Mr Brett McAuliffe v Australian Taxation Office
[2014] FWC 1413
•6 JUNE 2014
[2014] FWC 1413 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Brett McAuliffe
v
Australian Taxation Office
(U2013/12597)
COMMISSIONER RIORDAN | SYDNEY, 6 JUNE 2014 |
s.394 Application for relief from unfair dismissal.
[1] This is an unfair dismissal application lodged by Mr Brett McAuliffe against the Australian Taxation Office (ATO).
[2] At the hearing of the application Mr McAuliffe was represented by Mr Paul Macken from Leigh Virtue and Associates. The ATO was represented by Mr Jason Noakes and Ms Smith from Norton Rose Fullbright. Whilst I refused permission for Mr Bryan Cross of Counsel to appear in the proceedings for the ATO (a determination that I made, without objection by the parties, some 24 hours before the hearing), he sat at the bar table next to Mr Noakes and actively assisted in the submissions, examination, cross examination and re-examination made by Mr Noakes.
[3] Mr McAuliffe commenced employment with the ATO on 4 August, 2003. He claims to have been dismissed on 6 August, 2013. He applied to the Fair Work Commission (FWC) for an unfair dismissal remedy on 13 August, 2013. He resumed work at the ATO on 11 October, 2013.
[4] At the time of his alleged dismissal Mr McAuliffe was working in the Investigations Branch of the ATO in Sydney.
[5] Mr McAuliffe attested to one witness statement in these proceedings. The ATO relied upon witness statements from Ms Jenny Giang and Mr Mark Vale.
Background
[6] Mr McAuliffe has worked at the ATO for 10 years. His conditions of employment are governed by the ATO General Employees Enterprise Agreement.
[7] Mr McAuliffe was absent from work due to “psychological issues” in August 2012. He believed that he was being bullied and harassed by his managers. Between August 2012 and 17 April, 2013 Mr McAuliffe was absent from work for approximately two months.
[8] As a result of these absenses, Mr McAuliffe was referred by the ATO to Dr Synnott, a Consultant Psychologist from Medico Legal Consultants of Australia (MLCOA) on 23 April, 2013. In his subsequent report of 26 April, 2013, Dr Synnott made the following observations;
“In my opinion, in relation to the recent issues at work, he describes experiencing sufficient psychological symptoms to meet the diagnostic criteria of an adjustment disorder with anxiety and depressed mood.
Please note: adjustment disorder is a broad diagnostic category and covers a wide range of presentations and there are no automatic implications simply on the basis of this diagnosis. One should not necessarily assume there is any significant psychiatric impairment or incapacity for employment and the diagnosis is not an automatic contraindication to participating in employment and other life roles - and it does not explain the totality of the situation.”
“In my opinion, despite his views about returning to work and his negative mindset and lack of motivation, there is no current psychiatric contradiction or incapacity to returning to work with the ATO. However, if he were to return to work with the people he identified as causing his problems, it is unlikely to be successful or enduring.
In my opinion, although dissatisfied and unhappy about returning to the ATO (and particularly working in investigations rather than IT), in itself that does not make him incapable of participating in employment. But, a return to work in similar duties is unlikely to be successful in the longer term - if the industrial situation and his dissatisfactions are not addressed.
In my opinion, in itself the adjustment disorder does not prevent him from participating in employment - be it pre-injury duties or alternative duties; however, given his negative mindset and lack of motivation to return to work and report to the same people, if his dissatisfactions are not addressed, it is likely he will have further time off work and further psychological difficulties.” 1(my emphasis)
[9] Dr Synnott went further when answering an attached questionnaire from the ATO;
“8) From a psychiatric perspective, what is Mr McAuliffe capable of performing - (select):
a) Usual employment
b) Modified participation in usual employment (duties or hours)
c) Alternative employment
d) Modified participation in alternative employment (duties or hours)
e) Totally incapacitated for any employment
(b) Modified participating in usual employment (returning to work on a full time basis but not reporting to the same people); ultimately his goal is to change his job (IT is his preference) and leave the ATO.”
[10] Dr Synnott also provided an addendum to his Report which became significant later in the proceedings;
“As is also seen in the clinical setting, with medico-legal assessments, there may be different opinions regarding a particular patient - this is unsurprising. Clearly, with the passage of time a patient may change in how they feel and on different days the person may give a differing account or present differently - and, as well, different psychiatrists may bring a different interpretation to the history and presentation of the patient.” 2 (my emphasis)
[11] Mr McAuliffe returned to work on 24 June, 2013 in his former role working 4 days per week. The ATO did not transfer Mr McAuliffe to another role as recommended by Dr Synnott, nor did they follow the work pattern as recommended in the return to work program by Dr Hedayat and his General Practitioner Dr Kim.
[12] There had been no complaints or criticism of Mr McAuliffe’s work performance following his return to work. Despite Mr McAuliffe’s uneventful return to work the ATO directed him to attend a further consultation with Dr Synnott on 9 July, 2013.
[13] Mr McAuliffe was very honest and forthright in relation to his condition when examined by Dr Synnott on that day. In his own words, Mr McAuliffe described his mood on this day as dour – that he was having a bad day, that he was “...in a very negative frame of mind.”
[14] Dr Synnott provided his report to the ATO on 11 July, 2012. Dr Synnott made the following observations;
“In my opinion, at the consultation he described sufficient psychological symptoms to meet the diagnostic criteria of an Adjustment Disorder with anxiety and depressed mood; alternatively, the diagnosis of Major Depressive Disorder would be equally valid.
Please note; Adjustment Disorder is a broad diagnostic category and covers a wide range of presentation and there are no automatic implications simply on the basis of this diagnosis. One should not necessarily assume there is any significant psychiatric impairment or incapacity for employment and the disgnosis is not an automatic contraindication to participating in employment and other life roles - and it does not explain the totality of his situation.
In my opinion, based on his history and presentation at the consultation on 9 July 2013, currently he is psychiatrically incapable of maintaining any employment - he appears psychologically fragile, depressed and anxious; his mentation is slow and ponderous and he had difficulty organising his thoughts and thinking relatively quickly or concisely. If this is an indication of how he is performing in everyday life (both work and non-work roles), then he is quite impaired. If his presentation at the consultation is an indication of his behaviour at work, I doubt his capacity to do his usual duties in a reasonable and satisfactory way.
At this stage, given the marked deterioration in his psychological state in the last ten weeks, I think it prudent he goes off work for further treatment - and be assessed in 3-6 months time.
I am reluctant to say he is psychiatrically incapable of ever returning to work in the future, but at this stage it would be prudent to have him off work - and see if there can be a significant improvement in his state and psychological resilience over the next few months.”
“In your opinion, is Mr McAuliffe fit for full time hours and duties? If not, when may he become fit or what would assist him to return to full hours and duties?
No. In my opinion, currently he is psychiatrically incapable of participating in employment.
I cannot estimate when he will be able to return to employment - or if he will be able to return to employment.” 3 (my emphasis)
[15] Mr McAuliffe was performing work on the afternoon of 11 August, 2013 when Ms Giang attempted to contact him to discuss the Occupational Health Assessment (OHA) from Dr Synnott. When she was unsuccessful in contacting Mr McAuliffe by phone, for reasons which defy any credible explanation, Ms Giang sent Mr McAuliffe an email directing him to go home;
“Dear Brett
..... Dr Synnott has recommended that you are unfit for duty.. He has suggested a review of your condition in 3 to 6 months.
If you disagree with the report or recommendations contained in the report, you will need to provide me with new medical evidence to support your position within 14 days (25 July 2013). I will refer the new information back to the doctor who conducted the original assessment for comment. The doctor will obtain your permission and with your consent, will converse with your treating doctor to reach a resolution. In the meantime, you are not to return to work. Your absence will be recorded as personal leave - sick.
Please note that your sick leave credits had expired. You will need to make arrangements with Payroll via your manager if you wsh to access any paid leave credits that may have been recently re-credited to you. You can contact Payroll via the People Helpline by calling 131 550 or emailing [email protected].
In keeping with the OHA recommendations, you should cease work immediately and go home. However, as it is already late in the afternoon, if you wish to leave the office by 4:51pm today (as per your current graduated return to work plan) you may do so. Please ensure you notify Mark when you leave.” 4 (my emphasis)
[16] Mr McAuliffe was at work and performing his duties without complaint or criticism. However, he immediately followed Ms Giang’s direction. He did not contact Mr Vale before he left the office. After reading the email he packed up and went home. At this time he had no available sick leave credits and only approximately 2 weeks of paid personal leave.
[17] The ATO then suspended Mr McAuliffe’s security pass to prevent him from gaining access to his workplace. His photo was also put up at the security desk as someone who was to be denied access to the building.
[18] Ms Giang also forwarded correspondence to Mr McAuliffe’s General Practitioner, Dr Kim. The correspondence contained the following paragraph;
“In the event that Mr McAuliffe does not agree with the medical report, he has the opportunity to provide to me within 14 days (by 25 July 2013) new or more detailed medical evidence. This would be aspects of your patient’s medical condition which have a significant impact on their capacity to undertake their usual occupation and which have not been taken into account in the most recent health assessment. Please be aware that if new medical evidence is provided, you will be contacted by the doctor who conducted the OHA to discuss this.” 5
[19] On 17 July, 2013, Mr McAuliffe complied with the request from Ms Giang by arranging for a medical certificate to be sent to her from Dr Kim. It declared that Mr McAuliffe was “fit for work duties for four consecutive days for one month.” Dr Kim advised that a review was to be undertaken after one month. Ms Giang referred the certificate of Dr Kim to Dr Synnott seeking a supplementary report.
[20] On 17 July, 2013 Mr McAuliffe sent an email to Ms Giang and Mr Vale stating that he wanted to get back to work the next day, asking Mr Vale to have his photo taken down at Security and to grant him access to the building. Ms Giang refused this request and advised Mr McAuliffe that his medical certificate had been referred to Dr Synnott for consideration.
[21] Dr Synnott replied on 24 July, 2013 advising that he required more information from Dr Kim re Mr McAuliffe’s current state and his improvement. Dr Kim responded on 7 August, 2013 once again stating that Mr McAuliffe was fit for duty but that redeployment would also assist the situation (a course of action which had been recommended by Dr Synnott in April).
[22] Dr Synnott responded to the ATO on 15 August, 2013 in the following terms:
“Dear Madam
Thank you for your letter dated 7 August 2013. Before addressing your questions, I would refer you to my reports (i) 23 April 2013 and (ii) 9 July 2013, and supplementary reports 7 May 2013, 16 May 2013 and 24 July 2013.
It is now five weeks since my reassessment of Mr McAuliffe on 9 July 2013. In determining his current capacity to work, I have considered the assessment and opinion of his general practitioner Dr J Kim. Particularly, I note the report of 7 August 2013.
To address the questions raised in your letter of 7 August 2013:
Question 1: In light of the new information provided by Dr Kim do you consider that there is sufficient medical evidence to support Dr Kim’s assessment that Mr McAuliffe is fit for duty? Please explain your answer.
I accept Dr Kim’s opinion that he is fit for duty; however, I am of the opinion it is unlikely he will able to sustain participation in employment - inevitably he will go off again because of his incapacity to meet the obligations of his job.
Question 2: What is your medical opinion on Mr McAuliffe’s current fitness for duty?
After the consultation with him on 9 July 2013, I thought he was unfit to work. I accept that since then, Dr Kim has seen him - and is of the opinion he is fit for work. However, as mentioned in question 1 above, I doubt he will have an enduring return to work - and doubt he will be able to meet all the obligations of his position. I think it highly likely that he will have difficulties - and inevitably go off work because of his psychological state.
Question 3 - If Mr McAuliffe is fit for duty are there any reasonable adjustments required upon his return to work (e.g reduced hours, transfer?) and for what duration would these adjustments be required for?
Given it was my opinion that he was not fit for work when I saw him on 9 July 2013, I am unable to make any comment about what reasonable adjustments should be done - regarding his workload and work hours.
Please do not hesitate to contact me if I can be of any further assistance.
(my emphasis)
Yours sincerely
Dr Inglise Howe Synnott
Consultant Psychiatrist” 6
[24] On 21 August, 2013 Mr McAuliffe asked the status of his return to work via an email to Ms Giang. Ms Giang inappropriately and misleadingly responded to Mr McAuliffe in relation to the supplementary report from Dr Synnott in the following terms.
“Hi Brett,
I am still waiting for Dr Synnott’s response. I will provide this to you when I receive it. I expect to be provided with something by the end of next week at the latest.
I have also been informed that you contacted the security desk yesterday. As I have previously explained, photos of people who are not permitted to enter the building assist the security guards to easily identify them. Your photo is at the security desk because you are currently not fit to be at work and until the ATO receives an independent medical opinion stating that you are fit to return to work, the current situation will remain unchanged. I would therefore appreciate your co-operation in not approaching the security desk about this matter again. (my emphasis)
Regards
Jenny Giang
Senior Consultant - Strategic Intervention Unit” 7 (my emphasis)
[25] As a result of Ms Giang’s intervention, Dr Synnott prepared another supplementary report on 21 August, 2013 stating;
“Attention: Ms Jenny Giang
Dear Madam
Thank you for your email of 16 August 2013. The treating GP (DR J Kim), has advised that Mr McAuliffe is fit to return to work and will be returning to his usual duties and hours.
My opnion is that any attempt to return to work is unlikely to be successful or enduring. I respect the GP’s comments on the situation - but in my opinion I expect that the return to work will not be successful.
Yours sincerely
Dr Inglis Howe Synnott
Consultant Psychiatrist” 8
“Hello Jenny
Thanks for this and in line with our conversation I agree with your proposed way forward with a few additions as below.
It does not make any logical sense that a Doctor, for whom we are asking for an independent view, is able to provide such advice as to their ability to undertake work and their fitness to do so. To have a Doctor state that he has a psychological condition that will prevent a successful return to work does not correlate with a statement that he is fit for work.
This type of service for which we engage a provider for is unacceptable and needs to be escalated both in the ATO and MLCOA at more senior levels to bring about immediate corrective action, be it a report without contradiction from Dr Synnott or a review by another practitioner in the next week (not fortnight as MLCOA should be made accountable to fix this problem immediately).
From both the employee and employer perspective this situation is unacceptable and needs corrective action immediately so as not to cause any further delay in determining the appropriate way forward.
If you need assistance in escalating this in the ATO please let me know as I am very keen and able to assist in any way I can.
Again, thanks for your efforts Jenny.
Regards
Ben Brown
Senior Director, Risk Strategy & Intelligence, SNC” 9(my emphasis)
[28] Ms Pitstock responded on 27 August, 2013 advising that Dr Synnott had apparently used the wrong terminology in his last report, and that he apologised for any confusion and inconvenience.
[29] On 30 August, 2013, Ms Giang advised Mr McAuliffe that Dr Synnott still regarded Mr McAuliffe to be unfit for work, but that a further appointment had been organised with Dr Synnott for 1 October, 2013 to re-assess his fitness. I am satisfied that this was a deliberate misrepresentation. During this period Ms Giang seemed to be occupied with pressing the medical provider to give an assessment that correlated with her own opinion and preferred outcome.
[30] Ms Giang sought further clarification from Dr Synnott on 30 August, 2013. Dr Synnott responded on 4 September, 2013:
“Attention: Ms Jenny Giang
Thank you for your email dated Friday 30 August 2013.
Further to my last advice, I would like to be absolutely clear and let me state categorically that in my opinion Mr Brett McAuliffe is not fit for duty.
I hope this statement will clarify any past misinterpretation of my opinion.
Please do not hesitate to contact me if I can be of any further assistance.
Yours sincerely
Dr Inglis Howe Synnott” 10
[32] Ms Giang emailed Mr McAuliffe on 9 October to advise him to return to work on 11 October, 2013 some eight days after the ATO received Dr Synnott’s report. There is no satisfactory explanation for this delay during which Mr McAuliffe was without an income.
Contentions
[33] Mr Macken submitted that Mr McAuliffe’s employment was terminated as a result of the following actions of the ATO;
(a) Mr McAuliffe was directed not to attend for work;
(b)Mr McAuliffe’s access pass had been deactivated and his photo supplied to security; and
(c) Mr McAuliffe was not paid wages and therefore the ATO had repudiated Mr McAuliffe’s contract of employment.
[34] The Applicant further submitted that, in the alternative, those actions were an attempt to bring the employment relationship to an end and thereby created a constructive dismissal.
[35] The ATO raised jurisdictional objections to the application for an unfair dismissal remedy by Mr McAuliffe. The ATO identified four grounds why I should dismiss the application:
“(a) Ground 1 - the Applicant’s employment with the Respondent was at all relevant times, and is currently, ongoing;
(b) Ground 2 - there was never a constructive dismissal / forced resignation (as alleged by the Applicant) as the Applicant never ceased employment (he never resigned), nor did the conduct of the Respondent amount to a repudiation of the Applicant’s contract of employment, and even if it did, which is denied, there was no acceptance by the Applicant of any such repudiation, in that his employment was at all relevant times, and is currently, ongoing;
(c) Ground 3 - as the Applicant’s employment was at all relevant times, and is currently, ongoing he will only be eligible to bring an unfair dismissal claim under the Act if he has been demoted. The Applicant has not been demoted;
(f) Ground 4 - the Applicant is statute barred from continuing with his Application, pursuant to s 725 of the Act, as he is seeking a remedy in relation to his alleged “dismissal” in both the Fair Work Commission in the current proceedings and the Australian Human Rights Commission.
Consideration
[36] In making my decision, I have taken into account all of the evidence and submissions of the parties.
[37] I am not satisfied that there has been a termination of Mr McAuliffe’s employment either by the direct action of the ATO or as a result of a constructive dismissal. For there to be a constructive dismissal there must be an actual end to the employment relationship arising from the actions or conduct of the employer.
[38] The ATO has behaved poorly towards Mr McAuliffe. By refusing his return to work, excluding him from the work place by deactivating his access card and placing his photograph at security, it was not unreasonable or surprising that Mr McAuliffe concluded that he had been dismissed. Mr McAuliffe was of the view that he had been sacked. That is what he told the staff at Social Security, that is what he told Mr Macken, that is what he was told by his work colleagues.
[39] There is no other explanation why Mr McAuliffe would seek an unfair dismissal remedy. Otherwise a simple dispute notification would have sufficed to resolve this unfortunate situation.
[40] Although at all times actually obstructing Mr McAuliffe’s return to work, the ATO continued to communicate to Mr McAuliffe that he needed a medical clearance to return to work. Despite this obstruction Mr McAuliffe did not resign. If, having been refused access to work when he was fit for work, Mr McAuliffe had resigned, he would certainly have had a strong case for reinstatement arising from a constructive dismissal due to the actions of the ATO which were harsh, unjust or unreasonable.
[41] Mr Macken argued that the ATO had repudiated the employment contract of Mr McAuliffe. The High Court defined what constitutes a repudiation in Koompahtoo Local Aboriginal Land Council v Sapine Pty Ltd 11;
“The term repudiation is used in different senses. First, it may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party's obligations. It may be termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it ... Secondly, it may refer to any breach of contract which justifies termination by the other party ... There may be cases where a failure to perform, even if not a breach of an essential term ... manifests unwillingness or inability to perform in such circumstances that the other party is entitled to conclude that the contract will not be performed substantially according to its requirements. This overlapping between renunciation and failure of performance may appear conceptually untidy, but unwillingness or inability to perform a contract is often manifested most clearly by the conduct of a party when the time for performance arises. In contractual renunciation, actions may speak louder than words.
In the past, some judges have used the word ‘repudiation’ to mean termination, applying it not to the conduct of the party in default, but to the conduct of the party relying upon such default. It would be better if this were avoided.
...
For present purposes, there are two relevant circumstances in which a breach of contract by one party may entitle the other to terminate. The first is where the obligation with which there has been failure to comply has been agreed by contracting parties to be essential. Such an obligation is sometimes described as a condition.
...
It is the common intention of the parties expressed in the language of their contract understood in the context of the relationship established by that contract and (in a case such as the present) the commercial purpose it served, that determines whether a term is ‘essential’, so that any breach will justify termination.
The second relevant circumstance is where there has been a sufficiently serious breach of a non essential term.” (my emphasis)
[42] In Whittaker v Unisys Australia Pty Ltd 12, Ross J, sitting as a Judge in the Supreme Court of Victoria, as he then was, provided an appropriate summary of the Australian law in relation to the issue of repudiation. Quoting Koompahtoo he said;
“[33] It is clear from the above extract and other cases that an actual intention to repudiate is not necessary; the issue is resolved objectively by reference to the effect it would have on a reasonable person. Hence the question becomes whether the conduct of the employer, judged objectively, evinced an intention to no longer be bound by the contract. Repudiation may also be established by conduct that evinces an intention to perform the contract only in the manner in which it suits that party to perform.
[34] Whether there has been a repudiation in a particular case is a question of fact.
[35] Not every breach of contract is a repudiation and repudiatory conduct is not to be inferred lightly. Repudiation may be evidenced by a single act or by an accumulation of conduct in circumstances where no individual act on its own constitutes a repudiation.
[36] A repudiatory breach does not automatically terminate the contract but confers an elective right of termination on the innocent party.
[37] I note that, at least in England, there was once a rule that, in relation to contracts of employment, an exception applied such that repudiation in itself brought the contract to an end without any requirement for its acceptance. But the doctrine of automatic termination of employment contracts is now out of favour. In Thomas Marshall (Exports) Ltd v Guinle Megarry VC referred to the practical difficulties which might arise from the application of a doctrine of ‘automatic determination’ of employment contracts and judicial opinion in England has now swung against the doctrine.
[38] In Australia the position is settled. In Automatic Fire Sprinklers Pty Ltd v Watson the High Court preferred the elective approach rather than the doctrine of automatic termination. This position has been followed in subsequent cases and recently confirmed by a majority of the High Court in Byrne v Australian Airlines Ltd.
[39] A repudiatory breach may be retracted or cured by the party in breach, but only prior to the exercise by the innocent party of the right to terminate the contract.”
[43] As identified in Whittaker, it is not possible for a single party to a contract to repudiate a contract. Repudiation can only occur once the aggrieved party accepts the repudiation.
[44] I accept and find that the conduct of Ms Giang was unfair and inappropriate and demonstrated an intention to end the employment contract. I accept that Ms Giang acted to achieve what she thought were in the best interests of the ATO, under limited supervised instruction. Ms Giang was of the view that the ATO did not want Mr McAuliffe back at work. Ms Giang attempted to rely on her alleged confusion and, or lack of understanding of Dr Synnott’s report of August 15, 2013, or some type of fallacious argument in relation to a duty of care to Mr McAuliffe to justify the ongoing delay in frustrating Mr McAuliffe’s return to work.
[45] If Ms Giang had actually been concerned about Mr McAuliffe, and his work restrictions and method of operation, then she would have arranged an appointment with Dr Synnott on August 15. She did not. Instead she deliberately and mischievously delayed Mr McAuliffe’s return for another 7 weeks. The actions of the ATO fail the “reasonable person” test as enunciated in Koompahtoo.
[46] If the actions of Ms Giang had been undertaken by Mr Brown or Mr Vale, then the argument in support of repudiation would have been more compelling. However, Ms Giang did not have the power to “hire or fire” and did not purport to do so by any direct action. I am not satisfied that Ms Giang had the authority to repudiate the employment contact of Mr McAuliffe.
[47] Despite my finding that there was no termination of employment, arising from either a constructive dismissal or a repudiation of the contract of employment by the ATO, I am satisfied that it was intrinsically unfair and a breach of the Fair Work Act 2009 and the policies of the ATO for the ATO to act as it did and generate this situation.
[48] Whilst the ATO have argued that the employment relationship with Mr McAuliffe did not cease, I am satisfied that its actions demonstrated the intention of one party (the ATO) to frustrate the other party (Mr McAuliffe) and to exploit their personal circumstances, leading to the desired outcome of Mr McAuliffe’s resignation. Ms Giang acknowledged that part of the reasoning behind the recurring referrals back to Dr Synnott was the dissatisfaction of Mr McAuliffe’s managers to the advice from Dr Synnott. 13
[49] I am satisfied that the ATO knew of Mr McAuliffe’s dire financial situation. ATO Officers had in their possession a medical clearance from Dr Synnott certifying Mr McAuliffe as fit from August 15, 2013. ATO officers deliberately refused to implement this certification and tried to manipulate an outcome to suit its purposes by seeking repeated and unnecessary clarification from Dr Synnott and, even more inappropriately his Manager.
[50] I am persuaded that the ATO was not justified in seeking further clarification from Dr Synnott after receipt of his report on 15 August, 2013. Dr Synnott accepted that Mr McAuliffe was fit for duty at that point in time. There was no ambiguity, there were no issues in relation to interpretation. I am satisfied that what occurred was that management employees of the ATO engaged in deliberate action to delay and frustrate Mr McAuliffe’s return to work.
[51] Justice Kirby said in Blackadder;
“[34] The purpose of a reinstatement order is to ensure that the employee in question is placed in the status quo ante. It is not to anticipate every eventuality that might thereafter arise; nor is it to provide the employee the subject of it with employment for life. What happens in the future, and what follows from what happens, depends on all the circumstances then obtaining.” 14 (my emphasis)
[52] Applying this principle, it is clear that Mr McAuliffe was fit to return to work on 15 August, 2013. What happened thereafter was a matter properly dealt with separately after Mr McAuliffe’s return to work in all the circumstances of the case. Considering Dr Synnott’s recommendation in April 2013, of a move for Mr McAuliffe within the ATO to remove the possibility of an exacerbation of Mr McAuliffe’s condition, that possibly should have been one of those matters under consideration.
[53] I find that the ATO’s behaviour in seeking multiple clarifications from Dr Synnott whilst claiming a lack of understanding was appalling. I am satisfied that contacting Dr Synnott’s supervisor to seek clarification was a disgraceful attempt to interfere with the independence and professionalism of Dr Synnott, by wielding the weight of the patronage of the ATO in that practice. These are not findings that I make lightly. I reject the explanations provided by Ms Giang.
[54] If the ATO still had concerns about the fitness of Mr McAuliffe, then they should have sent him back to Dr Synnott for another OHA - a course of action which ultimately occurred on October 1, 2013. Instead, the ATO took the decision, through Ms Giang, to deliberately mislead Mr McAuliffe into believing that Dr Synnott had not yet responded to the additional information supplied by Dr Kim in relation to Mr McAuliffe’s recovery.
[55] Reference was made by Ms Giang to the ATO’s Policy on “Managing illness and injury in the workplace CMPI 2006/10/01” 15. Relevantly it contains a number of clauses in relation to Disputed Medical evidence which states:
“26. Where an employee disputes the medical evidence supplied by the independent medical practitioner and subsequently the manager’s decision to act on the advice reading their fitness for duty, the employee must provide new or more detailed medical evidence within 14 days from receipt of the contracted provider’s medical evidence.
27. If the employee disputes the medical evidence, the Australian Taxation Office (ATO) will request the independent medical practitioner to converse with the employee’s doctor, with the employee’s authorisation, to reach a resolution. The employee’s authorisation should not be unreasonably withheld. If a resolution is unable to be reached the ATO will follow the recommendation of the health assessment.
28. If an employee is not satisfied with this outcome, they are able to request a review of this decision under section 33 of the Public Service Act 1999. This request for a review needs to be made through the First Assistant Commissioner, ATO People via the Review of Employment Actions mailbox. Further information is available in the ATO’s procedures for review of employment actions which can be obtained via the People Helpline.
29. Once the new or more detailed medical evidence is received, the HC should supply all information to the Independent medical practitioner’s final recommendations. The delegate will inform the employee of the final decision.
30. Where the independent medical practitioner has declared that the employee is fit for duty and the employee has not:
● Provided new or more detailed medical evidence disputing the contacted provider’s evidence
● Returned to work,
The employee may be directed to return to duty. In the event the employee does not return to duty the matter may be dealt with as a suspected breach of the Code of Conduct for failure to comply with a lawful direction or non-performance of duties.” 16
[56] Ms Giang testified that she followed ATO policy to the letter. I do not agree. In accordance with paragraph 29 of this Policy (see above) the ATO was obligated to follow the advice of Dr Synnott’s report of August 15. It did not. The ATO was obligated to advise Mr McAuliffe of Dr Synnott’s decision of August 15. It did not. The ATO simply ignored the policy. The policy is silent on any remedy or action if the ATO does not follow the independent medical practitioner’s opinion. However, as indicated previously, a dispute notification would have been appropriate.
[57] The role of Ms Giang as Mr McAuliffe’s health case manager should have been one of trust. It was appropriate that an independent officer should have taken over the responsibility of Mr Vale in relation to Mr McAuliffe’s return to work due to their personal differences.
[58] Ms Giang admitted that she knew that Mr Vale had concerns about Mr McAuliffe coming back to work in his section 17. Ms Giang also admitted that she delayed making an appointment for Mr McAuliffe to be assessed by Dr Synnott until the three month timeframe had lapsed from Mr McAuliffe’s first visit to Dr Synnott. Ms Giang exceeded her responsibility. I am satisfied that in behaving in this fashion Ms Giang did not act expeditiously, responsibly or honestly.
[59] In response to a question from me as to why the ATO did not refer Mr McAuliffe back to see Dr Synnott on 15 August, Ms Giang said;
“Commissioner, we don’t usually refer employees back for another assessment unless it’s for a review or unless we have received new medical evidence which suggests that there’s been a significant change in their condition.” 18
[60] This response is contradicted by the evidence. The ATO had two reports from Dr Kim and a report from Dr Synnott to say that Mr McAuliffe was fit for work. There had obviously been a significant change.
[61] From August 15, it was within the purview of the ATO, if it had acted properly and held any doubt to Mr McAuliffe’s fitness, which I do not accept, to place Mr McAuliffe on special leave or another form of leave with pay. It was a breach of Mr McAuliffe’s contract of employment and the Act to refuse him entry to his workplace to undertake the functions that he was contractually obligated and entitled to perform.
[62] On a separate issue, the ATO were notified by the Fair Work Commission of Mr McAuliffe’s unfair dismissal application on 13 August, 2013. Ms Giang claims that she did not receive the email notification of Mr McAuliffe’s application until the afternoon of 30 August, 2013. Having dealt with the ATO in relation to numerous industrial disputes, I find it difficult to believe that it took 17 days for the ATO Investigations Department to be made aware of Mr McAuliffe’s application. Even had the application been notified by carrier pigeon, knowing the professionalism of the IR department at the ATO, a 17 day process is difficult to comprehend.
Mr McAuliffe may be entitled to a remedy under the Act for the appalling way that he was treated by the ATO in being “locked out” of his work place.
[63] Relevantly, section 19 of the Act states:
“19 Meaning of industrial action
(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.”
[64] Mr McAuliffe was fit for work. He tried to recommence work. The ATO repeatedly rejected his attempts to return to work. Upon any definition of the term, Mr McAuliffe was “locked out” of his employment. Such action by the ATO can be characterized as illegal industrial action.
[65] However, the remedy to which he may be entitled is not a remedy pursuant to section 394 of the Act. I dismiss Mr McAuliffe’s section 394 application.
[66] I recommend that the ATO pay Mr McAuliffe for all lost time from 15 August, 2013 until 11 October, 2013. I do not have the jurisdiction to order such a payment. However, if the ATO reject my recommendation then Mr McAuliffe can have recourse to an appropriate court with the appropriate jurisdiction.
[67] In relation to my Recommendation I note that the ATO had at least four legally qualified representatives in the Court Room. Mr Noakes, a Partner at Norton Rose, Mr Brian Cross of Counsel, Ms Smith a Solicitor from Norton Rose who represented the ATO in a Conference immediately prior to the hearing, Mr Russo James who is a Senior Legal Advisor of the ATO and Ms Ly, who is an Assistant Legal Officer of the ATO plus two junior lawyers who were observing the proceedings. This can hardly be an appropriate expenditure of public money when responding to a closed period claim by an employee for loss of salary, even when the claim is lodged as an unfair dismissal. The policy of the Commonwealth in refusing to consider conciliation in this proceeding was disappointing. This should be the subject of review.
[68] Mr Noakes submitted that the application to the AHRC and the FWC were the same and therefore statute barred. Given my findings in relation to the substantive application it is not necessary for me to determine this issue.
[69] Finally, I am deeply concerned at the lack of support afforded to Mr McAuliffe by the ATO when he was stood down on 11 July 2013. At a time when Australian society is focusing on the issues of mental health in the workplace, the actions of the ATO in this case were unconscionable. I sincerely hope that an employee diagnosed with depression and anxiety in the future is not treated in the same shabby manner as Mr McAuliffe.
COMMISSIONER
1 Ex M2
2 Ibid pg 13
3 EX ATO2 JG7
4 Ibid JG8
5 Ibid JG8
6 Ibid JG36
7 Ibid JG40
8 Ibid JG41
9 Ibid JG43
10 Ibid JG47
11 Koompahtoo Local Aboriginal Land Council v Sapine Pty Ltd (2007) 233 CLR 115 at [44-49]
12 Whittaker v Unisys Australia Pty Ltd [2010] VSC 9
13 Pn602
14 [2005] HCA 22
15 EX ATO2 JG4
16 Ibid M2 JG4
17 Pn668
18 Pn525
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