Deborah Joy Clifton v Australian Taxation Office

[1995] IRCA 551

Industrial Relations Court
of Australia
New South Wales District Registry  NI 94/1346

Between:                 Deborah Joy CLIFTON
  Applicant

AND:  Australian Taxation Office
  Respondent

REASONS  FOR  DECISION

By application dated 19 December 1995 the applicant Deborah Joy Clifton sought reinstatement and compensation from the respondent, the Australian Taxation Office, under section 170 EA of the Industrial Relations Act. On behalf of the applicant it was alleged the termination was written and that it occurred in August 1994. The application was accordingly out of time with respect to Section 170 EA (3) that provides an application must be brought within 14 days from the date of written termination. However under section 170 EA (3) (b) such application may be brought within such further time as the court allows. Upon hearing Ms Brus on behalf of the applicant the court heard that the applicant suffered stress as a result of her employment, visited a psychiatrist and was suffering ill health at the time when the application perhaps should have been formally lodged. Further, it was demonstrated to the court that the applicant, in order to protect her employment, Ms Clifton embarked upon appropriate courses of action available only to public servants. Such procedures took time and it was clear that the applicant was certainly pro-active in these matters. Further, in support of the ruling of the court to allow the extension of time under Section 170 EA (3) (b) the court heard from Mr David Godwin from the office of the Australian Government solicitor on behalf of the respondent that the jurisdiction of the court in that regard was not an issue and so the application of Ms Brus on behalf of her client was allowed. It was noted that the parties had not complied with directions handed down when the matter was previously before the court but that neither party took issue with that failure to comply and that all evidence in the matter was to be read on to the record or provided orally.

On behalf of the applicant the court heard from the sister of the applicant, Mrs Helen Dunne and from the applicant herself.

In her sworn statement read on to the record the applicant stated that she commenced employment in the Australian Public Service, working in the ATO in December 1985 and that finally she was appointed to the position of ASO 5 by way of temporary promotion on or around 17 June 1994.  That position was one of Accounts Manager, one that the applicant had applied for and was selected for in a competitive interview based on merit selection.  The applicant stated that certain events occurred during the initial two week period of her appointment which contributed to the need for her to take a period of leave on account of stress.  Annexure A to her sworn statement was a medical certificate relating to that leave.  The statement outlined a meeting with a Ms Denise McKenzie, the Personnel Manager of the ATO that took place on or around 4 July 1994 wherein the applicant was handed by Ms McKenzie minutes of a meeting held by employees under the control and supervision of the applicant.  It was stated that after reading those minutes the applicant felt traumatised, angry and extremely emotional and that there was some antagonism and bitterness against her appointment particularly on the part of the manager of the section.  The applicant stated that it was on that day that she made a snap decision (and one which in hindsight she had come to regret) to go overseas.  The following day the applicant went to the airport on her Visa card purchased a one-way ticket to England.  The statement of the witness outlined that whilst in Turkey she spoke to her sister Mrs Dunne and was informed that her sister had been speaking with the respondent on several occasions.  The applicant stated that she knew her sister had been extremely ill and that she was very angry that the respondent had been telephoning her sister and that such actions were totally improper.  The statement of the witness indicated that on her return to Australia and after becoming aware that her employment had been terminated, she made application to the ATO pursuant to Section 66B of the Public Service Act for a review of her termination.  On or around 12 November 1994 the applicant received a reply from the respondent that rejected her application for re-appointment.

On behalf of the applicant Mrs Helen Dunne in oral evidence told the court she was the applicant’s elder sister by some eighteen months and that at various times during the twelve month period preceding the termination of the applicant’s employment the applicant lived with her and her husband at their home.  The purpose of the applicant staying with her sister was to save money in order that she may purchase a unit of her own.  Additionally to assist her to save money it seemed the applicant also for a time resided with her father.  Mrs Dunne stated that from approximately the past eight years she had suffered from the medical condition commonly known as lupus and that during the period 22 June 1994 she was hospitalised and was prescribed what must be considered powerful and debilitating medication for her condition.  The witness stated that during the early period of her time in hospital the applicant visited her times and that it seemed to her that the applicant was acting irrationally.  In her evidence in chief the witness stated that at the time of the events surrounding the termination it appeared to her that the applicant was a very sick woman in that she was “raving about being followed and having her ‘phone tapped”.  After the applicant returned from overseas Mrs Dunne took her sister to her local doctor as a result of which there was a consultation with a psychiatrist.  Medication was prescribed.

In cross-examination the sister Mrs Dunne agreed that there had been a number of conversations between herself and the respondent.  First, on 8 July 1994 a conversation took place between the witness and Ms Sue Thompson of the respondent’s office.  The witness under cross-examination agreed that she confirmed to Ms Thompson that “Deb was OK”, and that she was concerned as to how much leave her sister had due.  It was further confirmed that Ms Thompson advised Mrs Dunne that the sick leave of the applicant expired on 11 July 1994.  The court heard that a second telephone conversation took place between the same parties wherein the witness advised Ms Thompson that she was hoping the applicant her sister would telephone her but in fact the applicant contacted a friend.  Mrs Dunne confirmed that a third conversation took place on 21 July 1994.  it was further confirmed that the witness received a letter dated 21 July 1994 from the respondent addressed to the applicant and admitted into evidence as exhibit “A” in the affidavit of Susan Thompson.

On 27 July 1994 another telephone conversation took place wherein Ms Thompson was advised that no-one had seen the applicant for two weeks.  On 4 August 1994 a further telephone conversation took place and Ms Thompson was advised that the applicant would not have received the mail referred to as being exhibit 1 as she had moved from that stated address some time previously.  Mrs Dunne further advised Ms Thompson that the position concerning the re-payment of mortgage dues were in hand for five or so months, as the applicant had been paying over the required amount previously.  The witness was shown exhibit 2, a letter from the respondent dated 4 August 1994 which provided as follows:

“4 August 1994

Mrs Helen Dunne

6/93 - Augustine St

Hunters Hill

Dear Helen

Deborah Clifton has not replied to any correspondence or contacted the office to explain her unauthorised absence from 12 July 1994.  If her unauthorised absence continues it will result in forfeiture of office procedures taking place.

Please forward the enclosed sealed envelope to her known address urgently.  I have added sufficient postage for delivery to the United Kingdom.

Yours sincerely

(sgd) Susan Thomson

Personnel Officer.”

In all Mrs Dunne stated that she had advised her sister she had spoken to the respondent on 3 or 4 occasions - the first time being when the applicant landed in London from the airport at Heathrow.  Further, it was stated in evidence that she had been told by her sister to say that the applicant was ‘out of town’ and that the witness did not tell the ATO the applicant was overseas for a couple of weeks after she had in fact gone.  Mrs Dunne agreed under cross-examination that she did not feel upset or harassed by Ms Thompson.

In her evidence in chief the applicant stated that she applied for the position of ASO 5 as a result of seeing an advertisement for the position.  Exhibit B is a letter dated 8 June 1994 from the respondent to the applicant and states as follows:

“Deborah Clifton

Debt Collection

Dear Ms Clifton

TEMPORARY TRANSFER

I am pleased to confirm that your transfer under regulation 116 of the Public Service Regulations to the position of Administrative Service Officer Class 5, Debt Collection, (Position No: 410096) has been approved.  The period of transfer is from 6 June 1994 until 28 February 1995.

I have attached a copy of the selection advisory committee’s report relating to you.  Should you wish to discuss this, or seek further feedback, please contact Chris McCann on 37 42470

(sgd) Donna Hogan

SELECTIONS OFFICER”

In her evidence in chief the applicant outlined the circumstances of her employment leading to her termination.

The applicant recounted to the court the circumstances surrounding a meeting of her 8 staff she convened on 17 June 1994 an event that occurred very shortly after she took up her new duties.  The proposed seating arrangements at that meeting were obviously a source of distress for the applicant.  The applicant stated prior to the meeting she was aware the staff had been to lunch together and that further some of them smelled heavily of alcohol.  The applicant stated that she felt threatened by the fact that her staff had been to lunch and further that she felt confused.  During the meeting apparently one of the team members burst into tears and the applicant it seemed had a disagreement with a Ms Maritsa Adams.  The applicant denied that her voice was raised, but agreed she had made sexual references to members of her group.  On 20 June 1994 the applicant attended for work and stated that she had discussions with Mr Geoff Crossley concerning personal matters in the office.  The applicant stated that by the end of that Monday she felt as if she was bearing all the blame for things going wrong in the office and that she was receiving no support from management.  The applicant stated in attempting to advise her how to mend the personal matters in the office Mr Crossley told her she should “go down on hands and knees” to do so.  On Tuesday 21 June 1994 the applicant telephoned the office and spoke to the acting manager and stated that she felt unwell.  At that time the applicant was advised that Ms Maritsa Adams had mentioned she was considering harassment charges against the applicant.  On 21 June 1994 the applicant also spoke with the EEO officer Mr John Pringle in order to find out what had been written about her by way of complaint by the staff members in her team.  The applicant produced a medical certificate for one week to the respondent stating she was not fit for work.

The applicant returned to work one week later and on Thursday 30 June 1994 spoke with Ms Denise McKenzie at which time the applicant was given a copy of minutes of a staff meeting held to discuss her conduct towards those members of staff.  Ms McKenzie suggested the applicant visit a counsellor/mediator via ACCESS arranged by the respondent.  The applicant told the court she visited the counsellor who suggested she needed a few months off, even perhaps a trip overseas.  The applicant went back to work the following Monday 4 July 1994 to hand in a medical certificate signed by Dr Henderson for one week’s leave for stress.  The applicant told the court at that point she was extremely agitated.  She came face to face with Ms Maritsa Adams.  A confrontation took place.  The applicant told the court she reported the incident to Ms Denise McKenzie who advised the applicant her conduct was not appropriate.  The applicant told the court she experienced feelings of disbelief upon learning from Ms McKenzie that what had been said by her in counselling to the ACCESS people had seemingly been passed on to her employer.  The applicant told the court on 5 July 1994 she decided to travel overseas.  She telephoned a friend and requested that friend advise the respondent.  The applicant agreed her behaviour was irrational but stated that she had a fair amount of sick leave on half-pay due to her.  The applicant was away 6 weeks.  While she was overseas the applicant allowed friends to stay in her unit and there was a fire that badly damaged her bedroom rendering the unit un-lettable.  Upon her return the applicant stated she was not sure of her status as to whether or not she was dismissed.  The applicant agreed that after her return her behaviour was irrational - she visited a psychiatrist in the company of her sister.  Medication was prescribed.  The respondent issued the Section 66 notice.  The applicant advised the court she collected her mail from the respondent approximately 2 weeks after she returned to Australia and with the help of her solicitor replied to the respondent’s correspondence seeking re-appointment to her position at the ATO pursuant to Section 66B of the Public Service Act.  That letter was admitted into evidence as exhibit G and sets out the medical condition of the applicant, the background to the deterioration of her health, the position regarding her address for notification and the applicant’s employment history.  The applicant stated she had received no formal counselling as to any complaint the respondent may have had concerning her work performance.

In cross-examination the applicant stated that at the staff meeting she attempted to arrange on 17 June 1994 it was Ms Adams who shouted, and not her.  In relation to suggestions made by management that the applicant transfer to other kinds of work the applicant told the court that she did no wish to go “back onto the road again” and denied that she told Ms McKenzie she felt her behaviour was inappropriate.  Further the applicant indicated she was of the opinion that the Debt Collection section she had been sent to work in as an ASO 5 had a bad reputation for stress related claims and she agreed with the suggestion that at one stage she said that she did not care if she had a job in the Public Service or not.  The applicant agreed she did not have sufficient recreational leave to cover her absence while she was overseas and stated in justification for her conduct that she needed privacy and that she felt she was ill.  The applicant stated that on occasions she was unable to stop crying and that she had trouble in controlling her emotions.  The applicant stated she cared about her job but in justifying her actions in staying overseas she put her health before her employment.

In re-examination stated she purchased a one-way air ticket as that was all she could afford at the time and that she had applied for recreational leave and then leave without pay.

On behalf of the respondent the court heard from Ms Susan Thompson, the Personnel Officer of the respondent.  Ms Thompson stated on 8 July 1994 she received a telephone call from Mrs Helen Dunne the sister of the applicant who stated that the applicant was out of town and that she was all right.  On Wednesday 13 July 1994 Ms Thompson received another call from Mrs Dunne and was advised that the applicant would be absent from work for at least a month.  Subsequent telephone conversations followed, and the evidence of the witness was Mrs Dunne provided her home address for the respondent’s correspondence could be forwarded there for the applicant.  As a result of that conversation the following letter, annexed to the affidavit of the witness as annexure A was forwarded to the applicant:

“Dear Ms Clifton

Could you please contact me urgently in relation to the type of leave your (sic) currently utilising.  The office has you recorded as reporting on sick leave up until 11 July 1994, and we do need to know as soon as possible what leave you are currently on, for what period of time, and when you intend to return to work.  Your current leave credits are as follows:

Recreation Leave - 10 days, Sick Leave on Full Pay - 3 Days, 6 Hours and 16 Minutes.  You also have the option of taking Leave Without Pay.  Please contact me on the above telephone number as soon as possible.”

The evidence of the witness was that it was not until 4 August 1994 that the respondent learned from the sister of the applicant that the applicant was overseas and not in Australia.

The following letter was then despatched by the respondent:

“4 August 1994

Mrs Helen Dunne

6/39 - 41 Augustine Street

Hunters Hill

Dear Helen

Deborah Clifton has not replied to any correspondence or contacted the office to explain her unauthorised absence from 12 July 1994.  If her unauthorised absence continues it will result of forfeiture of office procedures taking place.  Please forward the enclosed sealed envelope to her know address urgently.  I have added sufficient postage for delivery to the United Kingdom.”

On 4 August 1994 the witness stated Mrs Dunne told the respondent of the applicant’s address in Scotland.  One week later, on 11 August 1994 the following letter was forwarded by the respondent to the applicant at Scotland

“Dear Ms Clifton

Records in this office indicate that you were absent on sick leave from 1 July 1994 to close of business 11 July 1994.  Since that date no further medical certificates have been received and you have not contacted the office to explain your absence.  This Office wrote to you on 21 July 1994 and 4 August 1994 in relation to this matter.  The letters were sent to your home address and to your sister, Mrs Helen Dunne, for forwarding onto you.  To date we have not received a reply this correspondence.  Therefore, you have not been continuously absent from duty without authority since 12 July 1994, a period greater than four weeks.

Sub-section 66A(1) of the Public Service Act provides that where an officer is absent from duty without permission for a continuous period of not less than four weeks, the Delegate may send a notice informing the officer that unless she resumes duty or provides an explanation, her office will be forfeited.....”

The respondent, according to Ms Thompson, then learned the applicant was in Turkey and further that the applicant moved from her Edgecliff address some 18 months previously.  The respondent was given the current Ashfield address of the applicant and the following letter despatched;

“12 August 1994

Ms Deborah Clifton

6/8 Webbs Ave

Ashfield

Dear Ms Clifton

The attached letters were forwarded to your home address last known by this office and to an overseas address.  It has now come to our attention that you live at the above address.  It is a requirement to send forfeiture of office details and other documents to your home address last known by the delegate.  This office complied with this direction therefore the date of effect stated in all correspondence, including the Notice Under Sub - Section 66A(1), is correct.”

In her affidavit Ms Thompson stated that at no time during any of the conversations with Helen did she ever inform me that she was, or had been in hospital and that each time she spoke to Helen it was because of her concern for Deborah.

In cross examination the witness stated “ she knew there were problems (with the applicant) and that she had been ill and absent from work” and further that she had authority to suspend the termination proceedings under the regulations.  Ms Thompson stated that if the applicant had contacted the office, a reasonable attitude would have been taken to the situation.  However, that position was never tested.

Ms Thompson told the court in some instances of stress employees had been referred to the Commonwealth Medical Officer and that in dealing with employment problems arising out of stress that she was not an expert.  Ms Thompson stated she was not aware the counsellor/mediator suggested to the applicant that she should travel overseas.

At all times it seems that Ms McKenzie kept her supervisor, Mr John Keily informed of developments.  Ms McKenzie told the court the staff under the direction of the applicant had had a union meeting presumably to discuss her attitude towards them and her treatment of them.  Ms McKenzie stated a discretion existed so that the employer could halt the s66 procedures if necessary but that that discretion was not exercised here.

On behalf of the respondent the court heard from Mr Geoff Crossley, the acting manager of the Sydney Taxation Office.  The witness stated that 2 people from the applicant’s team had contacted him, Maritsa Adams and Cathy Samuels with complaints concerning the behaviour of the applicant.  The evidence of Mr Crossley was that on one occasion when he was trying to sort out the staff complaints against the applicant the applicant told him she felt there was a conspiracy against her.

In cross-examination Mr Crossley stated he felt he “did not give a lot of support to the applicant.”

Mr Crossley had little to do with the termination of the applicant and I conclude I am unable to accord his evidence much weight for that reason only.

On behalf of the respondent it was submitted that the applicant was retired from the Australian Public Service by section 66A of the Public Service Act.  That section provides:

(a)An officer must be continuously absent from duty without permission for 4 weeks;

(b)The Secretary or his or her delegate must execute a notice containing the matters set out in s66A(1)

(c)The notice must be posted by security post to the address of the officer last know to the Secretary or his or her delegate;

(d)The officer then has 2 weeks in which to explain the absence and seek permission for a further period of absence, or return to work;

(e)If the officer does neither of the things in (d) The Act deems the officer to have retired from the Australian Public Service on the day following the expiration of the 2 week period.....

It was further argued that the retirement of the applicant in these proceedings was a consequence of the fact that an officer of the Australian Public Service is who is absent from duty due to illness is required to report to the officer in charge as soon as she can.  Further it was submitted that the applicant was on authorised sick leave from the Australian Taxation Office from 1 July 1994 until 11 July 1994 and that no further application was made by the applicant and that the applicant did not personally notify any of her superiors as to the reason for her absence until 31 August 1994.  The respondent was of the view that the applicant was absent without permission for a continuous period of not less than 4 weeks.  In written submissions provided by the respondent details are provided of the procedures followed in order to effect the forfeiture of office.  The fact that the applicant made application for re-appointment under Section 66B of the Public Service Act is referred to.  It is noted that at the time the applicant made that application she was receiving legal advice.  Reference was made to Maggs v Comptroller General of Customs (1955) 128 ALR 586 wherein the Full Court considered the effect of S 62(6)(b) and 62(10) of the Public Service Act. The respondent submitted that Maggs case is not authority for any general proposition that “one is not terminated from the public service until every avenue is completely exhausted” and that Section 66B is not an equivalent provision to section 62 (10) of the Act.

It was submitted on behalf of the respondent that retirement under S66A of the Public Service Act is retirement not by the employer but rather by operation of an Act of Parliament.

Submissions on behalf of the applicant dealt in the main with jurisdiction and it was suggested that the language of the Public Service Act in Sections 66A and 66B is a series of euphemisms for termination of employment; termination which is clearly at the instigation of the employer. Further it was argued that to suggest that the employee has repudiated the contract of employment by abandonment of her office is defeated by the application pursuant to Section 66B by the applicant and the circumstances surrounding her absence from work. I cannot agree with that argument in its entirety but note Ms Brus of Counsel is of the view the circumstances surrounding the applicant’s absence from work should be taken into consideration. Further, in relation to the applicability of the Industrial Relations Act to the facts of this case the circumstances surrounding the termination and not the administrative regulations should determine the consequences of the termination and what, if any, relief, should be provided by the Court.

CONCLUSION

The facts in this case are sad.  From the evidence it is clear that until almost precisely 14 days after the applicant was promoted to the acting position of ASO 5 with the respondent she had an almost perfect and blemish free employment record stretching back some nine years.  The applicant applied for the position of ASO 5 and was successful at competitive interview whereat she met the required job specifications and criteria.  The respondent’s appraisal of the applicant as a result of the job interviews in awarding her the position were provided to the court and stated the applicant to be a competent team leader and responsible employee.  During June of 1994 the applicant’s behaviour patterns altered and events which more than likely she would have handled with calmly and appropriately caused her to feel, in her words, “traumatised, angry and extremely emotional”.  There was no medical evidence provided to the court as to the reason for the altered conduct of the applicant but I am of the view that the “man in the street” or “innocent bystander”, upon learning of the excellent past work record of the applicant coupled with the fact that the applicant maintained a personal long-term goal to save for and purchase her own unit, would believe that the applicant could not be held fully responsible for her irrational behaviour after June 1994 which both jeopardised her employment and her home.

It is my view that the respondent at that time, particularly over the three month period commencing June of 1994, should have been aware of the altered conduct patterns of the applicant.  Correct consultation and appropriate action on the part of senior staff, particularly human resources staff is necessary for the smooth and efficient running of any organisation.  That did not happen in the case of the applicant Ms Clifton.

Whilst in a “traumatised and emotional and angry state” the respondent referred the applicant to “mediation/counselling”.  In an attempt to resolve the situation and to be compliant with her employer’s wishes, the applicant attended that session.  The evidence showed that at that session the mediator/counsellor suggested to the applicant that in order to resolve her problems at work she should think of a prolonged time away from work perhaps even an overseas trip.  From the exhibited irrational conduct and altered behavioural patterns to my mind at that point the applicant would have been extremely vulnerable to such a suggestion to travel overseas from a counsellor/mediator appointed by her employer - in the form of Ms Denise McKenzie - and because of her then confused state of mind the applicant lacked the insight to deal with such a suggestion properly.  The evidence of the applicant demonstrates the inability to cope with the issues which confronted her at that time - those issues being her need to get away from what she saw as a hostile environment coupled with the fact that her health was suffering and her emotions were out of control.  Clearly the applicant was grappling with something she found to be frightening - her pattern of behaviour at work had changed and in light of the fact that the respondent was in possession of medical certificates indicating the applicant was suffering with stress it is a finding of this court that the respondent should have been on notice of the fact that other courses of action would have been more appropriate than to recommend a free-ranging counselling session.  Such a course of action is appropriate for someone, an employee, who acknowledges the counsellor/mediator will operate within confined parameters of certain facts.  But such a course of action could prove to be harmful to someone who has only a vague understanding of what the nature of the problem is and who additionally is medically considered unfit on the grounds of stress.

It is strongly recommended that in future the respondent do not refer an employee to any sort of mediation session if there is in the short term history a medical certificate relating to a stress condition of that employee.  In the first instance a thorough medical and possibly psychological assessment should be attempted by either a medical specialist provided by the respondent or the employee and then, and only then, if it is felt that the employee could cope, should the employee and the associated problem be referred to a mediator.  The term “mediator” implies equal bargaining strengths in the parties.  In the present case that was simply not so.  First on the basis of numbers, ie a whole group of people had complained about the conduct of the applicant and the court heard no evidence that the mediator ever intended to take evidence from any of the complainers.  The term “mediator” was inappropriately applied and used by the respondent.  Secondly no evidence was provided about the complainers having lodged medical certificates for stress.

Although Ms Thompson stated that each time she spoke to Mrs Helen Dunne it was because of her concern for the applicant, that concern was not borne out in the correspondence forwarded by Ms Thompson to the applicant.  Mrs Thompson blandly to the point of denying the applicant natural justice, performed her duties under the Public Service Act.  The Personnel Officer who directed the duties of the witness Ms Thompson should have conducted a more thorough review of the appropriateness of procedures to be followed in circumstances such as these to ensure that the employer behave humanely and not unreasonably, as happened here.

In its letter to the witness Mrs Dunne dated 4 August 1994 marked exhibit 2 the respondent uses the term “unauthorised absence”.  Having considered all the evidence it is my conclusion that it was not clearly demonstrated to the court that the applicant would at the time in question have agreed that her absence was unauthorised.  In support of that conclusion it is noted that the word “mediator” was used in these proceedings by the respondent in referring to the appointed counsellor .  Ms McKenzie gave evidence that the particular mediator/counsellor nominated was well-regarded by the respondent for resolving work-place disputes and grievances.  The applicant was aware she was the subject of a grievance dispute and that Ms McKenzie possessed all the information relating to that matter - and the power within the respondent to take serious administrative steps regarding the applicant’s career if the dispute with the applicant’s team did not resolve.  The applicant took the suggestion by the respondent-appointed counsellor/mediator for overseas travel literally and the evidence shows she threw caution to the winds - she packed her bags and left forthwith.  In my view her actions from that point on jeopardised her employment and her home.  She has lost the one and the evidence indicates she faces losing the other.  These things are the two things in her life that the applicant had steadfastly worked towards securing for a long time.  I am of the opinion that in a more rational frame of mind and possessing full health - that is not being absent on stress related illnesses - the applicant would not have followed that suggestion so willingly.  It could be argued that in travelling overseas as she did that the applicant concluded she was in fact doing as her employer wished her to do - to get well and to come back to work.

The applicant was at all times - from 29 June 1994 until 11 July 1994 - on authorised leave the subject of a medical certificate from her doctor.  That doctor in writing indicated the applicant was suffering from a stress condition.  The respondent was aware of that.  The last medical certificate stated the health of the applicant should be the subject of further review.  The employment future of the applicant, to accord procedural fairness to her, should have been clarified only after that further medical review had taken place.  Particularly after the observed and complained about extra-ordinary behaviour of the applicant at work.  That did not happen.  From 21 July 1994 onwards the respondent plodded its way through the regulations and procedures of attempting to contact the applicant - and in so doing the respondent completely failed to take a subjective perspective of the situation and of the necessity to step back and obtain an overview of the situation in order to work out what was best for both parties in the circumstances.  Even if the respondent had been successful in contacting the applicant a return to work by the applicant or the provision of information by the applicant the respondent was seeking may not have been possible.  An example of the lack of insight displayed by the respondent may be seen in the letter of 4 August 1994 sent by the respondent to Mrs Helen Dunne wherein reference is made to “forfeiture of office” procedures.  Although such a letter may have been well-intentioned the particular circumstances of the applicant’s behavioural pattern could only render such a letter completely useless and of no legal effect under the legislation under which the respondent was purporting to act.

It is interesting to note the letter of 4 August 1994 to the sister of the applicant Mrs Helen Dunne commences “Dear Helen” and that the letter of 11 August 1994 to the applicant commences “Dear Ms Clifton.”  The discriminatory attitude displayed by the respondent, the one address friendly and the other formal and business-like, to my mind, should not have occurred and a more even handed uniformly courteous approach adopted by the respondent until the respondent was in possession of all the facts surrounding the absence of the applicant from her employment.

On behalf of the respondent Ms McKenzie and Mr Keiley activated the Section 66 procedures.  Apart from not being accorded the opportunity to meet with her employers face to face, the evidence shows that the applicant may not have fully comprehended the import of the Section 66 proceedings at the time that they were instituted.  Careful analysis of the situation by the respondent would have allowed the respondent to reach that conclusion and would have accorded the applicant “a fair go”.

In the affidavit of Ms McKenzie it is stated that on occasion such proceedings had in the past been halted in order to cope with special problems of the employee.  Those section 66 proceedings should in my view have been halted here.  The evidence demonstrates the applicant lacked the frame of mind to deal rationally with the situation and secondly was, by the actions of the respondent, denied the opportunity to deal with it.

The main thrust of the respondent’s case was that the applicant was retired by operation of the relevant provisions of the Public Service Act.  Implicit in that submission is the basis that the triggering of those provisions complied with the requirements of natural justice and that the employee could demonstrate a capacity to deal with the situation.  That was not the case here.  Equally it cannot be said that the applicant abandoned her office within the meaning of the Public Service Act.  In light of the fact that the last medical certificate indicated the applicant was suffering stress - that fact coupled with the information in the possession of the respondent as to the applicant’s irrational behaviour should have placed doubt in the mind of the respondent that the applicant was probably incapable of forming the intention to abandon her employment.  It is my opinion that the exercise of the powers conferred on the respondent relating to forfeiture of office and the purported retirement of the applicant for an alleged abandonment of office were invalidly exercised by the respondent and accordingly of no effect.  Accordingly I discount submissions by the respondent in that regard.  I find that the respondent terminated the employment of the applicant.

It now remains to consider if that termination was lawful within the meaning of the Industrial Relations Act.

On behalf of the respondent it was submitted that a retirement under s 66A is not subject to Division 3 of Part VI A of the Industrial Relations Act 1988. Having found that the exercise of the retirement powers conferred by s66A was invalid it is not necessary to deal with the submission that the Industrial Relations Act does not apply.

It is well settled that employees who are to be terminated are to be accorded procedural fairness. That did not happen here. Accordingly it is a finding of this court that the Industrial Relations Act has been breached and that the applicant is eligible for compensation. The applicant was never afforded the opportunity to deal with the allegations against her - at the first level the allegation was that she was on leave without permission.

Section 170DC of the Industrial Relations Act provides and employee must have the opportunity to respond to allegations. That did not happen here.

Section 170DE of the Industrial Relations Act provides an employer must not terminate employment unless there is a valid reason. Here there was no valid reason given and further within the meaning of section 170DE(2) the termination was harsh and unjust.

Section 170DF provides an employer is not to terminate the employment of an employee for a temporary absence from work because of illness or injury. It is a finding of this court that the employee was terminated for a temporary absence because of stress and that this section of the Industrial Relations Act has been breached.

A preferred course of action would have been to put the whole matter on hold until the applicant was in a position to deal with the allegations.

I order the respondent to pay to the applicant a sum equivalent to six months salary of the salary of which the applicant was in receipt at the date of  termination of her employment within 28 days of the date of this decision.  The date of termination of employment is deemed to be 25 August 1994.

I certify that this and the preceding eighteen pages are a true and correct copy of the Reasons for Decision of Judicial Registrar Tomlinson

Associate
Date  11 September 1995

Appearances
Counsel for the Applicant:     Ms E Brus
Instructed by:  Turner Freeman
Solicitor for the Respondent:  Mr David Godwin
of:  Australian Government Solicitor