Commonwealth of Australia v Carter, Simon Matthew James

[1997] FCA 1421

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - Employment - Termination of employment - Alleged unlawful termination - Intimidating conduct towards fellow-employee - Employee’s employment history - Whether conduct caused by mental depression - Whether termination because of a mental disability.

Industrial Relations Act 1988 (now Workplace Relations Act 1996) - ss 170DE(1) and 170DF.

COMMONWEALTH OF AUSTRALIA v SIMON MATTHEW JAMES CARTER

NI 2091/96

JUDGE:        WILCOX J

PLACE:        SYDNEY

DATE:          16 DECEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI 2091/96

BETWEEN:

COMMONWEALTH OF AUSTRALIA

Applicant

AND:

SIMON MATTHEW JAMES CARTER

Respondent

JUDGE

WILCOX J

DATE OF ORDER:

16 DECEMBER 1997

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The orders made by Judicial Registrar Locke on 13 August 1997 be set aside.

1. In lieu thereof, the application under s 170EA of the Industrial Relations Act 1988 of Simon Matthew James Carter be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI 2091/96

BETWEEN:	COMMONWEALTH OF AUSTRALIA Applicant
AND:	SIMON MATTHEW JAMES CARTER Respondent

JUDGE	WILCOX J
DATE:	16 DECEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J: This is an application by an employer to review a decision of a Judicial Registrar upholding an employee’s claim of unlawful termination of employment and ordering his reinstatement in his former employment. In dealing with the case, the Judicial Registrar exercised the jurisdiction of the Industrial Relations Court of Australia. By virtue of item 63 of Schedule 16 of the Workplace Relations and Other Legislation Amendment Act 1996, however, the review is conducted in the Federal Court.

The facts

The employee, Simon Matthew James Carter, was employed by the Commonwealth of Australia from 1980 until his dismissal on 6 September 1996, except for a break of about two years in 1982 - 1984 when he went overseas. Throughout that time he worked within the Department of Defence, apparently always in the area of information technology. Mr Carter was dismissed by force of a direction under s 62(6) of the Public Service Act 1922 given by Barry McGuren, an officer appointed to hold an inquiry into two allegations of misconduct, both of which he found proved. The allegation that led to the dismissal direction was in these terms:

“On the twenty first day of June 1996 you engaged in improper conduct as an officer.  Particulars of the charge are that on the twenty first day of June 1996 you verbally abused CMDR S.R. Hamilton RAN and caused him to feel threatened.”

The other allegation, in relation to which Mr McGuren directed counselling, concerned the infliction of damage to a door immediately after the incident involving Commander Hamilton.

At the hearing before the Judicial Registrar, Mr Carter conceded the conduct the subject of these charges. But his counsel, Ms Claire Howell, contended the incident involving Commander Hamilton did not warrant the penalty of dismissal, having regard to his lengthy service, and particularly because of the circumstances under which the incident occurred. The Judicial Registrar was persuaded by the latter aspect of Ms Howell’s argument and held that, under the circumstances, the dismissal was not for a valid reason connected with the employee’s capacity or conduct or based on the operational requirements of the employer’s undertaking: see s 170DE(1) of the Industrial Relations Act 1988 (now Workplace Relations Act 1996).

At the hearing of the review, some additional evidence was adduced.  Ms Howell repeated her submission that the incident did not warrant dismissal under any circumstances, but her main argument focussed on the circumstances under which it occurred.

The material facts

In June 1992 Mr Carter held the position of Senior Information Technology Officer Grade C (“SITOC”) at the naval establishment at Watson’s Bay known as HMAS Watson.  He was in charge of a section containing ten to twelve people and, apparently, was regarded as an efficient officer.  His section consisted of engineers and computer programmers.  Its work was concerned with software problems in a submarine training simulator.  In that month he was confronted with allegations of inappropriate conduct towards a female employee, Bridgette Bucek, towards whom he had developed an unrequited passion.  The allegations involved three incidents, spanning eight months:  on 13 September 1991, at a social event, he addressed Ms Bucek in obscene language; between 1 January 1992 and 30 April 1992 he placed a used condom inside an umbrella owned by her; and on 27 May 1992 he wrote and distributed within the submarine centre an offensive document that he entitled “Bridgette’s pussy”.

Mr Carter was interviewed in relation to the allegations.  He admitted them in substance and was transferred from HMAS Watson to a work location at Waverton.  At an early stage of the Department’s investigation of the Bucek incidents, Mr Carter was referred to Dr Robert Lewin for psychiatric assessment.  Dr Lewin saw Mr Carter on two occasions.  On 9 September 1992 he reported to the Department.  He commented on Mr Carter’s lack of “insight into the nature of the effect of his behaviour on others and their reaction to him”.  He said he is “obviously intelligent” and noted his academic record.  Dr Lewin concluded Mr Carter had a personality disorder but was not suffering from mental illness.  “In particular”, he said “there is no sign of a paranoid psychotic illness nor of any other psychotic illness.  There is also no sign of a mood disturbance in this man’s case”.

On a date not revealed by the evidence, Mr Carter was sent to work, briefly, in Cairns.  On his return he was transferred to a unit at Miller Street, North Sydney where he spent about one year putting together a report on that unit’s software problems.  At some stage during 1993, Mr Carter was interviewed in connection with a possible appointment to Command Information Systems Agency (“CISA”) in North Sydney.  But he was thought unsuitable for that position; the agency was mainly concerned with the installation of computer hardware whereas his background was in software applications.

In October 1992 Mr Carter was charged pursuant to s 61 of the Public Service Act in relation to the incidents involving Ms Bucek.  Apparently, he admitted the charges.  Shortly afterwards he was referred by his general practitioner to a psychiatrist, Dr Robert Gordon.  He said in evidence that, at the time, he was “feeling tired, teary and upset and was withdrawing from social activities”.  He continued to see Dr Gordon, about once every three weeks, for 18 months.  Dr Gordon tried a number of anti-depressants.  They had some beneficial effect but Mr Carter said in evidence “I worked myself into quite a state about the outcome of the disciplinary process which seemed to be dragging on a long time.”  He said he wrote to the Department in January 1993 seeking expedition “but a number of months went by and nothing seemed to have happened.”

In December 1992 Mr Carter married and, in December 1993 - January 1994, he took an eight week “delayed honeymoon” overseas.  On his return, Mr Carter learned the result of the charges concerning the Bucek incidents.  All charges were found proved.  In relation to the first incident, he was admonished.  In relation to the second and third incidents, it was determined he be demoted to the position of Information Technology Officer Grade 2 (ITO2) and transferred to a centre at Nowra.

Mr Carter appealed against these decisions.  On 24 March 1994 the Disciplinary Appeal Committee delivered its decision.  In relation to the demotion, the appeal failed.  It succeeded as respects the transfer, the Committee noting the additional burden this would place on Mr Carter.  The Committee concluded its decision with this comment:

“The Committee expressed to the appellant the hope that having been given the opportunity to retain his employment in Sydney, he would work towards achieving a constructive relationship with the Department and his fellow Officers.  The relationship between employer and employee involves effort and goodwill on both sides, as well as compliance with acceptable standards of conduct at all times.  The Committee notes that the appellant is receiving professional help, and has confidence that the appellant will respond appropriately to the opportunity he has been given, and the sympathetic attitude which his Department has taken towards him in this matter from the beginning.  It must follow that any further conduct by the appellant which breaches the acceptable standards of conduct for Australian Public Servants cannot be tolerated.”

It seems only four ITO2 positions were available in Sydney when the Committee’s decision was announced.  Mr Carter was allowed to choose between them.  He chose a position at CISA, apparently not realising this was the agency for which he had been interviewed, and judged unsuitable, during the previous year.

Mr Carter reported for duty at CISA late in March 1994.  At that time there were seven CISA staff.  They were led by Detlef Voges, a Lieutenant Commander in the Royal Australian Navy.  Kenneth Larbalestier was a senior officer holding an appointment as SITOC.  As Lieutenant Commander Voges had been advised it was preferable to have Mr Carter accountable to a civilian rather than a serviceman, he appointed Mr Larbalestier as Mr Carter’s supervisor.  However, Mr Larbalestier was extremely busy at the time, so Lieutenant Commander Voges himself spent time introducing Mr Carter to the agency and instructing him regarding his work.  Initially, his primary task was to assist Bill Sanderson, a civilian holding the rank of ASO6 (roughly comparable to ITO2) with the configuration of software on the file servers.

There was a deal of evidence concerning Mr Carter’s attitude and performance in his early days at CISA.  It is unnecessary to recount it in detail.  Lieutenant Commander Voges gave evidence before me.  I thought him an impressive person and I am satisfied he took all steps reasonably open to him to involve Mr Carter, in a meaningful way, in the work of the agency.  It seems the agency was busy at the time and his contribution would have been welcome.  But it was not forthcoming.  Mr Carter gave little assistance to Mr Sanderson.  Lieutenant Commander Voges had several counselling sessions with Mr Carter.  In the first session, Mr Carter commented he had previously been in charge of a similar group to the agency and he found it difficult operating at ITO2 level.  At a later session, Lieutenant Commander Voges asked him about his personal goals.  Mr Carter said his ultimate goal was to obtain employment outside the Australian Public Service.  Lieutenant Commander Voges assigned him individual tasks but found they progressed very slowly.  On many occasions Mr Carter spoke of searching for a new position.

In about August 1994 Lieutenant Commander Voges put in place a formal supervisory structure for Mr Carter.  The idea was that Mr Larbalestier would allocate him specific tasks and monitor his progress with them.  However, this did not improve the situation.  Before he was transferred away to a different position in October 1994, Lieutenant Commander Voges reached the conclusion Mr Carter “was not able to contribute significantly to our agency”.  He mentioned one incident in which Mr Carter lost his temper and abused Mr Larbalestier.  Lieutenant Commander Voges pulled Mr Carter aside and quietened him down.

Mr Larbalestier spoke of his observations of Mr Carter’s performance after he commenced to allocate him tasks in August.  As Mr Carter was always concerned about the relationship between allocated tasks and his duty statement, Mr Larbalestier made a practice of referring to the duty statement in allocating tasks.  He said:

“During this time Mr Carter rarely completed the tasks allocated to him satisfactorily.  Often he would sit at his desk for an entire day without switching on his PC.  He would often spend hours on the telephone engaged in social conversations.  At one stage, I obtained PABX records which I showed to Mr Carter and which recorded that he had received over 300 telephone calls and made over 350 calls during November-December 1994.  Mr Carter rarely had a need to use a telephone in the course of his duties.”

On 30 September 1994, Mr  Larbalestier spoke to Mr Carter about an unauthorised absence of two hours that day.  Mr Carter responded by telling Mr  Larbalestier to “fuck off”. 

Mr Larbalestier said the unsatisfactory work performance continued until June 1995 when a meeting was held with Mr Carter, a union representative and the Defence Centre Personnel Manager in an endeavour to resolve Mr Carter’s position.  Mr Carter complained the tasks given to him were too demeaning.  So Mr Larbalestier compiled a list of jobs which Mr Carter accepted as a basis for allocating work to him.

On 23 June 1995 an incident occurred between Mr Carter and Mr Larbalestier.  Mr Carter asked Mr Larbalestier to approve an application for him to take twelve months’ leave without pay in order to undertake a Diploma of Education course.  Mr Larbalestier refused.  He gave two reasons:  the course was not relevant to Mr Carter’s work and his work performance was unsatisfactory.  Mr  Larbalestier told Mr Carter that, if he wanted to pursue a new career, he should resign.  Mr Carter became angry.  He called Mr Larbalestier “a fucking bastard”, spat on him and challenged Mr Larbalestier to hit him.  Mr Carter was charged in respect of this incident.  On 2 January 1996 R J Jones, an inquiry officer, directed Mr Carter be admonished for the language and have $500 deducted from his salary in respect of the spitting. 

In September, October and November Mr Carter was subjected to a three month assessment to determine whether it would be necessary to conduct a formal Inefficiency Procedure.  This resulted in a decision to conduct an Inefficiency Procedure in 1996.  On 27 March 1996, Commander S Hamilton, who had become the leader of CISA, gave a formal warning to Mr Carter that he was not satisfied he had achieved an acceptable standard of work performance.  He itemised his complaints and gave information about the proposed formal assessment.  It included the following:

“12A copy of this Warning will be sent to the delegate of the Secretary who will appoint a person to assess your work performance during a three (3) month assessment period.  The assessment period is normally three (3) calendar months from the date the delegate of the Secretary advises you of the appointment of the Assessing Officer, unless you and the Assessing Officer agree on a suitable shorter period prior to the assessment commencing.

13.At the conclusion of this period, the Assessing Officer will advise the delegate on whether you attained and sustained an acceptable standard of work performance during the assessment period.

14.If you do not attain and sustain an acceptable standard of work performance during the assessment period, the delegate will give you a notice of ‘Intention to Retire’.  This notice will advise you that it is the delegate’s intention to retire you from the Service on the grounds of inefficiency.  You will have seven (7) days to respond and show cause why you should not be retired.

15.If, after considering any comments you may make, the delegate is satisfied that you are inefficient, the delegate may issue a notice of retirement under section 76W of the Public Service Act 1922, or take some other action.”

About three weeks before the Inefficiency Procedure began, on 5 March 1996, Mr Larbalestier wrote to Peter McLenaghan, Manager, Civilian Personnel, requesting Mr Carter be referred to the Commonwealth Medical Officer in order to assess his fitness for duty.  Mr Larbalestier mentioned the “three counts of sexual harassment in 1993” and Mr Carter’s then acknowledgment that he was seeing a psychiatrist.  He went on:

“3.      Since then, Mr Carter has demonstrated over the last two years:

a.performance problems and inefficiency;

b.poor interpersonal communication;

c.aggressive abnormal behaviour, such as spitting and swearing at male staff, without provocation;

d.delusions with respect to his transfer into his current position;

e.suspicions that he has ‘enemies’ within the Dept of Defence; and

f.an intent to chain himself to a desk and starve rather than relocate from Defence Plaza Sydney to his normal place of work at NSC HQ Pyrmont.

4.There is a question of whether his condition is responding to psychiatric intervention.”

There was evidence about all the matters mentioned in para 3.  I accept items (a), (b), (c) and (f) occurred and Mr Carter said things along the lines of (d) and (e).  Mr Larbalestier also gave evidence he believed Mr Carter was undergoing psychiatric treatment in March 1996; there was a question in his mind whether Mr Carter was fit for duty.

Mr Larbalestier did not receive a written response to his memorandum.  An officer on Mr McLenaghan’s staff told him Thomas Maloney, the officer who had been deputed to act as assessor on Mr Carter’s Inefficiency Procedure, would ask Mr Carter, at their first meeting, whether there was a medical issue.

Mr Maloney met Mr Carter on 29 March in the presence of a union representative.  During this meeting Mr Carter told Mr Maloney he was seeing a psychiatrist and taking medication.  Mr Maloney asked whether the medication affected his work performance.  Mr Carter told him the medication “served to calm him down and help, as he feels less impulsively angry, less broody and more cheerful most of the time”.

The evidence reveals that, since August 1995, Mr Carter had been seeing Dr Masood Khan, a consultant psychiatrist, once a week.  In a report dated 23 March 1996, addressed “To Whom it May Concern” but not made available at the time to Mr Maloney, Dr Khan said:

“He has discussed with me his difficulties in the work environment which had led to interpersonal difficulties   It is my opinion that the majority of his conflicts have been due to the way he has expressed his anger at work.

I am of the opinion that the above is directly related to his Chronic Depression.  It is possible that his depression could improve with treatment and then he may be able to handle interpersonal problems effective.”

Mr Maloney gave evidence that he asked Mr Carter about his psychiatric treatment on a number of occasions and pressed him to obtain a report from his psychiatrist.  He said Mr Carter always responded that he did not think his psychiatric condition had any bearing on the Inefficiency Procedure, it was not affecting his work.  Finally, however, he did produce a report from Dr Khan dated 6 May.  It revealed that Mr Carter was being treated for depression with Aropax and weekly psychotherapy sessions.  Dr Khan thought the depression was chronic and affecting his overall functioning.

Mr Maloney referred this report to Ann Tibaldi, Deputy Head of the Defence Centre at 270 Pitt Street, Sydney.  She decided to refer Mr Carter to the Commonwealth Medical Officer for assessment.  Before that assessment took place, Dr Khan wrote a further report, dated 23 May, in which he set out this information:

“Simon gave me a detailed account when he was charged with the offence of sexual harassment towards a female colleague when he had distributed a letter around the workplace making certain personal remarks about this woman.  He is very unhappy in the way this situation was handled, the long wait of 21 months duration and the final decision to demote him to a lower level.  Although he acknowledges that he made the mistake of distributing the letter, he is angry about the demotion and has a desire to fight back to establish his good name with the Department.

I have seen Simon for eight months since the initial consultation on 22 August 1995.  He has been regular and punctual in keeping up with his appointments.  He is co-operative and interested in seeking treatment for his chronic depression.  His visits have been a week apart except during December 1995 when I was away on holidays for four weeks.

It is my opinion that he has suffered with chronic depression for at least a period of two years and partially successful treatment in the past.  I think he could benefit from his current treatment ie. weekly psychotherapy and antidepressant medication ie. Aropax, 1 tablet a day.”

The Commonwealth Medical Officer who assessed Mr Carter was Dr Mark Wright.  He conducted an examination on 26 June 1996, as a result of which he wrote a report in which he made these findings and assessment:

“CLINICAL FINDINGS:

Today, Mr Carter arrived on time for his appointment and was orientated in time, place and person.  His concentration and memory function were intact.

He did not appear depressed and was not tearful.  His speech was orientated but agitated and he said his predominant feeling was one of anger about how he had been treated at work.

When answering questions, his responses were often digressive and convoluted.  He would go off at a tangent and talked a lot about his father and their troubled relationship.  Mr Carter said that he had always had a habit of talking off the point, and that this was not a recent change.

The other feature was the poor degree in insight shown by Mr Carter.  He had strong egocentric and narcissistic personality traits which greatly limit his ability to see situations from anyone else’s perspective.

ASSESSMENT OF OCCUPATIONAL CAPACITY:

It is likely that episodes of major depression have affected Mr Carter’s work performance.  It is also likely that underlying personality traits also affect his work performance or, more specifically, his relationships and interactions with his colleagues.  In as much as his work is affected by the depression, then an improvement in his performance could be expected over a period of months as he receives treatment for this.  In as much as personality traits affect his work, then no short term improvements could be expected since years of therapy are involved in producing personality change.”

Dr Wright wrote to Dr Khan for clarification of his diagnosis.  Dr Khan responded with a letter dated 4 July in which he repeated his opinion that Mr Carter suffered a personality disorder and also depression that affected his work performance.  Under the heading “Personality traits and work efficiency”, he said:

“Mr Carter suffers from an overwhelming sense of powerlessness in dealing with authority figures.  Over time this feeling of powerlessness generates frustration and anger which is then directed at authority figures resulting in reprimands, scrutiny or reactions.  He constantly feels misunderstood or discriminated against.  As far as I could ascertain there is no history of violence in his past towards any person, but there have been actions which could be construed as acts of violence such as a recent incident of raising his voice or shouting and walking out slamming a door.”

Upon receipt of Dr Khan’s letter, Dr Wright wrote a letter to Mr McLenaghan in which he said:

“As you will note, Dr Kahn feels that Mr Carter suffers from depression and a personality disorder.  Both of these disorder [sic] will at times affect his ability to perform his duties.  As mentioned in Dr Wright’s report, in terms of personality traits, these would not be expected to change in the short to medium term and Mr Carter needs to be made aware of the range of acceptable behaviours within the workplace.  In terms of the depression, Mr Carter’s work performance will fluctuate according to the severity of the depression, however some improvement in this condition could be expected with appropriate treatment.”

The evidence includes minutes of many meetings undertaken in connection with the Inefficiency Procedure.  The meetings were held at intervals of one or two weeks.  They all involved Mr Maloney, Mr Carter and Mr  Larbalestier.  Some included Commander Hamilton.  Sometimes a union representative attended.  The minutes are based on tape recordings of the meetings.  They recount discussions in detail.  They were circulated to all participants, amended where necessary, and signed; usually by all participants.  The minutes make unpleasant reading.  The meetings must have been distressing to attend.  They seem to have been characterised by unreasonable behaviour by Mr Carter, with recurring aggressive complaints about the Inefficiency Procedure, and everybody involved in it.  Mr Carter seems to have quickly developed an animus towards Commander Hamilton.  The minutes frequently exhibit his disdain for, and hostility towards, the Commander.  The flavour of this can be conveyed from this extract from the minutes of meeting number 3 on 22 April 1996:

“6.Mr Carter sees the problem as a personality clash, not efficiency and quoted the time he first joined the section, when Mr Larbalestier had little to do with him for about 5 months.  Mr Larbalestier explained that he did not want to put pressure on Mr Carter.  At the time, Mr Carter was not a happy individual, as he was going though a traumatic change and was given time to settle.  Mr Carter replied that he was not aware of this aspect and it was a shame that Mr Larbalestier had not informed him of this reason.  Mr Larbalestier continued by saying that he was not aware of any personality clashes, this was the first time it had been raised as an issue.

7.CMDR Hamilton interrupted at this stage and stated that he was new here and had a similar perception in that he was not aware of any personality clashes.  Mr Carter replied that yes the CMDR was new here and it is rather surprising that the first thing he did was to commence inefficiency proceedings.  CMDR Hamilton commented that this was not a true statement, the inefficiency proceedings were started by LCDR Basford and as the CMDR was seconded into the position he continued with them.  Mr Carter remarked that this action was taken without the CMDR looking into the matter and did not seek any input or information from Mr Carter.  CMDR stated that it was his style to listen to his managers and after examining all the facts, support his managers.  Mr Carter was very annoyed at this reply and asked what kind of manager the CMDR was.  He continued by stating that he was so slack in exercising this duty that he did not even bother reading the document issued.  He was of the opinion that the CMDR just cut and pasted the document LCDR Basford issued and asked just how much attention did you pay to this sort of thing.  Mr Carter continued that he did not think it was correct that his side of things was not properly reviewed.  The organisation had a rather junior and in his opinion incapable LCDR running the organisation that started to fall apart and it is surprising that he (Mr Carter) was not consulted by the new CMDR.

8.Mr Maloney explained to Mr Carter, that the process has commenced and from day 1, this was Mr Carter’s opportunity to show his capabilities and really he should be doing this.  Additionally, he will not be gaining any ground, by continually opening old wounds, bringing up problems of the past.  Moreover, Mr Maloney did not know what those problems were, does not really want to know, and by raising old skeletons was not adding to his case.  Continuing Mr Maloney explained that he understood Mr Carter was a SITOC  and through disciplinary action was demoted to an ITO2.  Furthermore, what Mr Carter should now be doing is focusing on what is involved at the ITO2 level and is doing himself a disservice by continually bringing up the past.

9.Mr Carter replied by stating that it is hard to disassociate himself from being a SITOC, as he is reminded of this aspect daily.  He finds it difficult to deal with a decision made by somebody new in the job, referring to the CMDR, without looking at his side of things.  He feels that the process should be stopped, but realises this will not occur, because the Department has a hidden agenda to get him out of the service.  This point he thinks will not be completed easily, as he will fight it all the way.”

Mr Carter walked out of meeting number 4, on 30 April, but was persuaded by the union officer to return.  As he did so, he made a statement about his hatred of the Department and the disciplinary proceedings he had endured.  The meeting then continued for a further one and a half hours, all of which seem to have been occupied by discussion of complaints made by Mr Carter.

At the following meeting Mr Carter again referred to his previous status as a SITOC and said since he “presented a female colleague with a used condom ... he has been employed for approximately 4 years at a cost of some $200,000 and has done nothing worthwhile.”

A recurring theme at the meetings was that Mr  Larbalestier had ignored Mr Carter during his first five months at CISA.  Mr  Larbalestier always responded to this and Mr Maloney tried to persuade Mr Carter to look forward, rather than back.  But the question kept coming up.

Mr Carter’s hostility towards Commander Hamilton flared into an incident at the meeting held on 21 June 1996.  The minute of this meeting contain this account:

“2.The meeting was opened by Mr Maloney asking Mr Carter what he had accomplished this last week.  Mr Carter explained that he had put a small network together and was teaching himself how to load, backup and use the network.  This network will be used as a Test file server to produce hardware maintenance.

3.Mr  Larbalestier mentioned that Mr Carter had created some files and maintenance programmes, on his test file server.  He continued by asking if the PSO-NSW task should be cut off today, allowing Mr Carter to concentrate on the test file server.  Mr Carter replied no he would do what he wanted to this next week.  He continued by asking why Mr  Larbalestier continued sending him reports when he had asked him not to for two weeks, so that he could get some work done without worrying about negative reports.

4.CMDR S. Hamilton explain [sic] to Mr Carter that Mr  Larbalestier sent him the reports, to give him feedback.  He then inquired that if the reports were stopped, how would Mr Carter know how he was progressing.  At this stage Mr Carter interrupted and told CMDR Hamilton to shut up in a loud voice.  CMDR S. Hamilton asked if Mr Carter did not want any feedback.

5.Mr Carter became very agitated, and raising his voice said ‘I told you to shut up you f-----g beaurocrat [sic], why don’t you stop.’  Mr Maloney attempted to calm Mr Carter down, but he continued saying, ‘I asked him (referring to Mr  Larbalestier) to not send me any reports and he continues to do so.’  CMDR Hamilton said he was confused as to what method they were to use to give him feedback.  Mr Carter then stood up shouting ‘I told you to stop’ and moved towards CMDR Hamilton in a threatening manner.  He stopped with his head approximately 5 inches from CMDR Hamilton’s nose; continually swearing and shouting ‘I told him to stop, tell him to stop.’  He was getting very red in the face, frothing at the mouth and his manner was extremely threatening.  A chair was in the way so his momentum was stopped.  Mr Maloney tried to calm Mr Carter down again and he broke away, walked to the door, opened it, paused, reached around and grabbed the door with both hands, slamming it very hard.  The door was slammed with such force that the door jamb was buckled.  The door jammed and the occupants of the room were contained for approximately 10 minutes waiting for the building manager to release the door.

6.CMDR Hamilton stated after the incident, that he was very fearful for his life.  He had contained himself, remaining as calm as he could in the circumstances, but was actually fearful that he was going to be attacked.  Mr Maloney commented that he was of the opinion, even though Mr Carter stopped approximately 5 inches from CMDR Hamilton’s nose, that Mr Carter would not have gone any closer.  However, CMDR Hamilton said he was not so sure.”

This particular minute was not signed by Mr Carter.  However, in his evidence before the Judicial Registrar, Mr Carter gave an account of the incident that substantially corresponded with the minute, except he made no mention of putting his face close to that of Commander Hamilton.

Later that day, Mr Carter was suspended from duty.  He was provided with a document setting out Commander Hamilton’s account of the incident and invited to respond.  He did so, on 1 July, stating “(t)here is no fundamental difference between CMDR Hamilton’s account and my own recollection although I think it unfair that he did not mention why I was upset”.  He explained he had been seeing a consultant psychologist, Beth Stone, and had told her “how overwhelmed and upset I felt by the scrutiny I was under, in particular the number of reports written about me.  I needed to respond to these reports in writing but had not anticipated the time when I originally planned my activities for the 3 month assessing period”.  Ms Stone had suggested he ask his supervisor to hold reports for two weeks; it was the refusal of this request that occasioned the incident.

On 3 July 1996 Mr McLenaghan laid the two charges against Mr Carter mentioned at the commencement of these reasons.  On 29 July Mr McGuren was appointed inquiry officer.  He interviewed Mr Carter on 14 August.  On 6 September he found the conduct proven and directed Mr Carter’s dismissal from the Australian Public Service.  This direction was carried out.  The Department terminated Mr Carter’s employment.

Valid reason for termination:  the nature of the conduct

The first question I have to consider is whether there was a valid reason for that termination connected with the employee’s capacity or conduct or based on the Department’s operational requirements: s 170DE(1) of the Industrial Relations Act 1988, as it was at the relevant time.

Although Ms Howell argues to the contrary, it seems to me clear that, in the absence of any psychiatric issue, this question would have to be answered affirmatively.  It is true that, at the time of his dismissal,  Mr Carter had been an employee of the Department for 16 years, less an absence of two years between 1982 and 1984, and had given loyal and efficient service for most of those years.  It is also true Commander Hamilton was not hurt, or even touched, in the incident of 21 June.  No doubt it is also true, as Mr Carter asserts, that he did not intend to damage the door.  Nevertheless aggressive, intimidatory behaviour towards another officer is a serious matter; the more particularly because Commander Hamilton had done nothing that might reasonably be regarded as a provocation.  And this was not the first time Mr Carter had behaved in an aggressive or offensive manner towards other officers; it is enough to mention the incidents in relation to which charges had been found proved, the Bucek incidents and spitting on Mr  Larbalestier in 1995.
Valid reason:  employment history

Ms Howell argues that, even if Mr Carter’s conduct on this occasion would ordinarily constitute a valid reason for his dismissal, having regard to his recent employment history it did not.  She referred to the long delay in finalising the disciplinary action concerning the Bucek incidents, the fact that  Mr Carter felt unwelcome and neglected when he arrived at CISA, his personality clashes with Mr  Larbalestier, and, in particular, the Department’s insistence on pressing on with the Inefficiency Procedure notwithstanding its knowledge of his mental depression.

The evidence does not disclose the reason for the lengthy delay in completing the disciplinary proceedings relating to the Bucek incidents.  I accept the delay caused Mr Carter additional stress.  I accept, also, that his appointment to CISA was unexpected, and not welcomed, by the officers of that agency.  Apparently they had been expecting the appointment of someone else.  I do not accept that Mr Carter was ignored and remitted to menial and demeaning tasks.  On the contrary, I accept Lieutenant Commander Voges’ evidence that he did everything he could to involve Mr Carter in meaningful work.  The agency was busy and he would have welcomed his contribution, but it was not forthcoming.  It seems to be clear that Mr Carter harboured deep resentment at his demotion, which he thought unwarranted.  It was a major cause of his subsequent problems that Mr Carter failed to appreciate the enormity of his conduct towards Ms Bucek or to accept the justifiability of an employer - any employer - taking a serious view about it.  Because he did not accept these things, he felt himself demeaned by the demotion and being asked to do work appropriate to his reduced status.

The evidence suggests Mr  Larbalestier is a hard-working, highly-productive officer.  Judging by his brief appearance in the witness box before me and the transcript of his evidence before the Judicial Registrar, he is an assertive, “no-nonsense” type of person.  Perhaps he is not the most patient or tolerant person in the Department, although the minutes of the review meetings reveal he made many attempts to calm Mr Carter and make the discussion constructive.  Whatever his degree of saintliness, there is nothing in the evidence to suggest he treated Mr Carter unfairly.  It was Mr  Larbalestier who raised the question whether it was appropriate to proceed with the Inefficiency Procedure, having regard to the fact that Mr Carter was under psychiatric treatment.  The decision to do so was not his.  And this was not an unreasonable decision, having regard to the fact that Dr Khan, the treating psychiatrist, was content to allow the Inefficiency Procedure to go ahead.

I do not accept Mr Carter’s recent employment history provides a reason for concluding the Hamilton incident did not constitute a valid reason for his dismissal.

Valid reason:  Mr Carter’s depression

A special element in Ms Howell’s argument is that the Hamilton incident was caused by Mr Carter’s depression.  However, there is no evidence of that.  At the hearing before the Judicial Registrar, Dr Khan was asked by Mr Godwin, counsel for the Commonwealth, whether the incident involving Commander Hamilton, of which Dr Khan had a description, was caused by Mr Carter’s depressive illness or his personality disorder.  He replied:  “I don’t think it was connected to his depression or his personality disorder.  I think it was directly linked to the frustration of the situation”.  He explained in re-examination that he meant “a sense of helplessness through the assessment situation, and frequently saying to me that whenever a request that a certain thing be looked at from his perspective, he was either denied that opportunity or it wasn’t recorded”.

Dr Lewin has not examined Mr Carter since 1992.  Accordingly, he was not able to offer any view about his mental condition in 1996.  But he gave some general evidence about the relationship between personality disorder, depression and aggressive conduct.  He said “the personality disorder is a primary condition and this provides ... a constitutional weakness making someone more susceptible to difficulty coping and to reactive symptoms of depression and anxiety”.  He said it was common to treat the secondary consequences of a personality disturbance, such as alcoholism or depressive reaction, but it was difficult and complex to do anything about the behaviour that arises out of the personality disorder itself.  Mr Hastings QC, senior counsel for the Commonwealth, asked him about the incident in 1995 when Mr Carter spat at Mr  Larbalestier and the 1996 incident involving Commander Hamilton.  Dr Lewin attributed Mr Carter’s behaviour on both occasions to personality disorder, not mental depression.  In response to Ms Howell, Dr Lewin gave this evidence:

“But it is possible, is not it, that someone who is suffering from depression can effectively bottle up emotions because they are not because of their depression able to really express the anger that they are feeling?---Yes.  That’s correct.

Is that a frequent occurrence?---Yes, it’s common.  Yes.

Is this also sometimes the case that when that anger is bottled up and pressure is put on that person, the anger might in fact emerge in inappropriate ways?---It’s commonly in a sense directed towards oneself.  The common pattern that you see is of some sort of suicidal behaviour, violent aggression directed towards oneself.  Common to take that home and to express the strong feeling in a safer place.  The sort of explosive outburst that was described to me by your colleague would be unusual in terms of the line of argument that you put to me but not absolutely impossible.”

Having regard to the evidence of Dr Khan and Dr Lewin, I do not think it is correct to attribute Mr Carter’s conduct towards Commander Hamilton to his mental depression.  No doubt he was stressed at the time.  The Inefficiency Procedure must have been an unpleasant experience for him.  But an employer is entitled to expect civil conduct even from a stressed employee.  On the occasion of the previous offences, Mr Carter had been warned against repetition of his aggressive behaviour.  The employer had an obligation to protect other employees against aggressive or offensive conduct by Mr Carter.  On the occasion of the third adverse finding, the employer was entitled to say that enough was enough.  Coming on top of all that had happened before, the Hamilton incident provided a valid reason for the termination of Mr Carter’s employment.

Ms Howell presented an alternative argument based on s 170DF of the Act. She argued Mr Carter was dismissed because of a mental disability, namely his depression: see s 170DF(1)(f). Plainly this was not the case. He was neither dismissed directly because he suffered mental depression, nor because of conduct stemming from depression. He was dismissed because of conduct stemming from a number of factors, fundamentally his own personality and inability to cope with his demotion.

In my opinion the termination of Mr Carter’s employment was not unlawful. The Judicial Registrar should have dismissed the application. I propose to set aside her order and, in lieu thereof, order the application under s 170EA be dismissed.

I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox

Associate:

Dated:            16 December 1997

Counsel for the Applicant:	C Howell
Solicitor for the Applicant:	Geoffrey Edwards & Co
Counsel for the Respondent:	P Hastings QC and D Godwin
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 and 2 December 1997