by the fourth order sought in the amended appeal, namely, whether the respondent had succeeded in a rebuttal of the presumption found in s 210 of the IR Act. It was accepted that the remainder of the proceedings, including the question of the ultimate orders in the proceedings in respect of s 213 of the IR Act, should not be determined by the Full Bench itself. 45We adopted that approach as appropriate. The ultimate determination of those issues shall be undertaken in accordance with the abovementioned procedure, framed by the orders sought in the amended appeal. Statutory Provisions 46Section 210 of the IR Act provides: 210 Freedom from victimisation (1) An employer or industrial organisation must not victimise an employee or prospective employee because the person: (a) is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or (b) does not belong to an industrial organisation of employees, or holds a certificate of conscientious objection to becoming a member of such an industrial organisation, or (c) refuses to engage in industrial action, or (d) exercises functions conferred under this Act, or (e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or (f) informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument, or (g) participates, or proposes to participate, in proceedings relating to an industrial matter, or (h) engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee's duties), or (i) informs any person of an alleged breach of the Protection of the Environment Operations Act 1997 by an employer, or (ia) informs any person or body of, or gives evidence in relation to, a notifiable occurrence within the meaning of the Rail Safety National Law (NSW), or (ib) reports a matter relating to the safety or reliability of railway, bus or ferry operations to the Chief Investigator (within the meaning of the Transport Administration Act 1988) or a member of staff employed in the Transport Service, or (ic) informs any person or body of, or gives evidence in relation to, a breach or alleged breach of the Dangerous Goods (Road and Rail Transport) Act 2008 or the regulations under that Act (or a provision of a law of another State or Territory that corresponds to that Act or those regulations), or (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions under Part 5 (Consultation, representation and participation) of the Work Health and Safety Act 2011, or (k) assists the Independent Pricing and Regulatory Tribunal or Scheme Administrator in the exercise of its functions under the Electricity Supply Act 1995. (2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action. 47Section 213 of the IR Act provides: 213 Enforcement (1) The Commission may, by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part. (2) The Commission may, in particular, for that purpose do any one or more of the following: (a) order the reinstatement or re-employment of an employee, (b) order the employer to promote or otherwise advance an employee in his or her employment, (c) order the employer to pay an employee or prospective employee the whole or any part of the amount of remuneration or other financial benefits lost or foregone, (d) order the employer to employ a prospective employee, (e) order the employer not to carry out a threat to victimise an employee or not to make any further such threat, (f) order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity, (g) make consequential orders (including orders concerning continuity of service). (3) An application for an order under this section must be made within 21 days after the contravention concerned. (4) The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or other party if the application is or is not rejected, and (c) the conduct in relation to which the order is sought. Principles 48In Lee (No 2), in considering s 210(1), the Full Bench observed at [23] and [24]: [23] However, the Commissioner did not consider which employee was the appropriate employee that should have been redeployed, if at all, and why the other two employees, being Mr Newbery and Mr Kelly, should not have been chosen for redeployment (or for that matter why the employer did not address that question). [24] The reverse onus provision, in our opinion, required that the respondent demonstrate that the safety issue which led to the complaint was not an actuating reason for the appellant's redeployment. The employee had the benefit of the assumption that she had been redeployed because she made the complaint and therefore the onus is on the employer to establish that that was not the reason. To merely establish on the evidence that it was necessary to redeploy one employee leaves open the possibility that this employee was chosen for the reason of her complaint, particularly when that complaint was made at a time coincident with the transfer. Further, the evidence was that many months later at the hearing, two persons were still working in the section. 49In Lee (No 4), in discussing s 210, the Full Bench observed at [10] to [12]: [10] The respondent bears the onus of rebutting a statutory presumption that the appellant was victimised by the redeployment. [11] Section 210(2) is Parliament's recognition that the reasons for detrimental action against an employee are, of necessity, peculiarly within the knowledge of the employer. Therefore, to avoid liability the employer must negate the statutory presumption that its conduct has been for the reasons condemned by s 210(1): Heidt v Chrysler Australia Limited (1976) 13 ALR 365 at 373. The statutory imposition of the reverse onus is not a technical requirement; it serves the important public interest of ensuring that justice is done and that the legislative prescription is not defeated by the inability of an applicant to adduce evidence upon a central issue. [12] In the earlier proceedings before the Commissioner, the respondent had the opportunity of adducing all evidence that it considered relevant to the claim being advanced by the appellant including the reasons for its actions against the appellant. It had also been given the opportunity to make such submissions it considered relevant in relation to the claim. There was nothing in the reasons of the Full Bench decision to suggest that the Full Bench expected that additional evidence would be received. The Full Bench's conclusion was simply that the reverse onus issue had not been addressed by the Commissioner. The granting of leave to adduce that further evidence was not a formality. It was incumbent upon the party now seeking to adduce further evidence to explain how the omission at first instance occurred. 50In this appeal, both parties relied upon a recent decision of the High Court of Australia in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 290 ALR 647; (2012) 86 ALJR 1044; (2012) 220 IR 445, where the High Court considered s 346 of the Fair Work Act 2009 (Cth) ('the FW Act') which prohibits an employer from taking adverse action against an employee because that employee is an officer or member of an industrial association or because that employee engages, or proposes to engage, in particular kinds of industrial activity (see at [1] per French CJ and Crennan J). 51The judgment of the High Court also considered the statutory presumption found in s 361 of the FW Act. That section is in the following terms: Reason for action to be presumed unless proved otherwise (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. (2) Subsection (1) does not apply in relation to orders for an interim injunction. 52Similar protections have existed in Federal industrial relations legislation in Australia since the enactment of the Conciliation and Arbitration Act 1904 (Cth) (per French CJ and Crennan J at [1]). 53Mr Trew submitted that the following principles may be extracted from Barclay. 54Firstly, the test of whether action was because of a proscribed reason was neither a subjective nor an objective test. 55Secondly, direct evidence of the decision-maker as to the state of mind, intent or purpose, will bear upon the question of why adverse action was taken. It is, therefore, appropriate for the decision-maker to give evidence comparing the position of the employee affected by the adverse action with an employee who has, for example, no union involvement. 56Thirdly, direct evidence from the decision-maker which is accepted as reliable is capable of discharging the burden on the employer, even though the employee may be an officer of an industrial association and engaged in industrial activity. 57Fourthly, it is wrong to enquire into the "unconscious" state of mind of the decision-maker. 58Fifthly, the question is whether the asserted proscribed reason is a "substantial and operative" reason for taking the adverse action (at [46] to [58], [102], [103] and [127]). 59Mr Darams relied upon the observations of French CJ and Crennan J at [43] in Barclay to the effect that "a defendant employer interested in rebutting a statutory presumption similar in effect to s 210(2) can be expected to rely in its defence on the direct testimony of the decision-maker's reason for taking the detrimental action". 60It was submitted that their Honours (at [45]), in considering the evidence which is capable of rebutting an employer's reverse onus, relied upon Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92, as support for the proposition that the direct evidence of the decision-maker as to their state of mind, intent or purpose will bear upon the question of why certain action was taken. Further, it was contended that the reference to Purvis referred to by their Honours was the same part of that decision which a Full Bench of this Commission relied upon in Twentieth Superpace Nominees Pty Ltd (t/as Specialised Container Transport) v Transport Workers' Union (NSW) [2006] NSWIRComm 218; (2006) 156 IR 323. French CJ and Crennan J in Barclay, held that direct evidence from the decision-maker which is accepted as reliable is capable of discharging the burden on an employer. 61Mr Darams further submitted it was also manifest from the joint judgment of Gummow and Hayne JJ (at [127] and [131]) and Heydon J (at [140]) in Barclay their Honours considered that evidence of the decision-maker was relevant to assessing whether an employer had rebutted a statutory resumption similar in effect to s 210(2) of the Act. 62Some attention was given in the written submissions of the appellant as to whether the judgment in Barclay should result in a conclusion that a judgment of the Full Bench in Bindaree Beef Pty Ltd v The Australasian Meat Industry Employees' Union, Newcastle and Northern Branch on behalf of Riley [2012] NSWIRComm 74 was wrongly decided because the Full Bench had limited the operation of a similar statutory presumption to objective circumstances rather than a subjective reason for undertaking a particular step. That submission was not pursued during oral submissions because of the common reliance by the parties upon the decision in Barclay and, in particular, the emphasis both counsel placed upon the direct evidence of the decision-maker as to his state of mind, intent and/or purpose. 63We do not propose, in those circumstances, to further consider the decision in Bindaree Beef. That matter concerned an application brought under s 242 of the Workers Compensation Act 1987 seeking the reinstatement of a dismissed injured worker. The matter revolved around a consideration of Pt 8 of the Workers Compensation Act and, in particular, the statutory presumption found in s 244 of that Act. The statutory scheme is different to that presently under consideration. Whilst the Full Bench in Bindaree Beef did consider a number of judgments broadly concerning victimisation of or adverse action against an employee for a prohibited reason, the Full Bench was not seized of the High Court decision in Barclay. (The Full Bench relied, in fact, upon the majority decision of Gray and Bromberg JJ in Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212; 274 ALR 570; [2011] FCAFC 14 which was overturned by the High Court in Barclay.) 64There are differences between the statutory schemes concerning adverse action matters under the FW Act and the provisions of Pt 1 of Ch 5 of the Act here under consideration. In particular, there are differences between the form of the statutory presumption in s 361 of the FW Act and s 210(2). (For example, French CJ and Crennan J in Barclay placed reliance upon the words 'particular reason' found in s 361(1)(a) which do not appear in any relevantly similar way in s 210(2).) However, in our view, the parties' reliance upon the judgment in Barclay is well founded, at least to establish the proposition that it will be necessary, in adjudicating upon matters brought under Pt 8 of Ch 5 of the Act, to consider the direct evidence of the decision-maker as to their state of mind, intent and purpose (assuming such evidence was brought by the respondent to the proceedings seeking to rebut the statutory presumption). Having regard to the judgment of French CJ and Brennan J in Barclay (at [44]), that conclusion must follow because of the statutory expression "because" in s 210(1) (see, also, the judgment of Gummow and Hayne JJ at [101]) and the nature of the statutory presumption in s 210(2). As their Honours observed: The imposition of the statutory presumption in s 361 and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?". 65It follows that we will be guided by the judgment in Barclay in reaching our conclusions in this matter. We note, in that respect, that we find no disagreement with Mr Trew's summary of relevant principles from Barclay, which we have earlier referred to in this decision. Bearing in mind the differences between the statutory schemes and the matters we are required to have regard to under Pt 8, we consider that it will be useful, in approaching this matter, to extract some parts of the judgment in Barclay which will provide guidance in the present context. First, we wish to refer to the following passages from the joint judgment of French CJ and Crennan J (at [45], [54] to [59], [62] and [63]): [45] This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer[23]. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker[24] or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity[25]. [54] In Pearce, an employee who was a member of an organisation registered under the Conciliation and Arbitration Act 1904 (Cth) was dismissed from his employment. A director of the defendant employer gave evidence that the employee was not dismissed "because of being in a union", but rather because he was dissatisfied with his wages and conditions[40]. A question arose as to whether the director's evidence was sufficient to satisfy the onus cast upon the employer. In deciding that the director's evidence was sufficient, the majority in Pearce recognised that mere declarations of an innocent reason or intent in taking adverse action may not satisfy the onus on an employer if contrary inferences are available on the facts[41]. In the minority, Isaacs and Higgins JJ decided that the director's evidence of his reasons for dismissing the employee did not satisfy the onus because other evidence given by the director had contradicted it. In considering this issue, Isaacs J recognised that it is not possible to "peer into [an employer's] mind"[42]. Equally, it is not possible in a curial process to plumb the depths of "[an employer's] unconscious"[43]. [55] More generally, in Pearce, Isaacs J said of s 9(4) of the Conciliation and Arbitration Act 1904 (Cth) (the then applicable legislative predecessor to s 361)[44]: "The provision casting the onus on the defendant employer means that the fact that the dismissed employee was a member of an organization must not enter in any way into the reason of the defendant, if he desires exculpation." [56] That interpretation was rejected in Bowling. In Bowling, an employee who was a shop steward was dismissed from his employment. The decision-makers, two directors of the employer, did not give evidence. In a short judgment concurring with Mason J, Gibbs J said[45]: "The onus of proving that the fact that the employee held the position was not a substantial and operative factor in the dismissal is to be discharged according to the balance of probabilities and is not to be made heavier by any presumption that if an employee who is dismissed for disruptive activities happens to be a shop steward the latter circumstance must have had something to do with his dismissal. If in the present case evidence had been given by the directors responsible that the employee was dismissed because he was guilty of misconduct or because his work was unsatisfactory, and that in dismissing him they were not influenced by the fact that he was a shop steward or indeed that he was dismissed in spite of the fact, and that evidence had been accepted, the onus would have been discharged." [57] Mason J, with whom Stephen and Jacobs JJ also agreed, said of the interpretation adopted by Isaacs J in Pearce[46]: "The protection of trade unions and their representatives from discrimination and victimization by employers does not require an interpretation as extreme as that favoured by Isaacs J. It would unduly and unfairly inhibit the dismissal of a union representative in circumstances where other employees would be dismissed and thereby confer on the union representative an advantage not enjoyed by other workers, to penalize a dismissal merely because the prohibited factor entered into the employer's reasons for dismissal though it was not a substantial and operative factor in those reasons." [58] His Honour went on to say that the decision-makers in Bowling who failed to give direct evidence could hypothetically have said in evidence[47]: "'We dismissed him because he was a troublemaker, because he was deliberately disrupting production and setting a bad example and we did so without regard at all to his position as a shop steward'." Because no such evidence was given, his Honour found that the evidence in the case[48]: "left uncontroverted the possibility that the respondent's position as a shop steward was an influential, perhaps even a decisive, consideration in [the decision-makers'] minds." [59] Despite the change to a civil penalty regime effected in 1996, s 361 does not differ in relevant respects from its legislative predecessors and Bowling remains authoritative in relation to a number of the arguments raised on the appeal. [62] Secondly, it is a related error to treat an employee's union position and activity as necessarily being a factor which must have something to do with adverse action, or which can never be dissociated from adverse action. It is a misunderstanding of, and contrary to, Bowling to require that the establishment of the reason for adverse action must be entirely dissociated from an employee's union position or activities. Such reasoning effectively institutes an interpretation of the relevant provisions indistinguishable from that of Isaacs J in Pearce, which was rejected in Bowling. The onus of proving that an employee's union position and activity was not an operative factor in taking adverse action is to be discharged on the balance of probabilities in the light of all the established evidence. [63] Thirdly, it is appropriate for a decision-maker to give positive evidence comparing the position of the employee affected by the adverse action with that of an employee who has no union involvement. 66We also refer to the joint judgment of Gummow and Hayne JJ (at [85] to [87], [90], [103], [104], [116], [127] and [128]) as follows: [85] Mason J, with whom Stephen and Jacobs JJ agreed, began his analysis of s 5 by remarking that the section had "a legislative history which extends back to the turn of the century when the trade union was a more fragile institution than it is today and when it stood in need of a large measure of protection from employers"[63]. His Honour went on to say that[64]: "The protection of trade unions and their representatives from discrimination and victimization by employers does not require an interpretation as extreme as that favoured by Isaacs J [in Pearce]. It would unduly and unfairly inhibit the dismissal of a union representative in circumstances where other employees would be dismissed and thereby confer on the union representative an advantage not enjoyed by other workers, to penalize a dismissal merely because the prohibited factor entered into the employer's reasons for dismissal though it was not a substantial and operative factor in those reasons." Mason J preferred the construction that[65]: "[Section] 5(1) does not proscribe the circumstances which it lists as the sole or predominant reasons for dismissal. It is sufficient if the circumstance is a substantial and operative factor. And it does not cease to be such a factor because it is coupled with other circumstances or because regard is had to it in association with other circumstances not mentioned in the section." (emphasis added) [86] With respect to the onus borne by the employer, Mason J stated[66]: "Section 5(4) imposed the onus on the [employer] of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the [employee], in order to succeed, was not bound to adduce evidence that the [employer] was actuated by that reason, a matter peculiarly within the knowledge of the [employer]. The [employee] was entitled to succeed if the evidence was consistent with the hypothesis that the [employer] was so actuated and that hypothesis was not displaced by the [employer]. To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the [employer] the onus of proving that which lies peculiarly within his own knowledge." [87] Turning to the facts of the case, Mason J held[67]: "Once it is said that the appellant dismissed [the respondent] because he was deliberately disrupting production and was setting a bad example it is not easy to say without more that this had nothing to do with his being a shop steward. Although the activities in question did not fall within his responsibilities as a shop steward his office gave him a status in the work force and a capacity to lead or influence other employees, a circumstance of which the appellant could not have been unaware. It would be mere surmise or speculation, unsupported by evidence, to suppose that the appellant's management, if concerned as to the bad example he was setting, divorced that consideration from the circumstance that he was a shop steward." [90] In holding that Qantas had not contravened s 5 of the 1976 Act in dismissing Mr Lewis, Morling J assessed the reliability and weight of the evidence adduced by both parties. His Honour made findings that Mr McLean, the dismissing officer, "bore no ill-will to the prosecutor", and that[72]: "It is significant that McLean did not single out the prosecutor for treatment different from that meted out to Macfarlane, who was not a union delegate and who had not taken any special part in the quarantine dispute. ... I am satisfied that neither Macfarlane nor the prosecutor was unfairly treated. If facts favourable to the prosecutor did not emerge at the interview, that failure was due entirely to his own refusal to say anything in his own defence." [103] With respect to what became s 346 of the Act, paragraph 1458 of the Explanatory Memorandum to the Fair Work Bill 2008 stated: "Clause 360 provides that for the purposes of Part 3-1, a person takes action for a particular reason if the reasons for the action include that reason. The formulation of this clause embodies the language in existing section 792 which appears in Part 16 of the WR Act (Freedom of Association) and includes the related jurisprudence. This phrase has been interpreted to mean that the reason must be an operative or immediate reason for the action (see Maritime Union of Australia v CSL Australia Pty Limited[79]). The 'sole or dominant' reason test which applied to some protections in the WR Act does not apply in Part 3-1." (emphasis added) The phrase "operative or immediate reason" used in CSL is relevantly indistinguishable from the phrase "a substantial and operative factor" used by Mason J in Bowling. In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised "a substantial and operative" reason, or reasons including the reason, for the employer's action and that this action constitutes an "adverse action" within the meaning of s 342. [116] Before this Court the appellant accepts that it took "adverse action" against the first respondent under s 342 of the Act. On the footing that s 346 applies, the primary issue for determination is whether or not the adverse action was made "because" of a reason proscribed by s 346. No party to the appeal seeks to agitate the findings of fact made by the primary judge. [127] In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a "substantial and operative factor" as to constitute a "reason", potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry. [128] Whilst it is true to say, as do the respondents, that there is a distinction between discharging the onus of proof and establishing that the reason for taking adverse action was not a proscribed reason, there is nothing to suggest that the conclusions drawn by the primary judge, and the findings and reasons upon which these were based, did not take this into consideration. As Lander J concluded, if the reasons for the conclusions and the facts for which they were formulated are not challenged, then the contravention of s 346 cannot be made out[103]. This proposition should be accepted. To hold otherwise would be to endorse the view that the imposition of an onus of proof on the employer under s 361(1) creates an irrebuttable presumption at law in favour of the employee. Chronology 67The chronology established that from December 2004, the appellant worked in the respondent's Integrated Assessment Management System Field Computing Group and, at the time of the events the subject to her complaint, she was working with two other employees, Mr Sydney Newbery and Mr Paul Kelly. 68On 23 April 2008, following a bullying complaint made against Mr Newbery, the appellant was relocated to the respondent's Head Office, reporting to the Manager, Business Systems Integration. This occurred because the appellant had expressed fears that her normal workplace was unsafe. 69On 29 August 2008, following an investigation by Holding Redlich solicitors into the appellant's complaint, she was advised that the allegations of bullying had not been substantiated. The appellant was refused a copy of Holding Redlich's report. 70On 29 September 2008, the respondent informed the appellant that she was required to return to her normal duties in the Field Computing Group. She was required to participate in a mediation with Mr Newbery. 71A mediation was arranged on 9 October 2008 and, subsequently, 14 October 2008. However, the appellant was ill and unable to attend. 72On 16 October 2008, the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales, who was then representing the appellant, advised the respondent that the appellant would not participate in the mediation until a number of issues were resolved including the provision of the Holding Redlich report. 73On 16 January 2009, the respondent provided some information in respect of the contents of the Holding Redlich report. However, it did not provide a copy of the report to the appellant. The respondent repeated its offer of mediation to "re-establish professional working relationships on the project". 74On 6 April 2009, the appellant agreed to participate in mediation. On 12 June 2009, the appellant had a pre-mediation meeting with the mediator, Ms Wendy Buchanan. The appellant advised the mediator that she sought a resolution of the matter by receiving an apology from Mr Newbery and returning to her position in the Field Computing Group. 75On 19 June 2009, the mediator had a pre-mediation conference with Mr Newbery during which Mr Newbery said he would not participate in the mediation because he saw no benefit to himself. The mediator advised the respondent of Mr Newbery's position. 76On 7 July 2009, the appellant forwarded an email to the respondent enquiring about the mediation. 77On 21 July 2009, at the respondent's invitation, the appellant met with Mr Callas who had been recently employed by the respondent as an Industrial Relations Advisor and Ms Barbara Graham, one of the respondent's Human Resources Managers. 78The appellant was advised by Mr Callas that the mediation was not proceeding because the mediator had informed him that the appellant was not willing to participate. 79The appellant advised this was not the understanding she received from the mediator and that she proposed to contact the mediator to clarify the position. During this meeting, the appellant complained to Mr Callas that she felt threatened and intimidated by Mr Newbury and that until the mediation addressing that issue was completed, she was of the view that it was not safe for her to return to the section. 80On 24 July 2009, Mr Locking telephoned Ms Helen Buscombe, a Human Resources Manager in the respondent's Head Office, Corporate HR, which was not part of Mr Locking's division, whose duties included managing persons who were to be redeployed. 81Mr Locking's evidence was that he decided to redeploy the appellant on that date. Ms Buscombe was to give effect to a plan making the appellant redundant, which claim was recorded in a memorandum provided by Ms Buscombe to Mr Locking that day following their conversation. The subject of the memorandum was "Proposed approach - Paula Lee". The "proposed approach" was set out as follows: No Action Responsibility Due Date 1 Provide chronological history to date, outlining key dates and actions, to the HR Division C Locking / B Graham 31 Jul 09 2 Determine that current position is redundant and document reasons, provide to the HR Division C Locking / S Newbery 31 Jul 09 3 Hold initial redeployment discussion with Paula (see attached discussion guide), and confirm redeployment status in writing C Locking / H Buscombe Week commencing 3 Aug 09 4 Place Paula on the Redeployment Register, with Helen Buscombe as Redeployment Case Manager HR Division As at discussion date 5 Paula to undertake a Career Transition Program to determine 'best fit' role for the future (see sample program provided by Chandler Macleod, cost is approximately $2,000 - costs to be covered by ET&T) HR Division to arrange Commence asap after discussion date 6 Identify suitable interim role for Paula until outcome of Career Transition Program is known HR Division Commence sourcing immediately 7 Identify suitable permanent position in line with outcomes of Career Transmission Program HR Division Review roles as they become available 82The memorandum concluded: "Can you advise if you agree with this proposed approach, and if so, we can commence the above actions". 83There is no reference to the discussion between Ms Buscombe and Mr Locking on 24 July 2009, the plan, or the memorandum recording it in the evidence of the respondent's witnesses, in particular, in the affidavits of Mr Locking. The plan, as set out in the memorandum, only became known to the appellant when it was produced by the respondent in response to orders made by Bishop C on 23 March 2011 in relation to a notice to produce when the matter was remitted to her by the Full Bench. 84Without the appellant's knowledge of what Mr Locking had decided and set in train with Ms Buscombe, the appellant and Mr Callas continued to communicate about the mediation by email dated 29 July 2009. 85On 30 July 2009, the appellant spoke to the mediator who informed her that she had not told Mr Callas that the appellant was unwilling to participate in the mediation. The mediator's evidence before Bishop C was that Mr Newbery did not see any value in mediation. 86On 12 August 2009, the appellant attended a meeting with Mr Callas, Ms Buscombe and Mr Locking (by telephone). The appellant was advised by Mr Locking that her previous role in Field Computing Group no longer existed and, as a consequence, she was being redeployed. The appellant was provided with a letter signed by Ms Buscombe which stated that she was redeployed "due to the completion of [her] ... assigned role within field computing ...". Consideration 87Section 210(2) is the legislature's recognition that the reasons for detrimental action against an employee are, of necessity, peculiarly within the knowledge of the employer. Therefore, to avoid liability arising under the provisions of s 210(1) and 213, the employer must negative the statutory presumption that its conduct has been for the reasons condemned by s 210(1). This is not a technical requirement. As was submitted by the appellant, it serves the important public interest of ensuring that justice is done and the legislative prescription is not defeated by the inability of an applicant to adduce evidence upon a central issue. 88The reverse onus as found in s 210(2), as stated in earlier decisions by the Full Bench regarding this matter, requires the respondent to demonstrate that the safety issue raised by the appellant which led to the complaint, was not a substantial and operative cause for the appellant's redeployment. 89In order for the Full Bench to determine whether it was satisfied that the conduct of the respondent was not a substantial and operative cause of the appellant's redeployment, it is necessary to assess the evidence below. In the present matter that process, with the concurrence of the parties, must necessarily occur in the absence of seeing the witnesses give their evidence, but in circumstances where the advantage enjoyed by the Commissioner, in that respect, was lost or reduced in the manner we have earlier described. We shall adopt that approach. 90It was not disputed that a complaint had been made by the appellant within the meaning of s 210(1)(j). 91It was also not in dispute that the redeployment of the appellant was a detrimental action. 92The central issue in these proceedings was whether the complaint was a substantial and operative cause of that redeployment. 93The High Court observed in Barclay that the "direct testimony" of the decision-maker is central to the respondent displacing the statutory presumption: Barclay at [45], [63] and [127]. 94It was also common ground, as we have earlier observed, that Mr Locking was the person who made the decision to redeploy the appellant. It was accepted by Mr Darams that the decision was made on 24 July 2009. Mr Locking provided two written affidavits and gave oral evidence in the proceedings. The first written affidavit was dated 11 February 2010 (first hearing) and the second was dated January 2011 (remittal proceedings). 95Mr Locking was cross-examined in the proceedings before Tabbaa C and earlier in the proceedings before Bishop C. Mr Locking at all times was aware that the appellant had made a complaint about being bullied by Mr Newbery. He was also aware that Mr Newbery believed that there was a breakdown in relations between the appellant and himself. Tabbaa C acknowledged these facts at [46] and [48]. 96In light of the Full Bench's finding in Lee (No 2) and Lee (No 4) that there was an inadequacy of evidence and reasons for the respondent's redeployment of the appellant, as opposed to other employees in her section (due to a restructure of work in the area), Mr Locking filed a second affidavit which was read in the proceedings before Tabbaa C. In this affidavit under the heading 'The decision to redeploy the Applicant', Mr Locking stated: 9. In deciding which member of the Field Computing section to redeploy, I took into account a number of considerations, including the following: a. the limited amount of Field Computing work then on foot within the Division; b. The low likelihood of more Field Computing work becoming available in the foreseeable future; c. continuity of involvement in existing projects and the contributions of each team member at the time; d. the likelihood that the existing Field Computing work would cease altogether in the near future, and that the Field Computing section would shortly be disbanded. 10. The considerations described in paragraph [9] (above) led me, to select Ms Lee as the most appropriate candidate for redeployment, because: a. there was insufficient work available to occupy three full time positions in the Field Computing Projects team and, at the time Ms Lee was redeployed, this meant that there was one full time position which was excess to the team's requirements; b. even the limited work that was available in the Field Computing Projects team was ever decreasing as the Projects wound up and there was no likelihood of more Field Computing work becoming available in the foreseeable future; c. in selecting one of the three team members for redeployment, I decided it was not appropriate to redeploy Mr Newbery, because he was responsible for managing the team and his skills were therefore required on an ongoing basis; d. I decided it was appropriate to redeploy Ms Lee because she had not been working in the team for some time and as such she was not up to date with the current status of the Field Computing Projects; e. I decided to keep Mr Kelly in the role he was currently performing for consistency given that the Projects were in their final stages and due to be completed in the near future. 11. As stated in paragraph [10] of my First Affidavit, by early 2008 I was aware that Ms Lee had made a bullying complaint. This complaint was not a factor that played any part in my decision and was not a matter which I took into account in making the decision to redeploy Ms Lee. 97During the proceedings before Tabbaa C, documents were produced by the respondent in answer to a summons. These documents were a memorandum dated 24 July 2009 from Ms Buscombe to Mr Locking and the redeployment 'Tracking Sheet' which under the heading 'Action Tracking Record' for Paula Lee provided: Action Tracking Record Date Action 24 Jul 09 Phone call from Colin Locking: Requested HR Division support to manage redeployment process for Paula Lee 24 Jul 09 Email to Colin Locking: Proposed approach for management of Paula Lee's redeployment forwarded to Colin Locking Approval to proceed given, based on this plan. 31 July 09 Meeting between Helen Buscombe, Ross Callas and Syd Newbery: Syd confirmed that work previously being performed by Paula in the Field Computing group is nearly complete and that there is no ongoing requirement for a Project Engineer within his team 12 Aug 09 Redeployment Meeting - attended by Paula Lee, Helen Buscombe, Ross Callas (IR), Colin Locking (Executive Manager - Business Services, ET&T) Paula advised by Col Locking that as work in the Field Computing group was nearly complete Paula was now deemed to be excess to requirements and therefore, placed on redeployment list. Letter confirming redeployment given to Paula Suggested areas for future placement are with either Mike Tshaikiwsky or Brett Hooper 13 Aug 09 Meeting - Paula Lee & Helen Buscombe: Discussed redeployment preferences with Paula Paula requested work with an IT / Project Management component (has not done 'engineering' work for some time) Longer term career aspiration is a Senior Project Management role Preferred locations: Wallsend (family based in Newcastle), followed by other areas of the Sydney CBD, does not want to work in RCH Asked Paula to update her Resume to support the redeployment process Discussed importance of taking a positive and pro-active approach to redeployment process 17 Aug 09 Meeting between Mike Tshaikiwsky, Helen Buscombe and Paula Lee: Mike discussed potential vacancies within his group. As most were engineering based and located at RCH, it was determined that these would not be suitable for Paula. Mike recommended further discussion with Brett Hooper. 20 Aug 09 Phone discussion - Brett Hooper and Helen Buscombe Brett advised that he was prepared to consider Paula on a trial basis for roles in his area. Potential roles are coming up in the Standards and Communications Section, and staff could be located at either Wallsend or Sydney Meeting scheduled for Monday, 24 Aug 09 between Helen Buscombe, Brett Hooper, Terry Lampard and Michael Scott to discuss potential roles for Paula. Helen then to discuss these options with Paula 24 Aug 09 Meeting scheduled between Helen Buscombe, Brett Hooper, Terry Lampard and Michael Scott 98This document is consistent with the circumstances that the only enquiry that was made in relation to the appellant's work area was in relation to the appellant, vis-à-vis, redeployment or redundancy. When Mr Locking was asked about this and related issues in cross-examination he gave the following evidence (we have included a lengthy extract because of its importance and italicised significant passages): Q. Do you remember having a telephone conversation with Ms Buscombe on 24 July 2009? A. I don't remember it, no. Q. Do you remember having a telephone conversation with Ms Buscombe in July 2009 about the redeployment of Ms Lee? A. I don't remember it, I'm not saying we didn't have one, I can't recall it. Q. What, completely gone from your mind now, has it? A. Possibly, yeah. I mean I don't remember every phone call I've ever had. Q. And you say you don't remember this phone call with Ms Buscombe? A. Ms Buscombe only? Q. Pardon? A. Only Ms Buscombe and myself? Q. With Ms Buscombe, yes? A. I don't particularly know the phone call you're referring to. Q. Would you have a look at this document that I show you? Does that document help you remember that you had a telephone conversation with Ms Buscombe on 24 July 2009 about Ms Lee? A. Yeah I recall that document. Q. You recall the document? A. Yep. EXHIBIT # FILLIN "NUMBER space DESCRIPTION" \* MERGEFORMAT T1 MEMO TO COLIN LOCKING FROM HELEN BUSCOMBE RE PAULA LEE DATED 24/07/09 TENDERED, ADMITTED WITHOUT OBJECTION Q. You've said you recall the document, does that also help you recall the telephone conversation you had with Ms Buscombe on 24 July? A. Yes. Q. You rang her? A. I believe so. Q. You told her that you intended to redeploy Ms Lee? A. We had a discussion about the redeployment of Ms Lee. Q. The result of that discussion was that Ms Buscombe was to prepare a procedure for redeploying Ms Lee, is that correct? A. Yes. Q. The memorandum sets out on the second page the plan that was to be followed? A. The actions that needed to be done, yes. Q. It's fair to say, isn't it Mr Locking, that at 24 July the decision to redeploy Ms Lee had been taken and all that then remained was to put that decision into effect? A. Yes. Q. That decision was made before there was any discussion with Mr Newbery about any work available for Ms Lee in his section? A. Discussion from me? Q. No, discussions at all? A. I don't-- Q. Well let me refresh your memory. Have a look at the second page of the document I've shown you. You see the plan there in (2). The decision had been made to make Ms Lee - redeploy her on 24 July and on 31 July, a week later, you were to make the determination in discussion with Mr Newbury that her current position was redundant? A. That's what it says, yep. Q. But I'm just asking you to confirm for me that that was the sequence of events? A. The event that came before this discussion and this memorandum was that I requested Ms Buscombe to look within the organisation for any other field computing roles or work that could be undertaken and the response I got back prior to this phone call was that there was none. Q. That's not referred to in the memorandum, is it? A. No it's not. Q. Correct me if I'm wrong, it's not even referred to in your affidavit, is it? A. Can I read the affidavit now? Q. Yes, you can have a look at your affidavit now, the second affidavit. You don't say anything in that second affidavit about the matter you've just told us about. Are you looking at the exhibit D1? A. Yes. Q. There's nothing in that about any discussion with Ms Buscombe about the matter you've just told us about, is there? A. That doesn't mean it didn't happen. Q. No but it's an important matter, isn't it? Well you shrugged, are you saying it's not important? A. Well discussions happen all the time, of course it was important. Q. Mr Locking please attend to my question. I'm not asking you for procedures, I'm asking you to tell me that the conversation you had with Ms Buscombe that you told us about a moment ago that preceded the memorandum was an important discussion? A. Yes. Q. It was, yet nowhere is it recorded, is it? A. In this memorandum, this affidavit-- Q. Nor in your affidavit? A. It doesn't appear to be there. Q. I'm suggesting to you that the conversation didn't occur. A. Well you're wrong. Q. And the first discussion about the redeployment of Miss Lee occurred on 24 July 2009 when you rang Miss Buscombe to redeploy - and decided to redeploy Miss Lee. A. No. Prior to that I requested Miss Buscombe to look for other field computing work within the organisation. She found none. Q. Well why-- A. That led to the phone discussion on the Friday. Q. Why did you do that? A. Because the whole team was running out of work, including the other two people. Q. And when was that previous conversation? A. I don't know the exact date but it would have been a week or two prior. Q. I see, and Miss Buscombe hasn't given you any memorandum about that? A. We would have had a phone call, a phone discussion. Q. But wasn't it important to document it? A. I can't comment whether she documented it or not, but I didn't. Q. And you didn't get a copy of the document? A. I didn't say there was a document. Q. But you didn't get a copy of any document? A. No. Q. Miss Buscombe of course at the time was an HR manger in head office, wasn't she? A. Yes, she was in HR, corporate HR. Q. Yes, and she wasn't in your division. A. That's correct. Q. Yes, and her job was to manage people who were redeployed. A. Amongst other things, yes. ... Q. But this previous conversation you had was specifically directed to finding other work for Miss Lee, was it? A. Finding other field computing work and for Miss Lee. Q. Yes, and no consideration was given at any time to what work was available for anybody working in Mr Newbery's team, without identifying people. A. It was what I just said. It was for Miss Lee in particular and any other field computing work in general. Q. Yes. For Miss Lee. A. No, in general. Q. And what does "in general" mean? What did you say to her, Mr Locking? A. Virtually what I just said to you. Q. Well try and put it into words now so that I can fairly understand what you said to Miss Buscombe. A. I'm-- Q. Do you have any recollection? A. I can't recall the word for word conversation of three years ago. Q. Yes, of course, it is a long time ago and I want to try and make allowances for your defective memory. Is that a fair description of your memory at the moment? A. No. Q. Mr Locking, in this conversation a week or so before 24 July 2009 your enquiry you say was to find work for Miss Lee somewhere else. A. That's not what I said. ... COMMISSIONER: Well that makes two of us. I have trouble understanding you, Mr Locking. I need for you to clarify your answers. I have the same understanding as Mr Trew. WITNESS: Can you repeat what you said? COMMISSIONER: All right, so just, you know, be a little more clear in the way you answer your questions. All right? When you say "in general", for instance, I have trouble knowing whether work in general or you're talking about all employees in general in your section. You need to be clear in what you're saying. WITNESS: I thought I was clear. ... Q. And you decided on the 24th that Miss Lee was to be redeployed. A. Effectively, yes. Q. Yes, but there is a step in the plan for a discussion between you and Mr Newbery on about 31 July to determine that the current position is vacant, is redundant. A. Based on the lack of work. Q. But there was no need for that step if you'd already decided there was no work, was there? A. Well why wouldn't you document it? Q. Well that's the point, isn't it, Mr Locking? A. I don't agree. I don't agree. Q. You and Miss Buscombe were merely trying to set up a paper trail that had no relationship to the facts. A. That's not correct. Q. And what I'm suggesting to you is this: this document on the second page suggests that the determination that the position was redundant was to be made on the 31st and what I'm suggesting to you, that decision was made after the decision that Miss Lee was to be redeployed. A. No. Q. Well then what's the purpose of that? A. This is just documenting the process we were going through and had been working through. ... Q. You didn't commit your review to writing? A. It was verbal. Q. But your review focused on - if you could call it that - focused on Ms Lee didn't it? A. It focused on Ms Lee in particular and field computing in general. Q. Yes but you didn't look to see whether there were positions, jobs or redundant functions in her team, in Mr Newbury's team I should say? A. I knew the work was declining. Q. Yes but you focused solely on Ms Lee? A. In terms of her redeployment? Q. Yes? A. That's correct. 99On a proper analysis of the evidence, the decision to redeploy the appellant was made by Mr Locking on 24 July 2009. Although Mr Locking's evidence was that he had a conversation with Ms Buscombe prior to 24 July 2009 about the work available for the appellant and others in the team, the respondent's documents are consistent with the fact that the only enquiry that was made was when Mr Locking met with Ms Buscombe on 24 July 2009 and that enquiry concerned the appellant. The decision to redeploy was reached on that date. 100When Mr Locking was questioned about that in cross-examination, as seen from the lengthy extract from the transcript set out earlier in this decision, his evidence was evasive and he was rebuked by the Commissioner. He ultimately conceded that he focused solely on the applicant. When Mr Locking was asked what matters, other than those specified in his affidavit (particularly those at paragraph 10), he took into account, his evidence was that although they were "key factors, the major item", he could not remember anything else. 101The evidence of the meeting on 31 July 2009, at which Mr Callas and Ms Buscombe interviewed Mr Newbery, records that Mr Newbery said nothing about there being insufficient work for two or three persons in his team. 102Mr Newbery gave similar evidence in his affidavit of 12 February 2010. Mr Callas, when asked to explain why he had made reference to Mr Newbery stating that there was no further work for an Engineer Grade 2, was unable to satisfactorily explain why he used those words, although he agreed that the appellant, himself and Mr Kelly, the other employee in the section, were doing the same work. Unconvincingly, he refused to accept that by using that formula, he was thereby referring to the appellant. 103Mr Newbery gave the following further evidence: Q. The only engineer who'd ever worked in your section was Ms Lee? A. That's correct. Q. Therefore you were referring - you were intending to convey to Ms Buscombe and Mr Callas that you had no work for Ms Lee? A. No. You're making that inference, putting those two statements together. Q. You say you weren't conveying that impression? A. No. I was conveying the impression that I had no work for an engineer. Q. The only engineer was Ms Lee? A. That doesn't matter. Q. Tell me why it doesn't matter? A. Because she's not the only engineer, there's more than one engineer in Energy Australia. Q. She was the only engineer working in your section, wasn't she? A. Yes. Q. Perhaps we can shorten this, by simply referring to their being no work available for an engineer in your section you were not intending to convey that that referred to Ms Lee? A. That's correct. Q. And anybody who read that, drawing that inference was the mistaken? A. They can draw whatever inference they want. 104A firm conclusion may be drawn from an examination of the transcript of the evidence of the proceedings and documentary evidence that there was a shortfall of work in the appellant's work area, such that there was insufficient work for three persons, but that the only inquiry made, as we have found, concerned the redeployment of Ms Lee. 105Further, the evidence disclosed that many months after the redeployment of the appellant, Mr Newbery and Mr Kelly were continuing to work in the Field Computing Group. They were never made redundant and were reassigned to, or found, other work. 106Further, the memorandum of 24 July 2009 and the redeployment 'Tracking Sheet' together with the evidence of Mr Locking disclosed that, although the decision to redeploy the appellant was made on 24 July 2009, Mr Newbery was to be (and was) interviewed a week later on 31 July 2009 to determine that the appellant's position was redundant. The clear inference may be drawn that the decision to make the appellant redundant was without any (or sufficient) evidence to support that decision on a proper basis and that evidence was to be sought to bolster that position later. 107These conclusions must cast significant doubt on the reliability of Mr Locking's evidence in his second affidavit in the proceedings before Tabbaa C. The conclusion that the only inquiry made about redeployment concerned Ms Lee casts considerable doubt upon Mr Locking's assertions (or implied assertions) in paragraph 10 of his second affidavit that he made his decision based upon a balanced assessment of the relative attributes of the appellant and her co-workers in deciding that the appellant should be redeployed. (It might be noted that the evidence of such a comparative assessment between the three workers only emerged in the light of the decision of the Full Bench in Lee (No 2).) The overwhelming inference is that the comparative assessments referred to in paragraph 10 of Mr Locking's affidavit (Mr Locking's affidavit does not say when the assessments were actually made) were more in the nature of an ex post facto rationalisation. 108This conclusion is buttressed by reference to evidence concerning the failure of the respondent to apply its policy regarding redeployment to the appellant. 109The Redeployment and Redundancy Policy ('the Policy') was issued on 26 March 2003. 110The respondent's Policy had, as its objective, "to provide managers with a step by step instruction for the management of redeployment and redundancy". 111Under the heading '3.0 WORK INSTRUCTION', managers are required to: 3.1 Identify redundant positions. 3.1.1 Division/Branch managers identify excess positions, jobs or redundant functions as a result of regular reviews of their areas. 3.1.2 These reviews clearly outline the organisational structure required to perform the work. Appropriate staffing levels and skills are documented. Then implementation plans for all affected staff are proposed. 3.1.3 Division/Branch managers contact relevant unions and allow adequate time for consultation with employees and unions on proposal for change. 3.2. Consider redeployment options. 3.2.1 Managers may call for volunteers within their Division/Branch from those whose positions have been made excess to be considered for redeployment to a position within that Division/Branch. 112Although Mr Locking's evidence was that the respondent's redeployment process was implemented in the case of the appellant, as we have already observed, the respondent's documentation demonstrates that the only enquiry as to redeployment made as a result of declining work in the appellant's work area was in respect of the appellant. 113Mr Locking accepted that the reference to 'managers' in the Policy included a person in his position. When it was put to him that he did not apply the Policy to the appellant's redeployment, his evidence was that he involved Ms Buscombe and Ms Graham in implementing the Policy. 114There is no evidence that Mr Locking made any written record of a review of the kind referred to in paragraph 3.1.2 referred to above. There is no evidence that others were responsible for implementing the Policy and could have complied with it. 115Furthermore, although Mr Locking stated that he did not know whether relevant unions had been contacted, as required by paragraph 3.1.3 of the Policy, there is no evidence that they were consulted. In these circumstances, in our view, the inference should be drawn that unions were not consulted. 116Mr Darams submitted that whether the Policy was properly applied was not relevant to the question of whether the appellant was redeployed because of the complaint she made. 117Counsel submitted that the appellant's case was not one where it is alleged the respondent had breached the Policy or failed to adhere to it. Counsel further submitted that the fact Mr Locking might have fallen within the definition of 'manager' for the purposes of the Policy, did not demonstrate that he was responsible for managing the appellant's redeployment. 118It was contended, therefore, there was no basis to reject Mr Locking's evidence in respect of the Policy and no adverse inference should be drawn because of the respondent's failure to call witnesses to deal with this issue. 119We do not accept counsel's submission that the application of the Policy to the appellant at the time of her redeployment was irrelevant to the questions raised by these proceedings. The application of the Policy to the appellant (or the failure to do so) was relevant to understanding whether or not the reason to have the appellant redeployed was genuine, as opposed to some other reason. It was relevant to ensure the decision to redeploy was done for a proper purpose, that being a business reason and not because she had made a complaint. The evidence discloses that there was no review undertaken as required by the Policy (para 3.1.2). There was no evidence that relevant industrial unions of employees had been consulted (para 3.1.3). There was no consultation with other employees, including Mr Newbery and Mr Kelly, about change or redeployment (including volunteering for redeployment as required by paras 3.1.3 and 3.2.1 of the Policy). 120Thus, the failure to apply the Policy gives rise to an inference that, in truth, what was being undertaken was not truly a redeployment as contemplated within that Policy. 121Although we accept that the application of the Policy was not an issue before Tabbaa C, in our view, the failure by the respondent to follow the Policy further undermines the case for the respondent in rebutting the statutory presumption. 122The respondent's case to rebut the presumption was essentially that the respondent had made a comparative assessment of the merits of removing the appellant or her co-workers. That proposition was not made out on the evidence because of the unreliability of the decision-maker's evidence, from whom the evidence was led, countervailing evidence such as the documentary evidence discovered by the appellant, the absence of such explanations proffered in earlier proceedings and the failure to apply its own redeployment policy to the appellant. The evidence revealed the only consideration was that given to the redeployment of the appellant and that no explanation (other than the presumed discriminatory one) is available. That conclusion must result in a finding that the respondent failed to discharge the onus falling upon it to rebut the presumption under s 210(2) that the complaint was a substantial and operative cause of the redeployment. 123It is not necessary, in those circumstances, to find that the complaint was, per se, a substantial and operative cause of the appellant's redeployment. However, we do consider that such a conclusion is open and we provide our reasons for the same below. 124In paragraph 10(d) of Mr Locking's second affidavit, he sets out a reason why the appellant was selected as the most appropriate candidate for redeployment. He stated: I decided it was appropriate to redeploy Ms Lee because she had not been working in the team for some time and as such she was not up to date with the current status of the Field Computing Projects. 125It must be borne in mind, in that respect, that the sole reason the appellant was moved out of her area was because she made a complaint. The circumstances deposed by Mr Locking in paragraph 10(d) of his affidavit only arose, therefore, because of the complaint. When understood in this light, paragraph 10(d) demonstrates a causal relationship between the complaint and the act of redeployment. That situation continued until the very time the decision to redeploy was made, such that the complaint was proximate in time to that decision being taken. 126The appellant attached to her application for relief from victimisation, an email that she forwarded to Mr Callas on 29 July 2009. Relevantly, this email read: Fundamentally all that I am seeking is the following: to be treated fairly and with respect as stated in EA's Code of Conduct; a workplace free from bullying and harassment; Mr Newbery to apologise for threatening and abusing me; a safe work environment free from undue interference in order to perform my duties; EA's failure to provide me with such a work environment constitutes not only a breach of its own workplace policies but is also a breach of its obligations under occupational health and safety law. The treatment I have received since making my initial complaint has been rather vindictive. ... 127This email demonstrates that the issue of the complaint was alive and being actively prosecuted by the appellant at the time of the appellant's redeployment. As the appellant's evidence demonstrates, at all relevant times, she was prepared to participate in a mediation. However, Mr Newbery refused to participate in the mediation because he saw no benefit to himself. The mediator advised the respondent of Mr Newbery's position. 128In our view, when combined with our earlier analysis of the evidence and our finding that the appellant was the only worker in her area of work considered for redeployment, the overwhelming inference to be drawn in respect of the reason why the appellant was not returned to the Field Computing Group (and was redeployed) was that she was redeployed because of the complaint she made in respect of Mr Newbery. If she had returned to the section to work with Mr Newbery, the safety issues that were the basis of the complaint would have still been extant. 129It follows, in our view, that the respondent has not rebutted the presumption in s 210(2) and the findings sought by the appellant under Order 4 of the amended orders should be made. It is appropriate that the Full Bench make the amended orders sought by the appellant. Orders 130In the circumstances, we make the following orders: 1. Leave to appeal is granted. 2. The decision of Commissioner Tabbaa given on 21 December 2012 is quashed. 3. The appeal is allowed. 4. It is determined that the respondent has failed to rebut the presumption, pursuant to section 210(2) of the Industrial Relations Act 1996, that the appellant has been victimised by the respondent because of her complaint the subject of her application dated and filed 2 September 2009 in proceedings IRC 1371 of 2009 in the Commission. 5. The remainder of the matter is referred to a Member of the Commission (allocated by the President) to determine whether and, if so, what orders for relief should be made in the proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 July 2013