Eriksson v Commonwealth of Australia
[2011] FMCA 964
•12 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ERIKSSON v COMMONWEALTH OF AUSTRALIA | [2011] FMCA 964 |
| INDUSTRIAL LAW – Termination of employment – allegation of adverse action – whether action complained of adverse action – action taken pursuant to a law of the Commonwealth - whether applicant had a workplace right - whether respondent’s termination of applicant’s employment constituted adverse action. |
| Fair Work Act 2009 (Cth), ss.338, 340, 341, 342, 365, 369 Public Service Act 1999 (Cth), s.29 Safety, Rehabilitation and Compensation Act1988 (Cth), s.36 Superannuation Act 1990 (Cth), s.13 Workplace Relations Act 1996 (Cth) |
| Hammond v Boutique Kitchens & Joinery Pty Ltd [2010] FMCA 622; (2010) 198 IR 336 Hayward v Rohd Four Pty Ltd & Ors [2008] FMCA 1490; (2008) 221 FLR 91 Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399; (2010) 186 FCR 22 |
| Applicant: | MEELI KERSTI ERIKSSON |
| Respondent: | COMMONWEALTH OF AUSTRALIA |
| File Number: | BRG 609 of 2010 |
| Judgment of: | Burnett FM |
| Hearing dates: | 21 & 22 February 2011 |
| Date of Last Submission: | 22 February 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 12 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | The applicant appeared on her own behalf |
| Solicitors for the Applicant: |
| Counsel for the Respondent: | Mr R. Cook |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application filed 23 June 2010 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 609 of 2010
| MEELI KERSTI ERIKSSON |
Applicant
And
| COMMONWEALTH OF AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Meeli Kersti Eriksson, was a longstanding employee of the respondent, the Commonwealth of Australia, Department of Health and Ageing, having commenced her employment with the Department of Health and Family Services in the ACT in February 1996. She was employed in the capacity of a nurse. At the time of events the subject of this application she was employed as a review officer based in Brisbane. Her role involved auditing aged care facilities for compliance relating to patient classification and funding. Her occupation required travel and the use of a laptop on various services together with undertaking duties in a “non-ergonomic” environment.
Following an injury in 2002 the applicant was totally incapacitated for work for a period resulting in a return to work on a restricted basis before she being certified as totally incapacitated for work from 1 December 2006. The respondent says that since that time it has made considerable efforts to assist her return to work but that she continued to be totally incapacitated and that accordingly it sought to have her retired on grounds of medical invalidity. That process commenced in September 2007 when the respondent applied to the Trustee of the Public Sector Superannuation Fund, Australia Reward Investment Alliance (ARIA) for an Invalidity Retirement Certificate (IRC).
On 8 October 2007 ARIA issued an IRC and shortly thereafter notified the applicant that in view of the IRC it intended to terminate her employment pursuant to s.29 of the Public Service Act 1999 (Cth) (the PS Act) on the ground that she was unable to perform her duties because of a physical incapacity. Between November 2007 and November 2009 the applicant sought reconsideration of some of the procedural decisions preceding termination. Ultimately in October 2009 the delegate of the respondent wrote to the applicant confirming that notification had been received from ARIA confirming the IRC and that it would seek to terminate her employment with effect from 27 October 2009. A notice of termination issued to the applicant dated 10 November 2009 which purported to take effect from 27 October 2009. However that notice was defective and invalid. A further notice of termination issued on 4 December 2009 providing for termination pursuant to s.29(3)(d) of the PS Act which was to take effect on 8 January 2010.
The applicant’s response was to make application to Fair Work Australia pursuant to s.365 of the Fair Work Act 2009 (Cth) (the FW Act) alleging dismissal and contravention of Part 3-1 the general protections provisions of the Act. Conciliation before a commissioner at Fair Work Australia was unsuccessful and accordingly the applicant commenced her application seeking the remedy of reinstatement.
Background Facts
The applicant has been employed as a nursing officer with the respondent since approximately 1996. Between February 2003 and November 2003 she was totally incapacitated for work by reason of an injury which the respondent accepts was related to her employment with it. In January 2003 she began to experience pain in the right shoulder which was of “insidious onset” while she was working it involved shooting pains into the arm”. There was also tingling of the ulna border of the forearm in the fifth finger.[1] Initially the injury was treated conservatively before ultimately it was concluded surgical intervention was required. Accordingly an acromioplasty was undertaken in May 2003 which was followed by rehabilitation. The procedure was unsuccessful and she underwent an ulna release in 2003 which also failed to relieve the pain. Her condition did not settle and she was referred for further review through 2004 before a prognosis in July 2005 of foraminal stenosis at C5/6 with probably right C6 nerve root compression as a result of osteophytic ridges.[2] At that time it was concluded that she would be capable of undertaking limited duties; such as roles as cashier or receptionist, although she would have some difficulty using a keyboard. It was noted that at the time she would have difficulty undertaking repetitive tasks such as handwriting or typing and might also experience difficulty with prolonged sitting. As at 2005 it was assessed that she was not fit to participate in a graduated return to work program and that the prospect of commencing such return to work was becoming unlikely and that generally it was unlikely she would resume full time pre-injury duties.
[1] Australian Medico Legal Services Pty Ltd report 29 October 2005 annexure ME9 affidavit of Meeli Kersti Eriksson filed 13 August 2010.
[2] Australian Medico Legal Services Pty Ltd report supra page 3.
After taking leave and returning to work in January 2005 she continued to work for a period but was certified as totally incapacitated from
1 February 2005. In July 2006 she requested an attempt to return to work indicating that she felt she could return to her usual role with modification. It seems plain from the opinion of Dr Turner in her report of 7 July 2006[3] that the applicant had not returned to work since her earlier assessment in 2005. At the time of that assessment Dr Turner opined that she was continuing to suffer symptoms and that having regard to her then present symptomology a graduated return to work program commencing at 4 hours 3 days a week and increasing to 4 hours 5 days a week after 2 weeks subject to appropriate supervision would be achievable. Dr Turner did not accept the applicant’s GP, Dr Angelo’s, assessment that she could return to work 4 hours per day 5 days per week. Indeed she regarded that assessment as “a little ambitious”.
[3] Affidavit of Meeli Kersti Eriksson filed 13 August 2010 annexure ME18
She returned to work as per the program dated 17 July 2006 until being certified as totally incapacitated for work from 1 December 2006 at which time she was assessed as being totally and permanently incapacitated following a brief attempt at return to work in accordance with the recommendations of Dr Turner. The applicant has not worked since December 2006.
On 20 June 2007 Dr S. Buckland undertook a fitness for duty assessment of the applicant. After considering her background history and following examination he concluded that “it is unlikely that (the applicant) would ever be reliable enough to hold down a job in a sustainable way. When considered in conjunction with the employer’s and Comcare’s multiple, expensive and unsuccessful attempts to rehabilitate (the applicant), the only reasonable conclusion that can be reached is that (the applicant) is totally and permanently incapacitated and should be retired on ground of medical invalidity”.[4] At that time Dr Buckland recommended that sick leave was the best course of action and that leave should be indefinite. He opined that there ought be no treatment or rehabilitation program taken while on leave.[5]
He also opined that the applicant ought not be considered for modified duties or reduced hours in her current position nor for alternative duties in another position in either the public or private sector. He did not consider treatment or a rehabilitation program would prevent her total and permanent incapacity and considered that there was a likelihood that she would be totally and permanently incapacitated and should be referred to the Board of Trustees for further consideration.
[4] Report Health for Industry Dr S. Buckland dated 20 June 2007 Annexure MC 3 to affidavit of Meeli Kirsti Eriksson filed 13 August 2010 (Court Book 43)
[5] Court Book 46
A short time later on 29 August 2007[6] an officer from Comcare wrote to the respondent in response to the respondent’s request for Comcare’s recommendation about an application for invalidity retirement of the applicant. It observed that having considered the available medical evidence and rehabilitation history it supported the respondent’s application for invalidity of the applicant for reasons that it expressed in that letter.[7] The respondent wrote to Comcare on
4 September 2007 formally making application for issue of an IRC for the applicant. The application made reference to her relevant history including matters identified by her doctor, Dr Angelos and the various assessing doctors who had undertaken occupational assessments. In its application to Comcare the respondent observed:
“In summary, the Department believes everything possible has been done to assist [the applicant] to return to work through various mechanisms, including: modified duties, modifications in the workplace, supported graduated return to work plans, rehabilitation provided support and intervention, and a pain management clinic. However, despite these supports Dr Angelos continues to certify [the applicant] as totally incapacitated for work. Therefore the Department has reached the conclusion that all avenues available to return [the applicant] to work in some capacity have been exhausted and is of the opinion that the time has come to consider whether [the applicant] should be retired on medical grounds”.[8]
It was upon that basis that the respondent referred the applicant to Health for Industry[9] for assessment which in turn considered the applicant was totally and permanently incapacitated thus supporting the issue of an IRC.
[6] Court Book 261
[7] It is worthwhile noting that Comcare also considered Dr Angelo’s report of 25 March 2007 wherein he restated the applicant’s complaints of her then current symptomology and that it had “severely limited her capacity to return to work and her ability to return to full time employment in the future”.
[8] Court Book at 267.
[9] Report of Health for Industry dated 20 June 2007 – Court Book at 37.
Consequently on 8 October 2007 ARIA, as Trustee of the Public Sector Superannuation Scheme, approved the invalidity retirement and issued an IRC.[10]
[10] Court Book at 270.
In its letter to the applicant of 1 November 2007, advising of its proposal to retire the applicant on grounds of invalidity, it invited the applicant to “advise in writing of your agreement to this retirement and of your preferred retirement date”.[11] It also informed the applicant of her entitlement to a re-consideration of the Trustee’s decision and the means by which that could be effected. She was invited to comment upon the matters within fourteen days of receipt of that advice.
[11] Court Book at 272.
In response to that letter the applicant wrote on 22 November requesting that she be permitted to await the outcome of an AAT appeal regarding Comcare’s decision on compensation payments for the period February 2005 to July 2005 before she be required to nominate a retirement date. She indicated there was a mediation to be conducted later in November 2007 which would then bear upon her decision on these matters.[12] There was at that time no suggestion of unhappiness with the Trustee’s decision.
[12] Court Book at 469.
No response appears to have been forwarded by the respondent to the applicant and it seems matters were allowed to drift until 11 September 2008 when the respondent again wrote to the applicant seeking confirmation of her invalidity retirement and requesting her to nominate a preferred date of retirement.[13] The applicant responded by correspondence dated 17 September 2008 again stating that she had not nominated a retirement date because she was still seeking to resolve issues with Comcare “in relation to the status of my compensable injury”. She was particularly concerned that Comcare may reassess her injury as being only temporary and therefore cease further benefits. Furthermore, she was considering undertaking some alternative therapy which if successful might permit her to resume active employment. She requested that she be permitted to postpone the nomination of a retirement date until she had explored those matters.
[13] Court Book at 471.
In its reply of 26 September 2008 the Department noted that:
“Unfortunately these issues cannot play a part in the decision by the Department to terminate your employment as this decision is based on advice received from ARIA that you should be retired on the grounds of physical or mental incapacity”.
She was advised that if she wished to arrest the process she would need to request a formal consideration of ARIA’s decision in which event the Department indicated it would be prepared to defer any decision on her retirement until after that request had been finalised.[14] It seems that following that invitation the applicant wrote to ARIA by letter dated
1 October 2008[15] formally requesting a reconsideration of its decision to issue the IRC. ARIA responded by letter 10 October 2008 accepting her application for reconsideration and requesting she provide further evidence or submissions in support of that request.[16] She was informed that:
“Once investigations have been completed (which may include obtaining a further recommendation from the invalidity assessment panel if required) the matter will be referred to the Reconsideration Advisory Committee, the function of which is to make a recommendation to ARIA. The Committee is required to take into account any relevant evidence submitted to it and may obtain any other evidence it considers necessary for a proper review of the decision. The matter will then be referred to ARIA as soon as possible after the Committee makes its recommendation. After taking into account the recommendation of the Committee and any other relevant matters, the Committee will affirm or vary its original decision or set it aside and substitute another decision for it”.
[14] Court Book at 476.
[15] Court Book at 276.
[16] Court Book at 278.
It is agreed that on 29 October 2008 ARIA wrote to the applicant acknowledging the reconsideration dated 15 October 2008 and her request for it to be placed on hold.
Subsequently by letter dated 16 March 2009 the Department wrote to the applicant informing her that it had received advice from ARIA that her request for reconsideration was no longer active because despite the applicant having made a request of ARIA to suspend the review, she had not provided the necessary information to the review delegate to review the delegate’s decision of 8 October 2007 to issue the IRC. The Department noted that her employment had not been previously terminated after the issue of the IRC because it understood she was seeking reconsideration of the delegate’s decision to issue that certificate. It noted that if the applicant did not proceed to prosecute her reconsideration application by forwarding certain information to the Department by 30 April 2009 the Department would proceed to finalise termination action.[17]
[17] Court Book at 481
Despite the invitation contained in the letter of 16 March 2009 the applicant did not, prior to that time, request an assessment to be arranged by the Department pursuant to s.36(1) of the Safety, Rehabilitation and Compensation Act1988 (Cth) (SRC Act) for the purpose of undergoing a return to work program.[18] The applicant responded by letter dated 6 April 2009 which enclosed a copy of her letter to ARIA requesting a reconsideration of the delegate’s decision to issue the IRC. In that letter the applicant took issue with the Department’s proposal to terminate her due to “inability to perform duties because of physical and (sic) [or] mental incapacity”.[19] By letter dated the same date the applicant also wrote to ARIA requesting reconsideration of its decision to issue her with an IRC. She observed that she was still seeking clarification from Comcare as to the nature and degree of her condition and was uncertain when that issue would be satisfactorily addressed. She noted that the issues in respect of which she sought clarification concerned her physical or mental condition upon which Comcare had based its recommendation to support the Department’s application for the issue of an IRC. She contended that Comcare’s support for an IRC would be doubtful if she did not meet the diagnostic criteria for a “complex regional pain syndrome (CRPS)” being the condition that she noted Comcare had accepted as her “compensable condition”. She contended that if her “current compensable condition is not permanent, there is reason to question the decision that I am unlikely ever to work again; that is, that I am totally and permanently incapacitated.”[20] On that basis she indicated that she intended to use the appeal process for clarification of those issues and therefore wished to reopen her request for reconsideration of the issue of the IRC.
[18] T P33 line 5.
[19] Court Book at 484.
[20] Court Book at 487.
In response to her request for reopening, ARIA responded by letter dated 15 April 2009 noting that the IRC issued remained in force but would become invalid if the decision to approve invalidity retirement under Rule 10.7.5 is overturned by ARIA on reconsideration. She was requested to “forward any further evidence you may wish to provide in support of your case to this office by 11 May 2009. If you do not intend to provide any further evidence please advise accordingly.” The applicant accepts that she did not send any further medical information to ARIA.[21]
[21] T 33 line 26; T 36 line 22.
In due course ARIA reconsidered her case. The case went before a meeting of ARIA, as Trustee of the Public Sector Superannuation Scheme, at its meeting on 15 September 2009 where it considered the submission and recommendation prepared by the Reconsideration Advisory Committee in relation to a request for reconsideration of the decision taken by delegate of the Trustee on 8 October 2007 to approve the invalidity retirement of the applicant in accordance with r.10.7.5. In its report to the Committee the reviewer examined the relevant background including all the medical evidence which had been provided by both the applicant, the Department and Comcare.
At paragraph [32] of the reasons for decision it was noted:
“In summary, the Trustee noted the consensus of medical opinion was that [the applicant] was totally and permanently incapacitated. The Trustee observed that whilst [the respondent] had been supportive and cooperative, with [the applicant] provided with modified duties, modified computer hardware with voice activation software and generally assisting her through rehabilitation, [the applicant] had not been able to return on a permanent basis to her current position due to chronic pain and the result and certification by her doctor, Dr Angelos, that she was unfit for employment because of it. The Trustee again observed that the test under r.12.1 was not so strenuous that it was required to find [the applicant] incapable of ever working again, only that there was a likelihood that she would not do so. On that basis, and having regard to her age and the available medical opinions, the Trustee was satisfied that there was a greater than 50% likelihood that, due to the significant effects of Complex Regional Pain Syndrome Type I and right ulnar nerve compression, [the applicant] would not work again in a job for which she was originally qualified by education, training or experience or could be so qualified after retraining”.[22]
[22] Court Book at 504.
It follows that on the recommendation of the panel the Trustee was satisfied that the applicant met the definition of totally and permanently incapacitated contained in r.1.2.1 and upon the submission and recommendation of the Reconsideration Advisory Committee resolved to affirm its earlier decision taken on 8 October 2007 to approve the issue of the IRC in accordance with r.10.7.5.[23]
[23] Court Book at 506.
Accordingly by letter dated 13 October 2009 the Department wrote to the applicant informing her that following reconsideration the Trustee’s decision to retire her on invalidity grounds had been affirmed and that accordingly she would be retired from the Australian Public Service with effect from 27 October 2009. Accordingly a notice of termination issued dated 10 November 2009 which provided the termination was to take effect on 27 October 2009.
By letter dated 18 November 2009 the applicant wrote to the respondent regarding retirement benefits to be payable. In addition she enclosed a more recent medical certificate issued by her GP Dr Angelos purporting to support her return to work on a suitable duties program and indicated that she had sent a copy of that certificate to ARIA as a basis for a reconsideration of its decision of 15 September 2009. She noted:
“… I would ask that if a notice of termination is issued, the reason for decision be specific to my case with regard to my incapacity i.e. physical not mental”.[24]
[24] Court Book at 513.
The applicant again wrote to the respondent by letter dated
30 November 2009 noting that she had received a letter from ARIA indicating that “evidence of a successful return to work could be considered in its reconsideration”.[25] She noted ARIA’s earlier statement of reasons of 15 September 2009 that there had been an improvement in her condition and felt that she should have a right to test ARIA’s contention by trying a return to work program.
[25] Court Book at 516.
However it seems the applicant’s construction of ARIA’s letter of 23 November 2009 misapprehended its import. It simply restated that which the applicant had been earlier advised, namely that for reconsideration of a decision made by the Trustee the applicant must make such application, pay the prescribed fee and provide evidence in relation to the decision that was not previously taken into account by the Trustee.[26] ARIA’s letter of 23 November 2009 did not expressly state its conclusion but plainly its import was that the applicant’s application for reconsideration had been refused.
[26] Court Book at 518; Court Book at 465 – Letter Department of Health and Ageing to applicant 1 November 2007; Court Book at 491 – Letter ARIA to applicant 15 April 2009; Court Book at 494 – Letter ARIA to applicant 29 September 2009; Court Book at 206 – Letter ARIA to applicant dated 10 October 2008 wherein ARIA gave particular advice on the nature of material which the applicant might consider forwarding in support of its application for reconsideration.
However in the meantime ARIA’s refusal of the applicant’s application for reconsideration had been forwarded by it to the Department and was being actioned by it. In the Department’s letter to the applicant dated 4 December 2009 it noted that the IRC issued by ARIA had not been revoked following a request for reconsideration and that the Department was proceeding with her retirement from the APS on invalidity grounds. As an aside it noted that the previous notice of termination was irregular for technical reasons by reason of its failure to comply with the requirements of the Workplace Relations Act1996 (Cth) and accordingly it issued a new notice of termination which was to take effect in accordance with the relevant terms of the Act namely
8 January 2010. It enclosed a copy of the notice of termination.[27]
[27] Court Book at 520 – 522.
By letter dated 11 December 2009 the applicant replied to the respondent’s correspondence challenging the notice of termination and its basis. In part she stated:
“In my letter of 18 November 2009, I enclosed a copy of [a] medical certificates [proving her return to work on a suitable duties program] signed by the doctor who has been involved in my case since 2005. Note the date on the certificate is 17 November 2009. Your letter does not address the issue of this medical certificate, issued prior to the notice of termination. Could you please explain why you have chosen not to consider the medical certificate in your decision?
As well, in my letter of 30 November 2009, I enclosed a copy of a letter from ARIA highlighting the following:
· “While the delegate’s decision permits your employer to retire you in the grounds of physical or mental incapacity, it does not require your employer to do so” and
· “Given that a reconsideration of the Trustee’s decision would also require ComSuper to obtain a fresh recommendation from the panel, the kinds of evidence that may be regarded as relevant would include, for example, a report from a specialist supporting your claim that there had been further improvement in your condition, or evidence of a successful return to work.”
Your decision to issue the notice of termination denies me the opportunity of obtaining the type of evidence that ARIA would accept in overturning its decision to issue the invalidity retirement certificate. ARIA has no problem with my returning to work even while the invalidity retirement certificate remains current. Therefore the basis of your decision to retire me on the grounds that “…as the invalidity retirement certificate by the Australian Reward Investment Alliance (ARIA) has not been revoked…” – is not valid and denies me my rights as an employee of the public service. I reiterate the statement in my letter of 30 November 2009 seeking the right to test ARIA’s contention that the improvement in my condition is attributable to not being at work; I feel I am able to return to work and have the support of my doctor in this.”
Later in the letter the applicant suggested “it might be prudent to have me reassessed” but, strictly, no request was made. When cross examined about this matter the best the applicant could do was engage in argument with the cross-examiner “about the wording” in her letter.[28]
[28] At T page 40, line 40.
In response to her letter the Department wrote by letter dated
24 December 2009 noting receipt of the two subsequent medical certificates provided by the applicant covering the period 17 December 2009 to 31 January 2010 and noted that they were considered as part of the overall information available on the issue of whether or not to proceed with the termination of her employment under s.29(3)(d) of the PS Act. It also noted that as ARIA had determined that she was totally and permanently incapacitated (TPI) based on medical evidence gathered during the process preceding the issue of the IRC, she was deemed to be TPI and unlikely to ever work again and unlikely to be capable of being retrained for another suitable employment opportunity. It noted that whilst certificates from her GP indicated she was able to carry out suitable restricted duties, they did not indicate that she would be able to perform work of the type undertaken in her employment with the Department and that overall, given the evidence available and her absence on full time certified leave for over two and a half years that that evidence was insufficiently compelling to counter ARIA’s determination that she was TPI and should be validly retired. It noted that ultimately the weight of the evidence indicated that was the case. Additionally it noted that the applicant’s contention that ARIA supported a return to work based on statements in their correspondence was simply not the case as its role was to determine whether according to the relevant legislation she met the criteria to be assessed as being TPI. As it noted, the essence of this process was to determine whether or not the applicant is entitled to access invalidity benefits from the scheme administered by ARIA but not to indicate support for any option in relation to continued employment.[29]
[29] Court Book at 532.
By letter dated 4 January 2010 the applicant took issue with the respondent’s resolution to proceed to terminate her employment.
Despite that challenge the respondent terminated the applicant’s employment resulting in the current application by the applicant seeking reinstatement. Initially the applicant proceeded to make application to Fair Work Australia. A compulsory conciliation conference was conducted before a Fair Work Commissioner.
No satisfactory outcome was achieved and a s.369 certificate issued. Following the issue of the certificate the applicant commenced this application seeking relief pursuant to the FW Act.
The applicant’s application
In her application the applicant relied upon contraventions of s.340 and s.351 of the FW Act. Relevantly those provisions provide:
“Division 3 Workplace rights
Section 340
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposed not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)to prevent the exercise of a workplace right by the other person”
“Division 5 Other Protections
Section 351
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction, or social origin.”
The grounds for her claim arising from those contraventions were particularised in Part G paragraph 24 of her application as follows:
“Under the Safety, Rehabilitation and Compensation Act 1988 – Section 36(1) – Assessment of capability of undertaking rehabilitation program – it stipulates that ‘Where an employee suffers an injury resulting in an incapacity to work or an impairment, the rehabilitation authority may at any time, and shall on the written request of the employee, arrange for the assessment of the employee’s capability of undertaking a rehabilitation program’.
From my understanding, the use of the word “shall” makes this provision mandatory. The Department of Health and Ageing did not meet my requests for such an assessment despite written requests made prior to the date on which my termination took effect, 8 January 2010.
Further, the Department’s decision was made on the basis of an Invalidity Retirement Certificate (IRC) which was issued by the Australian Reward Investment Alliance (ARIA) in October 2007. According to ARIA, under the Superannuation Act (1990), I have the right to request a final reconsideration of their decision to issue the IRC. The Department had agreed to wait until this process was completed. However, a decision was made to terminate my employment before that reconsideration was made.
In addition, the Department issued a Notice of Termination based on my physical impairment while there is still evidence and opportunity to assess my current ability to undertake a graduated return to work program as evidenced by current medical certificates. The Notice of Termination was issued on 4 December 2010 citing the fact of the IRC as its basis. ARIA had considered medical evidence up to July 2008. No recent medical evidence of my current ability to undertake suitable duties, ie as of December 2010, was considered.”
The applicant’s arguments in support of the contraventions alleged do not follow an orthodox approach of addressing the legislation and how the facts relate to it. Rather her submissions are directed to her assertions concerning that which she maintains is the present state of evidence, notwithstanding due process. In particular she complains that the decision and processes relied upon are premised upon material which is out of date and unreliable and that the Department’s reliance upon the ARIA certificate which issued, in respect of that evidence, constitutes an unfairness against her. In summary her complaints are more particularly directed to the administrative processes which manifest in the decision to terminate. However she has not sought relief in administrative law (if any such relief was in fact available) but rather under the FW Act.
In those circumstances it is in my view appropriate to consider the case by reference to the arguments advanced by the respondent which address the legal and factual issues to be considered in the context of the application pursued and then where apposite examine the issues raised by the applicant which for reasons that follow do not support the contraventions alleged in this application.
As the applicant’s application notes the claim is based upon an allegation that she has been the subject of adverse action in relation to a workplace right; s.340 and/or she has been subject to adverse action because of her physical disability; s.341.
Section 340 relevantly provides:
“Section 340 Protection
340(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
…
(b) to prevent the exercise of a workplace right by the other person.”
Section 341 addresses the meaning of workplace rights. It provides:
“Section 341 Meaning of Workplace Right
Meaning of Workplace Right
341(1) A person has a workplace right if the person:
(a) is entitled to the benefit of…a workplace law…; or
…”
The term ‘adverse action’ is defined in s.342 to mean:
“Section 342 Meaning of Adverse Action
342(1) The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of Adverse Action
Item Column 1
Adverse action is taken by ...Column 2
if ...1 An employer against an employee The employer:
(a) dismisses the employee;
…
342(3) Adverse action does not include action that is authorised by or under:
(a) this Act or any other law of the Commonwealth;
…”
It is not in doubt that the FW Act applies to a person subject to the PS Act; s.338.
As was submitted by the respondent, the claim that an employer has breached the general protection provided by s.340 may be successful where:
a)The termination of employment is within the meaning of adverse action;
b)The applicant has or has not exercised or proposes to exercise a workplace right; and
c)The termination was because of the applicant having that workplace right.
At the outset the respondent contends that its decision to terminate the applicant did not constitute adverse action in the context of s.340(1) as the action taken by the respondent was not taken because the applicant had a workplace right or to prevent the applicant exercising a workplace right but was action taken pursuant to a law of the Commonwealth.
The substantive issue in this case was whether or not the respondent’s termination of the applicant’s employment constituted adverse action for the purpose of s.340(1). While s.340(1) provides adverse action to mean among other things, where an employer dismisses an employee, adverse action does not include action which is authorised under an Act or any other law of the Commonwealth; s.342(3). In this case the respondent’s decision to terminate the applicant’s employment was authorised by or under a law of the Commonwealth, namely s.29(3)(d) of the PS Act; that is, provided that decision itself is lawful. There was no evidence to suggest the decision to terminate was unlawful.
Under s.29 of the PS Act an agency head may at any time by notice in writing terminate the employment of an APS employee in the agency provided it is upon grounds provided for in ss.3, which in this case includes “inability to perform duties because of physical or mental incapacity”; s.29(3)(d).
Before exercising its power to terminate the agency, in this case the respondent must in accordance with s.13(1) of the Superannuation Act1990 (Cth) obtain from the PSS Board the IRC. Section 13(1)(A) of the Superannuation Act provides that the PSS Board may only issue an IRC if the Board has approved the invalidity retirement of the member in accordance of the rules of the Trust Deed. The Trust Deed is the Public Sector Superannuation Scheme Trust Deed. The rules are contained in schedule 1 of the Trust Deed. Part 10 of the rules (particularly Division 7) sets out the relevant considerations for the Board and provides that the standard of proof to be applied by the Board is that there is no reasonable doubt the employee is TPI. It is noteworthy that the standard of proof required of the Board to issue the IRC is higher than the standard of proof required of the respondent under s.29 of the PS Act (being proof on the balance of probabilities).
Accordingly there was a positive obligation on the respondent under the Superannuation Act to obtain independent verification by way of the PSS Board issued IRC before terminating the applicant on the grounds of incapacity under the PS Act. Failure by the respondent to obtain a valid IRC would void any termination decision under s.29 of the PS Act and arguably in such an instance the action would not be action authorised under any other law of the Commonwealth and accordingly be excluded from the definition of adverse action as provided by s.342(3). For reasons which are addressed below the respondent in my view has acted properly in acting in reliance upon the IRC despite the applicant’s complaints and its action was not by definition “adverse action”.
However, even if I were incorrect I consider the same result follows because the so-called adverse action did not follow because the applicant had a workplace right. The respondent concedes that in this case, a request by the applicant for an assessment to undertake a rehabilitation program under s.36 of the SRC Act and/or a request by the applicant for further reconsideration from ARIA under the Public Sector Superannuation Scheme Trust Deed and s.13 of the Superannuation Act of its decision to issue the IRC, are workplace rights. However it contends those matters of themselves were not the substantial or operative factors in influencing the decision of the respondent’s decision to dismiss the applicant. It submitted that whilst a workplace right need only be one of multiple reasons for acting in order to amount to a contravention of s.340 of the FW Act the workplace right must nevertheless be “a substantial or operative” factor influencing the adverse action or alternatively the “operative or immediate” reason for acting.[30]
[30] Para 1458 of the Explanatory Memorandum of the Fair Work Bill 2008.
The respondent submitted that the history of events in this case clearly demonstrates that the termination decision made by the respondent of the applicant predated any of the actions taken by the applicant in pursuing those “rights”: particularly as the respondent had notified the applicant in early 2007 that it was intending to retire her on invalidity grounds in respect of which the applicant only then sought a second review of the PSS Board’s decision to issue the IRC in late 2008. Nothing changed between the time the respondent first decided to “retire” the applicant on invalidity grounds and the actual dismissal giving effect to that decision. Further the written request to obtain an appropriate rehabilitation program under the SRC Act was only sought after the decision to terminate the applicant’s employment had already been made and the applicant notified of that decision. There is, as the respondent submitted, no evidence to show that the termination decision was made because of the existence of “the rights” identified by the applicant or any other rights. In this case the respondent in fact held off putting its decision into effect because of the applicant’s later requests. Contrary to taking adverse action because of a workplace right held by the respondent, in fact the respondent took proactive action to afford the applicant opportunity to allow her to seek reconsideration from the Trustee of its decision.
Notwithstanding the above, consideration must be given to whether or not a presumption arises in this case by separation of s.361 FW Act. Section 361 of the FW Act provides:
“Reason for action to be presumed unless proved otherwise
361(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.”
For the reasons I have addressed above I do not consider the relevant contravention alleged to be established, namely adverse action because of a workplace right. Even if the presumption arose the evidence adduced by the respondent clearly demonstrates that its action was not for a reason that constituted a contravention but rather for a reason that was permitted and authorised by the PS Act for the reasons which have been outlined above.
Alternatively if I were wrong and the onus did shift, then the respondent has met the onus by providing to the Court sufficient information from the relevant decision maker that the adverse action was not taken against the applicant because of a workplace right for the purposes of s.340 and s.360 of the Act. I accept the respondent’s submissions that the approach to be taken in considering this issue is that as has been expressed in Hammond v Boutique Kitchens & Joinery Pty Ltd [2010] FMCA 622; (2010) 198 IR 336 where Jarrett FM cited Collier J in Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399; (2010) 186 FCR 22 who summarised the effect of s.360 and s.361 as follows:
“That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason, was explained by Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 at [161]-[162] and Moore J in Rojas v Esselte Australia Pty Ltd (No.2) [2008] FCA 1585; [2008] 177 IR 306 FCA 1585; [2008] 177 IR 306 at 322, it is not sufficient for [the applicant] to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that [the applicant] is able to prove these allegations, the burden is then cast on to [the respondent] to prove that adverse action was not taken against [the applicant] because of her workplace right for the purposes of s.340 and s.361 of the Act”.
Jarrett FM then cited with apparent approval Wilson FM in Hayward v Rohd Four Pty Ltd & Ors [2008] FMCA 1490; (2008) 221 FCR 91 where Wilson FM considered the history to s.360 and s.361 of the FW Act and provided the following:
“From the above review of the authorities I conclude that the determination of this proceeding requires the following:
(a) the applicant proving the fact of employment and its termination;
(b) the applicant proving such of the facts as he intends to rely upon to invoke one or more of the provisions…of the Act;
(c) the respondents proving that such identified reasons were not the reason, or one of the reasons, for the termination of the applicant’s employment;
(d) in discharging that onus the respondents do not have to prove that the applicant’s employment was terminated for a valid reason, as long as it was not terminated for a proscribed reason.”
In these circumstances the termination of the applicant’s employment was not in the light of the facts of this case done for a proscribed reason as the decision to terminate had been made for reasons relevant to the SRC Act and was permitted by operation of s.29 of the PS Act.
Applicant’s contentions
The principal compliant by the applicant is that she claims she now has evidence of her ability to return to work. As the history outlined above notes she first raised this prospect in 2008. Having raised the matter the respondent referred her to the Trustee as the appropriate entity to reconsider its earlier decision. The Trustee establishes the procedure to be applied by the PSS Board in considering invalidity retirement. Part 13 of the Trust Deed establishes review rights if a party such as the applicant is dissatisfied with the PSS Board’s decision to issue an IRC. Specifically clause 13.3.2 of the Trust Deed requires that a request for reconsideration must be made in writing setting out the grounds for the request including new evidence being evidence not previously known to the PSS Board supporting the grounds for the request and be accompanied by the requisite fee. The applicant was informed of this process on a number of occasions following her first raising the prospect of reconsideration.
The Superannuation Act and the Trust Deed themselves do not limit the number of requests for review that a complainant may make although on a proper construction of the review rights under clause 13.3.2 of the Trust Deed any reconsideration beyond a reconsideration already conducted would only be available in circumstances when new evidence or grounds are supplied that were not the subject of the previous reconsideration.
Upon the applicant informing the respondent of its intention to seek reconsideration, the respondent held off making a decision to terminate the applicant on three separate occasions. In the result the applicant made application to the Trustee for reconsideration but her application was refused. In the course of her dealings with the Trustee the applicant was plainly informed of the nature of evidence the Trustee required in order for the applicant’s request for reconsideration to enjoy any reasonable prospects of success. In spite of that advice the applicant did not provide any further material.
Plainly in view of the advice to the applicant by the Trustee and by the respondent, the applicant’s application for reconsideration was due to fail in limine. In addition, the SRC Act provides for its own avenues of review if an employee is dissatisfied with a decision. For instance a refusal to arrange for an assessment under s.36(1) of the SRC Act is a reviewable decision enabling an employee to apply to the AAT for a merit’s review of the agency’s refusal. The respondent did nothing to prevent the applicant from pursuing that right of review if she so chose. Significantly however any failure to conduct an assessment under s.36 of the SRC Act has no bearing upon the validity of the decision under 29(3)(d) of the PS Act.
In the result the respondent had before it all the relevant material produced by independent agencies to justify its decision to give notice of termination pursuant to s.29 of the PS Act on the basis of the applicant’s inability to perform duties because of physical incapacity.
It follows the notice to terminate in this instance did not constitute adverse action within the definition provided in the FW Act. Respectfully to the applicant it is on this basis that her submissions were simply not to the point. The focus of the applicant’s submissions were directed to a number of confused submissions. First the applicant confused her rights and entitlements for compensation and rehabilitation and programs relevant to those matters as provided for under the SRC Act with the question of whether or not she was unable to perform her duties because of a physical incapacity, that later matter being relevant to the issue of termination under the PS Act.
Differing legislative schemes address differing issues. The SRC Act on the one hand deals with matters of compensation and rehabilitation in respect of both temporary and permanent and/or partial and total incapacity arising from employment whereas the PS Act deals with questions of employment simplicita. The differing Acts deal with differing schemes and join only in termination under the PS Act upon the Trustee issuing an IRC entitling the applicant to full benefits under the SRC Act.
The applicant’s submissions were substantially directed to the purported import of proforma medical certificates issued by her GP which were inconsistent with the medical opinions expressed by numerous specialists engaged by the Trustee to assess the applicant’s condition at an earlier time. It is noted that the opinions expressed by those specialists were that her condition was totally and permanently disabling and that by reason of it she was unfit for further employment and not fit for retraining. In any event the applicant wished to re-prosecute those matters. However the respondent was not the appropriate party to whom those issues ought to have been addressed. The applicant ought to have pursued other remedies in respect of those decisions if she wished to challenge those determinations. Fundamentally in the absence of a successful challenge to those determinations the respondent was faced with no other reasonable choice once confronted with a valid IRC. Despite the applicant producing her most recent medical certificate, the IRC had already issued and accordingly it was properly within the power of the respondent to proceed to terminate pursuant to s.29 of the PS Act.
In this application the applicant seeks relief under the FW Act. This is not an application for judicial review, nor in the context of the decisions complained of is the respondent the appropriate decision maker amenable to such review. Accordingly in those circumstances her submissions have not been helpful in support of her first ground, namely that the respondent contravened a general protection provision. That ground fails.
Discrimination
The second matter advanced on behalf of the applicant is the conduct of the respondent was discriminatory. Section 351 relevantly provides:
“Section 351 Discrimination
351(1) An employer must not take adverse action against a person who is an employee … of the employer because of the person’s … physical … disability…”.
For reasons which I have addressed above the respondent’s conduct in terminating the applicant was not adverse action as defined and accordingly this allegation too fails.
Summary
The applicant seeks reinstatement following her invalidity retirement. The respondent, her previous employer, terminated her employment pursuant to s.29(3)(d) Public Service Act on the grounds of disability. In doing so it acted upon an Invalidity Retirement Certificate issued by the Trustee of the Public Sector Superannuation Fund. The respondent’s conduct in doing so was not “adverse action” within the meaning provided in the Fair Work Act 2009. It follows the respondent did not contravene the protection provisions contained in s.340 or the discrimination provisions contained in s.351 of the Fair Work Act.
Order
Application dismissed.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 12 December 2011
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