Laviano v Fair Work Ombudsman
[2017] FCCA 197
•15 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LAVIANO v FAIR WORK OMBUDSMAN | [2017] FCCA 197 |
| Catchwords: INDUSTRIAL LAW – Adverse action – whether termination for a prescribed reason. |
| Legislation: Fair Work Act 2009, ss.3, 340, 341, 342, 351, 361 Public Service Act 1999 (Cth), ss.15, 29 |
| Cases cited: Annear v Spotless Facility Services Pty Ltd [2015] FCCA 1335 General Motors Holden Pty Limited v Bowling (1976) 12 ALR 605 Porges & Anor v Broken Hill Musician’s Club Ltd & Anor [2016] FCCA 95 |
| Applicant: | GUY VINCENT LAVIANO |
| Respondent: | FAIR WORK OMBUDSMAN |
| File Number: | SYG 840 of 2015 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 3 November 2016 |
| Date of Last Submission: | 19 December 2016 |
| Delivered at: | Sydney |
| Delivered on: | 15 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jenshel |
| Solicitors for the Applicant: | Ari Jenshel |
| Counsel for the Respondent: | Ms Raper |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
ORDERS
The Application filed 27 March 2015 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 840 of 2015
| GUY VINCENT LAVIANO |
Applicant
And
| FAIR WORK OMBUDSMAN |
Respondent
REASONS FOR JUDGMENT
Introduction and Background
By way of an Application filed 27 March 2015 under the Fair Work Act 2009 (Cth) (FWA), and on grounds set out in a Statement of Claim filed that date but subsequently amended on 17 September 2015, the Applicant claims to have suffered loss and damage as a result of the Respondent’s alleged contraventions of the FWA.
The claim is a General Protections claim under Part 3-1 of the FWA. It is not an Unfair Dismissal claim under Part 3-2 of the FWA. The focus, therefore, must be and indeed can only be, the reason or reasons why the Respondent acted in terminating the Applicant’s employment. Whether the termination was fair or reasonable is not relevant except insofar as this might bear evidentially on a finding as to whether the true reasons for the dismissal was that stated by the Respondent: Porges & Anor v Broken Hill Musician’s Club Ltd & Anor [2016] FCCA 95 (23February 2016) Judge Driver at [4] and [33]. Even if it were the case that the termination was unfair (and the Court makes no finding in this regard), that would not establish a General Protections claim. The Applicant was very well represented in this case (as was the Respondent). The Court can only assume that careful consideration was given to the choice of claim and jurisdiction.
The Applicant’s Claim
In general terms the Applicant claims that he was dismissed because he suffered a disability and thus was discriminated against, and because he exercised his workplace right to take periods of personal leave due to his disability. In general terms the Respondent contends that the dismissal was because the Applicant was unable to perform his duties.
Evidence before the Court
The Applicant relied on the following material:
a)Application – Fair Work Division, filed 27 March 2015;
b)Form 2, filed 27 March 2015;
c)Amended Statement of Claim, filed 17 September 2015;
d)Affidavit of the Applicant, sworn 17 November 2015;
e)Expert Report of Rosaria (Rose) Cantali, filed 23 November 2015;
f)Expert Report of Peter Nakhle, filed 14 December 2015;
g)Affidavit of the Applicant, sworn 8 January 2016;
h)Applicant’s Opening Submissions in Chief, filed 15 February 2016;
i)Notice to Admit Facts, filed 14 March 2016;
j)Affidavit of the Applicant, sworn 7 April 2016;
k)Affidavit of the Applicant, sworn 18 April 2016;
l)Outline of Applicant’s Submissions, filed 19 April 2016;
m)Final Submissions, filed 25 November 2016;
n)Submissions in reply, filed 19 December 2016.
Only the Applicant was needed for cross-examination.
The Respondent relied on the following material:
a)Defence, filed 2 October 2015;
b)Affidavit of Pamela Stone, filed 22 December 2015.
c)Affidavit of Karsten Lehn, filed 22 December 2015.
d)Outline of Submissions, filed 2 March 2016.
e)Submissions, filed 9 December 2016.
Both deponents were cross-examined.
The Court received the following exhibits:
| Date | Exhibit No. | Tendered by (eg. A/W, R/H) | Description of Exhibit/MFI |
| 16.3.16 | App | Documents produced on subpoena by Ms James | |
| A1 | App | PSS Superannuation fund documents of the applicant | |
| R1 | Resp | Part K of the Fair Work Ombudsman Enterprise Agreement 2011 to 2014 | |
| 17.3.16 | R2 | Resp | Ltr from Adams & Co dated 3/11/14 |
| A2 | Applicant | Email exchange between applicant and chambers of vice president hatcher | |
| A3 | App | Email dated 11 August 2014 from Adams & Co to to the applicant | |
| A4 | App | Accepted; briefing on a HR matter (10/9/2014) | |
| A5 | App | Email from Terry Anne Dwyer dated Friday 9/1/15 10:48am | |
| 3.11.16 | A6 | App | Claim: |
| A7 | App | Rehabilitation case management table | |
| A8 | App | Case conference minutes | |
| A9 | App | Email from ms stone to mr laviano | |
| A10 | App | ||
| R3 | Resp | Ltr to FWC of 31/7/16. | |
| A11 | App | August Notice to admit bundle | |
| A12 | App | February Notice to admit bundle |
Counsel for both parties made very helpful oral and written submissions.
Relevant Law
Section 340 of the FWA states:
Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) A person must not take adverse action against another person (the second person ) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.
Note: This subsection is a civil remedy provision (see Part 4-1).
Section 342 (item 1) provides:
Meaning of adverse action
(1) The following table sets out circumstances in which a person takes adverse action against another person.
| Meaning of adverse action | ||
| Item | Column 1 Adverse action is taken by ... | Column 2 if ... |
| 1 | an employer against an employee | the employer: (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee's prejudice; or (d) discriminates between the employee and other employees of the employer. |
Section 341 states:
Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee--in relation to his or her employment.
Meaning of process or proceedings under a workplace law or workplace instrument
(2) Each of the following is a process or proceedings under a workplace law or workplace instrument :
(a) a conference conducted or hearing held by the FWC;
(b) court proceedings under a workplace law or workplace instrument;
(c) protected industrial action;
(d) a protected action ballot;
(e) making, varying or terminating an enterprise agreement;
(f) appointing, or terminating the appointment of, a bargaining representative;
(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
(h) agreeing to cash out paid annual leave or paid personal/carer's leave;
(i) making a request under Division 4 of Part 2-2 (which deals with requests for flexible working arrangements);
(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k) any other process or proceedings under a workplace law or workplace instrument.
Prospective employees taken to have workplace rights
(3) A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.
Note: Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement.
Exceptions relating to prospective employees
(4) Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earnings.
(5) Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2-8 or 6-3A (which deal with transfer of business).
Section 351 states:
Discrimination
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or
(b) taken because of the inherent requirements of the particular position concerned; or
(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed--taken:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3) Each of the following is an anti-discrimination law :
(aa) the Age Discrimination Act 2004 ;
(ab) the Disability Discrimination Act 1992 ;
(ac) the Racial Discrimination Act 1975 ;
(ad) the Sex Discrimination Act 1984 ;
(a) the Anti-Discrimination Act 1977 of New South Wales;
(b) the Equal Opportunity Act 2010 of Victoria;
(c) the Anti-Discrimination Act 1991 of Queensland;
(d) the Equal Opportunity Act 1984 of Western Australia;
(e) the Equal Opportunity Act 1984 of South Australia;
(f) the Anti-Discrimination Act 1998 of Tasmania;
(g) the Discrimination Act 1991 of the Australian Capital Territory;
(h) the Anti-Discrimination Act of the Northern Territory.
Section 361 creates a reverse onus. It states:
Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
Why an employer took adverse action against an employee is a question of fact (Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 at [41] per French CJ and Brennan J and at [101] per Gummow and Hayne JJ). Evidence from the decision-maker that explains why the adverse action was taken will be relevant to this question (Barclay at [44]-[45] per French CJ and Brennan J and at [101] per Gummow and Hayne JJ). The focus of the inquiry is on the reasons of the decision maker at the time the adverse action was taken (Barclay at [127] per Gummow and Hayne JJ). If the evidence of the decision maker is that they were not influenced by a proscribed reason and that evidence is accepted, it is capable of rebutting the presumption (General Motors Holden Pty Limited v Bowling (1976) 12 ALR 605 at 612 per Gibbs J; Barclay at [56] per French CJ and Grennan J and at [8] per Gummow and Hayne JJ; Harrison v P and T Tube Mills Pty Ltd (2009) 188 IR 270 at [33]).
Purported Reasons for Termination
The Respondent contends that the reasons for the Applicant’s termination are set out in a letter dated 9 January 2015 addressed to the Applicant and signed by Karsten Lehn for the Respondent. The Respondent contends that the letter in question, together with its annexures, contains the sole reasons for the Applicant’s termination.
The letter in question states that the employment was terminated on the ground of non-performance of duty as a consequence of the Applicant not attending a medical appointment scheduled for 27 November 2014. The letter acknowledges the various matters contended for by the Applicant and in particular that he could not attend the medical assessment based on medical advice, because he was on leave, and in any event because he was unaware of the same.
The letter contains a number of contentions on behalf of the Respondent that the Applicant did not communicate with the Respondent between 7 October 2013 to 22 December 2014, did not notify the Respondent he would not be so communicating, but had a duty to be contactable. The letter specifically records the non-acceptance by the Respondent that the medical advice relieved the Applicant of communicating with the Respondent.
Overview of Case and Findings
This overview and statement of findings is based on the evidence before the Court, and by reference to the Amended Statement of Claim filed 17 September 2015.
The Applicant was, until 9 January 2015, an employee of the Respondent. He was absent from work between 24 March 2014 to 21 September 2014, and 7 October 2014 to 22 December 2014, returned to work on 23 December 2014 but was then absent from work on 24 December 2014. His absence for the most part was due to psychological illness.
For present purposes, the period 7 October 2014 to 22 December 2014 will be called the Disability Period, but that does not mean that any finding is made by the Court that the Applicant suffered a ‘disability’ for the purposes of s.351(1) of the FWA. The Applicant contends that during the Disability Period he could not work, could not attend to any compensation-related matters, and could not communicate with the Respondent due to what he describes as his disability.
In reality the situation was not so clear. The Court accepts that throughout the Disability Period, the Applicant suffered psychological illness that precluded him from working. The Court does not accept that throughout the Disability Period, he was unable to communicate with the Respondent or that there is evidence to establish that his disability prevented him from attending a medical assessment. The Court finds that there were times within the Disability Period when he chose not to communicate with the Respondent. There were periods when, on medical advice, he did not communicate with the Respondent, but this state of affairs was not communicated to the Respondent until late within the Disability Period, in fact not earlier than 15 December 2014.
The Court finds that the Applicant’s psychological illness was, in fact, either Major Depressive Disorder or Adjustment Disorder, comprising elements of depression and anxiety. Nothing turns on the distinction between these illnesses. It is quite possible that, during the Disability Period, he suffered either or both of these illnesses consecutively or simultaneously. Nothing turns on this.
The Court finds that the Respondent required the Applicant to attend medical examinations or assessments on 6 occasions between 22 July 2014 and 27 November 2014. The Applicant did not attend any of these save for one where his attendance was late and the assessment could not proceed. The purpose of these assessments was to understand the Applicant’s medical condition, and to assist his return to work.
The Applicant contends that he did not attend the assessment scheduled for 27 November 2014 because he had not opened correspondence from the Respondent informing him of the same, before 23 December 2014 when he returned to work for the day. He asserts he so acted on medical advice. The Court finds he was given advice by his psychologist Dr Cantali on or about 14 October 2014 that he was ‘not to open daily mail’ and not to ‘contact the employer’. The Court finds that he did receive correspondence at his home address, email and post office box. The Applicant contends that he was not checking his emails. The Court does not accept this. A further difficulty with the Applicant’s contention that he did not attend the medical assessment on 27 November 2014 for the reason that he did not know about it is that he was in fact overseas on that date.
The Court finds that before 15 December 2014 the Respondent did not know that the Applicant had been advised by Dr Cantali that he was not to open any communication from the Respondent. The Court finds that the Applicant took no steps, directly or through a third party, between 14 October 2014 and 15 December 2014, to notify the Respondent that he would not, in effect, be communicating with them or the reason why.
The Court finds that sometime after 29 October 2014 the Applicant’s GP, Dr Nakhle notified the Respondent that “he is unable to attend any work or compensation matters”. The context given by Dr Nakhle was that the Applicant was “…undertaking psychotherapy treatment and it will be beneficial for him if he is given the time to focus on his treatment.” The Court finds that sometime on or after 15 December 2014, Dr Cantali advised the Respondent, in effect, that the Applicant was to avoid “attending to any work or work compensation matters.” The context given by Dr Cantali was that this would facilitate the Applicant’s rehabilitation. The Court finds that neither communication to the Respondent on behalf of the Applicant would have reasonably led the Respondent to conclude that:
a)It knew, or should have known, that the Applicant was not communicating with it, before 15 December 2014; and
b)It could not, or should not, arrange for the Applicant to be medically assessed.
The Court finds that it is an unreasonable interpretation of letters from the Applicant’s doctors that they should be read as precluding medical assessments. Such an interpretation would result in the absurd outcome that an employee such as the Applicant can unilaterally arrogate to himself (using the agency of treating health professionals who are limited to the history given by the Applicant) the ability to decide whether and if so when, he can be independently medically assessed in relation to a disability which he claims is related to his workplace.
The Court finds that it was unreasonable, in all the circumstances, for the Applicant to simply, and in effect, ‘shut down’ all communication between the Respondent and himself given the circumstances and the history of his relationship with the Respondent, and then to use his self-imposed ignorance not even as a shield but as a sword, in the present proceedings.
On 9 January 2015 the Respondent terminated the Applicant’s employment. This letter was the culmination of earlier correspondence dated 12 December 2014 and 23 December 2014. The Applicant contends that he became aware of this earlier correspondence no later than 23 December 2014. The Court does not accept this. The letter of 9 January 2015 sets out the basis for the decision to terminate the Applicant. The Court finds there were no other reasons for terminating the Applicant beyond those stated in the letter. The Court finds that the letter evidences a decision made on behalf of the Respondent and binds the Respondent. Moreover, the Court finds, the factual matters asserted in the letter were, based on the evidence before the Court, true and accurate insofar as pertinent to the matters before the Court.
Specifically the Court accepts that the Applicant did have a duty to communicate with the Respondent. The Applicant agreed with this in cross-examination. This was a duty, the Court finds, he failed to discharge during the Disability Period. It is a duty that the Applicant, indeed any employee, may delegate. The evidence before the Court satisfied it that the Applicant did, in fact, delegate this duty at other times. He could have delegated it during the Disability Period. It is an implied duty that is consistent with s.3 of the FWA. It is a necessary incident and corollary to those provisions of the FWA that require consultation by the Employer. It is also implied by the Fair Work Ombudsman Enterprise Agreement 2011-2017.
Adverse action was taken against the Applicant for the purposes of s342(1) of the FWA in that he was dismissed. There is an issue about whether adverse action was taken on the basis of the employer “discriminates between the employee and other employees.” It is not necessary for the Court to determine this dispute.
The Respondent, however, did not take adverse action either because of any workplace right exercised by the Applicant pursuant to s340(1) or because of the Applicant’s alleged disability. The Respondent took adverse action ie dismissed the Applicant for the reasons, and only for the reasons, set out in the termination letter of 9 January 2015. The Court is satisfied from the evidence that the Respondent has rebutted the presumption set out in s.361 of the FWA.
The Application must be dismissed.
The Applicant’s Evidence
The Court found Mr Laviano to be an intelligent and articulate man. He suffers from depression and anxiety. He has perceptions about what he experienced in the workplace which he genuinely believes irrespective of whether there is any objective basis for those beliefs. For example, he genuinely feels pressured and bullied by his employer, and by work-related matters. This much is apparent not just from his evidence, but also that of his expert witnesses, Dr Cantali his treating psychologist, and Dr Nakhle, his GP. This genuine, but misguided, belief coloured his evidence at times.
Dr Cantali in her report also referred to the Applicant’s “sense of hopelessness often delusional.” It turns out that this is quite significant in this case, and assists the Court to understand what must have been, at least in part, a motivation for bringing the claim. It also no doubt caused the Respondent quite some frustration in prolonging the hearing of the matter.
The source of this is an email dated 12 February 2010 from Virginia Masters, a Senior Executive Lawyer with the Australian Government Solicitor, to a number of persons within the Respondent at the time. It does not refer to the Applicant by name, but the strong inference to be drawn is that it refers to the Applicant, and to performance management issues pertaining to him. There is no doubt that the Applicant regarded his dismissal on 9 January 2015 as the culmination of a conspiratorial plan to dismiss him that started in 2010. This email seems to have inadvertently come into his possession in 2012. Putting aside issues of legal professional privilege, the email is irrelevant to the matters before the Court, though the Court accepts the Applicant was convinced to the contrary. There is no probative evidence whatsoever to suggest that the 2010 email had anything to do with the decision to terminate the Applicant’s employment. Indeed, to the extent that any part of the Applicant’s case, directly or by inference, suggested there was a conspiracy to dismiss him, the Court categorically rejects this. All of this merely confirms, however, how his psychologist’s assessment of delusion had some foundation.
The Applicant’s own evidence establishes the extensive periods that he was absent from work in 2012, 2013 and 2014. In 2012 he was certified as fit for work on reduced hours. He initiated Comcare claims including an appeal to the Administrative Appeals Tribunal. There was some controversy in the workplace involving the Applicant making voice recordings of himself whilst on the telephone. He applied to the Fair Work Commission for a Stop Bullying order against 49 people employed by the Respondent.
What is clear from the Applicant’s own evidence is that for most of 2014 (even during a period in November when he claimed to be overseas) he was communicating with the Respondent either directly, or through his lawyers, in relation to the disciplinary and compensation matters and alleged bullying. He was actively involved in these issues, either directly in the sense of preparing documents, or indirectly in the sense of giving instructions to his representatives. He accepted in cross-examination that as an employee who had been absent from work for an extended period, it was necessary for him to remain in regular contact with his employer. He also understood the importance of attending employment related medical assessments which were different in nature to the medical certificates he provided. Indeed he seemed quite familiar with fitness-for-duty assessments.
It is clear that at least up until August 2014 he was receiving communication from the Respondent by mail at home, and by email. He acknowledged that he did not attend the medical appointments scheduled except for one when he attended late and the doctor was unable to conduct the assessment. He gave explanations for not attending, some of which are plausible, some of which are not, but nothing turns on this. He agreed that he knew the Respondent did not accept his explanations. Ironically, he knew that the medical assessments were, at least potentially, in his own interests as he was seeking alternative duties.
On 29 September 2014, the Applicant revoked the Respondent’s authority to communicate with his doctors, and indeed told his doctors not to speak to the Respondent. This was the Applicant’s own characterisation of his decision, given in cross-examination. To the extent that his Counsel sought to characterise it as something else, the Court does not accept this. On the same day he confirmed with Ms Tokley, of the Respondent, that communication with him should be hard copies at his private P.O Box, and soft copies to his work and private email address.
The Applicant maintained that on 14 October 2014, or certainly not earlier than 7 October 2014, Dr Cantali and/or Dr Nakhle, advised him not to open mail from the Respondent, or to contact them. He accepted in cross-examination that he had been opening mail and contacting them before that date. In cross-examination he accepted that he never wrote to the Respondent advising them of the above and, moreover, that the medical certificate from Dr Nakhle of 29 October 2014 did not do this either: indeed this medical certificate was sent to the Respondent by the Applicant on 13 November 2014, curiously during the period he was overseas.
The Applicant suggested in cross-examination that it was coincidental that he caused Dr Nakhle’s medical certificate of 29 October 2014 to be forwarded to the Respondent on 13 November 2014, just 2 days after an email dated 11 November 2014 was sent to him by the Respondent notifying him of what was to be the sixth scheduled medical assessment on 27 November 2014. It is the Applicant’s case that he was unaware of this medical assessment, but this is problematic from the Court’s perspective. Why would the Applicant wait until 13 November 2014 to forward a medical certificate dated 29 October 2014 to the Respondent, in the circumstances of this case? He was plainly well-aware of the importance of these certificates. This was the nadir of the Applicant’s evidence. The significance of the certificate was apparent to him because he had instructed his Comcare solicitor to forward it to Comcare in seeking an extension of time to appeal his workers compensation matter. It is more likely than not that the Applicant was, in fact, aware of the email dated 11 November 2014 advising him of sixth medical assessment.
It also emerged from cross-examination that the Applicant saw Dr Nakhle on 28 October 2014, but then not until 17 December 2014, and Dr Cantali on 27 October 2014, but then not until 15 December 2014. This is somewhat surprising given the contentions of those doctors that, in effect, his mental health was so fragile that he should not even open mail from the Respondent. The Applicant impliedly explains this by reference to his being overseas, at least for part of this period, undertaking unspecified treatment. It is clear he did not tell the Respondent he was overseas. In fact this did not become known until his cross-examination.
The Applicant was then cross-examined about what also seems to be another curious coincidence in that he saw Dr Cantali on Monday, 15 December 2014, who then wrote directly (for the first time) to the Respondent on 15 December 2014, just 3 days after Mr Lehn’s letter to the Applicant on Friday, 12 December 2014.
The Applicant’s contention that he did not read Mr Lehn’s letter of 12 December 2014 until he returned to work on 23 December 2014 is unlikely in all the circumstances. He asserts that he merely knew of the existence of mail from the Respondent but did not open it. He asserts that Dr Cantali in effect confirmed the correctness of this on 15 December 2014. His mental health was so fragile, it would seem, on 15 December 2014 that he could not open letters from his employer and yet on 17 December 2014 his own evidence is that he told Dr Nakhle he was starting to feel better and indeed on 22 December 2014, one week later, he was certified as being fit for work which he resumed on 23 December 2014. What the Applicant is asking the Court to accept is simply not plausible. It is more likely than not that the Applicant was aware of the contents of Mr Lehn’s letter of 12 December 2014 and that is why he consulted Dr Cantali on 15 December 2014.
The Applicant was closely cross-examined about Dr Cantali’s advice to him. He agreed that she had not told him, in effect, to cease all communication with his employer, indeed she advised him to provide sufficient information to them so they could understand why he was absent. He believed that he had fulfilled that by providing medical certificates.
Evidence of Karsten Lehn
At all relevant times Mr Lehn was Executive Director Major Projects with the Respondent, having been employed with the Respondent since 2009, and in the Australian Public Service from 1990. In December 2014, the Fair Work Ombudsman delegated to him her powers under ss. 15(3) and 29 of the Public Service Act 1999 (Cth) to determine an appropriate course of action in relation to the Applicant’s non-attendance at a medical examination. The Court accepts that, for all practical purposes, he was the person who made the decision on behalf of the Respondent to terminate the Applicant. His evidence is central in this case and his conscious reasons for making the decision were carefully scrutinized in this case.
Mr Lehn was an impressive witness. He was objective in his evidence, responsive in cross-examination, and had a thorough grasp of the relevant facts. Counsel for the Applicant’s cross-examination or Mr Lehn was meticulous but, ultimately, did not detract from his evidence. He specifically denied that each of the alleged prohibited reasons played any part on his decision to terminate the Applicant. The Court finds that he terminated the Applicant’s employment only for the reasons set out in the letter of 9 January 2015. Moreover, the Court finds that the factual matters asserted in that letter, to the extent relevant to the present proceedings, are in fact correct. Again it is important to restate that the present case is not an unfair dismissal case, but an adverse action claim.
A number of matters were raised in cross-examination that warrant specific mention. To the extent that it was suggested that he was not the relevant decision-maker the Court does not accept this, and Mr Lehn categorically rejected this. Mr Lehn was the authorised delegate and, even if it were the case that his role was as a figure-head for the Respondent, Mr Lehn discharged the duties delegated to him. To the extent that it was suggested that the procedure he adopted was inadequate, superficial or truncated, the Court rejects this. He considered the comprehensive materials that were placed before him, and then appropriately requested further material which he took into account. Even if this was, in fact his first delegation in a dismissal matter, there was no aspect of the process that he undertook that leads the Court to be concerned in any way about whether the proffered reason for dismissal was the correct one.
There was, at times, an element of quasi-paranoia in cross-examination, no doubt consistent with Counsel’s instructions, for example about when two emails were sent and received, when meetings were arranged, and whether things occurred before the final delegation was made. The Court rejects these pernickety criticisms of peripheral matters.
It is clear to the Court that Mr Lehn did not merely rubber stamp a decision that had previously been made. It is also clear that he did not just accept at face value the material put before him principally by Pamela Stone but caused to be initiated further enquiries. When the Applicant finally responded to Mr Lehn’s letters after 23 December 2014, quite apart from the fact that the Applicant was given input into the decision being considered, Mr Lehn then clearly considered the matters raised by the Applicant, even if ultimately rejecting them.
Mr Lehn’s decision involved an assessment of the Applicant’s credibility, and an assessment of the evidence available to him generally. The question for the Court is whether he acted for the reasons he says he did. A number of matters were put to him in a lengthy cross-examination. “It is hardly surprising that an employer, assessing evidence available to him, may not turn his mind forensically to every detail that might occupy the mind of a careful cross-examiner” (Judge Driver, Dwyer at [57]). This does not detract in any way from the Court’s finding that Mr Lehn’s decision to terminate the Applicant’s employment was for the reasons stated.
Evidence of Pamela Stone
Ms Stone is the Director People Services for the Respondent and held that position at all relevant times. Her affidavit of 22 December 2015 annexes documents pertaining to the Applicant’s employment as well as the matters before the Court. It was Ms Stone’s role to prepare the brief to Mr Lehn.
The Court found Ms Stone to be an impressive witness who more than adequately withstood an often rigorous cross-examination by Counsel for the Applicant. Like Mr Lehn, she was at all times objective, was responsive in cross-examination, and had an admirable grasp of the relevant facts, which in this case were voluminous.
A number of matters were raised in cross-examination that warrant specific findings. The Court rejects any contention, express or implied, that Ms Stone minimally constructed the brief given to Mr Lehn with a view to channelling his decision in a particular direction. If documents were omitted, this was inadvertent and in any event immaterial. The Court rejects any contention, express or implied, that Ms Stone acted in concert with any other person within the Respondent, as part of a strategy to dismiss the Applicant. There was no such concerted strategy, based on the Masters email or otherwise. The Court rejects any contention that Ms Stone was seeking to “hijack the narrative” (Applicant’s Outline of Submission filed 25 November 2016 at paragraph 59) in any way. The matters on which Counsel focused in cross-examination were, when viewed objectively, innocuous, or explicable by reference to the broader circumstances. The cross-examination was driven, in all likelihood, by instructions given by a client who was convinced that there was a long-running conspiracy to terminate his employment. The Court must be mindful, as Judge Driver in Dwyer at [57] warned, not to impose on an employer the same forensic obligation that might occupy the mind of an experienced, professional cross-examiner. The Court accepts the evidence of Ms Stone.
Conclusion
To the extent that the Applicant’s claim depends on the Court’s acceptance of his contention that he was unaware of the medical assessment because of a disability he suffered, the claim fails. The Court finds that, on the balance of probabilities, the Applicant was aware of the sixth medical assessment on 27 November 2014 but, for his own reasons, chose not to attend. It is conceivable that he did not attend because he was suffering from depression and anxiety, but that is not the reason he advanced. His case was that he was unaware of the appointment, a matter not born out by his evidence in cross-examination. The Applicant’s Outline of Submissions dated 25 November 2016 at [66] on this issue is incorrect to the extent it suggests that the Applicant was not challenged “on this central point”. The Applicant was in fact challenged as to this credit generally, and as to his knowledge of communications from the Respondent for example transcript 17 March 2016 at pp 103-105. The fact that the Applicant suffered depression and anxiety was not challenged. His knowledge about the sixth medical assessment was challenged.
The Applicant’s claim under s340(1) fails. Adverse action was not taken against the Applicant because he exercised his workplace right to take leave. It was taken because, and only because, of the reasons stated in Mr Lehn’s letter of 9 January 2015. The grounds set out in that letter are supported by the evidence before the Court. The s.361(1) presumption in this regard is rebutted.
The Applicant’s claim under s351(1) also fails, Even if the discrimination contemplated by this section includes indirect discrimination (the Court finds it unnecessary to decide this point), the adverse action was not taken because of any disability, it was taken because, and only because of the reasons stated in Mr Lehn’s letter of 9 January 2015. The Applicant failed to attend the sixth scheduled medical assessment on 27 November 2014 without reasonable excuse. It thus became impossible for the Respondent to manage the work, health and safety aspects of the Respondent’s employment.
It is important to recognise the Applicant’s Counsel’s interesting argument that the causal connection prescribed in ss.351 and 340 (“because of”) applies differently where the alleged discrimination is indirect. The concession is made that where the discrimination is direct, the Barclay test applies, but where the discrimination is indirect, Barclay is silent.
The Applicant contends that he was dismissed for failing to comply with a requirement with which, because of his disability, he could not comply, and thus he was dismissed ‘because of’ that disability. It is suggested that this is the only notion of causation required.
Specifically the argument is that his dismissal was indirectly discriminatory because he was dismissed for failing to comply with a requirement (to attend an assessment) with which he could not comply (because he could not communicate to receive it). Counsel submits at [61]:
“It would have been no different if the Applicant were deaf and were given oral instructions, or if the Applicant were blind and given a written instruction, and then subsequently dismissed for failing to comply with it.”
The findings of this Court, however, provide an insurmountable obstacle to acceptance of this argument. The Applicant both knew of the assessment, and did not have a disability that precluded him from attending that assessment. These findings are based on the Applicant’s evidence, and that of his doctors. The Applicant is no more a victim of indirect discrimination than is a man who puts his hands over his ears so he cannot hear oral instructions, or a man who closes his eyes so that he cannot read written instructions.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 15 March 2017
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