McCormack v Commonwealth
[2007] FMCA 1245
•14 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| McCORMACK v COMMONWEALTH OF AUSTRALIA | [2007] FMCA 1245 |
| HUMAN RIGHTS – Disability discrimination in employment – harassment in relation to disability – applicant with cancer and anxiety condition – questions at job interview – referee reports – placement on return from sick leave – harassment by fellow employee – employer’s complicity in harassment – higher duties – request for transfer – failure of temporary employer to find permanent position – refusal of voluntary redundancy/job swap – alleged corporate knowledge and opinion – alleged reputation of applicant as health risk – discrimination because of disability not proved – complicity in harassment not proved – applications dismissed. |
| Disability Discrimination Act 1992 (Cth), ss.4, 5, 10, 15, 35, 122, 123, 124 Federal Magistrates Act 1999 (Cth), s.3 Public Services Act 1999 (Cth) |
Federal Court Rules (Cth)
Federal Magistrates Court Rules2001 (Cth) r.1.03
| Commonwealth of Australia v Humphries (1998) 86 FCR 324 Jones v Dunkel (1959) 101 CLR 298 O’Grady v The Northern Queensland Company Limited (1990) 169 CLR 356 |
IN CAG 34 OF 2003
| Applicant: | PATRICK McCORMACK |
| Respondent: | COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF THE SENATE) |
| File number: | CAG 34 of 2003 |
| Judgment of: | Mowbray FM |
| Hearing dates: | 15, 16, 17, 18 November 2005 |
| Date of last submissions | 10 February 2006 |
| Delivered at: | Canberra |
| Delivered on: | 14 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr W Sharwood |
| Solicitors for the Applicant: | Higgins Solicitors |
| Counsel for the Respondent: | Ms R M Henderson |
| Solicitors for the Respondent: | Australian Government Solicitor |
IN CAG 28 OF 2004
| Applicant: | PATRICK McCORMACK |
| Respondent: | COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF COMMUNICATIONS, INFORMATION TECHNOLOGY AND THE ARTS) |
| File number: | CAG 28 of 2004 |
| Judgment of: | Mowbray FM |
| Hearing dates: | 15, 16, 17, 18 November 2005 |
| Date of last submissions | 10 February 2006 |
| Delivered at: | Canberra |
| Delivered on: | 14 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr W Sharwood |
| Solicitors for the Applicant: | Higgins Solicitors |
| Counsel for the Respondent: | Ms R M Henderson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
IN CAG 34 OF 2003
The application filed on 22 December 2003 be dismissed.
The applicant pay the respondent’s costs as agreed or taxed under Order 62 of the Federal Court Rules and calculated at 85 per cent of the costs payable under those Rules.
The Court certifies that this was an appropriate case for each party to be represented by counsel.
IN CAG 28 OF 2004
The application filed on 4 August 2004 be dismissed.
The applicant pay the respondent’s costs as agreed or taxed under Order 62 of the Federal Court Rules and calculated at 85 per cent of the costs payable under those Rules.
The Court certifies that this was an appropriate case for each party to be represented by counsel.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAG 34 OF 2003
| PATRICK McCORMACK |
Applicant
And
| COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF THE SENATE) |
Respondent
CAG 28 OF 2004
| PATRICK McCORMACK |
Applicant
And
| COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF COMMUNICATIONS, INFORMATION TECHNOLOGY AND THE ARTS) |
Respondent
REASONS FOR JUDGMENT
The applicant, Mr Patrick McCormack, has been employed in the Australian Public Service for over 20 years. He commenced work with the agency currently known as the Department of Communications, Information Technology and the Arts (DCITA) in October 1994. In July 2000 he was seconded to the Department of the Senate (DOS).
In 1978 Mr McCormack was diagnosed as suffering ulcerative colitis. He was admitted to hospital in September 1996 with severe abdominal pain and subsequently discharged. He was again hospitalised in October 1996 and diagnosed with carcinoma or cancer.
He now brings two actions against the Commonwealth of Australia, the first involving the conduct of DOS and the second DCITA. Mr McCormack alleges DOS and DCITA unlawfully discriminated against him in his employment because of his disability in breach of the Disability Discrimination Act 1992 (Cth) (the DDA). He also alleges that DCITA permitted a fellow employee to unlawfully harass him in relation to his disability.
The two actions have been heard together with some of the evidence being relevant to both. It is therefore convenient to consider the two matters in one set of reasons for judgment.
For the reasons set out below, I have concluded that both applications should be dismissed with costs as there was no unlawful discrimination under the Act, nor did DCITA permit the unlawful harassment of Mr McCormack.
Background
Much of the background for each complaint is set out in the section of these reasons considering that complaint. It may be useful however to provide a general overview:
·Mr McCormack was diagnosed with ulcerative colitis at about age 16 in 1978
·he commenced with the Australian Public Service in the mid ‘80s
·he joined DCITA in October 1994
·while working in the APEC Section he was diagnosed with cancer in October 1996
·he was absent from work from September 1996 returning on 30 June 1997 – almost all on sick leave
·he was then placed in the Radiocommunications Section
·on 26 May 2000 Mr McCormack started a period of leave and did not return to DCITA
·he commenced a three month placement with DOS on 10 July 2000 which was subsequently extended until about the end of that year.
·in December 2000 DCITA and DOS agreed for Mr McCormack to remain at DOS for a year from January 2001 to January 2002 with a DOS officer, Mr Frank Nugent, working at DCITA for the same period
·on 17 August 2001 Mr McCormack was informed his cancer had relapsed
·on 11 January 2002 the temporary transfer to DOS ended and on 4 February 2002 Mr McCormack commenced a twelve month secondment to the ACT Legislative Assembly
·on 9 December 2002 Mr McCormack went to work on a temporary transfer at the Department of Industry, Tourism and Resources. This has since been renewed.
Issues
Mr McCormack alleges “eight occasions of unlawful conduct”, six concern conduct of DCITA and two conduct of DOS. The claims against DCITA are summarised in Mr McCormack’s closing submissions:
The behaviour of the Department in relation to a possible transfer to a vacant position in the broadcasting area.
The referee report stating that Mr McCormack could have a physical reaction requiring recovery time in certain circumstances thereby preventing him from returning to work in the APEC Section.
The placement of Mr McCormack in the Radiocommunications Policy Section (later called the Radiocommunications and Satellite Policy Section) upon return to work in 1997.
The Department’s awareness of harassment of the applicant by Mr Coates in 1999-2000 and its failure to prevent it from continuing.
The Department’s failure to allow Mr McCormack to act as Section Manager from time to time, after his first battle with cancer in 1996.
The treatment of Mr McCormack in failing to properly administer his request for a transfer to a permanent position elsewhere.
The claims against DOS as summarised in the closing submissions are:
Its conduct towards the applicant in failing to provide him with a permanent position at the Senate.
Its conduct towards the applicant in refusing to accept funding from the Department for a voluntary redundancy.
Relevant legislation
The Act relevantly provides:
4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
Commonwealth employee means a person who:
(a)is appointed or engaged under the Public Service Act 1999;
(b) holds an administrative office; or
(c)is employed by a public authority of the Commonwealth; or
…
disability, in relation to a person, means:
(a)total or partial loss of the person’s bodily or mental functions; or
(b)total or partial loss of a part of the body; or
(c)the presence in the body of organisms causing disease or illness; or
(d)the presence in the body of organisms capable of causing disease or illness; or
(e)the malfunction, malformation or disfigurement of a part of the person’s body; or
(f)a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g)a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
(h)presently exists; or
(i)previously existed but no longer exists; or
(j) may exist in the future; or
(k) is imputed to a person.
…
5 Disability discrimination
(1)For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
(2)For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.
…
10 Act done because of disability and for other reason
If:
(a) an act is done for 2 or more reasons; and
(b)one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act);
then, for the purposes of this Act, the act is taken to be done for that reason.
…
15 Discrimination in employment
(1)It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person’s disability or a disability of any of that other person’s associates:
(a)in the arrangements made for the purpose of determining who should be offered employment; or
(b)in determining who should be offered employment; or
(c)in the terms or conditions on which employment is offered.
(2)It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability or a disability of any of that employee’s associates:
(a)in the terms or conditions of employment that the employer affords the employee; or
(b)by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
…
(4)Neither paragraph (1)(b) nor (2)(c) renders unlawful discrimination by an employer against a person on the ground of the person’s disability, if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:
(a)would be unable to carry out the inherent requirements of the particular employment; or
(b)would, in order to carry out those requirements, require services or facilities that are not required by persons without the disability and the provision of which would impose an unjustifiable hardship on the employer.
…
35 Harassment in employment
…
(2)It is unlawful for a person to harass another person who:
(a)is an employee of a person by whom the first‑mentioned person is employed; and
(b) has a disability;
in relation to the disability.
…
122 Liability of persons involved in unlawful acts
A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1, 2 or 3 of Part 2 is, for the purposes of this Act, taken also to have done the act.
123 Conduct by directors, servants and agents
…
(3)If, for the purposes of this Act, it is necessary to establish the state of mind of a person other than a body corporate in relation to a particular conduct, it is sufficient to show:
(a)that the conduct was engaged in by a servant or agent of the person within the scope of his or her actual or apparent authority; and
(b) that the servant or agent had the state of mind.
(4)Any conduct engaged in on behalf of a person other than a body corporate by a servant or agent of the person within the scope of his or her actual or apparent authority is taken, for the purposes of this Act, to have been engaged in also by the first‑mentioned person unless the first‑mentioned person establishes that the first‑mentioned person took reasonable precautions and exercised due diligence to avoid the conduct.
…
(7)A reference in subsection (1) or (3) to the state of mind of a person includes a reference to:
(a)the knowledge, intention, opinion, belief or purpose of the person; and
(b)the person’s reasons for the intention, opinion, belief or purpose.
…
(9)A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.
124 Commonwealth taken to be employer
For the purposes of this Act, the Commonwealth is taken to be the employer of all Commonwealth employees.
Disability discrimination
In Commonwealth of Australia v Humphries (1998) 86 FCR 324 Kiefel J referred to the two essential elements in section 5 – treatment and reason for that treatment:
Section 5 of the DDA which is, in essential respects, in like terms to s 5 of the Sex Discrimination Act 1984 (Cth) requires a factual inquiry to ascertain whether less favourable treatment has occurred, and that conclusion is only possible if the treatment experienced occurs in circumstances that are the same or not materially different from those in which a person, who does not suffer from any disability, has received or would receive more favourable treatment. That is the inquiry as to the treatment received. The other part of s 5 inquires as to the reason for that treatment. The language of the section suggests there is no discrimination, on the ground of disability, unless a causal relationship is established between the disability of the aggrieved person and any less favourable treatment accorded them: …
Mr McCormack’s disability
As noted above Mr McCormack was diagnosed with cancer in October 1996 after a history of ulcerative colitis. He was treated for his cancer and believed he had recovered. However it relapsed in August 2001. Mr McCormack also has an anxiety condition.
It is not in dispute that Mr McCormack has a disability within the terms of the definition in section 4 because of these conditions and the functional limitations they impose.
Alleged unlawful conduct
Mr McCormack alleges that “the evidence discloses eight occasions of unlawful conduct”, six of which relate to the conduct of DCITA and two the conduct of DOS. I shall deal with each in the order in the parties’ submissions.
May 1997 interview
The following brief background is agreed between the parties:
·Mr McCormack was hospitalised in September 1996 at Canberra Hospital and later discharged
·at that time he was employed in the Asia Pacific Economic Cooperation (APEC) Section of DCITA
·he was admitted to Calvary Hospital in early October 1996 for surgery and found to have a cancerous tumour
·further operations followed
·in 1997 DCITA created a new branch to administer a new program on regional telecommunications infrastructure
·Mr McCormack applied for one of a number of Executive Level 1 (EL 1) positions in the new branch
·there was a large number of applicants and about 18 were selected for interview, including Mr McCormack
·the selection panel consisted of Dr Simon Pelling (chair), Ms Pam Saunders and Mr Tad Jarzynski
·interviews were conducted over three half days with Mr McCormack being interviewed in May 1997
·Mr McCormack returned to work on 30 June 1997 having been declared fit by the Government Medical Officer
·he did not return to the APEC Section but to the Radiocommunications Section where he remained until May 2000
·Mr McCormack was unsuccessful in his application for one of the EL 1 positions in the new branch
·DCITA’s records of the selection process have been destroyed in accordance with normal archiving practice.
Mr McCormack records the chair of the interview panel, Dr Pelling:
… commenced the interview by asking me “how much sick leave have you taken off?” Mr Pelling later in the interview, again referred to the amount of sick leave I had taken off stating, “You would have a better idea of what was going on at the Department if you didn’t take so much leave”.
Mr McCormack also says that Mr Tad Jarzynski, who had been a member of the selection panel, transferred into the Radiocommunications Section in April 2000. He asked Mr Jarzynski at that time if all candidates for the positions in May 1997 were questioned about their sick leave record. Mr Jarzynski replied “The broadcasting area had important work to do and could not afford to hire persons who might take sick leave.” Mr Jarzynski denies this allegation.
Mr Tad Jarzynski, who was Director of the Pay TV Section in DCITA at the time of the interviews, gave evidence on the interview process:
·the new program on regional telecommunications infrastructure was highly political as it was funded from the first partial sale of Telstra
·candidates who had extensive experience in setting up and administering new government programs and could perform at a high level of activity and pressure were therefore to be selected for the new positions
·the panel formulated a series of standard questions addressed to the selection criteria
·where necessary candidates would be asked specific questions arising from their applications, such as clarification of tertiary qualifications or work experience
·Dr Pelling would also make opening remarks about the importance of the program and the urgency of establishing the new section. Each candidate was initially asked an “ice-breaker’ question about their experience and skills, followed by the standard questions.
In his affidavit Mr Jarzynski said:
11. During the short listing process the Selection Panel had noted that there was a gap in the work history section of Mr McCormack’s curriculum vitae of approximately six months. The Selection Panel decided it would ask Mr McCormack to explain this gap.
12. I … deny that Dr Pelling asked Mr McCormack about his sick leave. At the end of the interview I recall that I asked Mr McCormack about the gap in his curriculum vitae. Mr McCormack confirmed that he had taken sick leave, but did not say that he had had cancer. I recall an exchange to the following effect:
Myself: Can you tell us what you were doing during the 6 month interval after leaving the APEC Section and taking up your current position?
Mr McCormack: I was on sick leave.
Myself: Is your health likely to be a problem if you were to get one of these positions?
Mr McCormack: No, I have fully recovered and I am well now.
13. Mr McCormack did not voice any objection to being asked these questions.
14. There were no further questions about the gap in Mr McCormack’s curriculum vitae or about his sick leave. I recall that the Selection Panel accepted at face value that Mr McCormack would not be prevented from performing in the role by the illness he had suffered. The interview then proceeded along the lines of all the other interviews.
Mr Jarzynski also:
·denied that Dr Pelling said to Mr McCormack that he would have a better idea of what was going on at DCITA if he did not take so much leave
·said he was the only member of the panel who asked about Mr McCormack’s leave
·did not recall any member of the panel taking notes on comments made by Mr McCormack about his health
·said that Mr McCormack “was assessed as not having as much experience in, or knowledge of, the effective establishment and implementation of a new high-profile assistance program as compared to the other successful candidates”
·recalled that “Mr McCormack’s past illness was not taken into account as the Selection Panel accepted that Mr McCormack had fully recovered”
·confirmed under cross-examination his “very precise” recollection that there was a six months gap in the curriculum vitae
·said he was first told that Mr McCormack had cancer by the division head, Mr Cheah, after Mr McCormack left the Radiocommunications Section some years after the interviews.
Mr Sharwood for Mr McCormack contends:
·DCITA’s failure to call Dr Pelling or Ms Saunders allows the Court to infer that their evidence would not have helped DCITA’s case (Jones v Dunkel (1959) 101 CLR 298) and allows any inference available from Mr McCormack’s evidence to be more readily drawn
·Mr Jarzynski’s version is inherently unlikely. That part which refers to a “six month interval” before Mr McCormack took up his “current position” conflicts with other evidence and can not be correct as he was still in the APEC Section
·as Mr Jarzynski confirms that the illness was discussed, “[i]t can be inferred that Mr Jarzynski remembers this because he knew Mr McCormack was not properly treated …”.
Mr Sharwood says that the most telling evidence supporting Mr McCormack’s version is that provided by Mr Christopher Cheah, the division head at the time Mr Jarzynski joined the division. Mr Sharwood says that Mr Jarzynski gave Mr Cheah an explanation for not selecting Mr McCormack. This was that there were pressing issues in the relevant section and the section could not afford to have a person such as Mr McCormack with a health issue in the positions. Thus effectively Mr Jarzynski told Mr Cheah that Mr McCormack had been excluded because of his health or concerns about his health.
Mr Cheah said under cross-examination that he did discuss
Mr McCormack’s concerns about the interview with Mr Jarzynski:
…I think Mr Jarzynski gave me an explanation in broad terms at the time, from what I recollect it would have been that while he understood some of the, you know, Mr McCormack’s reaction there was some particularly pressing issues at the time in that particular section which meant that they really did need somebody who was capable of performing, you know, at a very high and probably intense level and that it wouldn’t have been appropriate for Mr McCormack with his medical condition at the time to take the position.
Mr Cheah responded to further questions I asked:
·he did not recall from his discussion with Mr Jarzynski who had asked the offending questions at the interview, but the implication was that it was Mr Jarzynski
·he did not discuss the interview concerns with Mr Jarzynski in any detail
·the discussion was well over five years ago and “a bit sort of generalised”
·he raised Mr McCormack’s concerns with Mr Jarzynski who indicated he was aware of them
·“Mr Jarzynski thought there had been good reasons at the time for why the interview had been … played out the way it had been played out”
·he would be speculating in trying to provide any further detail.
What then happened at the interview in May 1997? It is common ground that Mr McCormack’s absence on sick leave was mentioned during the interview. But that is where the agreement ends. Mr McCormack says Dr Pelling raised it. Mr Jarzynski says he did raise it but in the context of a gap in Mr McCormack’s curriculum vitae.
I can not be satisfied on the balance of probabilities that Mr McCormack’s version is accurate:
·there is no obvious indication that Mr McCormack was not telling the truth, but he may well have been mistaken
·his account conflicts with that of Mr Jarzynski
·Mr Jarzynski gave straight forward and frank evidence
·Mr Jarzynski was able to give a relatively full account of the selection process of which he had a good recollection, not only the actual interview
·he was for example able to name a number of the other interviewees many years after the event
·nevertheless his evidence contained some minor inconsistencies
·Mr Jarzynski chose himself to admit to asking the question which led Mr McCormack to respond that he had been on sick leave
·he had no reason to protect himself or Dr Pelling by giving a false account – he is not a respondent and has left the public service
·there was nothing to suggest he was seeking to protect his personal reputation
·I am of the view that Mr Jarzynski was a credible witness
·Mr Cheah accepted that his recollection of the conversation with Mr Jarzynski more than five years earlier was “a bit sort of generalised” and that he would be speculating if he was required to provide more detail
·there is therefore no reason to draw a Jones v Dunkel inference.
Accordingly I find that Mr Jarzynski’s version of the interview and the resulting selection of candidates for the positions is more probable than not:
·there was a six month gap in Mr McCormack’s curriculum vitae
·Mr Jarzynski asked a question about this gap
·Mr McCormack said he had been on sick leave but that he was fully recovered
·the selection panel accepted this and Mr McCormack’s illness was not a consideration in his failure to be selected for one of the positions
·Mr Jarzynski did not become aware that Mr McCormack’s illness leading to his sick leave was cancer until well after these interviews.
Mr McCormack was understandably asked about the gap in his curriculum vitae which he indicated was sick leave. On Mr Jarzynski‘s evidence which I accept that was the end of the matter. This does not amount to less favourable treatment because of his disability.
Mr McCormack also alleges that he “was denied access (or his access was limited) to equally and fairly being considered for a position in the Broadcasting area” in the May 1997 selection process. On my findings above Mr McCormack was not treated less favourably on the ground of his disability in this process.
The Thwaites reports
The “referee comments” The following brief background is I understand not disputed by either party:
·Mr McCormack began working in the APEC Section of DCITA as an EL 1 in 1995
·in September 1995 he accompanied Mr Richard Thwaites, then Assistant Secretary of the Trade and Development Branch, to a meeting of the APEC Telecommunications Working Group in Shanghai, China
·the APEC Section was in Mr Thwaites’ branch
·Mr McCormack looked after the Canadian delegation at the Second APEC Ministerial Meeting at the Gold Coast from 2-6 September 1996, although he was not subject to the direct supervision of Mr Thwaites at that meeting
·in early September 1996 Mr McCormack applied for a temporary transfer to an EL 1 position in the Broadcasting Division
·Mr McCormack took sick leave from 23 September 1996 until the end of June 1997
·during this period he was hospitalised at Canberra Hospital for a flare up of his ulcerative colitis and discharged on 4 October 1996
·he came under the care of Dr Terry Gavaghan in October 1996 who detected an obstruction of the large bowel. Dr Gavaghan became “concerned about an ascending colonic cancer”
·the carcinoma was confirmed in an operation at Calvary Hospital on 9 October 1996
·prior to this operation Mr Thwaites provided an oral reference for Mr McCormack for the Broadcasting Division position to a member of the selection committee, Ms Rhonda Thorpe
·Mr Thwaites annexed a copy of Ms Thorpe’s notes of the conversation to his affidavit in which he states that the notes are consistent with his comments
·a copy of these notes were provided to Mr McCormack by Ms Thorpe on 9 October 1996.
Mr McCormack says that in the brief note attached to the referee report Ms Thorpe referred to the fact that he was on sick leave.
The notes of the referee report contain the following:
Ability to work under pressure, etc
Mr McCormack commits fully to working under pressure. he will work long hours when necessary. However he is not always comfortable coping under pressure. He can have a physical reaction requiring recovery time on leave once the job is finished, however, he delivers the required outcomes. Mr Thwaites described him as sensitive and recounted two occasions where he had seen Mr McCormack struggle under pressure.
Under cross-examination Mr McCormack maintained that these comments were made while he was in hospital for his cancer. He says Mr Thwaites had knowledge of his cancer because he was in hospital with cancer at that time.
In his affidavit Mr Thwaites states that his comments were specifically based on his observations of Mr McCormack at the APEC Telecommunications Working Group in Shanghai in 1995. Mr McCormack was absent from the meetings on a number of occasions without explanation. When asked for an explanation Mr McCormack explained that he had a bleeding ulcer which reacted badly to stress. Mr Thwaites therefore assigned him a reduced workload.
Mr McCormack in evidence denied that he had such an ulcer as well as the assertions that he was absent from meetings.
The Shanghai trip in 1995 was one of the two occasions mentioned in the reference. Mr Thwaites could not recall the other. He said:
19. My reference was based on my experience of working with Mr McCormack in pressure situations and I considered that I would have been unable to recommend him highly for any position requiring intense participation over critical periods, such as representing Australia as a delegate at an international conference. Staff rules at the time provided that any staff on temporary assignment overseas were on permanent call and not subject to standard conditions, including regarding working hours and overtime. This staff rules provision, agreed with the relevant union, reflected the reality that such assignments normally require staff to work during the evenings as well as the days. … these rules determined the conditions for staff working in DCITA with respect to overseas travel.
Mr Thwaites also gave evidence that:
·he first met Mr McCormack prior to September 1995
·he cannot recall the exact date on which he was asked by Mr McCormack to provide the reference or the details of the position, but it was probably in mid September 1996 as suggested by Mr McCormack
·he was only asked for oral comments but later confirmed the written record of the oral reference
·the ability to perform under pressure was a standard selection criterion for executive level positions
·he considered his comments were fair and were based on his assessment of Mr McCormack’s capacity to perform under pressure situations – his experiences working with him and his observation of his performance in various working situations
·his comments in the reference were not related to Mr McCormack’s work in relation to the Gold Coast APEC Ministerial Meeting or “the period of hospitalisation immediately after that meeting or any period of hospitalisation”
·he was not supervising Mr McCormack directly for the Gold Coast meeting and he understood that Mr McCormack performed perfectly well during that event
·his comments were not intended to refer to any absence due to Mr McCormack’s illness
·the words “physical reaction” were not a reference to the effects of cancer
·they were not related to his hospitalisation and were before he was aware of Mr McCormack’s cancer and the reason for his hospitalisation
·he did not know immediately that Mr McCormack had been hospitalised as he did not directly supervise him
·he was first informed of Mr McCormack’s cancer by a Mr Oliver, but can not recall when
·his assessment was not a medical assessment.
Mr Sharwood’s submissions for Mr McCormack included:
·the interview report was prepared at a time when Mr Thwaites would have had knowledge of Mr McCormack’s disability
·it “marked Mr McCormack as a health risk – as they were meant to – why else would such a matter be mentioned in a referee report?”
·one of the occasions referred to by Mr Thwaites must have been Mr McCormack’s hospitalisation in 1996 for cancer surgery
·DCITA failed to call a witness, Ms Rhonda Thorpe, whose evidence could have clarified the situation
·linking Mr McCormack’s work with him suffering cancer was objectionable
·this “fixed Mr McCormack with an undeserved and inaccurate reputation with the Department”.
Much of this is not supported by the evidence but is based on inference, conjecture and speculation. For example Mr Thwaites was absolutely clear that he was not aware of Mr McCormack’s disability at the time he gave the referee comments. He did not know immediately that he had been hospitalised as Mr McCormack did not work directly to him. Although Mr McCormack was in hospital at the time, he was not diagnosed with cancer until October 1996 after the comments were made. The words “a physical reaction” were not a reference to Mr McCormack’s cancer or the effects of it including any absences associated with it.
Mr Sharwood has also suggested that I should draw a Jones v Dunkel inference from the failure to call Ms Thorpe to testify particularly about the “second occasion” referred to in the notes of the referee comments. But as Ms Henderson for DCITA has submitted there is no evidence to support an inference that the second occasion had any connection with Mr McCormack’s disability. Jones v Dunkel can not be relied upon to support an adverse inference when the inference is not founded in evidence. It can not be used to make up for any deficiency of evidence. Moreover Mr McCormack could have called Ms Thorpe if he felt it would have assisted.
I see no reason to reject Mr Thwaites’ evidence. In general it does not conflict with that of Mr McCormack. Rather it is only inconsistent with the inferences that Mr McCormack asks the Court to draw and with Mr McCormack’s speculation about what may have happened.
The evidence does not support any finding of Mr McCormack being treated less favourably because of his disability through the referee report. Furthermore as Ms Henderson says “[t]here is no evidence that Mr Thwaites made his comments because of the applicant’s disability. He simply gave a fair assessment of the applicant’s capacity to perform in pressure situations.”
The “not fit to travel” report Mr McCormack also contends that in June 1997 he was advised by Ms Narelle Power of DCITA that Mr Thwaites had produced another report stating that Mr McCormack was not fit to travel. He says that Ms Jenny Weire, the divisional administration manager, confirmed that this was true. She told him it was just a “misunderstanding”.
It is accepted:
·a performance report for Mr McCormack was requested by DCITA’s human resources area for the government medical officer in June 1997
·the APEC section advised that it would be prepared by Mr Thwaites
·on 17 June 1997 DCITA forwarded “PSC3, duty statement, medical certificates and sick leave records” to the government medical officer
·on 19 June 1997 Dr Lark recommended that Mr McCormack was fit to resume duties without restriction
·on 20 June 1997 Ms Weire was notified that Mr McCormack would return to work on 30 June 1997. The government medical officer said he could return with no restrictions or limitations.
Mr McCormack contends that the performance report referred to in the previous paragraph contains the statement that he was not fit to travel. Neither Mr McCormack nor DCITA has produced a copy of this report. Mr McCormack has not seen a copy of it.
Mr Thwaites denies that he ever said that Mr McCormack was not fit to travel. He says that the fact that Mr McCormack attended the Gold Coast meeting well after the Shanghai trip demonstrates that he did not consider Mr McCormack unfit to undertake travel. Although he may have had a discussion with other officers about Mr McCormack’s proposed duties when he was to return from sick leave, Mr Thwaites did not recall writing anything by way of a performance report.
Ms Weire does not remember seeing a report that Mr McCormack was unfit for travel. Although she did not recall being told about such a report, she did remember some discussion in the proximity of her office where something along the lines of fitness to travel was mentioned.
Mr McCormack has fallen far short of satisfying me that Mr Thwaites ever said or wrote the offending words:
·Mr Thwaites flatly denies it
·Ms Weire does not recall seeing any such report and does not recall being told about such a report
·she does recall some office discussion in very general terms on a complaint by Mr McCormack about Mr Thwaites
·no one has produced any document
·Mr McCormack has never seen it.
This complaint must also be rejected.
Placement in the Radiocommunications Policy Section
Mr Sharwood summarises the next occasion of discrimination as:
The placement of Mr McCormack in the Radiocommunications Policy Section (later called the Radiocommunications and Satellite Policy Section) upon return to work in 1997.
On 20 June 1997 DCITA human resources notified Ms Weire that Mr McCormack had been passed by the government medical officer as fit for duty with no restrictions or limitations and he would be returning to work on 30 June 1997. However on his return he was not sent back to the APEC Section but to the Radiocommunications Policy Section (Radiocommunications Section).
Mr McCormack’s contention is that the Radiocommunications Section was a dumping ground for employees with disabilities. He appears to be claiming that he was treated less favourably on the ground of his disability when he was placed in the section in June 1997.
Mr McCormack says that he had no desire to work in this section:
The people placed in the Section were people such as:
Ms Sue Campbell, who had had cancer and whose cancer relapsed in 1999 and killed her;
Mr Peter Coates, who had had several mental breakdowns and subsequently had more;
Mr Wayne Grant, who had suffered permanent injuries as a result of being assaulted; and
Myself, who had had cancer and whose cancer subsequently relapsed.
Under cross-examination Mr McCormack said:
·he expected to return to his old job – “the job was certainly supposed to be mine”
·normally people indicated if they wanted to change jobs on return from lengthy leave
·it was not standard practice to move people after they had been on protracted leave
·Ms Campbell and Mr Coates were not in the section when he commenced in June 1997
·one of the jobs of the section was to provide briefs on spectrum auctions which was a substantial revenue raiser for the government in 1995-1996 although “the tech boom was ending”.
Mr Christopher Cheah was head of the Telecommunications Division in which the Radiocommunications Section was located until April 2003. He says that the section’s responsibilities included:
·advice on spectrum policy issues, including major spectrum auctions and related competition issues
·drafting relevant ministerial determinations
·briefings for international meetings and advising on briefings produced by the Australian Communications Authority
·briefing on a Productivity Commission review of radiocommunications policy
·advice on other issues such as the INTELSAT consortium and electromagnetic emissions
·advice on technical issues and ministerial correspondence.
Mr Cheah denied that the section was a dumping ground for employees with disabilities:
·it was responsible for a range of important government priorities – for example the March 2000 spectrum auction raised significant revenue
·consequently it was strengthened during the years Mr McCormack was there with a number of new staff at EL 1 level
·“we had beefed it up” with three EL 1s as “there was quite a bit of … real work to be done”
·employees were placed in the section to meet operational needs not due to disabilities
·prior to 1999 he was not aware that Ms Campbell or Mr Coates had any form of illness or disability
·he was unaware of Mr Grant’s injuries until he read Mr McCormack’s affidavit.
Mr John Neil was the head of the branch in which the Radiocommunications Section was located at the time Mr McCormack joined in 1997. He testifies that:
·he is not aware of the exact circumstances surrounding Mr McCormack’s transfer to the section nor who made the decision
·his understanding is that it was due to Mr McCormack’s relevant and valuable experience in international aspects of the work
·the work of the section was of great importance to the government with matters of high political and policy profile – the section was no dumping ground
·he was not aware of Ms Campbell’s illness until shortly before she died
·he was not aware of Mr Coates’ health problems until they became evident following Ms Campbell’s death
·he was aware of Mr Grant’s injuries but they did not impact on his work
·he was not aware of the exact nature of Mr McCormack’s illness when he joined the section but did know he had had an extended period of leave
·Mr McCormack’s performance was regarded as solid and reliable and his illness did not influence the allocation of work in the branch.
Mr Tad Jarzynski transferred into the position of Manager of the Radiocommunications Section around April 2000. His evidence on the role of the section and the importance of its functions within DCITA confirms that of Messrs Cheah and Neil.
Mr Richard Desmond was the Manager of the Radiocommunications Section between September 1997 and April 2000. In September 1997 Ms Narelle Power and Mr McCormack were EL 1s in the section which during his time also included a number of APS level 4, 5 and 6 officers such as Mr Wayne Grant.
Around July 1998 satellite policy issues were transferred to the section with two other EL 1s, Ms Sue Campbell and Ms Julie Martinsen. Mr Peter Coates joined the section as an APS level 6 with the radiocommunications review function in approximately January 1999.
In his affidavit Mr Desmond:
·strongly disagrees that the section was a dumping ground for officers with disabilities
·says he understands that all occupants “had been promoted to level on merit”
·noted that as all positions are pool positions officers were in the section because of operational requirements – for example “as in the case of Ms Campbell, Ms Martinsen and Mr Coates, because the function had been transferred to the Section”
·said he became aware of Ms Campbell’s cancer around February 1999 but was unaware of the medical conditions of Mr Coates and Mr Grant.
The divisional administration manager, Ms Jennifer Weire, was not aware that Ms Campbell had been seriously ill when her section merged into the Radiocommunications section in July 1998. She only found out in April 1999. At that time Ms Campbell told her she had been in remission. She said Mr Coates’ disorder was also unknown by management. She knew of Mr Grant’s accident and understood that he had overcome the resulting problem. She recalled that these three officers had worked in a number of areas and it was not uncommon for officers at their levels to transfer to expand their experience and to accommodate operational needs. She asserts:
They would not have been placed in the Radiocommunications Section due to their illnesses as to the best of my knowledge no one knew that any of these officers had illnesses.
Ms Weire also testified:
·after an employee had taken extended leave that employee would not necessarily return to their previous position
·the employee would be placed in accordance with operational needs which depended on shifting work priorities
·generally a position would be backfilled during the leave
·the divisional structure was not rigid and most positions were regarded as pool positions
·thus positions could be moved around to accommodate demand for work priorities
·employees who had taken sick leave would generally be treated in the same way as those who had taken other long periods of leave, subject to any special needs
·she did not recall any decisions made about the placement for Mr McCormack for after his return from leave.
As noted above Mr McCormack’s contention is that the Section was a dumping ground for employees with disabilities. He says that by placing him in the section in June 1997 he was treated less favourably on the ground of his disability.
But Mr McCormack’s underlying premise is simply not supported by the evidence:
·he was transferred to the section in June 1997
·Ms Campbell was not transferred until July 1998 and Mr Coates until January 1999
·none of the departmental witnesses knew of the illnesses of Ms Campbell and Mr Coates at the time of their transfers
·Ms Campbell’s move was due to reorganisation
·it appears that Mr Coates was moved due to the type of work he was undertaking – the radiocommunications review
·it is unclear when Mr Grant joined the section but the relevant departmental witnesses testify that his work was not impaired by any problems from his accident
·the fact that the section was staffed in April 2000 by Mr Grant, Mr Coates and Mr McCormack says nothing about whether it was a dumping ground in June 1997 three years earlier
·Mr McCormack’s contention that the work of the section was unimportant and “the tech boom was over and that by mid 1997 the peak in that section was past” is not convincing
·for example Mr Cheah referred to a spectrum auction in March 2000 which raised significant revenue
·all the senior departmental witnesses testify to the important role performed by the section during the period Mr McCormack worked in it.
Furthermore from the evidence, particularly of Ms Weire, an employee without Mr McCormack’s disability, having taken a long period of leave would not necessarily have been placed back in their previous position on return. The position would generally have been backfilled during the absence. Mr McCormack was not treated less favourably than a comparable person without his disability.
I agree with Ms Henderson that the evidence does not establish that DCITA placed Mr McCormack in the Radiocommunications Section in June 1997 because of his disability.
The harassment of Mr McCormack
Mr McCormack claims that DCITA is liable for permitting “another person to do an act that is unlawful under Division 3 of Part 2 (particularly section 35) in relation to the behaviour of Mr Peter Coates (section 122).” He submits:
The Department was well aware of the behaviour of Mr Coates, and Mr McCormack complained on several occasions. Despite this, the Department failed to prevent the harassment from continuing. Accordingly it has permitted the conduct of Mr Peter Coates and is directly liable pursuant to section 122 of the DDA.
It is useful to set out some undisputed facts:
·Mr McCormack commenced work in the Radiocommunications Section on 30 July 1997
·Ms Campbell commenced in the section in July 1998
·Mr Coates commenced in the section in January 1999
·Ms Campbell developed a recurrence of cancer around February 1999
·Ms Campbell died from cancer on 19 November 1999
·Mr Coates insisted that Mr McCormack take him to Ms Campbell’s memorial service in Canberra on 10 December 1999
·Mr Coates sent Mr McCormack an electronic sexually suggestive Britney Spears postcard on 30 January 2000, one of many such communications
·in March 2000 Mr Coates said he wished to meet Mr McCormack’s mother as he was convinced she had information about one of his ancestors
·in April 2000 Ms Lorraine Shepherd was appointed to case manage Mr Peter Coates who went on leave in mid April 2000
·over the weekend of 15-16 April 2000 both Mr McCormack and his mother received telephone calls from Mr Coates. At the time he started alleging Mr McCormack was an ASIO spy
·on 17 April 2000 Mr Jarzynski replaced Mr Desmond as section manager
·Mr McCormack took a week’s leave after Easter in April 2000. On his return he told Mr Jarzynski that before Mr Jarzynski had arrived in the section he had received numerous harassing phone calls from Mr Coates
·on 1 May 2000 Mr Coates who was on leave came to work and gave Mr McCormack a book entitled Sex Lives of the Kings and Queens of England
·on 10 May 2000 Mr McCormack received telephone calls from Mr Coates who said Mr McCormack was a spy who was plotting to destroy him
·on 25 or 26 May 2000 an anonymous threatening note wrapped around a rock was thrown into the front yard of Mr McCormack’s home
·on 26 May 2000 Mr McCormack commenced leave travelling on a previously planned overseas holiday with his mother.
Mr McCormack deposed:
After Ms Sue Campbell died, Mr Coates suffered a complete mental breakdown which manifested itself in him harassing myself and others. Mr Coates especially harassed me because he knew that I had cancer in 1996-97, and he could not understand why I was still alive while Ms Campbell was dead. Mr Coates came to believe that I had the secret of how to beat cancer, a secret I had not shared with Ms Campbell, thus condemning her to death. Mr Coates harassed me both at work and, via the telephone, at home.
What then is the harassment alleged by Mr McCormack? He submitted it consisted of:
·telephones calls both to his work and home
·sending the sexually suggestive Britney Spears postcard
·giving Mr McCormack the book Sex Lives of the Kings and Queens of England
·Mr Coates telling various people including Mr McCormack that Mr McCormack possessed other secrets and was an ASIO spy
·Mr Coates’ suggestion that Mr McCormack was plotting against him and wanted to destroy him.
Other examples from his evidence include:
·Mr Coates insisting on being driven to the memorial service
·Mr Coates asking to meet Mr McCormack’s mother to discuss an ancestor
·the anonymous note around the rock, assuming it came from Mr Coates.
Mr McCormack also says that Mr Coates’ blaming of him for Ms Campbell’s death because of his knowledge of how to overcome cancer “must be harassment based on Mr McCormack’s disability. The clear motive on the part of Mr Coates’ harassment of Mr McCormack was sourced in Mr McCormack’s cancer.”
Section 35(2) of the Act provides that it is unlawful to harass a fellow employee who has a disability in relation to the disability. In O’Grady v The Northern Queensland Company Limited (1990) 169 CLR 356 at 376 McHugh J says:
The prepositional phrase “in relation to” is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters.
Accepting for present purposes that the incidents listed in [70] – [71] amount to harassment, is there any relationship, direct or indirect, between these incidents and Mr McCormack’s disability? I agree with Ms Henderson for DCITA that there is none. There is no evidence before me from Mr McCormack nor from the departmental witnesses which points plausibly to such a relationship.
Do Mr Coates’ reproaches of Mr McCormack for failing to help Ms Campbell amount to harassment? The words “harass” and “harassment” are not defined in the Act. The Macquarie Dictionary defines “harass” as:
Harass 1. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid. 2. to disturb persistently; torment, as with troubles, cares, etc.
I think these reproaches can be characterised as harassment.
But were they in relation to Mr McCormack’s disability, his cancer and anxiety conditions? Ms Henderson says:
Mr Coates was not so much troubling, disturbing or tormenting the applicant in relation to the applicant’s disability as challenging the applicant because he believed the applicant to have important knowledge about healing which the applicant had failed to share with Ms Campbell. The applicant relies upon this particular delusion as a basis for characterising everything Mr Coates did as harassment in relation to his disability, but the relationship is extremely tenuous.
In my view Ms Henderson has construed the words “in relation to” too narrowly. Applying O’Grady there is a relationship between the harassment involving the “reproaches” of Mr McCormack and Mr McCormack’s disability. Mr Coates was harassing Mr McCormack precisely because of Mr McCormack’s history with cancer.
But Mr Coates is not the respondent. Mr McCormack relies on section 122 to rest liability with the Commonwealth (DCITA) because it caused, instructed, induced, aided or permitted Mr Coates to engage in this unlawful conduct. Mr McCormack says DCITA failed to prevent the harassment from continuing and failed to provide protection to Mr McCormack.
Evidence was given by a number of departmental witnesses on their responses to Mr McCormack’s concerns generally, not just the reproaches which I have found amounted to harassment in relation to Mr McCormack’s disability.
Mr Desmond who was section manager from 1997 to April 2000:
·does not recall being told about much of the alleged harassment
·remembers Mr Coates and Mr McCormack being “a bit more tense toward each other” around 2000
·recalls that Mr McCormack approached him in early 2000 with allegations about certain aspects of Mr Coates’ behaviour
·at no time considered the concerns expressed by Mr McCormack to amount to harassment as such.
Mr Cheah who was divisional head at the time recalls a meeting in early April 2000 where Mr McCormack expressed concerns about Mr Coates’ behaviour. Mr Coates was behaving strangely and disrupting others in the section. Mr Cheah said that Mr McCormack did not suggest that he was concerned for himself or that he considered the behaviour to be harassment of himself personally. As Mr McCormack was suggesting something should be done to help Mr Coates, Mr Cheah decided to raise the matter with the human resources area and ask it to investigate further. He did not recall Mr McCormack saying at this meeting that he wished to be transferred to another section.
Mr Cheah spoke with the manager of human resources who later advised that Mr Coates had serious mental issues which needed to be investigated. Consequently a case manager, Ms Lorraine Shepherd was appointed and Mr Coates went on sick leave.
At a second meeting in mid April 2000 Mr McCormack again complained about Mr Coates’ behaviour. Mr McCormack told Mr Cheah that Mr McCormack was harassing him and his mother. After taking advice and noting that Mr Coates was not physically present at DCITA but on leave, Mr Cheah told Mr McCormack that serious allegations of intimidating or improper behaviour, particularly if outside the workplace, should be taken up with the police. Further:
… strategies were put in place to protect Mr McCormack’s workplace environment by ensuring that Mr Coates did not come into work before he had been assessed by the Government Medical Officer and cleared to return. The building security guards were instructed not to let Mr Coates enter the building.
When Mr Coates returned to work after medical clearance he was moved to another section on a different floor of the building. By this time Mr McCormack was working in the Senate. He and Mr Coates did not work together again.
Mr Jarzynski says that Mr McCormack spoke to him about Mr Coates’ behaviour soon after the Easter break. He confirmed:
·security officers were instructed not to allow Mr Coates to enter the building
·Mr Coates’ access pass was to be deactivated
·he told Mr McCormack that as there was no guarantee Mr Coates could not get into the building, Mr McCormack should telephone him before coming to work to check Mr Coates was not there.
Mr McCormack gave evidence of a number of other events which concerned him and which he says support his complaint against DCITA. One related to a phone call to his home on 25 May 2000 regarding an “emergency” which caused considerable distress to his mother who collapsed. In my view this could in no way be characterised as aiding or amounting to harassment in relation to his disability.
He also made a series of allegations about his dealings with Ms Lorraine Shepherd, an employee of SRC Solutions, who was Mr Coates’ rehabilitation case manager for DCITA. In the most serious of these Mr McCormack says that she must have given Dr Hughson, Mr Coates’ psychiatrist, confidential information given by Mr McCormack to Ms Shepherd that he and his mother held concerns about Mr Coates’ behaviour. Mr McCormack says this was then passed on to Mr Coates “escalating the harassment Mr McCormack was being subjected to” as it “caused Mr Coates to believe that Mr McCormack was plotting against him and wanted to destroy him.”
Both in her affidavit and under cross-examination Ms Shepherd strongly denied this and other allegations. She presented her version of the relevant conversations and events in a clear, straightforward and responsive way. She was a credible witness. I accept her evidence where it conflicts with Mr McCormack’s and reject his allegation that she gave confidential information to Dr Hughson.
I have found that Mr Coates unlawfully harassed Mr McCormack in relation to his disability when he reproached him about Ms Campbell’s illness as alleged at [72]. I have found the other incidents in [70] - [71] and [86] were not in relation to Mr McCormack’s disability.
Section 122 would make the Commonwealth (DCITA) liable if it “causes, instructs, induces, aids or permits” Mr Coates to reproach Mr McCormack. Mr McCormack alleges that DCITA permitted the harassment contrary to s.122 by doing nothing.
The evidence does not support Mr McCormack’s proposition that DCITA did nothing generally about Mr Coates’ behaviour. This action has been outlined above. Whether it did enough in a broader sense is not the issue. Mr McCormack has not spelt out in any detail what other measures should have been taken in the circumstances. Clearly DCITA had no power to prevent Mr Coates making telephone calls from private telephones to Mr McCormack’s home. Further I agree with Ms Henderson that it would have been inappropriate to take disciplinary action against Mr Coates at this time when he was suffering a severe medical condition.
Having regard to all the evidence I am far from satisfied that DCITA caused, instructed, induced, aided or permitted Mr Coates to engage in the unlawful conduct of reproaching Mr McCormack in the way set out earlier. To “permit” suggests an element of knowledge, toleration or indifference. The evidence just does not allow a finding that when informed of Mr McCormack’s concerns DCITA “permitted” the unlawful conduct.
Mr McCormack has not made out his claim that DCITA engaged in any unlawful conduct as contemplated by s.122.
Acting as section manager
The complaint is:
The Department’s failure to allow Mr McCormack to act as Section Manager from time to time, after his first battle with cancer in 1996.
The relevant background is:
·Mr McCormack returned to work and commenced duty in the Radiocommunications Section and not the APEC Section on 30 June 1997
·Mr Desmond became Manager of the Radiocommunications Section in September 1997 and remained there until April 2000
·Mr McCormack and Ms Narelle Power were the two EL 1s in the section in September 1997
·around July 1998 satellite policy issues were transferred to the section bringing two other EL 1s, Ms Sue Campbell and Ms Julie Martinsen.
Mr McCormack says:
Also, after my return to work on 30 June 1997, I was never again allowed to act as section manager, even though I had regularly acted before my battle with cancer in 1996. When I complained of this to Mr John Neil, the General Manager of the Branch I worked in, I was informed by him that I could never be promoted, that he himself would “advise any selection panel not to promote” me and, indeed, he had not realised that someone with my “problems” might be able to act as section manager.
Mr McCormack says that Ms Power always acted when Mr Desmond was absent, except on one occasion when both Mr Desmond and Ms Power were away and no one acted as section manager.
Mr Desmond’s evidence is:
·from September 1997 the only opportunity for Mr McCormack to act would have been when Mr Desmond was on leave
·the acting would have been shared between the EL 1s
·if it is true he did not act it may have been because Mr Desmond did not take sufficient leave
·under the certified agreement higher duties were only offered if the occupant of the position was on leave for a period in excess of three weeks
·he was not of the view that Mr McCormack was not able to act as section manager
·he could not recall whether Ms Power always acted although “I wouldn’t dispute that.”
Mr Neil remembers having a conversation in early 2000 when Mr McCormack told him that he was looking for opportunities to act as section manager and to further his case for promotion. Mr Neil responded that he had not realised he was interested in promotion but he would take his interest into account when considering available acting opportunities. He denied the allegations in [96] and any suggestion that he would prevent Mr McCormack’s promotion “either within the team or externally.”
Mr Neil noted:
·Mr McCormack was not under his direct supervision
·he had observed that Mr McCormack tended to work independently and to complete his tasks on his own
·his perception was that Mr McCormack “may not have been temperamentally suited to supervision, and that he had not exhibited leadership qualities”
·he did not think Mr McCormack was “un-promotable”
·acting appointments were generally made on merit, but depending on the circumstances higher duties decisions were often made on a rotational basis
·the period of absence would need to be more than three weeks to meet the certified agreement requirement
·he could not recall whether Mr McCormack had acted; he accepted that Ms Power had, but was uncertain in which section.
The allegations at [96] made by Mr McCormack are not mentioned in his submissions. Mr Neil denied them and it seems they are no longer being pursued.
Instead Mr Sharwood for Mr McCormack submits:
Mr Neil did not recall telling anyone about the conversation he had had with Mr McCormack when Mr McCormack expressed his desire for promotion. Mr Neil’s comment was that Mr McCormack was ‘not socially engaged – self centred and self sufficient’. He painted a picture of a loner, consistent with what he would have been told about Mr McCormack from the ‘corporate memory’ of the Department i.e. a person with serious health problems, possibly facing death and consumed with thoughts about that eventuality.
… It is submitted that the reason for [not acting up] is because … Mr McCormack had unjustifiably and unlawfully achieved a reputation within the Department for being a person prone to ill health if stressed.
As Ms Henderson for DCITA asserts the alleged existence of some corporate memory, corporate knowledge, corporate opinion and reputation in relation to Mr McCormack is only raised substantively in Mr McCormack’s closing submissions. It is briefly touched on in the outline of submissions.
But more significantly, the evidence does not support the existence of such a corporate reputation. There is nothing to suggest that information about Mr McCormack was circulated outside selection panels, beyond the human resources area or beyond the others within DCITA with any need to know about the matter in hand. Mr McCormack through his counsel also failed to put contentions about corporate knowledge and reputation to the departmental witnesses.
Mr McCormack has based his case on a broad generalisation that before his battle with cancer he had regularly acted. Since he joined the Radiocommunications Section he has never acted. He has put on no evidence of the times when an EL 1 acted as section head in this period. He just says Ms Power always acted.
For present purposes I am prepared to assume that Mr McCormack was less favourably treated in that his able bodied comparator was given the opportunity to act and he was not. I do this with reservations as the evidence is far from clear based as it is on broad assertions.
But section 5 requires the less favourable treatment to be “because of the aggrieved person’s disability”. There is no discrimination on the ground of disability unless a causal relationship is established between the disability and any less favourable treatment (Humphries at 333).
Even if Mr McCormack was treated less favourably I am not satisfied that it was because of his disability. Both Messrs Desmond and Neil have provided evidence on how acting decisions were made at the time in the section. Mr Neil in particular noted that Mr McCormack “may not have been temperamentally suited to supervision, and that he had not exhibited leadership qualities”. He asserted that acting appointments were generally made on merit, and sometimes on a rotational basis. He had not been aware of the exact nature of Mr McCormack’s illness when he joined the section but did know he had had an extended period of leave. Mr Neil testified that after Mr McCormack had met with him he said that he would take his interest into account when considering available acting opportunities.
Both Messrs Desmond and Neil were credible witnesses. I see no reason to reject their evidence when considered against the generalised complaint of Mr McCormack.
On the evidence I am not satisfied that any less favourable treatment of Mr McCormack in relation to higher duties was because of his disability.
Handling by DCITA of request for transfer
Mr McCormack summarises his complaint:
The treatment of Mr McCormack in failing to properly administer his request for a transfer to a permanent position elsewhere.
In his concluding submissions Mr McCormack says:
Two able-bodied persons in the Radiocommunications and Satellite Policy Section, Mr Desmond and Ms Power each requested a transfer to another Section and each was transferred, indeed, Mr Desmond’s oral evidence was that he had been offered, and had accepted, several transfers within the Department. Mr McCormack’s request for a transfer was badly handled for a considerable period. Mr McCormack’s request came about as a result of poor behaviour by Mr Peter Coates, …
…the Department’s inaction in relation to Mr McCormack came about because the corporate knowledge of the Department was that Mr McCormack was a health risk. He was a problem and the Department did not know what to do with him.
Mr McCormack’s first request for a transfer appears to have been made in early April 2000 when he was informed that Mr Jarzynski was to be his new section manager:
I spoke to Mr Cheah about this issue and informed him that I did not consider that there was much point working for someone who had discriminated against me in the interview process undertaken in May 1997. Mr Cheah stated that he understood the problem and agreed that on my return, from my planned recreation leave in July 2000, I would work elsewhere.
Mr McCormack states that at this time because of the difficulties with Mr Coates:
I also had requested a transfer, but Mr Chris Cheah, the Chief General Manager Telecommunications, the division I worked in, informed me that I had to remain where I was for at least several months in order to hand-over the Radiocommunications Section to Mr Jarzynski.
Mr McCormack says that when Mr Jarzynski commenced in the section:
I informed Mr Jarzynski that I would be in the Section only until 2 June 2000, after which I would begin recreation leave, and after that I would be going elsewhere.
Mr Cheah does not recall Mr McCormack expressing a desire to transfer sections at this first meeting. He also denies that he told Mr McCormack that he would have to stay in the section. Rather Mr McCormack agreed to stay to help during a transition period. Mr Jarzynski was then relatively new to radiocommunications issues and “Mr McCormack was one of the few employees at work at the time who had extensive experience” in these issues. Mr Cheah told him that he would see what could be done about arranging a transfer in the future, although there were constraints on his ability to do this outside the division and certainly outside DCITA.
It appears from Mr McCormack’s evidence that the first occasion on which he requested a transfer to another department was on 18 April 2000. He says he spoke with Ms Alison Wyse who managed human resources about Mr Coates’ behaviour. She “assured me that a transfer could be arranged.” In early May 2000 Ms Wyse told Mr McCormack he should speak with Mr Cheah about the transfer.
Ms Kelly Pearce also from the human resources area said he should read the Public Service Gazette and look in the newspaper. But on 12 May 2000 Ms Pearce advised Mr McCormack that she had contacted a senior officer in the Senate, Mr Cleaver Elliott, to see if the Senate would consider a temporary transfer. On 13 June 2000 Ms Pearce notified him that DCITA had arranged to pay for him to work at the Department of the Senate (DOS) from 10 July 2000 to 13 October 2000. During this time he was to apply for jobs elsewhere.
I note for completeness that Mr McCormack testifies that he was interviewed for positions advertised on 16 March 2000 in DCITA by Ms Ruth Ashe and Mr David Williams. He says that he was advised by Mr Williams in May 2000 that he had been successful but was never offered a job. The DCITA witnesses did not know anything of this matter and were not aware of a Mr David Williams in DCITA. There was a Mr David Williamson.
Mr McCormack says that on 15 August 2000 he advised Mr Cheah that he had not been interviewed for any positions and sought approval to continue to work at DOS until 8 December 2000. Mr Cheah agreed subject to Mr McCormack seeing a careers adviser and providing Mr Cheah with an update in November 2000. Mr Cheah also told him that if he was not able to find a suitable position, a return to DCITA was not viable. He would therefore be excess and should take a voluntary redundancy.
According to Mr McCormack he met with Mr Arthur Blewitt, the divisional head for the corporate area of DCITA on 12 October 2000. He says Mr Blewitt offered him a permanent EL 2 position in the government online area (National Office of the Information Economy or NOIE). This was despite Mr McCormack being a substantive EL 1. A few days later he decided not to apply for an EL 1 position in the Attorney-General’s Department because of this offer.
But on 17 October 2000 Mr McCormack discovered that the position was an EL 1 not 2. He confronted Mr Blewitt who denied that he had offered an EL 2 job. He also told the relevant executive in NOIE that he was not qualified for the position. Later in November 2000 he says Mr Blewitt offered him an “envisioned” position in NOIE dealing with statistics.
At a further meeting with Mr Blewitt in early November 2000 the possibility of a job swap with a DOS employee was discussed. Such an arrangement was agreed in December 2000 but only as a temporary arrangement to expire in January 2002 with a review in November 2001. Mr Frank Nugent was the DOS employee who would go to DCITA. Mr McCormack says no review was held. This is denied by Mr Blewitt.
Mr McCormack complained to the Merit Protection Commissioner in February 2001 that he was financially disadvantaged by these arrangements because of the different pay scales for DCITA and DOS EL 1s. He also complained that he had sought a permanent transfer from DCITA.
On 31 July 2001 DCITA wrote to the Merit Protection Commission saying it would facilitate a transfer for Mr McCormack to DOS by offering to fund a redundancy in DOS. This was conveyed to DOS on 21 August 2001. On 30 October 2001 Mr McCormack informed Mr Blewitt that he had discovered that DOS no longer wished to accept a redundancy from DCITA.
On 4 February 2002 Mr McCormack commenced a temporary twelve month secondment to the ACT Legislative Assembly. DCITA paid one half of Mr McCormack’s salary during this secondment.
Mr Cheah’s evidence is:
·at their meeting in mid April 2000 Mr McCormack told him he was scared of Mr Coates and wanted to transfer out of the Radiocommunications Section but did not rule out a transfer elsewhere in DCITA
·staff in DCITA’s human resources area worked diligently to find a transfer at level
·Mr Cheah tried to find him a job in NOIE in another building away from where Mr Coates might work on his return
·Mr McCormack would not contemplate a position in NOIE and insisted that a transfer be arranged to another agency
·Mr Cheah pointed out external transfers were much harder to arrange than internal ones
·human resources tried to arrange such a position but were initially unsuccessful
·DCITA could not force another agency to accept the transfer of one of its employees
·Ms Kelly Pearce arranged a placement for Mr McCormack at DOS from July 2000
·DCITA paid Mr McCormack’s salary for about six months while he was at DOS
·Mr Cheah initiated a management plan for the placement of Mr McCormack and arranged for the provision of counselling which went beyond the standard services given to other DCITA employees
·he worked closely with Mr McCormack after he went to DOS to try to secure a permanent transfer for him
·he denies that he suggested in August 2000 that Mr McCormack should take a voluntary redundancy
·Mr Cheah does not recall standing in the way of any transfer proposals Mr McCormack may have arranged.
Mr Arthur Blewitt who was the head of the Corporate and Business Division in DCITA between October 1998 and July 2002 gave the following evidence:
·the Public Service Act 1999 does not provide an agency head with the authority to unilaterally transfer an employee of that agency to another agency without the consent of the receiving agency
·after Mr Blewitt met with Mr McCormack in October 2000 Ms Alison Wyse told him that human resources had put in place two main strategies to accommodate Mr McCormack’s request for a transfer – trying to find other employment in the DCITA portfolio and canvassing possibilities in external agencies
·Ms Wyse advised that Mr McCormack had refused several offers within DCITA
·Ms Wyse and Ms Pearce contacted Australian Government and ACT Government agencies with an offer to pay six months of Mr McCormack’s salary but this was unsuccessful
·but they were able to arrange a secondment at DOS commencing in July 2000
·Ms Pearce was devoting up to half her time in trying to resolve the request for transfer
·Mr Blewitt met with Mr McCormack in October 2000 and offered a permanent executive level position in NOIE for which the NOIE divisional head and he had agreed Mr McCormack had the skills and experience – it was possible however he did not mention the level of the position
·he did not offer an EL 2 position – he could not offer an EL 2 as that would involve a promotion which would require a merit selection process
·Mr McCormack rang Mr Blewitt sometime after the meeting and insisted Mr Blewitt offered an EL 2 – Mr Blewitt denied this
·Mr Blewitt confirmed this in correspondence of 31 October 2000. Mr McCormack refused the EL 1 offer and told Mr Blewitt he considered the job unsuitable
·Mr Blewitt spent a considerable amount trying to resolve Mr McCormack’s request. It was unusual for an SES Band 2 officer to handle such matters, an indication that DCITA was taking the matter most seriously and trying to achieve a suitable outcome for Mr McCormack
·at a meeting with Mr McCormack on 3 November 2000 they discussed the possibility of a permanent transfer to DOS, something Ms Pearce was exploring
·Mr McCormack refused the offer of a second EL 1 position at NOIE in its E-Commerce Branch shortly after this meeting – Mr Blewitt and the responsible officer from that area considered that the position was compatible with Mr McCormack’s qualifications and experience
·lengthy negotiations were held with DOS and Mr McCormack’s initial secondment which was due to end about October 2000 was extended for a further period while DCITA considered other options to place Mr McCormack on a more permanent basis with DOS
·in early December 2000 DOS agreed to a 12 month temporary transfer to January 2001 in exchange for a DOS employee working at DCITA for this period
·DCITA decided Mr McCormack would receive the benefits of DCITA certified agreement pay rises when he went to DOS. Although there were some administrative difficulties as the DCITA and DOS pay scales were not aligned, after some time the issue was resolved and Mr McCormack not financially disadvantaged
·around late October 2000 Mr McCormack requested a complaint he had made be referred to the Merit Protection Commission at which time DCITA had not completed its internal review of Mr McCormack’s Review of Action request
·it was standard practice that a complaint must be reviewed internally and a report handed down before the matter could be referred to the Commission.
One of Mr McCormack’s complaints is that DCITA failed to provide him with referee comments in 2000 and thereafter. He says that DCITA “would either not provide referee comments at all, or not provide them in time for such reports to be considered ...”.
Mr Desmond who was his section manager until April 2000 denied this allegation and said he provided at least two reports around this time. He annexed the reports made in October 2000 and February 2001. Under cross-examination he again denied refusing to provide any reports but some may have been provided late which he said was not uncommon as they were not generally given priority. Mr McCormack was not treated any differently from others in that regard.
In his outline of submissions Mr McCormack set out a series of matters which he says constitute the unfavourable treatment to which he was subjected. Not all these are referred to in his closing submissions. Some are mentioned only briefly or obliquely. Some of the conduct to which Mr McCormack takes offence has also been considered earlier in these reasons
He wishes the Court to infer from his evidence that he was treated unfavourably because:
The Department has not put forward any satisfactory explanation for its treatment of Mr McCormack. The applicant submits that the Department has clearly treated him in the way that it has because of his disability. It is clear, as mentioned above, that Mr McCormack had a reputation within the Department that unlawfully and unfairly linked him to his illness, his disability, when it came to consider his employment and employability. … The inference is clearly available that Mr McCormack has been treated less favourably because of his Departmental reputation which included at least that he had had cancer, that it could, even would, relapse, and also possibly the suggestion that Mr McCormack became ill when exposed to stress. This is unlawful conduct under the DDA.
Mr McCormack’s submissions are unfounded. I have summarised the evidence in some detail above. Apart from Mr McCormack’s assertions, for which he called no witnesses in support, none of the evidence comes close to suggesting Mr McCormack was treated less favourably than an able-bodied comparator would have been when faced with the harassment of Mr Coates and then requesting a transfer.
I am not in a position to determine whether DCITA took all the steps it could. It is also clear that there were some problems from time to time, such as at least one late referee’s report. Nevertheless if anything DCITA appeared to act more favourably in seeking to resolve Mr McCormack’s situation than it might have done for his notional comparator. Certainly the time devoted to it by officers of the seniority of Messrs Cheah and Blewitt as they say is unusual. I am satisfied from the evidence:
·both Messrs Cheah and Blewitt attempted to arrange positions at NOIE
·two were in fact offered but rejected by Mr McCormack as unsuitable for his experience and qualifications, although from Mr Blewitt’s oral evidence it seems that Mr McCormack may have misunderstood the nature of the work involved in the second position
·he was regarded as suitable for the positions by the relevant senior DCITA officers
·unfortunately Mr McCormack misunderstood one of these offers to be a permanent one at EL 2 level, something which could only be achieved by merit selection
·in view of Mr McCormack’s time in the public service, I find it hard to believe that he was unaware of the need for merit selection for promotion to an EL 2 position
·DCITA human resources attempted to find external positions but were initially unsuccessful
·significant DCITA resources were devoted to assisting Mr McCormack to find a position, not least from senior managers and in the human resources area
·an external position was found at DOS with DCITA contributing to Mr McCormack’s salary. This was later replaced with a temporary job swap with a DOS officer.
Mr McCormack’s case is that not only was he treated unfavourably but that this treatment was due to his disability. This he says is because I should infer from the evidence that he developed within DCITA a reputation as a health risk. There was “corporate knowledge” that he was a health risk and a problem which DCITA did not know how to deal with. I have already rejected Mr McCormack’s allegations on the corporate culture issue. I do not wish to add to that other than to repeat that the evidence goes nowhere near supporting such allegations.
The onus is on Mr McCormack to satisfy me that he was treated less favourably than the relevant comparator and that this is because of his disability. Mr McCormack has made a lot of often vague allegations but not presented specific supporting evidence. He gave evidence himself but did not adduce one supporting witness other than his general practitioner whose evidence was essentially confined to medical issues. He has demonstrably failed to make out his case.
This allegation of unlawful conduct must also be rejected.
Failure of the Senate to find a permanent position
The first occasion of unlawful conduct alleged against DOS is:
Its conduct towards the applicant in failing to provide him with a permanent position at the Senate;
Mr McCormack submits:
Mr McCormack, and others, had an expectation in late 2000 and into 2001 that should Mr Nugent wish to remain at the Department following the expiration of the temporary job swap in January 2002, he, Mr McCormack, would almost certainly be offered a permanent position at the Senate. The only variable was Mr Nugent. Mr McCormack’s supervisors were happy with his work. The Department would be relieved of a problem if the Senate offered Mr McCormack a position and Mr McCormack himself was content at the Senate.
…
Despite this the Senate reneged on the earlier understanding. What had changed in the interim? Senior managers at the Senate had become aware of Mr McCormack’s health issue, particularly that the relapse of his cancer had been confirmed in August 2001. The inference is that the Senate decided not to pursue the earlier understanding because, due to Mr McCormack’s ill health. Mr McCormack was now seen as an undesirable permanent employee – because of his ill health.
It may help to provide some brief background:
·on 31 May 2000 DOS agreed to a three month secondment of Mr McCormack to DOS from10 July 2000 to 13 October 2000
·in late August 2000 the placement was extended to 8 December 2000 with DCITA continuing to fund the placement
·at a meeting with Mr Blewitt on 3 November 2000 Mr McCormack suggested that DCITA pay for a redundancy at DOS with Mr McCormack moving into that position or arrange for a job swap for Mr McCormack with a DOS officer. Mr Blewitt said he would work to bring about the latter
·on 1 December 2000 DCITA agreed to a twelve month transfer of Mr Frank Nugent from DOS to DCITA in exchange for a further twelve months of Mr McCormack at DOS from January 2001
·on 17 August 2001 Mr McCormack was told by his medical specialist that his cancer had relapsed
·Mr McCormack says that about 3 December 2001 Mr Nugent telephoned Ms Gabrielle Avery, head of DOS human resources, indicating he wished to remain permanently at DCITA – Ms Avery did not recall that
·around 14 December 2001 Ms Avery “received notification that Mr Nugent had changed his mind about the option to move permanently to DCITA”
·but on 19 December 2001 Mr Nugent e-mailed a number of DOS officers that he wished to remain permanently at DCITA
·Mr Nugent did not stay at DCITA but returned to DOS some time after this – the precise date is unclear but it appears to be when the twelve month temporary transfer/job swap ended.
Mr McCormack’s evidence on the conduct of DOS in finding him a permanent position is:
·on 10 November 2000 Ms Pearce recounted in an e-mail to Mr Blewitt a conversation she had just had with Mr Cleaver Elliott, then Clerk Assistant (Committees) at DOS, which included Mr Elliott being concerned to find out whether Mr McCormack’s having been harassed had permanently affected him and whether “he is likely to break if he has a falling out with someone up there”
·on 11 December 2000 Mr Elliott told Mr McCormack that if Mr Nugent went permanently to DCITA a permanent vacancy would be created for Mr McCormack at DOS – but Mr Nugent wanted to test the waters first
·Mr Elliott also stated that if Mr Nugent wished to return to DOS Mr McCormack would have to return to DCITA
·on the same day Mr McCormack received an assurance from Mr Peter Keele, then Senior Clerk of Committees, that if Mr Nugent returned “tomorrow’ they would sort something out
·on 15 February 2001 Mr McCormack raised the 10 November 2000 Pearce e-mail with Mr Elliott who apologised and said he needed to know what went on at DCITA. Mr McCormack recounted the events of his harassment at DCITA
·both Mr Elliott and Ms Avery seemed to be preoccupied with Mr McCormack’s harassment at DCITA. On 9 April 2001 Mr McCormack wrote to Ms Avery hoping the letter would end these “distressing inquiries’
·on 11 April 2001 Ms Avery told him in a letter that if Mr Nugent agreed to move to DCITA consideration could be given to an exchange on an ongoing basis
·on 21 August 2001 Ms Marie Druitt of DCITA advised Ms Avery that in order to facilitate Mr McCormack’s permanent transfer to DOS DCITA was prepared to pay for a voluntary redundancy for a DOS officer
·Mr Elliott advised Mr Peter O’Keeffe, Clerk Assistant, Corporate Management in DOS, that he did not propose to take up the DCITA proposal on 23 August 2001
·Mr McCormack returned to work on 29 October 2001 following surgery and contacted Ms Avery who told him that DOS would probably not be taking up the job swap/redundancy offer
·in a telephone conversation with him on 30 October 2001 Mr Elliott said he never wanted a job swap/redundancy and did not know how they worked
·on 20 December 2001 Mr Matt Taylor, an organiser from the CPSU, told Mr McCormack that he had been advised that DOS was refusing the job swap because of the expectations of other employees, especially persons at the APS 6 level
·Mr McCormack was interviewed on 31 January 2002 for several PEL 1 positions in DOS but advised on 8 March 2002 that he was unsuccessful
·Mr Harry Evans, Clerk of the Senate, wrote to Mr McCormack on 18 February 2002 saying that DOS had acted with honesty and integrity in relation to issues concerning his employment and enclosing a report on this matter from a senior DOS officer, Mr John Vander Wyk
·under cross-examination Mr McCormack agreed Mr Elliott did not at any stage indicate he was interested in the job swap/redundancy proposition.
Mr Cleaver Elliott was Clerk Assistant (Committees) at DOS from 1996 to 2001. He gave the following evidence:
·the Committee Office of DOS makes extensive use of secondments from other government departments – at any one time there may be up to seven secondments, each for periods from two to eighteen months
·in late August 2000 shortly after Mr McCormack’s secondment was extended to December 2000 he had a conversation with him in which Mr McCormack raised the problems he had been having at DCITA. Mr Elliott replied that he did not want to get involved in that but Mr McCormack was welcome at DOS: “Wipe your feet at the door and try to put your problems with DCITA behind you.” Mr McCormack denies this conversation took place
·in early November 2000 Mr Elliott phoned Ms Pearce to explore the possibility of extending the secondment for a year by an exchange with Mr Frank Nugent. Terms and conditions including rates of pay were discussed
·Mr Elliott says he said words to the effect:
I have heard about Patrick’s difficulties at DCITA both from his supervisor at the Department of Senate and from Patrick. As you know working at the Department of the Senate can be like working in a pressure cooker. Do you think Patrick can leave all the baggage of his tension with your Department behind him? I’m satisfied with the way he’s working and the reports I’m getting. What I want to know is in your opinion are his difficulties with DCITA self-contained and unique? Is he going to get on with the team or is he likely to be “a stone in the shoe” if DCITA and the Department of the Senate agreed to the secondment for an extended period of time?
·Ms Pearce replied that she did not know but that he was a good worker although the harassment had left him stressed. Mr Elliott indicated that he would see how the exchange went
·Mr Elliott asserts that what he wanted to know was whether Mr McCormack was likely to be a disruptive influence in a small team as this would affect the capacity to support senators
·Mr Elliott denied “that I discussed Mr McCormack’s mental condition or anything about his past or present illnesses. My focus was to ensure that I got a team member that could fit in and work productively.”
·he specifically rejected the interpretation put on the conversation in Ms Pearce’s 10 November 2000 e-mail to Mr Blewitt. Any reference to Mr McCormack’s experience of harassment was incidental
·the possibility of Mr McCormack permanently transferring to DOS being considered down the track was mentioned but there was no hint of this being part of a redundancy arrangement for another employee
·after speaking with Ms Pearce who confirmed Mr McCormack’s DOS supervisor’s views, Mr Elliott was comfortable about extending Mr McCormack’s secondment for a year
·DOS and DCITA agreed in December 2000 on a staff exchange for a year on a temporary basis with the possibility of this becoming permanent at some future date if all concerned agreed
·if the arrangements did not work out as intended Messrs Nugent and McCormack could return to their home departments
·Mr Elliott denies that in a conversation on 11 December 2000 or at any other time he gave Mr McCormack an assurance that if Mr Nugent went permanently to DCITA a permanent vacancy would be created for him at DOS
·in a conversation with Mr McCormack on or about 14 February 2001 he told him that Ms Pearce’s 10 November 2000 e-mail to Mr Blewitt “doesn’t represent our conversation” and suggested that he speak with Ms Avery about any measures to protect him from any further harassment
·he and Ms Avery met with Mr McCormack on about 16 February 2001 to follow up on any assistance DOS could provide
·Mr Elliott denies that the redundancy issue and the job exchange issue were in any way tied: “I did not and have never indicated acceptance of DCITA’s proposal to initiate a redundancy at Department of Senate for the purpose of creating a job vacancy at Department of Senate for Mr McCormack”
·when informed of the redundancy proposal he immediately rejected it
·secondments to DOS rarely result in a permanent transfer – Mr Elliott could only recall one in 24 years – as secondments are designed to provide parliamentary experience to public service employees for the benefit of their originating departments and to provide DOS with the specialised knowledge of the employees
·DOS had other imperatives to consider when looking at the possibility of a permanent transfer for Mr McCormack
·DOS was negotiating a new enterprise agreement in which the impact of secondment arrangements on promotion prospects for DOS staff was an issue
·in this context DOS management decided that permanent senior vacancies would be recruited through merit selection processes
·for this reason Mr McCormack was not offered a permanent transfer to DOS – to do so would undermine the undertakings given to staff “to address their promotion prospect concerns.”
·in early December 2001 Mr Elliott was advised that Mr McCormack was to be offered a job at the ACT Legislative Assembly when his DOS secondment ended
·Mr Elliott knew Mr McCormack had previously had cancer in 1996-1997 which he believed he had overcome – Mr McCormack told him of the cancer
·he says he did not know that the cancer had relapsed or that he had it while working at DOS.
Under cross-examination Mr Elliott:
·was adamant that while the possibility of a permanent transfer of officers between the two agencies was discussed with Ms Pearce in early November 2000, he did not discuss the redundancy proposal
·said the reason for the call was to extend the secondment
·stated that the remarks about Mr McCormack‘s difficulties at DCITA were only incidental – Ms Pearce’s record was not accurate and he told Mr McCormack so
·testified that as Ms Pearce did not say anything of concern Mr McCormack’s secondment was extended for a further year
·said that he regarded a redundancy/job swap along the lines proposed improper – it would not pass the “Senate Estimates” test
·testified that a permanent swap became more difficult at the end of 2001 because of the enterprise agreement negotiations
·said it was also dependent on Mr Nugent’s wishes – he appeared to want to keep his options open
·indicated that he did not want to do anything which might suggest to Mr Nugent that he was being pressured to leave DOS
·
said that he left the Committee Office on rotation on
17 December 2001 and was succeeded by Mr John Vander Wyk
·asserted that Mr Nugent’s e-mails to DOS were equivocal but he eventually returned to DOS after Mr Elliott moved on rotation from the Committee Office
·noted that in an e-mail of 23 November 2001 Mr Nugent had expressed preferences about where he should be placed in the DOS Committee Office on return
·reiterated that he had no knowledge of Mr McCormack’s cancer relapse until after Mr McCormack left the Senate.
Ms Denise Gordon commenced acting as director of human resources in DOS from 17 December 2001. Prior to this she held a position of assistant director for about eight years. Her evidence included the following:
·DOS staff and management commenced negotiations for a new certified agreement in around June 2001
·during discussions surrounding the new certified agreement the Clerk Assistant (Committees) decided to advertise vacancies for ongoing senior positions in the Committee Office
·on 18 December 2001 she spoke with Messrs Elliott and Vander Wyk about CPSU inquiries whether the job swap between Mr McCormack and Mr Nugent was to proceed
·Mr Elliott said that Mr McCormack knew the position of DOS on this. He could apply for one of the advertised jobs. Mr Nugent was returning to DOS
·Mr Vander Wyk agreed with Mr Elliott and Ms Gordon advised the CPSU the next day
·following further discussions with the CPSU Ms Gordon spoke to Mr Elliott on 21 December 2001 who said he had heard Mr McCormack had a permanent position with the ACT Legislative Assembly
·on 19 December 2001 Mr Nugent advised Ms Gordon that his preference was to remain at DCITA permanently
·on 24 December 2001 she was told by DCITA human resources that they knew nothing about an extension of Mr Nugent’s temporary arrangement. She was told of the ACT Legislative Assembly job offer to Mr McCormack
·while she has been at DOS it only offered voluntary redundancies where a position is surplus due to a restructure, where a position is no longer required, or due to technological changes or individual limitations
·there has been no general offer of redundancy or artificial arrangement with other agencies involving a swap and redundancy
·Ms Gordon had no knowledge of Mr McCormack’s illness or that his cancer had relapsed prior to or while he was with DOS.
Mr Peter Keele was Senior Clerk of Committees from 1987 to 2002. His evidence is:
·during 2001 he became aware of the DCITA redundancy/job swap proposal
·Mr Keele did not initiate the proposal although he discussed it and a number of other options generally with Mr McCormack
·Mr Elliott and the Clerk of the Senate, Mr Evans, decided to reject the offer as it would be “messy”
·when Mr McCormack asked if the exchange with Mr Nugent could be made permanent he said they would have to wait and see how Mr Nugent found work at DCITA
·Mr Keele did not say anything to Mr McCormack that would create an expectation of permanent employment at DOS
·at no time during Mr Keele’s conversations with Mr Elliott or any other DOS manager was mention made that it would be risky offering Mr McCormack a position because of his cancer
·Mr Keele did not know and Mr McCormack did not tell him of his 2001 recurrence of cancer.
Mr Peter Hallahan was a committee secretary in DOS from 1999 to 2002. Mr McCormack worked on his committee from the time he arrived in July 2000. Mr Hallahan testified:
·Mr McCormack told him about his difficulties with DCITA and that he had had cancer but was now cancer free
·he was later told by Mr McCormack of the harassment by a DCITA officer
·Mr McCormack did not tell him of the recurrence of cancer while he was at DOS – he only found out after Mr McCormack left DOS
·Mr McCormack acknowledged this in a letter to Mr Hallahan in May 2002
·one of the issues during the negotiation of the certified agreement was a proposed new program for public service employees to work on secondment at DOS
·this caused concern to some DOS employees because of its implications for their promotion prospects
·he was also concerned about this so he took the issue up with Ms Andrea Griffiths who chaired the management team negotiating the certified agreement.
Mr McCormack alleges that he was treated less favourably than an able bodied comparator by the conduct of DOS in failing to provide him with a permanent position in DOS. Mr McCormack had an expectation that should Mr Nugent wish to remain at DCITA at the end of the temporary job swap in January 2002 he would be found a permanent position at DOS – “the only variable was Mr Nugent”.
But on the evidence it is stretching things to conclude that an able bodied comparator would have been treated differently:
·Mr McCormack certainly entertained an expectation of a permanent position
·DOS officers had always said that this was never more than a possibility. Ms Avery says in a letter of 10 April 2001:
The exchange currently in place between you and the Senate employee concerned has been agreed between this department and the Department of Communications for a period of approximately 12 months. The Senate employee has been given undertakings in relation to the exchange arrangement that if, at the end of the agreed period, his preference is that he return to duties with the Senate Department, he will be able to do so, If that Senate employee states a preference for a move to the Department of Communications as an ongoing employee, consideration can be given by both departments to a possible exchange between you and the Senate employee on an ongoing basis. (emphasis added)
·the evidence of the other DOS witnesses is completely consistent with this letter
·it was always pointed out to Mr McCormack that any consideration of a permanent position was dependent on what Mr Nugent finally decided to do
·because of some difficulties Mr Nugent had had with one of his supervisors at DOS, senior officers at DOS were adamant that they did not want anything done which might suggest to Mr Nugent that he was being pushed out
·Mr Nugent appears to have reserved his position until very late – he did not advise DOS until 19 December 2001 that he wished to stay at DCITA – and changed it on a number of occasions
·Mr Nugent did not stay at DCITA but returned to DOS although the precise circumstances surrounding his return are unclear – it appears it was when the twelve month temporary transfer/job swap ended
·a number of DOS witnesses made it clear that it would be out of the ordinary at DOS for a person on temporary transfer becoming permanent without merit selection
·Mr McCormack applied for DOS advertised vacancies and was unsuccessful in a merit selection
·the possibility of a permanent transfer at level became more difficult at the time because of negotiations for a new certified or enterprise agreement during which staff had expressed concerns about the implications for their prospects of promotion
·a permanent transfer “would undermine undertakings given to staff”.
I reject Mr McCormack’s contention that the staff issue amounts to an ex post facto justification. He submitted that if the proposed permanent job swap had taken place “there could never be the suggestion that Mr McCormack took someone’s position.” I agree with DOS that this is erroneous:
The applicant would have been taking Mr Nugent’s position. If Mr Nugent had simply transferred from DOS to DCITA, his position would have been advertised. Other PEL 1 officers at DOS, and any APS 6 officers at DOS who aspired to promotion, would have had the opportunity to compete for the position that Mr Nugent had vacated. Had it proceeded, the proposed job swap would have foreclosed that opportunity for DOS staff.
In the circumstances I conclude that DOS would not have negotiated with DCITA for a permanent exchange had an able bodied person or comparator wanted that exchange. Accordingly Mr McCormack was not treated less favourably than such a comparator.
If it were necessary I would have concluded that the reasons DOS acted in the way it did had nothing to do with Mr McCormack’s disability. The relevant DOS officers gave evidence that although they were aware that Mr McCormack had previously had cancer they understood that it had been resolved. They did not become aware of the relapse in August 2001 until after Mr McCormack left DOS. This evidence is credible and I see no reason to reject it. Mr McCormack has put forward no evidence to contradict it.
As Mr Elliott said DOS had other imperatives to consider in making the decisions it did. It did not act as it did because of Mr McCormack’s cancer.
I also reject this claim.
Refusing funding from DCITA for a voluntary redundancy
Mr McCormack characterises the second occasion of unlawful conduct he alleges against DOS as:
Its conduct towards the applicant in refusing to accept funding from the Department for a voluntary redundancy.
The redundancy/job swap proposal in question was for DCITA to pay for a voluntary redundancy for a DOS employee at the EL 1 level or lower. This would make available a permanent position for Mr McCormack to move into at DOS. The offer was made on 21 August 2001 in a fax from Ms Marie Druitt at DCITA to Ms Avery at DOS.
Relevant background includes:
·prior to 3 November 2000 Mr McCormack and Mr Keele discussed various possibilities including a redundancy/job swap
·at a meeting with Mr Blewitt on 3 November 2000 Mr McCormack suggested that DCITA either pay for a redundancy at DOS with Mr McCormack moving into that position, or arrange for a job swap for Mr McCormack with a DOS officer. Mr Blewitt said he would work to bring about the latter
·on 1 December 2000 DCITA agreed to a twelve month transfer of Mr Frank Nugent from DOS to DCITA in exchange for a further twelve months of Mr McCormack at DOS from January 2001
·around 11 December 2000 Mr Keele says he suggested to Mr McCormack that if Mr Nugent returned to DOS they could explore the idea of a redundancy/job swap
·on 17 August 2001 Mr McCormack was told by his medical specialist that his cancer had relapsed
·on 21 August 2001 DCITA faxed an offer to pay for a voluntary redundancy for a DOS staff member to allow for Mr McCormack to transfer permanently to DOS – the redundancy/job swap proposal – Ms Avery referred it to Mr Elliott and Mr O’Keeffe, Clerk Assistant (Corporate Management)
·on 23 August 2001 Mr Elliott advised Mr O’Keeffe that he did not propose to take up the offer
·Mr McCormack says Ms Avery told him on 29 October 2001 that DOS would probably not be taking up the offer
·on 30 October 2001 the CPSU requested DOS to reconsider.
Much of the relevant evidence for this claim has already been summarised above. Some additional evidence is below.
Ms Andrea Griffiths has been Usher of the Black Rod on an acting or permanent basis since October 2001. The Black Rod’s Office provides corporate, management and ceremonial support to DOS. In oral evidence she said:
·redundancies are usually offered after there has been a restructure in areas of DOS – where the position is abolished, the nature of the duties have changed and the occupant does not have the required qualifications, or the positions have changed and the occupant does not have the skills
·it is not the practice in DOS to advertise and offer voluntary redundancies to those who come forward
·DOS had 14 voluntary redundancies from 2000 to 2004
·it is rare for DOS to use voluntary redundancies
·one EL1 (PEL 1) was given a voluntary redundancy after his position was abolished and he did not have the skills for another position
·an EL 2 did not have the requisite qualifications after his position was reviewed
·an SES level 1 left because of the incentive to retire prior to turning 55 as well as a restructure.
Mr Keele gave evidence that another EL 2 had taken a voluntary redundancy after his position had been abolished. The position was later re-established after a reorganisation adding additional functions to the responsibilities of the area.
Ms Avery said in oral evidence:
·DOS had a fairly conservative approach to voluntary redundancies
·the Clerk had very strongly expressed views about redundancy/ job swap arrangements and voluntary redundancies in general
·on occasion when under budgetary pressures DOS felt there was little alternative.
It is also worth quoting the reasons Mr Elliott gave in his 23 August 2001 note to Mr O’Keeffe for rejecting the redundancy/job swap proposal:
This Department utilises voluntary redundancies on an infrequent basis. I am not prepared to pursue this proposal at this time for operational reasons, the potential for its divisive consequences among staff, and because the Department and this Office are in the midst of certified agreement negotiations in which the role of PEL-1 Officers may assume a higher profile.
In oral evidence Mr Elliott made clear that he could not agree to the DCITA proposal because he felt it was improper and raised accountability issues. It did not pass the “Senate Estimates” test. He could not look at senators at Estimates and say that he could trade in Commonwealth monies in that way.
There is no dispute that DOS did refuse the redundancy/job swap proposal put to it by DCITA.
Mr McCormack submits:
Had the senate wanted to, it could have accepted funding from the Department for a voluntary redundancy, which it could have used to fund one of the many redundancies it was offering. Mr McCormack was excluded from being considered for permanency at the Senate because of his ill health, and thus the Senate would not touch the voluntary redundancy associated with making Mr McCormack a permanent employee. Had Mr McCormack been able bodied, it is difficult to believe that a small organisation like the Senate, considering the number of redundancies it was offering, would have turned down an offer of another agency to fund a redundancy on the condition that Mr McCormack be given a permanent position at the Senate. In this way Mr McCormack’s treatment was less favourable than had he remained able bodied.
But these submissions are based on a number of assertions which do not stand up to careful examination. The evidence for example simply does not support Mr McCormack’s contentions that DOS “was regularly declaring positions redundant, including EL 1 positions” and that it offered “many redundancies”:
·14 voluntary redundancies were offered from 2000 to 2004
·only one at the EL 1 (PEL 1) level was identified
·DOS does not make general offers of voluntary redundancies
·DOS and its Clerk take a conservative approach to the use of voluntary redundancies
·voluntary redundancies appear to be restricted to situations associated with restructures or reviews, where staff no longer have relevant qualifications or skills, or where budgetary pressures require them
·the cases of voluntary redundancies identified fell within these special situations.
I agree with the DOS submission:
It is not to the point for the applicant to contend that other areas of the Australian Public Service approach voluntary redundancies differently to DOS. DOS is … more circumspect in its conduct. Mr Elliott’s oral evidence indicated he was acutely aware of what he succinctly described as “the Senate Estimates test”.
Was Mr McCormack treated less favourably than an able bodied comparator? The comparator is a DCITA employee who has performed well while working at DOS under secondment for six months followed by a twelve month temporary transfer. The comparator would not have the disability, and the circumstances such as the DOS policy on voluntary redundancies would be the same.
Would DOS have accepted the redundancy/job swap proposal from DCITA for such a comparator? I am satisfied on the evidence that the answer is clearly no. Mr McCormack was not treated less favourably than an able bodied comparator.
It is therefore unnecessary to reach conclusions on the reasons for the actions of DOS. Had it been necessary however I would have found that Mr McCormack’s disability was not one of them:
·Mr Elliott gave plausible operational reasons
·he was concerned about the propriety of a redundancy/job swap which he said would not pass the “Senate Estimates” test
·DOS took a conservative approach to redundancies
·relevant DOS officers including Mr Elliott thought Mr McCormack had overcome his cancer and were not aware it had relapsed.
I see no reason why I should reject this evidence corroborated as it is by a number of credible witnesses. Mr McCormack has made many assertions but without any hard evidence in support.
On the evidence before me, the actions and conduct of DOS were not because of Mr McCormack’s disability.
This complaint is also rejected.
Conclusions
Mr McCormack was employed at DCITA and DOS for a period extending to 2002. He was diagnosed with cancer in 1996 from which he believed he recovered. However in August 2001 he had a relapse of the cancer.
In the two matters before the Court he alleges eight occasions of conduct unlawful under the Act – six concerning conduct by DCITA ant two conduct of DOS. This has required me to consider in detail a large volume of evidence.
In many instances Mr McCormack’s allegations are vague and generalised. He also suggests that much of the official action which he says disadvantaged him was because of the development of corporate knowledge and corporate opinion that he was a health risk. He relies to a significant extent on this and his alleged reputation at DCITA for illness to establish that he was discriminated against on the ground of disability.
Much of this is speculation on Mr McCormack’s behalf. He has not adduced supporting evidence. Indeed apart from Mr McCormack himself the only witness he presented to give evidence was his general practitioner who largely restricted himself to medical issues. Mr McCormack asked the Court to draw inferences from his evidence, and from his speculation and conjecture associated with that evidence. Opposed to this is the largely consistent body of evidence of the DCITA and DOS witnesses.
The onus of proof in these matters rests clearly with Mr McCormack. In particular it is up to him to satisfy the Court that the conduct he alleges occurred because of his disability. There must be a causal connection between any less favourable treatment and the disability.
I am sure that Mr McCormack believed that to be so. But his belief falls far short of proving it on the balance of probabilities.
Mr McCormack has not made out any of his complaints. The two applications must be dismissed.
Division 21.2 of the Federal Magistrates Court Rules2001 allows me to set a method by which costs should be calculated and to refer the costs for taxation under Order 62 of the Federal Court Rules (Cth).
I consider that this is the appropriate course in these two matters. Having regard to the objects set out in s.3 of the Federal Magistrates Act 1999 – see also r.1.03 – these costs should be calculated at 85 per cent of the scales applied on taxation in the Federal Court. These costs should include any reserved costs.
I certify that the preceding one hundred and seventy-nine paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Hal Tilemann
Date: 14 August 2007
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