Employment Law Update - Adverse Action and Ignorance of the Law: Qube Ports v McMaster

Employment & Industrial
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Adverse Action and Ignorance of the Law: Qube Ports v McMaster [2016] FCAFC 123

A decision maker dismisses an employee for what they thought were lawful reasons. What if they were mistaken? What if their conduct could be characterised, as a matter of law, as an adverse action taken because the employee exercised a workplace right?

Qube Ports v McMaster contains some interesting obiter going to whether or not ignorance of the law could be an excuse in such circumstances.

In Qube, the employee was dismissed because he refused to perform higher duties when requested to do so by his employer. The decision maker considered that he had a right to dismiss the employee for this reason (and for other reasons). The trial judge found that the employee had a workplace right (in the enterprise agreement) to refuse to perform higher duties, and the decision maker's belief that he had a right to dismiss in this situation was irrelevant.

The decision maker's ignorance of the employee's right to refuse to perform higher duties was no excuse.

Are people are presumed to know the law?

The trial judge (North ACJ) reasoned that "people are presumed to know the law". This is a requirement for an ordered society. To allow people claim ignorance of the law as an excuse undermines the foundation on which an ordered society rests.

On appeal, Bromberg J tentatively approved the import of this principle into the adverse action provisions. Thus, his Honour saw force in the submission that "a person is not exculpated from liability under s 340 because he or she did not know that those motivational facts could be characterised under the FW Act as constituting a workplace right."

Jessup J reasoning

Jessup J disagreed. His Honour referred to what Gleeson CJ and Kirby J said in Ostrowski v Palmer (2004) 218 CLR 493, 500 as to the content of the above presumption:

... the only knowledge of law that many people possess is the knowledge that ignorance of the law is no excuse when a person is charged with an offence ... This does not mean that people are presumed to know the law. Such a presumption would be absurd. Rather, it means that, if a person is alleged to have committed an offence, it is both necessary and sufficient for the prosecution to prove the elements of the offence, and it is irrelevant to the question of guilt that the accused person was not aware that those elements constituted an offence.


It is ignorance of the elements that constitute adverse action that is no excuse. One of those elements requires the Court to assess the decision-maker's reasoning process. If the Court bypasses this step to defer to a legal construction of the reasoning process, the Court is "[imputing] to a decision-maker a reason for acting which did not in fact exist by reason of a presumption that he or she knew the law".

To be continued...

As noted above, these are obiter comments. The Full Court resolved the matter on other grounds. Allsop CJ did not venture into the issue.

No doubt, the question will be resolved in future cases.

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Leigh Howard practises in industrial relations and public law

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