Grant v State of Victoria (the Office of Public Prosecutions)
[2014] FCCA 17
•23 January 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GRANT v STATE OF VICTORIA (THE OFFICE OF PUBLIC PROSECUTIONS) | [2014] FCCA 17 |
| Catchwords: INDUSTRIAL LAW – Adverse action claim under s.351 and s.352 Fair Work Act 2009 – employee suffering long term depression with interrelated alcohol problems – employee committing acts of misconduct arising from health difficulties – employer being made aware of employee’s ill-health – employee stood down and subsequently dismissed – employer denying ill-health played any part in reason to dismiss – denial not accepted by Court – adverse action established – further consideration of remedies necessary. |
| Legislation: Fair Work Act 2009, ss.351, 352, 360 |
| Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 |
| Applicant: | ANTHONY EDWARD GRANT |
| Respondent: | STATE OF VICTORIA (THE OFFICE OF PUBLIC PROSECUTIONS) |
| File Number: | MLG 1558 of 2012 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 14, 15, 16, 26, 27, 28, 29 August 2013 |
| Date of Last Submission: | 11 November 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 23 January 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Addison |
| Solicitors for the Applicant: | Maddison and Associates |
| Counsel for the Respondent: | Ms E. Holt |
| Solicitors for the Respondent: | Herbert Smith Freehills |
ORDERS
The matter be adjourned before Judge Burchardt for mention on 7 February 2014 at 9.30 am.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1558 of 2012
| ANTHONY EDWARD GRANT |
Applicant
And
| STATE OF VICTORIA (THE OFFICE OF PUBLIC PROSECUTIONS) |
Respondent
REASONS FOR JUDGMENT
Introductory
The applicant was employed as a solicitor by the respondent from early October 2007 until 15 August 2012 when he was dismissed. He says that this dismissal contravened s.352 of the Fair Work Act 2009 (“the FW Act”) or, alternatively, s.351 of the FW Act. Put in a summary way, he says that he was dismissed because of a temporary absence because of illness or injury or that he was the subject of adverse action because of his physical or mental disability, in this case depression.
The respondent denies that the applicant was dismissed for either of these reasons and says that he was dismissed for misconduct.
For the reasons that follow, I think that the applicant has made out his case in relation to the contravention of s.351 and further consideration will need to be given to the question of remedy.
The specific case pleaded
Paragraph 87 of the amended Statement of Claim, filed 26 March 2013, reads as follows:
“The actions of the Respondent were a contrivance to terminate the Applicant’s employment because of his absence from work due to illness in breach of Section 352 of the Fair Work Act 2009.
Particulars
The applicant was absent from work due to a diagnosed long term anxiety condition complicated by self-medication with alcohol and bouts of depression. The diagnosis of Dr Gregory Frean is set out in his report to the respondent dated 29 February 2012. The report is in the possession of the solicitor for the applicant and can be viewed by prior appointment. The absences from the workplace include the absences detailed in the letter of alleged misconduct dated 26 March 2012. The letter is in the possession of the solicitor for the applicant and can be viewed by prior appointment.”
Paragraph 90 of the Statement of Claim reads:
“Because of facts acts and circumstances described above the Respondent has acted contrary to Sections 351 and 352 of the Fair Work Act 2009.
Particulars
The applicant because of his illness and short term absences from work was the subject of directions that he not attend work when certified fit to do so. The applicant was the subject of adverse action in that he was forced on to unpaid leave because of his illness. Following the period of unpaid leave the applicant was subject to allegations of misconduct that had no reasonable basis in fact. The applicant was injured in his employment and moved to his prejudice by being stood down and then ultimately terminated because of his illness and temporary absence due to illness.”
The terms of s.351(1) and s.352 of the FW Act are then set out.
Some uncontroversial facts
Mr Grant is a solicitor and his employment as a solicitor with the respondent commenced, as earlier indicated, on or about 7 or 8 October 2007. There is no dispute that he was subject to various industrial instruments which have been tendered in evidence.
He was the subject of yearly performance reviews. His performance reviews for the 2007 to 2008, 2008 to 2009 and 2009 to 2010 cycles have been tendered as exhibits A1 to A3, respectively. They are all satisfactory and the report signed by Stephen Bird on 25 March 2009 assesses the applicant as “entitled to be assessed as performing beyond expectations”. His 2010 cycle signed by Mr Bird on 4 August 2010 assesses the applicant as, “Performing beyond expectations. Progression recommended”, (he was covering somebody who was on maternity leave). This report assessed the applicant at level G4.
He stayed at that level until late-2010.
The applicant broke his left leg in late-September 2010. He suffered a spiral fracture of the tibia which was severely broken. He then suffered from compartment syndrome which required bolts and pins and very significant surgical intervention. It appears from his own account that he was going to a friend’s house and jumped the fence and landed badly.
He had a rod from his knee to his ankle and was in hospital for over a week and was then at home for six to eight weeks, going back to work part time in about November 2010 with very limited hours. The applicant, in fact, was keen to return to work although Mr Bird, who was effectively his supervisor, said he was not properly able to work but the applicant insisted on coming in. He obtained a certificate from his treating medical practitioner, Dr Frean, which is exhibit A4. That certificate dated 3 December 2010 certifies Mr Grant fit to work in a sedentary role from 3 to 24 December 2010.
The applicant was plainly unable to go to court and was taking significant painkillers. He was put on timesheets because of his reduced capacity. This occurred on 6 December 2010 (see exhibit A5) and the applicant was no longer to use the electronic system for time recording until he resumed full time hours. The applicant returned to full time work, it would appear, on 23 December 2010 (see exhibit A6, an email from Mr Sabljak, Deputy Manager, Principal Prosecutions).
On 9 December 2010, however, the applicant had been diagnosed with Deep Vein Thrombosis (“DVT”) and this required some hospitalisation and treatment with warfarin. It further required blood tests, three times per week.
The applicant says and it does not seem in any way to me unlikely that on occasions these forensic episodes took a long time. He basically had to go and wait at the blood testing unit until such time as they were ready to see him.
These absences became a source of concern to the respondent and on 8 July 2011 (exhibit A7), Stephen Bird (Directorate Manager, Principal Prosecutions) invited Mr Grant to a meeting.
The meeting took place on 11 July 2011. Mr Grant deposed that a record set out as part of exhibit A8 being an email from Mr Bird to him of 11 July 2011 was an accurate record of the meeting. It should be noted that the meeting was not wholly laudatory from Mr Grant’s point of view as the introductory words of the email state:
“further to our meeting earlier today I confirm that you are going to concentrate on improving performance in the areas listed below (in a rough order of priority, although all are important). Please ask Mark or me for any assistance that you may require and we will arrange for this.”
Six points were set out thereafter, including consultation with LPS (Legal Prosecution Specialists) at designated points in prosecution processes, notification of absences by required time, improvement in arrival times and/or more communication as to hours worked past 5.00 pm where appropriate.
Only a matter of days thereafter, an issue arose as to interpersonal issues between the applicant and Anna Balmer, a solicitor (see exhibit A9).
The applicant says and it does not seem to be disputed that the time he was taking off work as a result of his pathology testing was being met by sick leave or annual leave which he would enter into the electronic system. The applicant started to run out of leave and by late-July 2011, he was chasing up with Dimitra Christopoulos in Human Resources, an outstanding overtime entitlement going back to 2007 (exhibit A10).
By 1 August 2011, Mr Grant’s timekeeping was becoming a matter of concern to Mr Bird (see exhibit A11). The email sent by Mr Bird to the applicant on that date finishes:
“I will give these matters some further consideration and speak with HR as to how to proceed further in assisting you, however you should note that these matters are now significantly impacting on your performance and contribution to the work of this Directorate.”
Relevantly, Mr Grant replied:
“I will endeavour to further address these matters and hopefully after scans scheduled for 30 August 2011 on the clotted area of my leg I will not longer have to make visits for blood tests so regularly as there is a possibility the treatment will be ceased if these scans are clear.
Considering the health related issues I have and continue to face I am of the view I have done all in my power to contribute to the directorate …”
It should be noted that the applicant gave unchallenged evidence that it was not put to him that he should not attend for blood tests and that there was no suggestion at any time that he was not attending.
On 1 August 2011, the applicant and Mr Bird had another meeting which was a follow up meeting from the meeting on 11 July 2011. The applicant concedes that his performance was raised and that he was told he was not satisfactory, not least because of his various absences. The applicant says that he explained the reason was his medical absences and said that Mr Bird gave him another two weeks to meet the two objectives set out in exhibit A11.
On 5 August 2011, the applicant chased up his outstanding overtime claim from 2007 (exhibit A12).
Throughout August 2011, the applicant continued to have trouble getting to work on time, as a result of his appointments, as is plain from a series of text messages sent by him during that month which constitute exhibit A13. During this month, the applicant’s performance review for the period 2010 to 2011 was prepared (exhibit A14). Relevantly, for these purposes, exhibit A14 reads:
“ANTHONY GRANT - 9/9/2011 10:33:36 AM >>
Though my year has been very significantly interrupted by serious medical conditions, when I have been able to attend work at full capacity I feel I have met this deliverable in all the circumstances. Last year leading up to the end of September when I broke my leg I would have rated myself as exceeding this deliverable.
STEVEN BIRD – 19/9/2011 10:26:20 AM >>
Agree with Anthony’s assessment. Note that competence measure that needed more attention were engagement with LPSs, hand note that Anthony’s legal skills and knowledge are such that a wide range of files of all complexities can be allocated to Anthony when at full capacity. Absences from work made this difficult in 2010-2011 however in recent weeks this appears not to be an issue.”
Under the deliverable “Management of files”, Mr Grant wrote:
“ANTHONY GRANT – 9/9/2011 10:46:06 AM >>
The nature and severity of my injuries and the correlating time off work, both in long blocks to recover and regular days or half days off to attend Medical appointment, has caused me to be unable to meet this particular deliverable in the current cycle. It is regrettable but to some degree has been beyond my control.
STEVEN BIRD 19/9/2011 10:22:11 AM >>
Agree with Anthony’s comments but on balance not the self assessment – although excellence criteria not met, file management etc is to a standard that just meets expectations.
I note a marked improvement since the end of the Performance Cycle on 30 June 2011.”
Under the heading “Team work”, Mr Grant wrote:
“ANTHONY GRANT – 9/9/2011 10:53:44 AM >>
When I have been at work at full capacity I believe I have exceeded this deliverable - due to medical restrictions I have marked it as met. I am always available to do appearance work for those who cannot appear due to their level of experience or those who just don’t enjoy that type of work. Throughout the year I have taken over or looked after a number of files for colleagues. The two most significant would be:
1. R v Roy COOPER
2. Police V Caroline BEDDOWS
Mr Bird’s response was:
“STEPHEN BIRD – 19/9/2011 10:16:53 AM >>
Anthony’s willingness to assist others in the Directorate and take on additional responsibilities is well known, and this has consistently being one of his strengths. His assistance in the matters mentioned in his comments was appreciated by all involved. Health issues have made it difficult for Anthony to work at usual hours at times. Excellence criteria met.”
Notwithstanding the improvements referred to, there were some ongoing difficulties in relation to pathology tests. On 23 November 2011, Mr Grant texted Mark Sabljak, telling him he was getting a blood test that morning. He said, “… Depending on how long it holds me up I might head straight into court for COOPER”.
Mr Bird’s response to Mr Sabljak (exhibit A15) says, “Can u reply to him stating to let u know as u will need to send it to someone else AND I need it for the roll. The old blood test is back!”
By December 2011/January 2012, the applicant’s absences were being perceived as a serious difficulty. The applicant was placed onto timesheets, again, on about 18 January 2012 (see exhibits A17 and A19). (Exhibit A20 shows that the applicant was told on 20 January 2012 by Dimitra Christopoulos in Human Resources that he was being placed on timesheets from the following week).
The applicant himself concedes that he was struggling in January 2012, and particularly February of 2012 because of depression. He had not previously disclosed his depression to anybody who worked for the respondent.
By late January/early February 2012, the applicant’s performance was such that Mr Bird was becoming significantly concerned. He met with Mr Grant on 31 January 2012 and recorded what took place in an email which is exhibit A23 on 1 February 2012.
That email asserts a number of significant deficiencies in the applicant’s work performance which, as best I understand it, are not in the main significantly challenged by the applicant. The applicant said in evidence in chief that he endeavoured to explain that he was not well, and would do his best to try and improve. It is clear, as the applicant asserts and the email makes plain, that there was some discussion of formal under performance monitoring, but in fact this did not immediately take place. The applicant asserts that Mr Bird gave him four weeks to improve or face formal performance moves, and that Mr Bird requested that he disclose what his health problems were. The applicant, I accept, said he would consult his doctor. It seems clear beyond doubt that the applicant feared disclosing his depression, about which he says, and it is obvious, that he was and remains embarrassed.
On 6 February 2012, the applicant obtained a medical certificate from Dr Frean, certifying that he was unable to work from 6 February until 12 February 2012 inclusive (exhibit A24). The applicant saw his doctor on 12 February 2012 and says that the doctor told him to explain his illness. The applicant said he was trying to get into work even though he was still ill. In fact, he did not take off all of the period he was certified as unable to work from 6 February 2012 to 12 February 2012. The applicant has asserted, without material challenge, that he was unable to sleep in February 2012 and took medication for this to enable him to sleep. As a result, he was not functioning properly and was at times late.
On 8 February 2012, the applicant wrote to both Mr Bird and Mr Kenny, the Human Resources Manager, apologising for being late to work (exhibit A25), but also seeking to meet Mr Kenny to discuss his health issues. Mr Kenny arranged to meet him on the following Friday.
At that meeting it appears that, not without hesitation, the applicant told Mr Kenny that he was suffering from depression, and agreed that Mr Bird be informed also. Shortly thereafter again, he agreed to meet Mr Bird and Mr Sabljak and told them also.
The evidence up to this point has been largely uncontroversial, but from this point on it is convenient to deal with the evidence as each witness gave it. It should be noted that what follows is a paraphrase, (generally taken from my notes but checked against transcript where I was in doubt). While I have of course considered all the materials I have concentrated on what seemed to me to be important.
The evidence in chief of Mr Grant
Mr Grant conceded that Mr Bird might have said that he sympathised upon being informed of Mr Grant’s illness. He said that Mr Bird and Mr Sabljak accepted there were health issues but there still needed to be improvement in his work performance. It was made clear that should he fail to adequately perform his duties further difficulties would arise.
The applicant said he was still subject to the file review process and tendered exhibit A26 which is an email to him from Nonie McGregor about an upcoming trial. The applicant conceded he did not do the things Ms McGregor asked him to do because he was not at work enough and not well enough either at the time to do so. He said he was simply not up to the position at that time, at about which time he was having ongoing discussions with Mr Bird, Mr Kenny and Ms Christopoulos about the reconciliation of his overtime.
It would appear from exhibit A27 that the applicant was put on timesheets on or about 9 February 2012.
Exhibit A28 is a file note made by Mr Bird and sent to Mr Kenny on 14 February 2012. It shows that 14 February 2012 was the date upon which this meeting took place. It shows that the response of Mr Bird and Mr Sabljak was sympathetic but it also confirms that they had expressed to Mr Grant a number of significant concerns about his work performance and the need for him to improve.
The applicant said he had started a course of anti-depressants about 10 February 2012 which initially made things worse. For some nights he would be up until 4.00 am and then take sleeping tablets. On other days, he found it very difficult to get up.
He notified Mr Bird and Mr Sabljak as best he was able on those occasions when he was delayed. The applicant tendered exhibit A30 being an email exchange with Mr Kenny on 15 February 2012. Mr Kenny was seeking to speak directly with the applicant’s doctor:
“to get a better understanding of the medical issues involved and any restrictions they may place on you from a work perspective. We’ll then be in a better position to identify any measures that can be put in place to assist you.
Alternatively, your Doctor could provide the Office with a detailed medical report of your condition and the impact this is having on your ability to perform your role, outlining any restrictions or modifications that might assist in your recovery.
Given the impact that your condition is having on your work performance we need some medical information so that we can determine the best way to address these issues.”
The applicant’s email response indicated that he would be seeing Dr Frean early the next week and would revert to Mr Kenny thereafter.
Mr Grant’s problems continued to exfoliate. On 20 February 2012, he was due to attend trial in a matter involving Trung Le. The accused was to be arraigned that morning. On that morning, also, it came to Mr Grant’s knowledge that a friend of his was extremely unwell and was in casualty at the Alfred Hospital. The applicant said he rang Mr Bird and explained the situation and that Mr Bird said that he could go to the hospital but that he wanted the matter of Le done first and wanted a certificate from the hospital to confirm the applicant’s attendance.
The applicant said he went to court and fixed things up and then went to the hospital. He said that he had properly instructed a very experienced barrister called Mr Sharpley in the matter of Le.
Mr Grant said that he was not at the Alfred Hospital long, although he did obtain a certificate of attendance which he forwarded in due course to Mr Bird (exhibit A31). He took his female friend home and looked after her for a number of days because her mother was in Darwin. The ill person’s family arrived some two days later and took her back to Darwin. He then went back to work on 23 February 2012.
On that day, a long-running matter of Cooper was due to be heard in the County Court. The applicant said he received a call from Campbell Thompson, counsel briefed in the matter, and Mr Thompson was apparently anxious that the applicant be at the trial.
The applicant texted Mr Sabljak that he was on his way in. Mr Sabljak wrote back saying that he ought not attend the sentence for Cooper. Mr Grant replied that on arrival at work, he checked his email and found an email from Mr Bird telling him not to go to court and to stay in the office.
The applicant said he was taken aback by this and went to see Mr Bird who was not in the office. He went and saw Mr Sabljak and asked what it was about and said he was concerned. He said that following some discussion, Mr Sabljak said “I can’t stop you from going” and he thought therefore that he could go to court, which he did.
The applicant said that Mr Sabljak did not tell him not to worry about the matter and not go but that if he had done, he would not have gone. Mr Grant denied that he was aggressive during this conversation.
The applicant tendered an email chain, exhibit A32, which commences with Mr Grant in a text message to Mr Sabljak at 9.37 am saying he was coming in, his arrival at 9.45 am and Mr Bird’s email to him telling him not to attend court.
The applicant said that, following his conversation with Mr Sabljak, it would still be better if he went to court in case any further problems arose. He did so, as I have described.
Not surprisingly, the applicant was asked about his behaviour in being absent from work from 20 to 22 February 2012. On 23 February 2012, the applicant wrote (exhibit A33) to Mr Bird explaining why it was that he had been absent. I note that from the terms of the email itself it is apparent that the applicant did not contact the office on Monday after he left and had been in intermittent touch thereafter.
The applicant said he had a conversation with Mr Bird on 23 February 2012 when Mr Bird returned to the office. Mr Bird was very angry and aggressive, according to Mr Grant, and attacked him for not being at work the previous few days. Mr Grant said that Mr Bird suggested he had made it all up and that he wanted to know if this friend even had a name. The meeting also discussed why the applicant had gone to court when he was told not to.
During this conversation, Mr Bird also brought up the matter of Le and accused the applicant of not, in fact, going to court to instruct Mr Sharpley. The applicant said he told Mr Bird he had in fact attended court and given documents to Mr Sharpley, spoken to the defence and sorted everything out appropriately. He said that Mr Bird did not accept any of this. He said that Mr Bird’s voice and demeanour was such that he had never seen before and that Mr Bird had gone on about Mr Grant’s absences and non-performance. Mr Grant said this was all put in a far more confrontational way; it was after that he went back to his office and sent the email to Mr Bird. He said he had been accused by Mr Bird of pushing the envelope.
The applicant said he went home and stewed about these events, and had a very bad night on the night of the 23rd to the 24th February 2012. He sent a text message saying he would be late (exhibit A34).
He also tendered exhibit A35 which is an email sent late in the afternoon of 23 February 2012. It is worth setting out the terms of this email in full:
“Dear Steve,
Further to our conversation this afternoon, I am particularly concerned that you have indicated you have formed the view that as you have been accommodating with me over the past year I have in turn decided to somehow dishonestly “push the envelope” as far as possible, and be laughing at you about getting away with something
This is certainly not the case, as I have disclosed to you I am suffering from an ongoing health issue which I am being treated for. As discussed last week I was starting to feel somewhat better and gaining a better sleep cycle.
The events of this week were somewhat out of my control and I dealt with them as best I could. It is not a situation I had been through before, and one I hope to never face again.
I am committed to maintaining my medical regime in order to progress my recovery, I can tell you for sure that I have never thought along the lines of I’ll just see what I can get away with.
I sincerely wish I didn’t face the medical issues I have too, but I can’t change it and have to work through it.
In relation to this morning’s Sentence, as discussed after receiving calls from counsel briefed and his lack experience with this long complex matter, I felt it would be derelict of me to not at least be in the body of the court in case any issues arose or mistakes as to facts came up in the judge’s Sentencing remarks. I can’t understand how it would be in the Office’s advantage to not have a representative present who was familiar with the matter given it is a certain appeal due to the nature of the accused. My actions were certainly not to be disrespectful to you but rather to try to insure any possible appeal points were picked up on at the time of Sentence.”
When Mr Grant arrived at work on 24 February 2012, Mr Bird told him to come to his office. The applicant said Mr Bird was calmer and that he had met with Mr Hyland (the Solicitor for Public Prosecutions) who had made a decision. He was told to go to the fifth floor where he met Mr Kenny who handed him a letter (exhibit A36).
Having referred to unacceptable poor performance by Mr Grant, the letter from Mr Hyland relevantly went on:
“I understand through discussions with Mr Bird and Mr Sam Kenny, Human Resources Manager that you have disclosed to them a medical condition which you maintain is impacting on your ability to perform your role and maintain regular working hours. I understand that to date the Office has not been provided with any detailed medical evidence in relation to your medical condition.
Irrespective of the cause, it is clear that you are presently incapable of performing your role as a Solicitor with the OPP.
In order to address these issues I am directing you to take leave with pay commencing immediately until 2 March 2012 inclusive, to provide you with the time to obtain a detailed medical report of your condition and the impact this is having on your ability to perform your role. The report should outline any work restrictions or modifications that the Office might need to consider to assist in your recovery.
The medical report should be provided to Mr Kenny as soon as possible but no later than 2 March 2012 so that it can be considered prior to any return to work.
You should contact Mr Kenny prior to any return to work to discuss how this matter will be progressed.
Failure to produce a satisfactory medical report will leave the Office with no option other than to commence formal action in accordance with Clause 17 of the Victorian Public Service Agreement 2006 (2009 Extended and Varied Version). A copy of Clause 17 is attached.”
Mr Grant said he had not spoken to Mr Hyland before this and, indeed, had not spoken to Mr Hyland on that day. Mr Grant was told to hand over his security pass, went back to his office, grabbed his mobile phone and left the building.
Mr Grant went to his doctor on 27 February 2012 and gave the doctor the letter from Mr Hyland.
Dr Frean, in due course, produced a report, dated 29 February 2012, which is exhibit A37. In fact, a draft was also erroneously sent to the respondent. At the meeting on 27 February 2012 the applicant asked Dr Frean to confirm the existence of the friend who had been unwell because Dr Frean had met her. The applicant did not return to work after the provision of the report and, indeed, never returned to work.
The medical report, being exhibit A37, is again worth setting out in full. Relevantly it reads:
“Mr. Anthony Grant has regularly attended me for over 25 years and hence is very well known to me. He has a long term problem with anxiety which over the years has led onto bouts of depression. He has been medicated for his anxiety for many years and on two occasions for his depression. During his bouts of depression, he becomes indecisive, and withdraws from work. He is troubled with insomnia, poor decision making and poor concentration. In June 2007, he was at a low ebb and was on antidepressants for about six months before his condition resolved.
Unfortunately Mr. Grant self medicates his anxiety with alcohol, an action not uncommon in the legal fraternity. This has probably contributed to his tendency towards depression and has been a topic of regular discussion between Mr. Grant and myself over the years.
More recently, he presented to me on February 6th, 2012 with concerns about his lowered mood, poor concentration, and lack of energy. He reported that the symptoms came on around Christmas and had been severely impacting upon his performance from that time. He indicated he had taken leave without pay from his work in an attempt to regain his focus, but this failed to improve matters.
It seemed likely that he had relapsed into another bout of depression. I ordered a set of blood test to exclude other causes of lethargy and malaise, but these only confirmed that the cause of his melancholy was not organic.
Mr. Grant returned to discuss the results on February 10th, and was started on Cipramil an antidepressant. I urged Mr. Grant to discuss his problem with his employer, as it was highly likely Mr. Grant would take some time to regain focus. I am informed that Mr. Grant has discussed his problems with the HR department at his work.
When I review Mr. Grant on February 27th, he had reduced his alcohol consumption considerably and was showing early signs of response to the antidepressant. However his improvement has been considerably impacted upon by his insecurity regarding his position at work. He detailed that he had had a discussion over his future with Mr Stephen Bird on February 23rd. Mr. Grant recounted that Mr. Bird had been quite forceful in accusing him of lying about taking leave to look after Ms Adelaide Armstrong who had been quite emotionally unwell. I met Ms Armstrong on February 10th, 2012 and was not surprised she had subsequently had mental health issues. In addition Mr. Grant produced a letter from Mr. Hyland casting doubt upon his long term future with the Department of Public Prosecutions. The letter allowed him only a handful of days to obtain a detailed medical report about his condition before a hearing.
In conclusion, Mr. Grant has a long term anxiety condition, complicated by self medicating with alcohol and bouts of depression. He has recently lapsed into a depressive bout for which he sought treatment and is starting to respond to treatment. He has reduced his alcohol consumption and is insightful into the process required to regain his health. I suspect his prognosis is excellent.”
This report was forwarded to Mr Kenny on 5 March 2012 (exhibits A38 and A39). The response from Mr Kenny, which is exhibit A39, relevantly reads as follows:
“In his report Dr Frean, states that you have a long term problem with anxiety which has led to bouts of depression. He states that you have “recently lapsed into a depressive bout”. He also states that during your bouts of depression you become indecisive and withdraw from work. He states that you are troubled with insomnia, poor decision making and poor concentration. He states that you are starting to respond to treatment and that you understand the process required to regain your health.
In his report Dr Frean outlines that in his opinion you are currently suffering from depression. Given the impact this illness is having on you (as outlined by Dr Frean) it is clear that your medical condition has currently rendered you unfit to perform the requirements of your role as a solicitor with the OPP. As such, Craig has determined that you are not to return to work until your Doctor provides medical clearance for you to do so. As previously outlined, given you have exhausted all paid leave entitlements you will need to take sick leave without pay.
In addition to the medical report you have provided, I think it would also be useful if I was able to speak to Dr Frean (subject to your approval), as raised with you on 15 February 2012. The purpose of speaking to him would be to gain a better understanding of your prognosis and the long or short term impacts that your condition may place on you from a work perspective. This would help us to identify any measures that can be put in place to assist you.”
Following receipt of this email, the applicant saw Dr Frean again on 7 March 2012. He said that Dr Frean told him he should not return to work straight away and gave him a medical certificate for a week until 13 March 2012 (exhibit A40). The certificate relevantly said:
“Mr Anthony Grant is currently responding to treatment and has a better focus in his life. I believe he should return to work on 13/03/2012.”
Mr Kenny responded to that certificate on 9 March 2012 (exhibit A41). Once again it is appropriate to set out the relevant parts of that letter:
“Given the issues Dr Frean outlined in his report of 29 February 2012, and the lack of information provided in Dr Frean’s recent report, it is difficult to comprehend how your condition has changed so dramatically in such a short time. In his report of 29 February 2012, Dr Frean stated that you have a long term problem with anxiety which has led to bouts of depression. He stated that you had “recently lapsed into a depressive bout”. He also stated that during your bouts of depression you become indecisive and withdraws from work. He stated that you are troubled with insomnia, poor decision making and poor concentration.
As outlined in my email to you of 5 March 2012, Mr Craig Hyland, Solicitor for Public Prosecutions, made the decision that you were incapable of performing your role due to your condition. This decision was based on the medical evidence put forward by Dr Frean and the fact that his observations were consistent with your performance at work over an extended period.
Dr Frean’s subsequent report of 7 March 2012 is inadequate in the circumstances. Given the medical clearance is very broad, and the basis of the medical opinion has not been specified, Craig is not satisfied that the Office has sufficient information to make an informed decision regarding your return to work. As such, a decision has been made that you commence leave (with pay) from Tuesday 13 March until Friday 23 March 2012 which will provide you time to obtain and submit a more detailed report. As you are aware you have used all your accrued leave. As such this leave has been granted as discretionary leave.
In addition, it would assist if you were to agree to an independent medical assessment by a specialist. The purpose of this request is to fulfil our duty of care obligations under the Occupational Health and Safety Act 2004, and to gain a better understanding of your condition and whether you are able to perform the genuine, reasonable and inherent requirements of your position.
If you could advise me in writing if you agree to the independent medical assessment we will arrange an appointment on your behalf.”
Mr Grant said he did not return to work on 23 March 2012 and that after receipt of exhibit A41 he was concerned, because he had given the medical clearance to work which his employer had required. He contacted his union, who advised him not to agree to the independent medical assessment. He said he had some inconclusive discussions with Mr Kenny. Thereafter, somebody called Geraldine Hughes from the union took over, and told the applicant to get another clearance. He got this on 23 March 2012 (exhibit A42). The certificate relevantly says (it was addressed to Mr Kenny):
“Mr Anthony Grant continues to respond to treatment and has improved considerably. His focus is better and he is making appropriate decisions. I understand he was not allowed to return to 13/3/2012. I believe he is fit to return to full duties on 26/3/2012.”
On 26 March 2012, the applicant had a meeting with Mr Kenny, at which he was given a serious misconduct letter (exhibit A43).
It appears, according to Mr Grant, that he had had some forewarning of this from Ms Hughes on 23 March 2012.
The letter of 26 March 2012 from Mr Hyland advised the applicant that he was stood down pursuant to the Victorian Public Service Agreement 2006 (“VPSA”) pending an investigation in accordance with clause 17 of that agreement.
At the meeting on 26 March 2012, which Ms Hughes attended as the applicant’s agent, there was discussion as to who would perform the investigation. Mr Kenny said he would and this was the subject of objection by Ms Hughes. Effectively, Mr Grant was stood down with pay and faced allegations which included disclosure of confidential information (the Balmer incident) and what in effect were either performance issues or matters related to the Le and Cooper matters.
An investigation was undertaken by Mr Cotter, whose report has been tendered. Although quite a lot of evidence was given about this and the way in which this report took place, it is sufficient in these circumstances to note that the applicant, together with Ms Hughes, met Mr Cotter on 24 May 2012. It would appear that Mr Cotter’s conduct in the matter was somewhat peremptory, but nonetheless, the applicant signed a statement as prepared by Mr Cotter. The applicant was not, somewhat surprisingly, given a copy of Mr Cotter’s report, which is exhibit A45.
The applicant took issue with a recitation on page 24 of the report which purported to detail paragraph 16 of his signed statement. I accept that the applicant, as he states, had not denied being aware of Mr Bird’s email that he should not attend court. It is plain that Mr Cotter’s report is wrong in this regard.
It will be necessary to return to the terms of Mr Cotter’s report in due course.
A report having been provided, the next thing that happened from the applicant’s point of view was the receipt of a letter dated 27 July 2012 from Mr Hyland (exhibit A46). I note that the letter asserts that four of the five misconduct allegations made against Mr Grant were made out. The allegation of misuse of confidential information was dismissed.
The letter relevantly asserted that Mr Hyland intended to terminate the employment of the applicant but gave him an opportunity to respond in writing with details of any further mitigating circumstances which should be considered prior to a final decision.
Mr Grant said that he was shattered by the receipt of this information, and a letter from the CPSU was sent to Mr Kenny on 10 August 2012 (exhibit A47) on his behalf. In part, the letter took issue with some of the findings made, but I note that in relation to allegations 2, 3, 4 in particular, the CPSU letter expressly raised issues about the applicant’s health as a factor in the matters that had arisen.
The applicant next received a letter from Mr Hyland dated 15 August 2012, which effectively ended his employment summarily on the spot (exhibit A48).
The applicant said that, as is plain, thereafter he instituted proceedings.
At this point Dr Frean’s evidence was interposed, but in the circumstances, I propose to continue with the evidence of Mr Grant under cross-examination.
The Applicant under Cross-examination
The applicant confirmed that he had been depressed in June 2007 (before his employment with the respondent), for which he had taken anti-depressants, and at which time he had reduced his alcohol consumption.
He confirmed that the last 18 months of his employment had been stressful and that he obsessed about the turn of events that had come about. He confirmed that he was still consulting Dr Frean about once a month, but had not seen a psychologist.
The applicant confirmed that he had moved to Queensland in May 2012, but has since returned to Melbourne. He said his depression started again in Christmas 2011. He confirmed that he had seen Dr Frean in February 2012, and that Dr Frean had been warning him about his alcohol consumption for years.
The applicant said he had stopped drinking in September 2011 for about four weeks, but that he had not told Mr Bird this. He confirmed that his warfarin treatment lasted for some 12 months until late 2011.
The applicant said he had first told Mr Kenny he was depressed on 13 February 2012, and told Mr Bird and Mr Sabljak the next day. He confirmed that they had offered assistance, and that they knew he was unwell, although they did not know it was a mental illness. He confirmed that his medical certificates in January did not say what was wrong with him, and he confirmed also that he had lied to Mr Sabljak in January, telling him that his illness was a matter of stomach problems and interrelated antibiotic difficulties. He said that this arose because of his sensitivity about disclosing his true illness.
He confirmed matters to do with his claims for overtime in 2007, which was eventually awarded to him in 2012. He said that his sick leave and annual leave ran out in about January to February of 2012.
He confirmed that he had a meeting with Mr Bird on 24 June 2011, at which Mr Bird put to him concerns about his then work performance (exhibit R3). He accepted that exhibit R4, an email from Mr Bird dated 1 July 2011 had been sent to him, although he did not remember it. That memo clearly set out a number of matters to which Mr Grant would need to attend.
The applicant, despite being pressed, was adamant that he had told his employers about his blood test pathology matters up until the time it ceased in December 2011. The applicant was cross-examined about his performance in 2011 and in particular was challenged about an occasion when he apparently failed to attend court in order to attend a caesarian section delivery on the part of one of his friends. He conceded that he may have been warned about the possibility of formal performance review on 11 July 2011, and conceded that his performance of work had been better in September 2011.
The applicant conceded that in November 2011, issues about him being late were being raised again, and that by December 2011 he was not well. He confirmed that in January 2012 his leave had been exhausted and he had been put on timesheets, but asserted it was recognised he had health problems, and that he had said he received an email from Dimitra Christopoulos relating to these matters.
The applicant was taken to an email (exhibit R6 from Ms Christopoulos) which detailed his various absences. The applicant asserted that the matter of putting him on timesheets recognised the flexibility necessary as a result of his ill health.
The applicant was cross-examined about meetings with Mr Bird in January and February 2012, and said that there were a lot of meetings around this time. These meetings were about underperformance issues.
He admitted that he had not told Mr Bird until 14 February 2012 about his depression, although he said he had discussed his health, albeit not revealing mental ill health.
The applicant was taken through the events of February and March 2012 in some detail. It emerged that a first draft of Dr Frean’s report had been sent by mistake. The applicant said that it was put to him by Mr Bird that he was taking advantage of Mr Bird’s good nature and seeing what he could get away with. Mr Bird was said to have asked for the friend’s name following the Alfred Hospital incident, and in response to the question why, said, “So I can see if she even exists”.
The applicant said that he was unaware these underperformance issues were going to turn into serious misconduct matters only five days later.
The applicant was confronted with the respondent’s code of conduct (exhibit R7) and was shown exhibit R8, namely Mr Bird’s email to Mr Kenny dated 16 March 2012, which appears essentially to have given rise to the various allegations of misconduct that were eventually made.
In respect of the Le matter, the applicant stuck to his position that he had done what was necessary. He had been to court and briefed Mr Sharpley, he had spoken to Mr Nikakis who appeared for the accused and given all necessary instructions, in the light of Mr Sharpley’s 30 years of experience.
The applicant was taken to exhibit R9 which was an email to him of 20 February 2012. This was an email from Mr Bird, amongst other things, taking up in a most serious way the applicant’s failure to come to work on 20 February for the Le trial and absenting himself to go to the Alfred Hospital. The applicant said he had tried to call Mr Bird but in fact had spoken to Mr Sabljak.
The applicant was cross examined in some detail about the Cooper matter. Put shortly, it was put to him that another solicitor, Mr Tobin, who had previously had some involvement in the matter, was more than competent to deal with it. Essentially, the applicant confirmed his previous history as set out above.
The applicant accepted that he had not in all respects conformed to the requirements of his position during the February 2012 period.
Much of what was put to the applicant was put by way of exhibit material, which in many ways speaks for itself. It goes to confirm the way in which the matter moved forward as described already.
The Evidence of Dr Frean
Dr Frean has been treating the applicant for a very long time. He is a general practitioner, but I note that he has significant medical qualifications in any event. In late 2012 to early 2013 he assessed the applicant’s health and thought he was depressed.
He said he had seen Mr Grant on 6 December 2012, at which time the applicant was tired and had vague symptoms. He was sleeping badly and the doctor ordered a blood test as a matter of caution, but the results were normal.
On 10 February 2012, the doctor saw Mr Grant and told him to reduce his alcohol consumption, put him on Cipramil and gave him a medical certificate for time off work. He confirmed that exhibit A37 was his report and that he diagnosed anxiety and depression.
He confirmed that the applicant had told him he was not up to standards and erratic in attendance, but that this erratic behaviour was because of his illness. The applicant was in his late 20s, and he had known him for twenty-two and a half years.
Although the applicant improved considerably, he still needed time off. He said he gathered the impression that the respondent was not keen to have him return.
He had put the applicant on Cipramil and Benzodiazepene if he was anxious. He confirmed that you get an 80 per cent response after three weeks with Cipramil.
He confirmed that the applicant had seen him again on 23 March 2012 and that the employer required further information. He confirmed that there had been no contact from the respondent.
He confirmed that he had issued exhibit A42 on 23 March 2012 confirming the applicant able to return on a Monday morning following a Friday consultation. He said he continued to treat the applicant whom he has seen many times. He said that the applicant’s condition was still the same, that he saw Mr Grant about one week ago and that he was still on medication. He confirmed that the effects upon the applicant of his treatment by the respondent were damaging to him but that he was now fit to return to work but might need support.
Under cross-examination by counsel for the respondent, Dr Frean confirmed that the applicant had been depressed in June 2007 and treated with antidepressants for 6 months. He had counselled the applicant to reduce his alcohol consumption and the applicant has got much better over the next six months.
He confirmed that the applicant is not now depressed, but has been anxious for most of the last 18 months.
He confirmed that he had advised the applicant to reduce his alcohol consumption in February 2012 and, also, that the applicant had been on Warfarin for about 12 months and that Warfarin interacts with alcohol.
He confirmed, from his notes, that the applicant had decided on 2 September 2011 to stop alcohol consumption to lose weight and improve his health.
He confirmed that he was never made aware that Mr Kenny was asking to contact him but that he had been told by the applicant that the respondent did not accept his medical certificate and wanted more information. He gave a second certificate. He said he was never asked to provide a report in March 2012. He was asked to provide a report in November 2012.
He confirmed that the date of the report of 29 February 2012 was the date the report was created. A draft created also on 29 February 2012 was sent in error to the respondent but the date amended.
He confirmed that he had been a bit upset with the respondent because of the very short time that it provided for the provision of what was required as a relatively sophisticated report.
In re-examination, Dr Frean confirmed that the applicant would, as a result of his illness, struggle to get to work on time.
The evidence of the respondent – Stephen Bird
Stephen Bird is the Directorate Manager, Principle Prosecutions for the respondent and was in effect (together with his subordinate, Mr Sabljak) the supervisor of the applicant.
He deposed that he has been in that position since 2008 and has responsibility for approximately 50 staff.
It is his responsibility to manage the workflow of files and normally there are about 800 files to be managed. He allocates the work and monitors feedback and the way the staff perform their duties.
He confirmed that LPSs are Legal Prosecution Specialists and are very experienced. There are six (6) in his directorate. Those persons advise more junior solicitors about the conduct of files. It is mandatory to discuss files with LPSs at certain stages.
Mr Bird confirmed the employment Mr Grant in 2007 (when Mr Bird started). Mr Grant’s responsibility was, essentially, in less complex trials.
Towards the end of 2010, the applicant broke his leg and took three weeks off. He was then back on an irregular basis until just before Christmas. Mr Bird said he, himself, went on leave on 29 November 2010 and was on leave, apart from 6 December, until March 2011.
It was his understanding that the applicant returned to work on Monday, 18 October 2010 but that he had attended irregularly until 29 November 2010 using a combination of leave to cover his absence.
The evidence of Mr Bird was that he had seen Mr Grant and told him to stay off work until he was fully recovered but that Mr Grant had not wished to do so and that he returned to work full-time in December 2010.
It is sufficient to say that the account given by Mr Bird of all of these matters was, as I have said earlier in relation to the matters indicated above, uncontroversial. It is clear that the response of the respondent to the applicant’s difficulties was sympathetic.
Although Mr Bird’s evidence about the applicant’s DVT suggested that the applicant never explained in detail what the issue was, it seems clear from what Mr Bird says that he was, in fact, informed about it. Mr Bird said he was concerned that the applicant’s continued drinking out of hours was having an impact on his work. He said he was not sure if the applicant would be on time. He said there was a policy that if you were in court, you had to notify any non-attendance by 9.00 am and if not in court, by 9.30 am. He said he had sent exhibit R4 to the applicant, this being the email dated 1 July 2011 setting out the various matters of concern. He said that on some days the applicant did not notify when he was coming in.
He referred to an email (exhibit R21) from the applicant on 7 July 2011 in which the applicant asserted that:
“… a good friends sister had an emergence c section over night after a 19 hour labour so have been running around the hospital etc. I’ll make it for the arvo cheers. AG.”
Mr Bird said that this had given rise to a meeting at which he had expressed his concerns that the applicant might not be at work as a result of a friend’s caesarean.
He tendered exhibit R22 being his notes in advance of a meeting in July 2011 and exhibit R23 which were notes of the meeting on 2 August 2011 in which the applicant’s performance was, once again, the subject of criticism.
Although there is a risk of oversimplifying the evidence, Mr Bird’s evidence in this regard generally went to the uncertainty he had as to the applicant’s attendance and to conduct of an unsatisfactory nature (as exemplified by the caesarean event).
He asserted that the applicant had come into his office in September 2011. He said he had been advised to give up alcohol. Mr Bird’s evidence was that between September and early November 2011 the applicant’s performance had improved and there were no issues as to attendance times. It was this that, of course, governed the performance review to which I have referred.
Mr Bird tendered exhibit R24, which is an email to Ms Christopoulos, suggesting on 23 November 2011, that the applicant’s performance and attendance were, again, becoming problematic and exhibit R25 which were notes of the meeting on 14 December 2011 which refer to ongoing problems in relation to the applicant’s behaviour at Christmas parties generally.
Mr Bird asserted that the applicant was absent for a considerable period in January 2012 but returned on 9 January and referred to the timesheet issue, which I have already detailed. He said he had met the applicant on 23 January 2012 and tendered exhibit R26 as being his notes of this meeting. He said he had raised the issue of alcohol consumption by the applicant on that date and noted that his improvement appeared to correspond with his lack of drinking in the previous year. He tendered exhibit R27, which was an exchange of emails on 25 January 2012 which, inter alia, referred to the applicant:
“If you ned (sic) to go home due to health reasons at any time just let Mark or me know and go.”
He asserted that he had addressed the issue of the payment of the applicant’s 2007 overtime claim directly with Mr Kenny and had it resolved.
Mr Bird confirmed he had had a meeting on 31 January 2012 at which he had raised performance issues with Mr Grant. He had raised the standard of the conduct of his files and his work practices and his attendance notification. He said that he considered a formal review but decided against it. He said the applicant would be a valuable employee if he got back on track.
Mr Bird tendered exhibit R29 being his file note of a meeting on 14 February 2012. This raised what I have described as the Balmer issue. At this meeting the applicant told both Mr Bird and, shortly thereafter, Mr Sabljak about his depression. The applicant told him he was depressed and Mr Bird said that he and Mr Sabljak sympathised and offered to reallocate files. They asked for a medical report. A medical report was to say what the applicant was suffering from and what he could and could not do. It was noted that it was preferable that he work mornings and have the afternoons off.
Mr Bird said that he asked for an explanation about the issue of the Balmer matter and this report gave rise to exhibit A28, which Mr Bird says was an accurate record of the meeting.
Mr Bird said he discussed the Balmer issue with Mr Kenny and was told to speak to Mr Balmer. He, in fact, spoke to Bernie Balmer, the father of the person who had complained. This was on 9 March 2012. Mr Bird gave an account of his discussion on 9 March 2012, which he had then subsequently recorded in exhibit R30 being a file note of the same date. Mr Balmer had a number of comments to make antithetical to the applicant including a difficulty with liquor. Mr Bird said there was a comment made by Mr Balmer, which he had not put in his file note, because he did not think it was fair to the applicant.
It should be noted that Mr Bird’s demeanour in saying this last remark was evidently sincere and is part of the reason (taken together with his demeanour generally) why I found him to be an excellent witness.
The only other contact Mr Bird had had with Mr Balmer was at a later stage when Mr Cotter was trying to contact Mr Balmer and struggling to do so. He facilitated contact between the two of them (which ultimately led to the Balmer allegation being rejected).
Mr Bird gave evidence about the events of 20 February 2012. The matter of Le was listed for a plea in the listing court and the applicant was to instruct counsel and the indictment was to be filed.
At about 10.20 am, Mr Bird said he received a telephone call from the applicant who was on his way to the hearing and Mr Grant asked to visit a friend who had been rushed to hospital in the Alfred. Mr Bird gave permission subject to receiving a certificate when he returned. Mr Bird made a file note of the conversation (exhibit R31).
Mr Bird said the applicant did not come back to work at all and that that afternoon on being surprised by there having been no contact, he sent an email to the applicant. On this day, he discovered that the matter of the sentence in the Cooper matter was listed later that week but had not been entered into PRISM. He had self entered it and discussed the matter with Mr Sabljak and left the matter for the following day for discussion with Mr Grant. By the end of the day, he was very concerned. He felt that he had lost all control over the applicant.
On the following morning in February 2012, at about 8.00 am Mr Bird contacted Mr Kenny and told Mr Kenny that the applicant appeared to be beyond his control. Mr Kenny was due to meet Mr Hyland and thereafter Mr Bird was invited to join them. He outlined what had happened. He said that he told Mr Hyland the applicant had not returned from court and referred to preceding events. He told Mr Hyland about the various performance difficulties that the applicant had had.
Mr Hyland, according to Mr Bird, asked if anything had been heard from the applicant that day and Mr Bird replied, “No”. Text messages followed at about midday and following certain concerns about the Cooper case, Mr Hyland wanted more information. Mr Bird sent Mr Hyland (exhibit R32) on 21 February 2012 emails concerning the applicant’s performance earlier that month.
On 21 February 2012, Mr Bird decided to get someone else to do the disposal order in the Cooper matter and arranged for counsel to be briefed for the Thursday.
On 22 February 2012, the applicant failed to attend work but sent an text message. Mr Bird decided that Mr Tobin should instruct in court on the Thursday, and sent an instruction to the applicant not to go to court that day. He made arrangements for Mr Sabljak to confirm this by text message if need be to the applicant.
The applicant texted on 22 February 2012 that he would be in that afternoon as the family of the person who was ill would be arriving (exhibit R33) and exhibit R11 shows that Mr Bird forwarded that message to Mr Hyland and Mr Kenny on the same day.
The telephone call from the applicant had been made at 2.05 pm.
On 23 February 2012, Mr Bird was at home on a half day’s leave and got to work about lunchtime. He then discovered that the applicant had been to court in the Cooper matter despite having been told not to go.
He confirmed various endeavours he had made to prevent the applicant going.
At 11.15 am, he emailed the applicant to meet with him at 2.15 pm (exhibit R34).
He confirmed that he met the applicant that afternoon and had read before this the email from the applicant explaining what had occurred that week about going to hospital on the Monday and his absence to the following Thursday.
He said there was a half hour meeting discussing why the applicant had been to court. He said the applicant said he had not received the email from Mr Bird telling him not to go. Mr Bird confirmed that he had made notes of this meeting which included discussion of performance issues more widely and that he had known before it took place that it would be an unpleasant meeting. He said that both parties were quiet and calm but that he had himself not been aggressive.
He confirmed that he had asked the applicant for the name of the friend whom he had allegedly accompanied to hospital because he wanted to know the person existed. He said he wanted the complete picture and that Mr Grant had given him the name of the friend. He said that towards the end of the meeting he had discussed the applicant’s excuses for being late and said they stretched believability. He mentioned an excuse in early-January that the applicant had said he had got wet on the way to work and needed to change. He said that the applicant had told him that he had not wanted to tell the truth because he did not want to reveal his medical condition.
He confirmed that he had said in this meeting that he thought the applicant was pushing the envelope and that he received the applicant’s email in reply.
He confirmed that on 24 February 2012, the applicant did not attend work till 4.00 pm although he had texted before 10.00 am saying he would be in. By then, he had been asked to inform Mr Kenny and to take the applicant to human resources on the fifth floor. The applicant was given leave with pay and handed the letter to which I have referred. Mr Bird’s notes are exhibit R37 and record that the applicant said he had had a terrible night sleeping but was taxed with the fact that he had said he would be in at 10.00 am.
Mr Bird confirmed he had not seen the letter handed to the applicant before the meeting, but was aware of the contents from a discussion with Sam Kenny, probably that afternoon. The letter was created because Mr Hyland had decided to give the applicant leave without pay. He had not spoken to Mr Hyland about this.
He confirmed the way in which the applicant left the building and that he read the subsequent medical documentation from Dr Frean.
Essentially, Mr Bird’s further evidence related to the formalities of the way in which the matter proceeded through to dismissal. He confirmed that he had listed the instances of unsatisfactory conduct for Mr Hyland in February 2012, based on his discussions with the applicant. He said that he was not in any way motivated by the applicant’s depression but was aware at the time that the applicant was depressed.
It is sufficient to say that from this point on, Mr Bird was largely out of the picture.
Mr Bird said that in late March 2012 Mr Kenny asked him to the ground floor to meet the applicant and the CPSU at which time the applicant was given a letter and the prospect of an investigation was raised. He did not recall the contents of the letter and had not been involved in drafting it. He confirmed, however, that all the allegations of misconduct in the letter (exhibit A43) were in his email of 15 March 2012 other than allegation 1.
Mr Bird said that some weeks later he was interviewed by David Cotter and made his statement over two days. He was provided with the applicant’s submissions subsequently and made a short secondary statement. He said that some months later he was told that Mr Hyland had dismissed the applicant in August 2012. He did not speak to Mr Hyland about the decision. He asked Mr Kenny what was going on. Mr Kenny had told him that the matter was with Mr Hyland.
Mr Bird under cross-examination
Mr Bird confirmed that he reports to Mr Hyland via Mr Ward and also interacts with Mr Kenny in Human Resources. He said he sought advice from Mr Kenny at an early stage and acted on that advice by going on the informal route. He said that it was Mr Hyland who decided to dismiss the applicant and that he had only provided information, but that Mr Hyland had endorsed his position.
Mr Bird said that from 21 February 2012 onwards he told Mr Hyland as to what was going on but had not had any communication with Mr Hyland before then. He said that Mr Grant had broken a leg in late 2010, was off work from October to December 2010. He himself was on leave from 6 December till 18 March 2011. He said he had had concerns about the state of the applicant’s files and that this concern arose just before he went on leave in October. He had said nothing however to the applicant before 6 December 2010.
Mr Bird confirmed that the applicant was only irregularly at work during October to December 2010 as he was struggling with his leg, and he had not spoken with the applicant about his concerns because it was not the right time. He confirmed when pressed that when he returned from leave he became aware that the applicant had a DVT and he knew that the applicant also had a badly broken leg. He knew that the applicant was on timesheets to prevent overpayment.
Mr Bird confirmed that the applicant had been employed since 2007 and had been a good employee. He did contested bail applications and had done an advocacy course and got good performance reviews from 2007 to 2010 and a good appraisal in 2011 for the period December 2010 to June 2011. The applicant acted in the grade 4 position in 2010. Notwithstanding this he had not considered the applicant as a grade 4 appointment on a permanent basis.
Mr Bird confirmed that he had not thought it appropriate to talk to the applicant about the applicant’s problems in October/November 2010 but that he had discussed these matters with Mr Sabljak before he went on leave in December 2010. On 18 March 2011 Mr Bird had a discussion with the applicant which included his injuries. He said that at some stage the applicant had told him about being on Warfarin and that he would have to have tests at some point. He knew this by the end of July 2011. The applicant would text and say he was getting blood tests. He was not however aware that tests were required over a 12 month period.
Mr Bird said that on 24 June 2011 the applicant was late, and he raised this with him. The applicant told him that he was in pain and took pills at 5.00 am which caused him to be late. Mr Bird said he accepted this explanation. A matter in the County Court was as a result however not able to proceed on time and an administrative assistant was sent to the court in haste.
The next issue that arose (as it was put by counsel for the applicant) was the applicant’s absence at a hospital for a friend who was having a caesarean section. Mr Bird said that the applicant did not inform him in advance that this was going to occur, and he criticised the applicant, who did however send him a text message. Mr Bird said that attending a friend’s caesarean operation was not a reasonable excuse and not something he would do himself.
Mr Bird said he had meetings with the applicant about notification of any lateness. He sought that he be notified by 9.30 am if Mr Grant was not in court. The applicant did not comply in 2011 on numerous dates in June, July and August 2011. At times he would say he was waiting around for blood tests, and Mr Bird accepted that. When it was put to him by counsel for the applicant that the applicant was depressed from December 2011 onwards Mr Bird said he was aware that the applicant was not well in January 2012. He said that the applicant’s attendance was not necessarily poor in December 2011 but certainly was in January 2012.
Mr Bird confirmed that the applicant had provided sick leave certificates in January 2012 but was not sure about February save for a medical report in late February, which he read in March 2012. He confirmed, however, under cross-examination that he had seen exhibit A24 (the applicant’s certificate for 6 to 12 February 2012) at some stage in February. He confirmed that the applicant told him on 14 February 2012 about his depression. Mr Bird was not sure if the applicant had been embarrassed, but he was concerned about confidentiality in relation to his condition. Mr Bird said the applicant told him it was difficult to tell him about his condition, but he did not recall if the applicant had said he had told Mr Kenny about it.
Mr Bird described the discussion between them. They discussed what could be done. Mr Bird suggested time off and to reallocate his files, and sympathised with him. The applicant insisted he was okay to continue working, but Mr Bird and Mr Sabljak asked him to obtain a medical report. They encouraged him to take time off, but the applicant insisted on working. Mr Bird emailed Mr Kenny on 14 February 2012, and they later discussed the matter. They agreed that what was required was a further medical report. Although Mr Bird did not recall the discussion, he said it was probable that they discussed the applicant’s performance and absences.
Mr Bird said that he put files to the LPSs and thought this would assist the applicant because the applicant’s file load at that stage was light. He told the applicant that even if he could only come in half a day this would be enough and that mornings would be most useful. Mr Bird confirmed that he believed the applicant’s assertion that he was depressed and that this was manifesting itself in excessive alcohol use and that he had put this to Mr Grant.
This was not the first time this had come up as an issue, and the first time it had been raised was in 2008. He said, however, that the applicant had told him that he was not consuming alcohol in September to October 2010 on medical advice. He said he had noticed an immediate change in the applicant’s work performance during that period. He had thought the applicant was back to being a valuable member of the office. His demeanour and appearance was improved and so was his work performance, and he was not late once during this period.
Mr Bird said that he had been concerned about the applicant’s performance from July 2011 and had been seeking Human Resources’ advice from then on. The incidents of the week of 20 February 2012 led him to see Mr Kenny on the Monday and Mr Hyland on the Tuesday. He was unable to say why there was no file note of the 14 February 2012 meeting with Mr Grant. The applicant had not told Mr Bird how long he had been suffering from depression and did not tell him that it was since before Christmas 2011.
The applicant telephoned on 20 February 2012. He said he had a friend who was ill in the Alfred Hospital and asked if he could visit. He did not, according to Mr Bird, ask if he could look after her. Mr Bird said he replied that that was fine but that he must instruct in the matter of Le with a barrister named Sharpley. As Mr Bird understood it the applicant did go to court, but he was not aware that the applicant had spoken to defence counsel and did not recall Mr Grant telling him this.
Despite being pressed, Mr Bird did not accept Mr Grant’s version of the story. He said that he gave the applicant permission to visit the hospital after instructing in court, and the applicant did not do so. He in fact spoke to the applicant next on the following Thursday. As he put it, the absence of Mr Grant in court during the Le matter caused some measure of confusion and difficulty.
The applicant did provide an attendance certificate from the Alfred Hospital (exhibit A31). When he discussed the matter with Mr Bird on the Thursday (24 February 2012) the applicant told Mr Bird he had been to court and spoken to Mr Sharpley. Nonetheless, Mr Bird said the matter was listed as a trial and required an instructing solicitor to be present. Mr Bird confirmed the applicant was off work from 20 to 23 February and came back on 23 February 2012. The applicant’s explanation was such that he accepted that the events were, during the absence as the applicant described them.
Mr Bird was questioned about an incident to do with Ms Balmer, which had been discussed with the applicant by Mr Bird on 14 February 2012. Mr Bird said he had discovered the incident on about 19 or 20 January 2012. He had read Ms Balmer’s email and formed the view that it looked as though the applicant might have given confidential information to a third party. He sought advice from Mr Kenny about this before the end of January. Mr Kenny advised him to speak to the applicant, but he waited two weeks before doing so.
Mr Bird conceded that he was putting it off because this was a difficult matter to raise and in any event the applicant was off work for some days. Mr Bird candidly conceded that it was his fault and that he had put off a difficult task that he should have dealt with more quickly. The issue was, however, some months old. When he did raise it with the applicant on 14 February 2012 he did not accept the applicant’s explanation. He thought the applicant’s explanation was inconsistent with the email, although he did not put that to the applicant. He just said, “Is that your explanation?”
He sought advice from Mr Kenny within a week of this meeting on 14 February 2012, and Mr Kenny told him to follow up with and speak to Mr Balmer, the principal of Ms Balmer’s firm. He said he spoke to Bernie Balmer on 9 March 2012 and that Mr Balmer expressed an understanding of it. Mr Balmer confirmed that when the applicant is “on the piss and on the gear” he is terribly inappropriate. It is a tribute to counsel for the applicant’s perseverance that he cross-examined this latter point into evidence when Mr Bird had, very fairly, excluded it earlier on.
Mr Bird confirmed that he had recorded what Mr Balmer said and wanted Mr Balmer to know he could complain to the OPP. He asked if he could talk to Anna Balmer, and Mr Balmer said he would get back to him. Mr Bird denied soliciting for a complaint and said that he had not rejected the applicant’s medical clearance having read the 7 March 2012 certificate. In the ultimate, Mr Bird did not speak to Anna Balmer.
Mr Bird reported to Mr Kenny and said that he thought the applicant’s conduct was inappropriate, but thereafter had nothing to do with that issue. He told Mr Kenny it was better dealt with by someone else, and he was pleased to get rid of it. Mr Kenny agreed that thereafter, Mr Bird would have nothing more to do with this particular issue.
The next issue raised by counsel was the hearing of 23 February 2012 in the matter of Cooper. Mr Bird confirmed he had decided on Wednesday 22 February 2012 that the applicant should not attend court in that matter.
There was no guarantee the applicant would attend, and he therefore gave the matter to Mr Tobin, who had had a previous involvement with the matter. He had discovered on the Monday that the matter was listed on Thursday, and the applicant did not work on Tuesday or Wednesday. From 21 February 2012 (the Tuesday) Mr Hyland was involved. The Cooper matter was complex in law and had involved two trials. Mr Bird confirmed that the applicant did come to his office to discuss the matter, but he was at home, this being a Thursday morning which he routinely had off. He accepted that the applicant must have thought he should be at court.
Mr Bird confirmed that he had a discussion with the applicant that afternoon and said that he was not angry or aggressive. He did say that the applicant was “pushing the envelope”. He knew that the meeting was going to be unpleasant before it occurred. Although the meeting lasted about half an hour, he was not angry and was, in fact, disappointed that it had come to this. The door was open throughout, and there was an administrative assistant immediately outside. Mr Bird said he saw the applicant’s hands were shaking. He raised the Alfred Hospital issue and asked what was the name of the friend in order to make sure that the person existed.
He told the applicant that he had expected him back on 20 February 2012, but the applicant said he had had to stay with his friend throughout. The friend’s parents arrived on the 22nd. Mr Bird said he ultimately accepted the applicant’s explanation but not why he went to court. The applicant sent Mr Bird an email denying pushing the envelope. Mr Bird forwarded this email to Mr Hyland or Sam Kenny. The letter to the applicant from Mr Hyland dated 24 February 2012 (exhibit A36) arose from Mr Bird’s expressed concerns to Mr Hyland.
Mr Bird confirmed that he had been with the applicant when he was handed the letter of 24 February 2012 by Mr Kenny on the fifth floor. He confirmed that the applicant had told him in January that he was worn out and suffering because of lack of sleep. On Tuesday 21 February 2012, Mr Kenny or Mr Bird told Mr Hyland that the applicant said he was depressed. Mr Bird was, in fact, aware that something was impacting upon the applicant’s capacity to do his job and had been aware for some time that there was a problem.
Because the applicant had run out of leave, he was given discretionary leave with pay. The applicant took a week off. Mr Bird confirmed that both Mr Kenny and he had asked the applicant for a medical report and that this had been reported to Mr Hyland. Dr Frean’s report was provided on 5 March 2012 (exhibit A37). He read it together with Mr Kenny in Mr Kenny’s office, and they had a brief discussion about alcohol use, and he explained some of the applicant’s problems. He understood the link between depression and alcohol.
He was aware a further medical report was provided on 7 March 2012, and he was told that the applicant was being suspended. He said he saw the clearance for 13 March 2012 (exhibit A40) on 7 March 2012. Mr Kenny had shown it to him. Mr Kenny said this was very short. There were no discussions about the applicant’s return to work, but Mr Kenny said further detail was required. Mr Kenny said that the very rapid return to work seemed surprising.
Mr Bird confirmed that he had had no discussions about misconduct, although he had thought some aspects of the applicant’s conduct amounted to misconduct from the start. He had been advised that allegation 1 was not made out. He gave evidence about that matter to Mr Cotter, but he had never read Mr Cotter’s report. He knew about the applicant’s depression from 14 February 2012 onwards.
It was put to him that the applicant’s depression and insomnia made it very clear that it was difficult to comply with 9.30 am notifications. He disagreed. He disagreed, further, that the applicant had only been at work for six hours between 8 and 23 February 2012. Mr Bird gave evidence about his involvement (or more accurately, lack of involvement) after Mr Hyland took the matter over.
In re-examination, Mr Bird tendered exhibits R38 and R39, which related to performance issues in 2010 and 2011. He also tendered exhibit R40, being an email from 4 July 2011 showing a very late arrival by the applicant as a result of his medical appointments. Mr Bird confirmed that the applicant’s depression was news to him when he was told it.
The Evidence of Mark Sabljak – Evidence-in-Chief
Mr Sabljak is the Deputy Directorate Manager in the Principal Prosecutions Section of the OPP. He has been in that position since August 2008. His role is to support the Directorate Manager, Mr Bird, and they supervise approximately 50 employees of whom about 30 are solicitors. There are also Legal Prosecution Specialists (“LPSs”) and administrative staff.
Mr Sabljak receives files each week and allocates them, and a major part of his role is to cover court each day. He is the point of contact for solicitors on his work Blackberry. Most people text message him. Up to 30 files come in each week, and he allocates them in conjunction with Mr Bird. It is his job, in effect, to sweep up the loose ends and make sure people are covered, because of the inevitable absences that occur from time to time. The major tool used to cover people’s work is a system called PRISM which gives a weekly or fortnightly printout in advance of people’s workload.
In response to a question from the Court, Mr Hyland confirmed that if depression was an issue that would be raised quite commonly in plea matters, and that OPP officers would necessarily have some measure of familiarity of it. Mr Hyland said that notwithstanding that it was some 10-15 years since he was actually in court, he nonetheless, had had some understanding of the matter of depression, at that time.
Some Brief Observations about the Credit of the Witnesses
The applicant, Mr Grant, whose age is not readily ascertainable from the materials, although it must be in there somewhere, is a young man with what seemed to me a relatively strong sense of entitlement. His answers were given in the main reasonably directly, and his demeanour was generally composed. Nonetheless, and even making every allowance for the stress of being in Court on your own case, his agitated demeanour while other parties were in the witness box, was impossible to miss.
Some of Mr Grant’s explanations for events, such, for example, as his explanation for the necessity to attend a friend’s wife’s caesarean, showed a marked light of insight. It is clear that Mr Grant has struggled with depression and inter-related issues of alcohol abuse for many years. It is clear that these difficulties have impacted upon his judgment, from time to time. His explanation for attending court, on the day of the Cooper trial, a matter to which I will return, struck me as showing an unattractive mix of entitlement, self-service and lack of judgment.
Mr Bird was an excellent witness. He is clearly a person of careful habit. At least in the case of the applicant, he was in the habit of taking detailed file notes of events likely to prove of significance in the future. Whilst it is clear that he must have been making notes about Mr Grant, in far more detail, one would assume, than other employees (because with 50 he would have had little time for anything else otherwise), I find nothing sinister in Mr Bird’s conduct in this proceeding whatever. He struck me, to coin a phrase, as being the soul of decency.
I note that in evidence-in-chief, he was careful not to include the phrase used by Mr Balmer, which was assiduously cross-examined into evidence by counsel for the applicant. He said he did not do so because he did not think the comment was fair to Mr Grant. This reticence does him considerable credit. He was clearly an honest witness, giving evidence as he recalled it and in the main it seems equally clear to me that his recall was excellent.
Mr Sabljak impressed me in the main, very much as Mr Bird had. Mr Sabljak answered questions directly and honestly. His description of the collegiate nature of the unit in which he worked and his endeavours to make it work rang entirely true. Once again, it is perhaps sufficient to say that he was a palpably honest witness, giving his version of the events, as he recalled it and in the main, once again, his recall was excellent.
Dr Frean gave evidence entirely consistent with his professional status and standing. He has been treating Mr Grant for a very long time (I infer, back into his childhood) and it seems clear he is a family friend. Dr Frean’s evidence about his perceptions of the applicant’s response to his illness had all the ring of sincerity and he was once again a witness of truth, telling the story according to his memory of it and in the most part, as I find, correctly.
Mr Kenny, once again, gave evidence that in the main part was unremarkable. It is sufficient to say that he was not moved in cross-examination. And once again, I would describe him as a witness who presented as one honestly doing his best to recall events as they were.
Thus far, my remarks about the witnesses have been generally laudatory, although I have some qualifications in respect of Mr Grant.
Regrettably, I formed a somewhat negative impression of Mr Hyland. Mr Hyland is an extremely experienced and senior law officer. He would not occupy this position were he not able and committed. Nonetheless, the transcript will perhaps not fully reveal the steely personality that emerged, notwithstanding Mr Hyland’s soft spoken style.
One of his answers was to the effect that his meetings were short. One can readily imagine why a busy man in charge of some 200 or more employees would need to keep control of his meeting times. However, what I conclude having seen Mr Hyland give his evidence and having heard that answer, is that he is a man very used to being king of all he surveys in this organisation and having a particularly peremptory way about him. Certainly, that is how he came across to me. His answers to the applicant’s counsel were, at times, almost openly contemptuous. Indeed, his entire demeanour suggested a certain disdain for the proceeding as a whole. These are unfortunate findings to have to make, but I should make it clear that I have no reservation in making them, having seen the witness cross-examined in the witness box for some time.
Findings on the Facts
Despite the plethora of material filed and the substantial tranches of evidence given, many of the facts in this case are not, in the ultimate, that difficult.
Mr Grant commenced work for the respondent in 2007. He was on any view, a good employee who achieved satisfactory work performances, at the very least, up until 2011. Even in 2011, he achieved a good work performance appraisal, albeit that Mr Bird said, and I believe, this took place in the context of the improvement, in September and onwards, of that year.
Dark hints were dropped from time to time to the effect that Mr Grant had an ongoing and significant difficulty with alcohol. There were vague echoes of misconduct at a Christmas party. The fact is, however, that the applicant is a thoroughly competent solicitor and it is clear that until he broke his leg in 2010, he was at the very least, an unobjectionable employee. Indeed, it was Mr Hyland’s evidence that he had never met him and if I understand the matter, never even really heard of him, until February of 2012. Any criticisms advanced of Mr Grant’s conduct, from time to time, need to bear these matters in mind.
In 2010 Mr Grant severely injured his leg, as a result of a prank that went wrong while jumping a fence. Scarcely surprisingly, he was off on sick leave for some time and started to use up his sick leave. He was keen to get back to work, but was sedentary when he did so, for obvious reasons, and unfortunately developed a DVT. The development of that DVT meant that he had to undergo regular blood tests. He was placed on Warfarin, it would appear, in late 2010.
The evidence from Dr Frean (which I may not have traversed earlier), was that you stay on Warfarin for about a year and in most cases, you simply cease at the end of that time. The thrombus is presumed to have dissipated.
Quite obviously, Mr Grant’s performance of his duties declined during 2010 to 2011. His constant latenesses, which he seems to have dealt in a somewhat insouciant way, consistent with the sense of entitlement I detected, must have been extremely exacerbating to Mr Bird and Mr Sabljack. In an organisation where it is vital to have people available when you need them, an insouciance as to notification of late arrivals would obviously be a matter of concern. Equally obviously however, Mr Grant’s routine attendance upon units which are themselves uncooperative and unhelpful as to time estimates and the like, would have been a significant difficulty for him.
It is sufficient to say, at least of incidents like the failure to get the indictment to court in June 2011, that they represent a distinct blot upon Mr Grant’s employee record and the respondent was perfectly entitled to see them as such, even though, in part (on one view in whole), they arose out of Mr Grant’s indisposition.
At least one area where Mr Grant’s conduct cannot be attributed in the smallest way to his leg problems was his attendance at the friend’s wife’s caesarean section delivery. There is no need to say a great deal about this. It was plainly inappropriate conduct by a man whose judgment was clearly lacking in this case.
In the light of all the material filed in the case, including in particular Dr Frean’s account of Mr Grant’s ongoing and long term difficulties with stress, anxiety and alcohol, - which are all quite clearly on this medical evidence, inter-related conditions (a matter I would say goes close to being the subject of judicial knowledge), - it would seem highly probable that the conduct complained of more generally by Mr Bird and Mr Sabljak in 2011 related to these issues.
In any event and subject to a period between approximately September and November 2011, when Mr Grant pulled himself together (it would appear on medical advice), Mr Grant’s behaviour throughout 2011 became increasingly problematical. He simply does not appear to have properly occurred to him, as it should have, that notifications to his employer were of vital import in the successful operation of the respondent’s activities.
Very unfortunately, by late 2011, the applicant was depressed. As he himself said, he was not one to reveal the nature of his illness to third parties because of an embarrassment about it. Embarrassment of this order is sufficiently frequently described in the media for me to be prepared to accept that it is a very common occurrence.
By January 2012, the applicant was taking time off on sick leave and his performance was clearly at its point where formal proceedings were being considered.
It should be noted in this regard, that as early as July 2011, Mr Bird was considering formal disciplinary procedures, but had decided against it, having consulted Mr Kenny.
Mr Grant continued in January 2012, to make a mess of things. There were problems with an interlocutory hearing in the Cooper matter. There were subsequently problems with further timekeeping irregularities and so on.
In early February and following some contact with Mr Kenny, the applicant saw Dr Frean and decided to reveal his condition. He told Mr Kenny on 13 February 2012 and Mr Bird and Mr Sabljak on 14 February 2012, that he was depressed and he referred to the inter-related difficulties of insomnia and anxiety. The response from Mr Bird and Mr Sabljak was essentially sympathetic.
It is clear that Mr Grant was unwell. On 20 February 2012 he absented himself from work to go and assist a friend in the Alfred Hospital, who was very unwell. Although Mr Grant denies it, I have no doubt that Mr Bird told him he could go, but only after he had finished in court in the matter of Le. Although Mr Grant gave what in my view was self-serving and unsatisfactory accounts of the matter, it is clear that he was in a state of mind where he was going to do what he wanted in any event. This lack of insight, which was of course entirely consistent with the medical evidence as to his condition, did him no favours. It is readily understandable why Mr Bird, in particular, was very disturbed that the applicant had not properly seen the matter of Le through. While Mr Grant’s explanation as to the experience of the barrister briefed is one I can accept, as far as it goes, it was not open on any view, for Mr Grant to simply absent himself in circumstances where Mr Bird had made it clear he should not do so.
I also accept Mr Bird’s account that he did not give Mr Grant permission to take the rest of the day off, but rather required him to return and bring a medical certificate showing that he had indeed been to the hospital.
The applicant’s conduct over the next few days is consistent with his ill health. He failed properly to explain to the respondent’s officers where he was. This was particularly unfortunate, because it brought the matters to the attention of Mr Hyland.
From what Mr Hyland said, it is clear that he was thinking, from an early stage, of taking a strong approach to the matter.
Following Mr Hyland being alerted to these issues, by Mr Kenny and Mr Bird, matters moved into a spiral, from which Mr Grant’s employment never recovered. He was stood down and further medical evidence was requested.
Contrary to the views of the respondent’s witnesses, I think Dr Frean’s response to the request for a report was entirely reasonable. Five days for a busy doctor is not much time to provide a comprehensive medical report and Dr Frean’s outrage in this regard is readily understandable. It is unfortunate that he expressed it in his draft report which was erroneously sent to the respondent, because it had clearly got Mr Hyland’s nose totally out of joint and that nose did not get put back into joint thereafter. In fact, Dr Frean’s report is clear. It would tell any reasonable observer exactly why Mr Grant was behaving as he did.
I regret to say that I am unable to accept the evidence of Mr Hyland that Dr Frean’s report told him nothing. It told him nothing because he did not want to believe it. As I clarified with Mr Hyland, depression is a matter with which officers of the respondent deal on a routine basis. He himself did so, during his period in court until 10-15 years ago. I do not accept the assertions made by Mr Hyland, and to a lesser extent, Mr Bird and Mr Sabljak, that they simply had no understanding whatsoever of what depression is and what effects it may have on people. It is inconsistent with their professional experience and education. It also ignores the plain language of Dr Frean’s report.
By this stage Mr Hyland had formed the view that it was necessary to keep Mr Grant away from work in his own best interests. That is not a decision with which I would cavil, given the extraordinary erratic behaviour of Mr Grant in the period leading up to this time.
Nonetheless, when asked for it, Dr Frean gave a further certificate which indicated that the applicant was improving significantly in his health and would be fit to return to work. One of the extraordinary aspects of this case is that Mr Hyland, without any further investigation, simply decided that he was a better practitioner of medicine than Dr Frean. He decided to ignore Dr Frean’s return to work certificate. This is, of course, consistent with the view I have formed of Mr Hyland’s view of the world.
Thereafter, it is sufficient to say that things moved inexorably forward. Mr Bird, quite properly, forwarded his email setting out those areas of his concerns which, by now, included the Balmer incident. The irony is, of course, that the Balmer incident, which might reasonably be thought to be the most serious, was never established.
The matter was sent off to Mr Cotter, who was not called to give evidence in the matter. Mr Cotter’s approach appears to have been somewhat one-sided. I note that he spent quite appreciable periods of time with Mr Bird but that his conduct with Mr Grant appears to have been more peremptory. No challenge was put to Mr Grant’s evidence that he was, so to speak, somewhat pressed and cut off in his dealings with Mr Cotter.
Nonetheless, it does not do to be too critical of Mr Cotter because he dismissed one of the five allegations and the other four, on any view, were made out in any event. Regrettably, in one sense, the union who acted on Mr Grant’s behalf concentrated their response to the intimation that Mr Grant would be dismissed by attacking the methodology and findings of Mr Cotter’s report. It might well have been preferable to put on material as to Mr Grant’s mental and physical difficulties during the period that the misconduct was established.
Nonetheless, the fact is that Mr Hyland took the decision to dismiss. He says that he did so because of the misconduct alone and that the applicant’s ill health played no part in the matter. Nonetheless, I do not think that assertion can be made out. These matters are, as the High Court made clear in Barclay, a matter of fact. The following matters lead me to this conclusion:
a)Mr Grant was a good employee who misconducted himself when he was unwell.
b)While the exact nature of Mr Grant’s ill health may not have been known, its manifestations were clearly obvious to Mr Bird and Mr Sabljak and, as I was find, Mr Kenny by early 2012.
c)On 13 and 14 February 2012, Mr Grant made Mr Kenny, Mr Bird and Mr Sabljak expressly aware of his health difficulties.
d)Mr Hyland was made aware of the applicant’s depression early on in his involvement with Mr Grant’s affairs and (as seems more probably than otherwise) shortly after 21 February 2012. He knew at this time that the applicant was suffering from depression.
e)All of these well-educated persons and Mr Hyland in particular had at least some generalised appreciation of what depression was.
f)Mr Hyland was well aware of the applicant’s illness throughout the process whereby he considered Mr Cotter’s report and said that he was unable to see any connection between the applicant’s illness and the difficulties Mr Grant was being tasked with.
Where I am afraid I am unable to accept the evidence of Mr Hyland, which I should make it clear I accept was given honestly, is that I do not accept the disaggregation of the applicant’s ill health and his conduct. It is quite clear that Mr Grant’s ill health was known to Mr Hyland who was both seeking further information about it and drawing his own conclusions contrary to the medical advice received. It must have been entirely clear to a man as intelligent as Mr Hyland that the applicant’s conduct arose from or at the very least in part caused by this condition. Whether he was aware of it at the time or not or whether it is a matter of subconscious reconstruction, I do not accept Mr Hyland’s evidence that his state of mind at the time of his decision to terminate the applicant’s employment wholly excluded Mr Grant’s ill health. I think it was quite clear that it was part of the reason he was dismissed. I have seen and heard the evidence and that is my conclusion as to what occurred. As French CJ and Crennan J said in Barclay at [45]:
“Direct evidence of the reason why the decision-maker took adverse action, which may include positive evidence that the action was not taken for the prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because of other objective facts are proven which contradict the decision-makers evidence.”
Here, in my view, the evidence given by Mr Hyland about his state of knowledge of the applicant’s medical condition at the time of decision to terminate in my view, when seen in context, makes Mr Hyland’s evidence about his reason to terminate unreliable.
Furthermore, and even if I am wrong in the above finding, the fact is that the applicant’s ill health was what caused him to do the things for which he was dismissed. The respondent knew of his ill health. The question is why the applicant was dismissed and while superficially it would be put, as the respondent does, that it was the applicant’s misconduct, in truth the applicant’s conduct arose wholly out of his medical condition and the respondent well knew of the medical condition.
The law
The applicant has relied upon s.352 and s.351 of the Fair Work Act 2009 (“FW Act”). In paragraph 87 of the amended Statement of Claim, it is particularised that the actions of the respondent, were a contrivance to terminate the applicant’s employment because of his absence from work due to illness in breach of s.352 of the FW Act.
At paragraph 90 of the amended Statement of Claim, the applicant pleads s.351 and s.352 of the FW Act. The particulars are as follows:
“The applicant because of his illness and short term absences from work was the subject of directions that he not attend work when certified fit to do so. The applicant was the subject of adverse action in that he was forced on to unpaid leave because of his illness. Following the period of unpaid leave the applicant was subject to allegations of misconduct that had no reasonable basis in fact. The applicant was injured in his employment and moved to his prejudice by being stood down and then ultimately terminated because of his illness and temporary absence due to illness.”
Section 351(1) of the FW Act relevantly reads:
“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.”
Section 352 of the FW Act reads:
“An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind described by the regulations.”
Section 360 of the FW Act provides:
“For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.”
Section 361(1) of the FW Act provides:
“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.”
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another [2012] HCA 32 (“Barclay”), the High Court considered the meaning of the phrase “because of” in relation to s.346 of the FW Act, but the Court’s reasoning is directly applicable here.
At [41], French CJ and Crennan J said:
“The question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the Fair Work Act.”
At [44]-[45], French CJ and Crennan J continued:
“[44] There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”.
[45] This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.”
Gummow and Hayne JJ said, at [101]:
“The use in s 346(b) of the term “because” in the expression “because the other person engages … in industrial activity”, invites attention to the reasons why the decision-maker so acted. Section 360 stipulates that, for the purposes of provisions including s 346, while there may be multiple reasons for a particular action “a person takes action for a particular reason if the reasons for the action include that reason”. These provisions presented an issue of fact for decision by the primary judge.”
At [104], Gummow and Hayne JJ continued:
“In light of the legislative history of s 346 and the intention of parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised “a substantial and operative” reason, or reasons including the reason, for the employer’s action and that this action constitutes an “adverse action” within the meaning of s 342.”
Having discussed argument about the issue of objective or subjective intention, their Honours went on to say at [126]-[128]:
“[126] The relevant frame of reference in this case is a statutory provision in which neither of the words “objective” nor “subjective” appear. There is an inherent risk of misguidance when seeking to imply tests or requirements in the application of a statutory provision absent some persuasive basis to do so. Nothing was put in argument, nor are there any decisions of this court, to provide such a basis. Indeed no direct challenge was made to what had been said by Mason J in Bowling.
[127] In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially among many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.
[128] While it is true to say, as do the respondents, that there is a distinction between discharging the onus of proof and establishing that the reason for taking adverse action was not a proscribed reason, there is nothing to suggest that the conclusions drawn by the primary judge, and the findings and reasons upon which these were based, did not take this into consideration. As Lander J concluded, if the reasons for the conclusions and the facts for which they were formulated are not challenged, then the contravention of s 346 cannot be made out. This proposition should be accepted. To hold otherwise would be to endorse the view that the imposition of an onus of proof on the employer under s 361(1) creates an irrebuttable presumption at law in favour of the employee.”
Finally for these purposes I would refer to the judgment of Heydon J where his Honour said at [141]:
“… Of course, “mere declarations” by a witness as to his or her “mental state” may not be sufficient to discharge the appellant’s burden of proof under s 361. External circumstances could put into question the reliability or credibility of those declarations.”
The Application of the Law to the Facts as Found
Although there is a lot of evidence, which has taken quite some time to deal with, curiously enough any conclusions can be expressed briefly.
Clearly the evidence of Mr Hyland is of very considerable significance. As I have made I hope clear I am not for an instant suggesting that Mr Hyland has been untruthful in a witting way in his evidence. Nonetheless there are two things to be said. First, as I hope I have also made clear, I think there is a measure of unconscious reconstruction in his position. It is obvious from the circumstances I have described the applicant’s ill health played a part in the decision-making process.
Even if I am held to be wrong in that regard and the matter did not intrude upon Mr Hyland’s consciousness as he says, the fact is that what Mr Grant did was completely interwoven with his medical condition and it is what he did that led to his dismissal. In my view as a matter of cause and effect Mr Grant’s illness was quite clearly a part of the reason why he was dismissed. It was his illness on any view that led him to do the things that he did that caused his dismissal, and Mr Hyland well knew of the illness. In the circumstances as I have found them, these two matters cannot be disaggregated as the respondent seeks, for the reasons given earlier. It therefore follows that the respondent has not discharged the burden of proof placed upon it by s.361 of the FW Act.
This may all be grossly over simplistic and it will be for others no doubt to say whether that is so. To my way of thinking it is clear beyond doubt that Mr Grant was the subject of adverse action in being stood down, investigated and dismissed. All these things flowed directly as the respondent was well aware from his ill health, albeit that they were equally seen to arise from misconduct.
The suggestion that the applicant was the subject of adverse action because of a temporary absence because of ill health however cannot possibly be sustained. He was not sacked because he was temporarily not at work because of ill health. He was sacked because he had misconducted himself as a result of issues arising from his ill health. To the extent that reliance is placed by the applicant on s.352 his case is not made out. It is however as I have said made out in relation to s.351.
Conclusion
Very little was said by the parties in either oral or written submissions, to which I have of course had regard, as to what the remedy should be in the event that I found in favour of the applicant. In these circumstances I think the proper course is to give the parties a reasonable opportunity to study these reasons for judgment and to consider their positions. I will hear submissions on the date to be fixed to suit the parties as to how the matter should progress.
I certify that the preceding three hundred and thirty (330) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 23 January 2014
2
1
0