Mr John Hunter v The Commonwealth of Australia, represented by the Department of Sustainability, Environment, Water, Population and Communities
[2013] FWC 7917
•10 DECEMBER 2013
[2013] FWC 7917 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr John Hunter
v
The Commonwealth of Australia, represented by the Department of Sustainability, Environment, Water, Population and Communities
(U2013/9399)
COMMISSIONER SPENCER | BRISBANE, 10 DECEMBER 2013 |
Application for relief from unfair dismissal.
[1] This decision relates to an application filed in the Fair Work Commission (the Commission) by Mr John Hunter (the Applicant), pursuant to s.394 of the Fair Work Act 2009 (the Act). The application alleges that the Applicant was unfairly dismissed from his employment, by the Commonwealth of Australia, represented by the Department of Sustainability, Environment, Water, Population and Communities (the Respondent/Department).
[2] The application was the subject of conciliation before a Fair Work Commission Conciliator but was unable to be resolved.
[3] The matter was further allocated to the Commission as presently constituted for Arbitration.
[4] Directions for the filing of material and evidence were issued as well as a process of discovery of documents between the parties. Further directions were set for the filing of final submissions. A substantial amount of material was filed in the matter and the matter was heard over four separate Hearing days in Cairns and then a further day in Brisbane, with (by consent) a videolink to Cairns and Canberra.
[5] The Applicant was self-represented throughout these proceedings. The Respondent was represented by Ms Sarah Wright, Solicitor for the Australian Government Solicitor.
[6] While not all of the evidence and submissions in this matter have been referred to, all of such have been considered.
Reasons for dismissal
[7] Given the large volume of evidentiary material and issues between the parties it is timely to recite the reasons for dismissal, at the outset.
[8] The Applicant was notified, on 25 March 2013, by letter authored by the Delegate of the Secretary, pursuant to the Public Service Act 1999, Ms Robyn Kemp, Assistant Secretary, Business Services Branch, of the Respondent as follows:
“I have carefully reviewed and considered the investigation report and, subject to any comments you may wish to make, I have formed the preliminary view that your actions as detailed in the investigation report in:
● failing to behave honestly and with integrity;
● failing to treat Mr Bensley with respect and courtesy;
● providing false and misleading information to the department and to Comcare;
● improperly using your duties, status, power or authority in order to gain a benefit; and
● failing to uphold the values, integrity and good reputation of the APS;
constitute serious breaches of the following subsections of section 13 of the Public Service Act 1999 - the APS Code of Conduct:
● Section 13 (1):
“An APS employee must behave honestly and with integrity in the course of APS employment.”
● Section 13 (3):
“An APS employee, when acting in the course of APS employment, must treat everyone with respect and courtesy, and without harassment.”
● Section 13 (9):
“An APS employee must not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee’s APS employment.”
● Section 13 (10):
“An APS employee must not make improper use of
(a) inside information; or
(b) the employee’s duties, status, power or authority;
in order to gain, or seek to gain, a benefit or advantage for the employee or for any other person.”
● Section 13 (11):
“An APS employee must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS.” 1
[9] Ms Kemp then advised the Applicant that she was considering imposing a sanction of termination of his employment. The Applicant was provided with a period of time within which to respond to Ms Kemp’s determination. After that time, Ms Kemp advised she would make her final determination. The Applicant requested, and was granted, an extension of time to respond by Ms Kemp.
[10] The Applicant provided a response to the correspondence from Ms Kemp. On 6 May 2013, Ms Kemp made a final determination in relation to the Applicant’s actions. Ms Kemp decided to impose the sanction of termination of employment as it was “commensurate with the seriousness of misconduct of this nature”. 2 This letter referred the Applicant to possible relief under the Act and the Commission’s website.
Background
[11] The dismissal of the Applicant from his employment with the Respondent was the culmination of a series of events over a protracted period of time. It is necessary to firstly consider the series of events which were the subject of evidence in this matter. It is also necessary to consider in some detail the substantial amount of correspondence which has passed between the parties, noting however that not all correspondence and material is referred to but all has been considered.
[12] The Applicant commenced employment with the Department on 20 August 2008, as an “Executive Level 1” employee, in the position of Indigenous Land Management Facilitator. Mr Hunter primarily worked in North Queensland, at various locations as and when required.
[13] From about September of 2010 Mr Peter Cotsell, commenced as the Applicant’s direct manager, and continued to manage the Applicant until 20 August 2011. Mr Cotsell was the Applicant’s direct manager for a little over 11 months. After this time Mr Neil Bensley, currently the Director of the Queensland State Team in the Biodiversity Conservation Division of the Department, commenced as the Applicant’s direct manager. At this time Mr Bensley was only appointed in an acting capacity as the Director, a position classified as “Executive Level 2”.
[14] By way of context, and as a general summary only, the Applicant and Mr Bensley had been in conflict, prior to Mr Bensley’s appointment to the Director position. At that time they had both been Executive Level 1 employees in the Department. In summary terms, the Applicant stated, that he had concerns about the nature of Mr Bensley’s communication style and specifically, the way that he communicated with the Applicant.
[15] The series of events giving rise to matters for consideration in this application, commenced following Mr Bensley’s appointment as the Applicant’s direct manager. There are various intervening events, which will be considered below, but the triggering event, which leads to the Applicant’s dismissal, occurred on 1 March 2012. On this date Mr Bensley sent an email to the Applicant confirming the outcome of a mid-term performance review which Mr Bensley had conducted in respect of the Applicant. This email (provided in evidence) 3 was sent on 1 March 2012 to the Applicant and identified various work and performance matters or issues which Mr Bensley had raised with the Applicant on the previous day.
[16] The email is detailed and lengthy and it is not necessary to recount the content of the email in its entirety. However, in summary terms, Mr Bensley identified some areas for development or knowledge sharing for the Applicant, as well as areas of performance which needed improvement. The areas can generally be described as: forward work planning each week, reporting by the Applicant upon work undertaken, greater attention to administrative matters including applications for leave and travel expenditure, office attendance and other related issues, considerations of the Applicant’s health and further learning and development in relation to Departmental policies and procedures for the Applicant. In relation to this last point Mr Bensley advised the Applicant that he would assist him in identifying appropriate sources of information and courses in regards to his learning needs.
[17] The end result of the review, identified by Mr Bensley in relation to the Applicant’s performance is that Mr Bensley rated the Applicant as “needs development”.
[18] Relevantly Mr Bensley closed this review email by saying:
“As your manager, I am obligated to outline my concerns, their basis and the potential consequences to you. To turn this situation around by June, in particular, I need you to pay more attention to internal policies and procedures and to be responsive to all reasonable directions I give you. If you are unsure about something ask me.
If significant problems persist by mid-April I may refer the issue for more formal consideration as a performance management issue.
If the more serious issues are evidence from this point on (e.g. unsatisfactory attendance as the office, unapproved use of you (sic) personal vehicle for work purposes) they may be referred to the professional standards section for review.
I want to avoid any such situation wherever possible.
If you disagree with something I have said please let me know. It is very important that you understand my assessment of your work and the basis for it. I will work with [you] to address any concerns.
Once you have had a chance to respond to this email the next step is to close the discussion off via ESS.
Thank you for the professional approach you have taken to this performance discussion and I look forward to working with you to address the concerns I have outlined above.”
[19] The Applicant responded to this email on 8 March 2013 at 6:13pm. He copied the email to Ms Claire Howlett, who was at the time, Senior Executive level manager to whom Mr Bensley reported. A copy of this email was also in evidence. 4
[20] The Applicant relevantly stated:
“In response to the work review, I have stated that I am happy to take your direction to improve my work standards and activities in any way I can. I have mentioned previous that my issues are communication and the way things you are saying comes (sic) across, this is what distressed me.
I was feeling much better on my return managing my depression, but after having the conversation related to these issues and communication I feel pretty low. I don’t appreciate being threatened with:
[The Applicant extracted the section above from Mr Bensley’s email of 1 March 2012 and continued]
I agreed to any direction you have provided, and I understand you are obligated to point out concerns but is there a need to continually point out disciplinary options both verbally in the meetings and in writing? It’s not helping my self esteem or helping me address my depression. I would and understand if I refused to improve but I want to improve and agreed to your directions. These are the ongoing examples of communication I am trying to express.”
[21] Ms Howlett responded to the Applicant, and copied Mr Bensley, on 13 March 2012. Ms Howlett referred to the medical issues raised regarding the Applicant’s mental health and requested that the Applicant undergo an independent medical assessment to ensure his fitness for duty. In addition Ms Howlett stated, in part:
“Secondly, you appear to be making an allegation of threatening behaviour by Neil. However, I do not consider the example set out below [referring to Mr Bensley’s email of 1 March 2012] constitutes threatening behaviour. On the contrary, I consider this to be reasonable management action by Neil, giving you appropriate notice that if your performance does not improve, a formal performance management process will be instigated. Neil is required to inform you of this as a manager and in compliance with the EA and the department’s performance management guidelines and policies.
Notwithstanding this, in accordance with the [Department’s] Conduct and Ethical Behaviour Framework I am referring this issue to the Department’s Professional Standards Section (PSS) who have responsibility for addressing concerns raised about the conduct and behaviour of Departmental employees. As such, I have copied the Director PSS, Mr Wes Spencer, into this email.”
[22] Ms Howlett, as she confirmed in the correspondence, copied the email of 13 March 2012 to Mr Wes Spencer, the Director of PSS. Mr Spencer gave evidence in these proceedings.
[23] Mr Bill Thomas, Principal Investigator of PSS, corresponded with the Applicant on 19 March 2012. This email was in evidence. 5 Mr Thomas, after referring to the Applicant’s email of 8 March 2012, and in particular the reference to “being threatened”, relevantly stated in this email:
“This extracted comment from your email appears on face value to be an allegation of misconduct about Mr Bensley. As such I request your clarification if this is the case and that you wish to make a complaint of a potential breach of the APS Code of Conduct by Mr Bensley.
Alternatively, if it is the case that you do not wish to make any complaints of misconduct by Mr Bensley I require your confirmation of this by reply email without delay.”
[24] It is noted that this email of 19 March 2012 does not stipulate any timeframe for compliance by the Applicant within which to respond. More importantly the email does not draw to the Applicant’s attention that failure to respond within any timeframe, or any specific timeframe, would result in the matter being closed as unsubstantiated.
[25] Mr Thomas then went on to discuss, in some detail, what a complaint against Mr Bensley would involve as well as the confidentiality requirements of such a process. In this regard Mr Thomas stated in his email of 19 March 2012:
“For these reasons, and to avoid compromising the integrity of any potential investigation into any complaints you may wish to make about Mr Bensley, you must not discuss your misconduct allegations with any other persons. Noting a comment made by your colleague Mr David Thompson in an email to Mr Spencer last Friday ‘You will also have noted an almost identical email regarding my colleague john hunter from Claire as well.’ And combined with the fact the (sic) Mr Thompson copied you into his email to Mr Spencer, it is important that you understand this directive not to discuss these matters with others includes your colleague Mr Thompson, any other colleagues - Departmental or otherwise, or any potential witnesses in this matter. This further includes Mr Bensley himself.
...However, to avoid any misunderstanding or the potential consequences of non compliance with this directive, please contact me for advice should you wish to discuss anything related to your misconduct allegations with any other person - and most importantly, prior to you doing so. This includes copying, or forward to others, any emails or other correspondence related to these matters.”
[26] Importantly the following statement, by Mr Thomas, appears in his email of 19 March 2012:
“APSC guidelines also require that I ensure you are fully aware that employees who are found to have made frivolous, vexatious, false or malicious claims of misconduct about another employee may themselves become the subject of disciplinary action under the Department’s established misconduct procedures.”
[27] At 9:15pm on the same day, 19 March 2012 the Applicant responded as follows:
“I am currently in the process of compiling e-mails, writing up a series of documented incidences and related evidence. I will send this documentation within the next two weeks. I would appreciate your confidence in regards to this as I have cause to fear vindictive and negative impacts as a result of my disclosure.” 6
[28] Mr Thomas responded to this email on 20 March 2012, clarifying the position in relation to the “fears” raised by the Applicant in his email of 19 March 2012. 7
[29] In the following weeks the Applicant raised with Mr Bensley the possibility of recording all of their future conversations or conversely only corresponding by way of email. Mr Bensley responded that he was uncomfortable with either approach and sought the advice of Mr Spencer. Mr Thomas replied to Mr Bensley and the Applicant advising the parties that is was the Department’s view that the status quo should be maintained and it was expected that parties to a complaint maintain working in a professional and cohesive fashion.
[30] On the material before the Commission, there does not seem to have been timely steps taken by Mr Thomas, in relation to the Applicant’s response to his email of 19 March 2012, to prompt, remind, or follow-up with the Applicant, other than responding to further correspondence from the Applicant regarding other matters. It is important to note that even in the correspondence of 2 April 2012; there is no mention by Mr Thomas, to the Applicant, of any outstanding matters from the perspective of PSS or of any time limit for the Applicant to rectify any outstanding matters.
[31] However, on 20 April 2012 Mr Thomas emailed the Applicant advising him that he had not yet responded with any of the “requested information” which would enable PSS to conduct a preliminary assessment of any allegations made against Mr Bensley. 8 Mr Thomas advised that without this information he was unable to progress the matter and that PSS “have now finalised and closed this matter as unsubstantiated with no further action required or necessary by the Department”.
[32] On the material before the Commission, there was no communication in relation to the response sought between the PSS and the Applicant between 2 April 2012 and 20 April 2012. While it is the case that the Applicant is the one who wished to make a complaint for the PSS to consider/investigate, and it is therefore his responsibility to pursue that complaint, best practice may have been that PSS would appropriately notify the Applicant, to forewarn him, that either he had not responded as he had stated he would (to provide the material within 2 weeks from 19 March 2012, and that the matter may be closed) or to clarify what allegations it was that the Applicant wished to make against Mr Bensley. Having noted these procedural deficiencies in this investigation, these are examined later, along with the merits of the complaint raised by the Applicant and his pursuit of such.
[33] On 26 April 2012 the Applicant replied to Mr Thomas, regarding his response, as follows:
“I am receiving formal advice on the structure of the document and the process. I have not submitted the document earlier because it has taken me as considerable amount of time to work to put together documented times, dates and incidences with attachments etc as per your request. I am also suffering from work place depression and have taken leave time of (sic) to manage it.
...
I am formally requesting that you reopen the case or establish a new opportunity to voice my issues due to the constraints I mentioned.
I understand from the documents you have sent that principles of procedural fairness should be applied and a reasonable timeframe should be put I (sic) place considering for example to seek necessary professional advice. I have made it clear that I will submit something but as I have mentioned it is difficult to submit a considerable document in a ‘relatively’ short period of time. I understand the issue is serious and have therefore taken all measures possible to submit a document outlining the issues in a professional manner.” 9
[34] Mr Thomas responded on 1 May 2012, after having returned from a period of a week’s leave, during which the Applicant had sent his email. Mr Thomas relevantly stated:
“I acknowledge your advice that you work on a part time basis and have been dealing with health issues, however the Department has an obligation to address incidents of actual or potential allegations of misconduct by its employees in a quick, fair and transparent manner. If you were the subject of any potential misconduct complaints you would likely appreciate this and would rightly have these same expectations.
...
However, despite my request over 6 weeks ago now for your clarification if this was the case and if you wanted to make a complaint of a potential breach of the APS Code of Conduct about Mr Bensley and despite your email advice to me on 19 March that you were compiling material and you would send it to me within two weeks, you have not made any actual allegations of misconduct about Mr Bensley or provided the Department with any specific details or supporting information with respect to any potential misconduct allegations.
I can confirm that this matter remains finalised and closed in the absence of any allegation from you of misconduct about Mr Bensley and in the absence of the specific details and information being received in relation to any such misconduct allegation as requested. In the event that at some point in the future you do decide to make an allegation of potential breach of the APS Code of Conduct by Mr Bensley and you do decide to forward the PSS the specific details and information as requested, your allegation will be assessed in accordance with the procedures comprehensively outlined in my email to you on 19 March and also in the context of this and our previous correspondence.”
[35] This correspondence sets out for the Applicant, that despite the matter being closed by PSS, it was open to the Applicant to resubmit a complaint against Mr Bensley for alleged breaches of the APS Code of Conduct. Mr Thomas set out for the Applicant that any future complaint, if particularised, would be assessed in accordance with the process previously set out to the Applicant and, further, in line with the context of the correspondence which had already passed between the parties. Had the Applicant chosen this route he would have been in the same position he would otherwise have been, had he provided the particularised details to PSS when previously requested. The Applicant did not do this.
[36] Following the correspondence of 1 May 2012, Mr Thomas responded to a telephone message left for him by the Applicant, where the Applicant raised a query as to whether the matter was being treated as a “section 33 Review of Action grievance”. This is a reference to s.33 of the Public Service Act 1999 (the PS Act) which provides an entitlement, to an employee of the Australian Public Service (APS), for a review of any APS action relating to his or her employment.
[37] Mr Thomas’ response to this was that the matter was not a matter under s.33 of the PS Act, because the allegations made by the Applicant were allegations of misconduct and gave rise, potentially, to issues under the Code of Conduct. In any event, Mr Thomas explained that the Applicant had not made a request for a review under s.33 of the PS Act. Mr Thomas provided the Applicant with information about s.33 reviews, in particular, that in accordance with the Enterprise Agreement such requests must be made in writing to a Delegate of the Secretary of the Department. Mr Thomas confirmed that Ms Michelle Wicks, Assistant Secretary of the Workforce Strategies Branch, was the primary Delegate for the purposes of s.33 reviews for employees within the Applicant’s department. Mr Thomas also referred the Applicant, to where he could get further information regarding s.33 reviews.
[38] On 15 May 2012 the Applicant did subsequently submit a grievance to Ms Wicks “under s33 of the Public Services (sic) Act due to serious work place issues”. 10 The Applicant attached a statutory declaration with an attached “Grievance” document. This document was in evidence in this matter.11 This document, as filed by the Respondent in this matter, including attachments, is over 100 pages in length.
[39] This document, which is referred to hereafter as “the Complaint”, is lengthy and is one in which the Applicant raises a number of complaints relating to Mr Bensley and, in part, others within the Department. The Complaint had attached to it various emails between the Applicant and Mr Bensley (and others), material relating to the Applicant’s performance reviews and examples of the Applicant’s reporting etc. The specific details of the Complaint will be discussed in more detail below.
[40] Ms Wicks responded to the Applicant, but initially had not received the completed document, this was rectified. 12
[41] The course of events in relation to the Complaint was that two minutes after responding to the Applicant Ms Wicks provided the Applicant’s email, with attached grievance, to Mr Spencer. Approximately 20 minutes later Mr Spencer provided the document, by email, to Mr Thomas.
[42] On 18 May 2012 Mr Thomas responded to the Applicant. 13 Mr Thomas reminded the Applicant of those matters that Mr Thomas raised in his email of 1 May 2012 about resubmitting any complaint. Mr Thomas stated that given the “extensive nature” of the allegations made by the Applicant, Mr Thomas anticipated that he would need to travel to Cairns to meet with the Applicant and discuss the various issues. Mr Thomas acknowledged however that it was in his view inappropriate to arrange such a meeting while the Applicant was on extended sick leave from his employment. Mr Thomas’ email of 18 May 2012 was sent to both the Applicant’s work email and personal email address.
[43] It is to be remembered that during this period the Applicant was undergoing medical assessment in relation to his fitness for duty. In the originating emails of 8 March 2012, and the response from Ms Howlett, the Applicant was requested to undertake a medical assessment. Subsequent to this, the Applicant took periods of leave. This is discussed in further detail below and is pertinent to the consideration in this matter.
[44] The Applicant responded some 20 minutes after Mr Thomas corresponded with the Applicant on 18 May 2012. 14 The Applicant advised that he “hope[d]” to return to his employment once the issues had been resolved or at least progressed. The Applicant was clearly of the view that he should not return to work in the situation. The Applicant reiterated his “fear of vindictive behaviour and retaliation” but immediately stated that these “may be fears that are not substantiated”.
[45] Much time was spent in cross-examination of witnesses about the Applicant’s availability or otherwise to meet with Mr Thomas, to discuss or progress this matter. In the email of 18 May 2012 the Applicant stated:
“I am forwarding the grievance as a statutory declaration under the oaths act and a comprehensive appendices with evidence. I am sure much of what you would like to ask is found in this document. I am happy to meet you while on leave, you will need to provides (sic) some dates as my elderly mother is in hospital after having a severe fall and I want to visit her in hospital in Sydney.
Considering the issues regarding the initial grievance which was directed by Clair Howlett not by myself, I sought external legal advice on the process and was in touch with the Public Services Commission. I trust this process will move without any issues under Public Services guidelines now I have lodged the grievance under s33 of the Act. I am aware of other cases of similar nature, and those that have also gone through Comcare, one of which was mentioned in the Canberra media recently. So I will understand if the process may be lengthy.”
[46] This email, and specifically the continued reference by the Applicant to s33 of the PS Act, resulted in Mr Spencer, on 21 May 2012, responding to the Applicant seeking clarification about what process the Applicant was hoping to instigate. At this point in time the Applicant had sought to commence the preliminary stages of a complaint, which may result in a Code of Conduct investigation against Mr Bensley, and had also sought, by email to Ms Wicks, to submit a “grievance” pursuant to s33 of the PS Act.
[47] Mr Spencer, in quite detailed terms, explained the difference between the two processes to the Applicant, and, in very certain terms, stated to the Applicant:
“As it is unclear which process you are requesting the Department undertake with respect to your ‘grievances’ I would be grateful if you could please confirm without delay if:
(A) you are submitted your 27 pages of alleged ‘bullying and negligence’ as an application to the Delegate for a Review of Action process in accordance with section 33 of the [PS Act] and Public Service Regulations 5.23A(1)(a)
OR
(B) you are seeking to have your 27 pages of allegations of ‘bullying and negligence’ about Mr Bensley investigated by the PSS in accordance with the procedures established by the Secretary under section 15(3) of the [PS Act] for determining whether an APS employee has breached the APS Code of Conduct.” 15 (emphasis in original)
[48] Also on 21 May 2012 the Applicant responded to Mr Spencer confirming that he sought PSS to commence an investigation in accordance with option B (extracted above). 16
[49] The Applicant also stated, on the material before the Commission, for the first time, that he had hoped the issue would go to mediation as a first step. The Applicant also advised that he had taken issue with the process of dealing with the first complaint (discussed above) and that he was not given an opportunity to formalise the substance of his allegations. The Applicant advised that after seeking advice, from various sources, he was referring to s.33 of the PS Act for review of the decision of PSS to close the matter.
[50] The Applicant also took issue in this email with the fact that Ms Howlett was the person who instigated the initial PSS matter and that this had lead to the process progressing prior to a time when the Applicant was ready to submit his grievance. The Applicant stated:
“I then attempted to put something together under duress of the SES [a reference to Ms Howlett] instigation. I was unable to deliver an appropriate document in time and my oppertunity (sic) seemed to have closed. I interpreted this process as a very subjective being influenced by nepotism (sic). SES Management [Ms Howlett] protecting EL2 management by using knowledge and relationship through process. However, I was under a great deal of stress and was suffering from depression resulting in my present circumstances.”
[51] Ms Howlett had stipulated that she had provided the Applicant’s response to PSS for consideration because, as she described to the Applicant, she felt she was obligated to do so, having become aware of the serious issues of, what the Applicant alleged, as threatening behaviour on the part of Mr Bensley. This was despite the fact that Ms Howlett did not share the Applicant’s views regarding the correspondence of Mr Bensley on 1 March 2012. Ms Howlett’s actions in this regard, and on the evidence before this Commission, were entirely appropriate. Had Ms Howlett been ‘subjective’ as the Applicant put it, she would not have referred the matter to PSS for consideration, but rather expressed her view, that it was not an issue and simply left it there.
[52] It is also of importance to note that, despite the Applicant’s assertions in his email 21 May 2012 (extracted above), Mr Thomas did make it clear to him that he could either confirm that he wished to make a complaint (in which case further information was required) or withdraw.
[53] The Respondent filed a transcript of a discussion involving the Applicant, Mr Spencer and Mr Thomas. 17 This conversation took place on 23 May 2012. Mr Spencer confirmed in this call that he has, at that time, only seen the 27 pages supplied by the Applicant. At this time, for some reason, Mr Spencer had not received, or viewed, the multiple attachments to that document. Mr Spencer goes on to note that the Applicant had raised his expectation of mediation in the matter. The Applicant confirmed that he had hoped mediation would occur in the “initial flagging” of the issues.
[54] During the course of this conversation, the Applicant raised his concern about the formal approach taken by the PSS, in dealing with his complaint. The Applicant principally complained about the fact that the entire process, was conducted by emails, which were written in a formal way. The Applicant was observed during the lengthy evidence he provided. He provided an insight into the approach that the Applicant took to his work in general. It is clear from viewing the material filed in this matter, and having seen and heard the Applicant provide evidence and submissions in the matter, that he has a preference for a verbal (rather than written) and an informal communication style. This was at odds with the prescriptive, formal approach that PSS was obligated to take in the circumstances, and did not particularly mix well in the context of the requirements of employment and grievance handling within the APS.
[55] Having said this, however, the end result of this conversation between the Applicant, Mr Spencer and Mr Thomas (which is recorded to have lasted for approximately an hour), is that mediation was offered to the Applicant, and the Applicant refused this. The reason for the Applicant’s refusal was that the Applicant then considered it was too late for mediation. This is evident through the exchange between Mr Spencer and Mr Hunter on 23 May 2012 as follows:
“Q25 ...So what I’m trying to seek from you today is if you are willing to participate in mediation with Mr Bensley to try and resolve the workplace conflict that has arisen between you.
A25 Well, to - to be honest, I don’t have any - any faith in mediation after - after the - the series of - series of occurrences that have brought me to this particular position.
Q26 But how can you say you don’t have faith in mediation unless you’ve tried mediation? I’m not saying you have to, by the way. I’m seeking your willingness or not to---
A26 Yeah.
Q27 participate in mediation.
A27 Well, the reason why I don’t have any faith in mediation is because I understand through - through the- the processes specific personalities will be - will be influenced in - in the way that mediation occurs and the - the results of mediation may mean nothing. For instance, we might sit in a room and we might bring in a mediator and talk about our issues and, you know, there might be a few days of discussion, you know, and understand of what - what had happened and then there will be a few things said, there will be a bit of an agreement, and then we’ll go back to the same relationships that occurred in the workplace previously.” 18
[56] It was put to the Applicant that Mr Spencer and or Mr Thomas may “catch up” with the Applicant while he was in Sydney. The Applicant explained that his time in Sydney would be taken up with his mother who was, at the time unwell.
[57] It is also at this time that the Applicant begins to make reference to a ‘psychological injury’ resulting from the treatment of the Applicant. The Respondent noted that such a reference to this term was deliberately introduced by the Applicant, in line with his associated/pending Comcare application.
[58] Having viewed the correspondence so far, and the transcript of the discussion on 23 May 2012, the Applicant remained unclear, regarding the course he wished to adopt. The Applicant’s complaints regarding the formal manner of the documentation and the conversation are acknowledged; as is the medical condition he stated he was suffering at the time. The transcript reveals that Mr Spencer, attempted to explain to the Applicant what the process was. It was also clear, upon reading the transcript, that the Applicant’s confusion remained and part of that confusion was about the technicalities of whether it was a complaint, a grievance, or an investigation etc. The approach taken by PSS to the Applicant may have benefited from a less formal approach, but it is accepted that the Respondent operates in a prescriptive environment of Federal legislation, regulations and the associated guidelines to ensure consistent knowledge and fairness of the process applicable across a significant workforce.
[59] The conversation, of 23 May 2012, ended on the basis that Mr Spencer would correspond with the Applicant in writing, and the Applicant undertook to consult his medical specialists
[60] Approximately 2 and a half hours after the close of this conversation, the Applicant emailed Ms Wicks with a copy to Mr Spencer. This email stated:
“Due to the serious nature of the work related psychological injury I have experienced due to workplace relationships that is substantiated by medical evidence;
I request that the documents submitted outlining my allegations of ‘bullying and negligence’ allegations about Mr Bensley be investigated by the PSS in accordance with the procedures established by the secretary under section 15(3) of the [PS Act] for determining whether an APS employee has breached the APS Code of Conduct.” 19
[61] Shortly before 4pm (that same date), Mr Spencer confirmed the outcome of the discussion with the Applicant, confirmed that the attachments to the Applicant’s 27 page document had still not been received, and requested the Applicant to seek the requested medical advice and respond “ASAP”.
[62] On 7 June 2012, Mr Spencer again corresponded with the Applicant as follows:
“I refer to our telephone discussion just over two weeks ago on 23 May and my subsequent email to you later that day...
Can you please advise if your treating medical practitioner/s consider that you are well enough to meet with the PSS...
Unfortunately PSS is unable to progress this matter until we’ve had an opportunity to meet with you to sit down and discuss your allegations in greater detail.
As such, your urgent advice on the timing when you will be able to meet with us would be much appreciated.” 20
[63] Much was made by the Applicant during the Hearing about the manner in which PSS attempted to arrange this meeting with the Applicant. The Applicant’s argument centred on the semantics of whether PSS had requested dates that he was unavailable as opposed to dates he was available. While this matter is discussed further below, it is clear on the material that, at least, since 7 June 2012, Mr Spencer had made attempts to elicit from the Applicant, an opportunity to meet.
[64] The Applicant responded to Mr Spencer on 7 June 2012, confirming that he was to meet with his doctor on the following Tuesday and that he would advise that afternoon. The Applicant advised in this email, that the delay was due to family emergencies and the fact that this was the first time that the Applicant could meet his doctor.
[65] The Applicant did respond following his appointment on Tuesday, 12 June 2012. 21 The result was that the Applicant had received advice that he could meet with PSS, but that the doctor had recommended that a teleconference take place. The Applicant advised he would forward the advice/assessment of the doctor.
[66] Mr Spencer responded to the Applicant, also on 12 June 2012, requesting the Applicant forward the doctor’s documentation and also requesting the Applicant to confirm a time that he would be available to talk with Mr Spencer, the following day, to make arrangements for the meeting to take place.
[67] The Applicant responded some four days later on 16 June 2012, attaching the medical certificate and suggesting that any meeting be conducted by telephone. The Applicant also advised the he was available on two days the following week and confirmed that he would be away in Sydney the week after that.
[68] Mr Spencer responded to the Applicant on 18 June 2012, being the first working day after the Applicant’s email of 16 June 2012, stating that it was the position of PSS that the meeting be conducted in person. Mr Spencer also confirmed that the Applicant was able to have a support person present if he wished, but that that person could not be a witness or potential witness in the matter. Mr Spencer also requested of the Applicant, whether he would be available to meet while in Sydney, as the Applicant indicated his lawyer was located there and this was a lesser imposition on Mr Spencer and Mr Thomas in terms of travel between Canberra and Sydney, compared with between Canberra and Cairns.
[69] The Applicant responded on 21 June 2012, advising that he had attempted to make time while in Sydney, but that given his family commitments with his parents (as the Applicant had foreshadowed) while there, it was not possible. The Applicant also advised at this time that following his return from Sydney it would be school holidays, in which case he would be required to care for his children and would not be available to meet at that time. The Applicant suggested that he would be free in the week of the 9th of July to meet. The Applicant also advised that he required his support person, a Solicitor in Sydney, to be able to attend any meeting, whether that be by telephone or otherwise.
[70] On 22 June 2012 Mr Spencer again emailed the Applicant, and requested that he reconsider making himself available in Sydney to meet. Mr Spencer outlined that, in his view, this option presented some good reasons, principally because the Applicant’s support person was located in Sydney and his personal attendance would benefit the Applicant. Also Mr Spencer stated this was the case because he was unable to accommodate a meeting in Cairns in the week of 9 July, due to prior commitments and also because Mr Spencer commenced leave that week until the middle of September.
[71] Mr Spencer also stated in this correspondence that if the Applicant could not accommodate a meeting in Sydney or prior to 9 July 2012 then the matter would “have to [be] suspended...and revisit it down the track...However, realistically that’s unlikely to occur until the end of September at the very earliest, but likely not until October”. 22 This is perhaps, on reviewing the matter, an unfortunate response from Mr Spencer. Given the nature of the allegations made by the Applicant, the concerns the Applicant had previously raised about the process, the Applicant’s circumstances, and the medical opinion at the time (regarding a telephone conference) it would have been appropriate, to make some accommodation to make whatever arrangements could be, whether that be by telephone or not, or with alternative personnel involved, to discuss the matter with the Applicant.
[72] However, the critique of the response must be viewed against the difficulties in obtaining a meeting with the Applicant. The Applicant had responded again confirming that his schedule in Sydney was such that he could not accommodate a meeting. The Applicant provided further information about why this was the case to Mr Spencer (eg assisting his elderly parents around their home). The Applicant apologised to Mr Spencer but accepted that if a September meeting was required he would understand it.
[73] Mr Spencer responded as follows:
“Your advice that you cannot make yourself available to meet with us while you are in Sydney, or prior to 9 July, is noted.
Unfortunately, for the reasons explained in my previous email, this matter will now be suspended and will be resumed as soon as is possible after my return from leave in September.”
[74] It seems that no correspondence was entered into between the parties, in relation to the matter, following this correspondence. The Applicant returned to work in a part time capacity. Mr Spencer corresponded to the Applicant on 10 October 2012 and stated as follows:
“I’m back from leave an I’d like to make arrangements for [Mr Thomas] and I to travel to Cairns to meet with you to discuss, in specific detail, the misconduct allegations you have made about your manager Mr Bensley.
I understand that you currently work 3 days a work - those days being Tuesday, Wednesday and Thursday. So we can settle on a definite date to meet with you, could you please advise me of any particular work days between now and say the end of November that you would not be available to meet with the PSS. Given the extensive nature of the material you provided to the PSS in support of your allegations, I anticipate our meeting will take several hours if not the most part of the day. As such, and for forward work planning purposes, you should allocate the whole day for our meeting i.e. 9am to 5pm (we will have short breaks during the day as necessary including a one hour break for lunch).
...
I’d be grateful if you could respond as soon as possible so the PSS can make the necessary arrangements to travel to Cairns to meet with you at the earliest possible and convenient date.” 23
[75] The Applicant responded on 11 October 2012 that he would provide “some dates for you”.
[76] On Tuesday, 16 October 2012 the Applicant responded as follows:
“I suggest Wednesdays would be the best. Please provide some options as per your schedule.” 24
[77] The Applicant also raised a query about the role that PSS was playing in the appeal of the Applicant’s Comcare claim.
[78] Mr Spencer relevantly responded to the Applicant on 17 October 2012 that:
“I note your preference for Wednesday’s however as requested could you please advise me of any work days (Tuesday’s, Wednesday’s or Thursday’s) between now and the end of November that you will not be available.” 25(emphasis in original)
[79] Mr Spencer also made clear that PSS has no part to play in the Applicant’s Comcare matter and that that was a separate section within the Department.
[80] Later, on 17 October 2012, the Applicant replied to Mr Spencer and Ms Wicks with a lengthy email, renewing his concerns about the process being implemented by PSS. The Applicant appears however to have been confused about what was occurring.
[81] The Applicant’s claim for workers’ compensation is discussed further below but for present purposes the Applicant alleged that the Department, in responding to the Applicant’s compensation claim, had improperly included some documents, which the Applicant had provided to PSS. This response included some denial, by the Respondent, of the Applicant’s claims and that the Applicant had confused that the use of these documents, evidenced that PSS had made a conclusion/finding in relation to his complaint against Mr Bensley.
[82] Mr Spencer responded on 22 October 2012. Mr Spencer endeavoured to clarify the situation for the Applicant.
[83] That clarification attempted to explain the Comcare process. After having received the Applicant’s claim for workers’ compensation, Comcare issued the Department with a notice, which required the Department to provide all documents and statements of fact that the Respondent had in its possession in relation to the application. As a party appearing before Comcare, the Department is entitled to be heard, and to respond to the Applicant’s claim. Mr Spencer notified the Applicant, by his correspondence of 22 October 2012, that PSS was also required to provide to Comcare all relevant documents. Mr Spencer contrasted the response from “the Department”, being the denial of the allegations made by the Applicant, and the response provided from “PSS”, where PSS provided the Applicant’s complaint/allegations and provided a timeline of the steps taken by PSS.
[84] Mr Spencer attempted to clarify that the two matters, the Comcare claim for workers’ compensation and the PSS consideration of the Applicant’s complaint, were two separate processes. While this is certainly correct, it is not unreasonable to see that the Applicant, being a person who was not conversant in this area of law, or the processes of both matters, would reasonably seek this explanation. This is particularly so in the context that the action that the Applicant relied upon, as giving rise to his alleged workplace injury were the same actions or allegations (or at least crossed over), that were the subject of his complaint.
[85] Mr Spencer’s response is quite detailed. This is to be expected in response to what was, in effect, a serious allegation of bias made by the Applicant.
[86] Again, Mr Spencer requested that the Applicant provide any period that he would “not” be available to meet with PSS. It was requested that he do this “without further delay”.
[87] The PSS response to Comcare was filed in the matter. 26 The Commission has reviewed the document and it is essentially as Mr Spencer presented it, a chronology of events. However, the response finishes by stating:
“Significant difficulties have been experienced by the PSS in their efforts to meet with Mr Hunter to conduct an in depth assessment of his allegations and to test the veracity of them. This, combined with other PSS commitments and recreation leave by PSS staff, has regrettably resulted in the progress of Mr Hunter’s allegations being placed on hold until late September/October.” (emphasis added)
[88] This statement in the PSS response is somewhat weighted against the Applicant. The view that I have taken of the various exchanges of correspondence (on the process) between the parties is that the Applicant had been, up to this point, as accommodating as he was able to be regarding the meeting. He notified the PSS of his difficulties in meeting with PSS in Sydney and it was, in my view, harsh of PSS to continually push the Applicant to change his arrangements, despite PSS being notified of the reason for his travel. This was so, even though PSS’s own advice was that the time for the meeting, that should be set aside by him was, most of a day. It is not as though PSS wanted 30 minutes with the Applicant, while he was on leave.
[89] The Applicant responded on 6 November 2012. 27 The Applicant responded that he was compiling dates because he was expected to be in Canberra “at the end of the month” and also in Brisbane “in a week or so”. The Applicant also advised that he would not have a support person present, so alternatively he wished to record the meeting.
[90] Mr Spencer responded on the following day, 7 November 2012, advising the Applicant that it would not be appropriate for him to record the conversation, due to privacy considerations. This was because the meeting was essentially about other employees of the Department. Mr Spencer concluded the email as follows:
“Once again, I would be grateful if you would please provide me with the dates of any of your particular work days...that you would not be available to meet with Bill and I to discuss your misconduct allegations in specific detail.”
[91] The Applicant responded within 30 minutes to Mr Spencer. Given the response that follows, it is necessary to set out the exact detail of the Applicant’s response to Mr Spencer:
“Wes,
As a result of your response, I do not wish the meeting to be recorded and I will only meet with you in person, considering I will not have a support person available. I was also advised that I have access to that information in the recording by the Public Service Commission and I can do that through FOI.
The department has previously used a recording of our meeting in a way that was misconstrued by being used out of context. You also said that the information from the preliminary meeting would not be used against me, apparently in a separate process! I don’t feel safe meeting with two people I have had a negative experience with and not having the security of recording the meeting.
I am also aware of other issues/information relating to the complaint that was communicated to me by Canberra based staff in confidence that makes me feel very uncomfortable with the potential agendas aligned with this process.
I will await your response
Thank you
John Hunter” 28
[92] Mr Spencer responded as follows, at 4:53pm on the same day:
“John,
Your email suggests that you do not wish to meet with the PSS to discuss your misconduct allegations - that’s fine and it is certainly your prerogative.
As you are aware the PSS is required to assess your misconduct allegations so a determination can be made whether a formal investigation under the department’s established misconduct procedures may be warranted in the circumstances, or alternatively, if other less formal administrative action may be necessary or required - or not required, as the case may be.
If you don’t want to meet the PSS we will still appropriately progress this matter and conduct the assessment on the basis of the written allegations you submitted to the department on 18 May 2012, in the form of the 27 Page document...along with its accompanying 17 appendices comprising of a further 53 pages, along with any other relevant information available.
Please let me know either way....” 29
[93] Again, further correspondence went between the parties with the Applicant responding shortly after at 5:07pm as follows:
“Hello Wes,
I did not say that I didn’t want to meet with you; my email related certain questions aligned with the intended meeting of which I was waiting for a reply.” 30
[94] The Applicant further responded to Mr Spencer’s responses. He concluded with:
“I am still awaiting logistics on dates due to expectations Canberra has on us to attend formal training and meetings. I will endeavour to provide you with dates ASAP. I also have additional material to lodge that relates to my complaint.”
[95] Mr Spencer responded at 8:51am on Thursday, 8 November 2012. He confirmed that it was his preference that he meet with the Applicant personally to discuss the allegations and that such a meeting being recorded was standard procedure. Mr Spencer sought the Applicant’s agreement to meet with Mr Spencer and Mr Thomas, to PSS recording the meeting and confirmation that the Applicant understood he could not record the meeting.
[96] Mr Spencer advised the Applicant to inform him of any period of unavailability between 12 November 2012 and 23 November 2012. Mr Spencer also suggested that PSS needed to avoid any “further or unreasonable delays in appropriately progressing this matter”. Mr Spencer asked that the Applicant respond by close of business on Friday 9 November 2012. Mr Spencer did not advise the Applicant of what would occur if the Applicant did not respond by this time. Mr Spencer also seems to not have accounted for the part-time nature of the Applicant’s employment at the time; specifically the Applicant did not work on Fridays.
[97] Mr Spencer gave further evidence in the matter that there was a “series of communications between March and November 2012” between the parties and that by the time PSS was preparing its final report, Mr Spencer had formed the view that the Applicant was “purposely evading” attempts to meet 31.
[98] The series of communications have been considered as per the observations above. Both parties were deficient, in what became an inordinate period to deal with what were, if substantiated, serious allegations. It was clear that the Applicant was also alleging serious ramifications on his personal health. The Respondent’s clear view was that the Applicant was being recalcitrant and uncooperative in progressing the process. Having viewed the correspondence in context and in its entirety, it is apparent that the Respondent’s representatives were becoming short and frustrated with the Applicant. Having said this, I am cognisant of the procedural constraints placed on the PSS but also that the Applicant was frustrated by what the Applicant considered to be rigid application of procedure and not an appropriate response, taking into account his circumstances, location and the commitments of both parties.
[99] The culmination of this chain of events was a report (on 13 November 2012 32) regarding the allegations made by the Applicant involving Mr Bensley. This report was prepared by Mr Thomas, and agreed with, by Mr Spencer. This is a lengthy report with some 13 attachments (including the lengthy correspondence between the parties, some matters pertaining to Comcare and, at attachment 5, a “Copy of Mr Hunter’s original 27 page ‘Grievance’ document with 17 attached appendices”).
[100] Mr Thomas, in this report, makes an assessment of the allegations made by the Applicant (discussed in further detail below), in the context of the communications involving Mr Bensley and the Applicant available to him, and some medical evidence regarding the Applicant’s well being. The simple, and summarised, assessment is that Mr Bensley’s actions were viewed as being within the purview of “reasonable management action” and that the medical evidence was that the Applicant’s response to Mr Bensley’s actions may have been as a result of “externalised” responses by the Applicant to what was his own mental health condition. Mr Thomas recommended that the complaints did not warrant formal investigation, as against Mr Bensley, and that the matter should be closed.
[101] As a result of Mr Thomas’ assessment of the Applicant’s allegations, Mr Spencer gave evidence that “there was doubt over the veracity of Mr Hunter’s allegations and suggested that they had been made falsely”. 33 This lead Mr Spencer to consider commencing a formal Code of Conduct investigation in relation to the Applicant. In considering this, Mr Spencer requested Mr Thomas to prepare an assessment report for the purposes of making recommendations, as to whether, a misconduct process was warranted in relation to the Applicant’s actions.
[102] The Applicant was subsequently notified that a Code of Conduct investigation, into his conduct, would be commenced. 34 The Applicant responded to this notice advising that he was on leave for a number of months and requesting the particularised allegations to which he was to respond. Mr Thomas responded, in part:
“I can confirm that the allegations about your conduct, as are outlined in the Code of Conduct Notice, relate to information and material you have provided to the department, as well as to Comcare in support of your claim for compensation, and in which you have made numerous allegations of serious misconduct about your manager Mr Neil Bensley.” 35
[103] The Applicant reiterated his complaints about the initial PSS enquiries into his allegations regarding Mr Bensley, namely; that he was not given an opportunity to provide additional witness statements, and that the investigation was improperly conducted. Again, the Applicant requested the specific allegations regarding his allegedly “vexatious and malicious” complaints. 36 The Applicant was of the view that he was prejudiced by his inability to provide witness statements (in the process) from his colleagues Mr Dave Thompson and Ms Galea, that he stated, would have shown that other employees had experienced similar difficulties with Mr Bensley. This evidence however, was introduced in the Applicant’s case before the Commission and has been taken into account.
[104] A lengthy process, which it is now unnecessary to refer to in full, was then undertaken and a report prepared by the PSS. This report was provided to the decision maker, Ms Wicks, for consideration. A copy of this report and attachments, with Ms Kemp’s handwritten notes was in evidence in proceedings. 37 The result was the termination of the Applicant’s employment.
Summary of Applicant’s submissions and evidence
[105] The Applicant has relied upon a bundle of documents which have appeared in one form or another through the course of these entire events. The Applicant’s submissions refer to statements provided in various sources, whether through the Commission’s materials or the Australian Public Service Commission’s materials.
[106] The Applicant’s submissions can be broadly categorised into three areas:
1. The reasons relied upon by the Respondent are not valid, in that they are not substantiated;
2. The investigation process undertaken by the Respondent, both in respect of the Applicant’s allegations against Mr Bensley and the allegations against the Applicant was flawed, for various reasons; and
3. The sanction of termination of employment, was not appropriate in the circumstances when considered as a whole.
[107] As relates to the Applicant’s complaints, regarding the investigation process the Applicant submitted essentially the same matters he had raised with PSS throughout the investigation processes, namely, and in summary, the Applicant submitted that:
● The Applicant was not assisted by the Respondent, to informally deal with his issues, regarding Mr Bensley;
● The Applicant was not afforded the opportunity, to submit evidence regarding his complaints against Mr Bensley, and those witnesses were not interviewed;
● The Applicant’s complaint was dismissed “prematurely”;
● That Mr Thomas and Mr Spencer should not have undertaken both the investigation of the Applicant’s complaint and the allegations against the Applicant (a bias argument);
● The Applicant was discriminated against “for making a valid complaint”;
● The PSS provided “incorrect” evidence to the Delegate for consideration;
● Medical evidence and witness statements were “ignored”;
● And other complaints relating to review procedures of these decisions.
[108] As regards to the seriousness of the sanction imposed on the Applicant, the Applicant submitted, inter alia, that the Respondent did not consider or did not give appropriate weight to matters such as the Applicant’s length of service, “unblemished” performance record, the evidence of “atypical” behaviour on the Applicant’s part, efforts made by the Applicant to manage his personal health issues privately and the level of support by his managers and co-workers.
[109] The Applicant emphasised his unblemished employment record and that he had exhibited positive work performance and achievements in his role.
[110] The Applicant submitted that his complaints against Mr Bensley were supported by his colleague Mr Dave Thompson. Mr Thompson, it was submitted, had lodged a “whistle blowers complaint” against Mr Bensley, which was rejected. It is relevant that Mr Thompson was terminated from his employment with the Respondent (prior to the Applicant’s dismissal) as a result of a complaint made by Mr Bensley against Mr Thompson for his actions in refusing to speak with Mr Bensley who was, at the time, his Manager. The Respondent submitted that Mr Thompson did not proceed with an unfair dismissal application. In any event these particular matters, related to Mr Thompson’s termination and related proceedings, have not been given weight in this matter, given the uncertainty of this information and its relevance to the current matter.
[111] The Applicant submitted that a third employee, Ms Galea, was subjected to bullying by Mr Bensley but that she was too afraid to complain.
[112] The Applicant filed “statements” of both Mr Thompson and Ms Galea in these proceedings which, as noted, have been considered. These statements should, in the Applicant’s submission, have been clear evidence, which corroborated his version of events and complaints. The Applicant submitted that the existence of these statements should have caused the PSS to accept his version of events and substantiated his complaints against Mr Bensley.
[113] The Applicant submitted that the PSS investigations (the Applicant referred generally to the entire PSS process as one) “significantly lacked good judgment and quality decision making” to a point where the Applicant submitted that “alternative agendas” could be “construed”. An extension of this argument was that the Applicant believed some statements were made on an incorrect reading of the evidence, or without any evidence at all.
[114] It was further submitted by the Applicant, that a determination, regarding the sanction to impose, in relation to the code of conduct investigation against the Applicant, should not have been issued until after the Applicant’s complaints and/or requests for review of the initial investigation, had been completed by the Merit Protection Commissioner.
[115] The Applicant submitted that the medical evidence established, “clearly”, that his mental health issues were linked with the matters arising from his workplace. The Applicant submitted that this was rejected improperly. The remainder of the Applicant’s submissions provide various instances of where the Applicant has reached these conclusions in the evidence, all of which (whilst not recounted here) have been taken into account by the Commission.
Applicant witness statements
[116] The Applicant placed significant emphasis on the existence of the witness statements of Mr Thompson and Ms Galea. It is necessary to make some comment regarding these documents.
[117] The “statement” of Mr Dave Thompson included a written letter, dated 18 January 2013, and statutory declaration dated 12 November 2012. The letter is not specifically addressed to any person or body. It is unclear the purpose for which the letter was originally drafted.
[118] The letter, apparently authored by Mr Thompson, complains of the conduct of various staff of the Respondent. The complaints made in this letter are vague and general in nature. The letter is of minimal assistance to the Commission (in assessing the Applicant’s matter in terms of s.387 of the Act) and was not capable of being tested. Mr Dave Thompson was not presented for cross-examination in the matter and his statement was tendered into evidence, on that basis.
[119] The further statutory declaration of Mr Dave Thompson provided further statements (which are particularised to some degree), which essentially corroborate the Applicant’s general complaints about Mr Bensley. The content of the statement however, is generally unhelpful and I cannot give the evidence much weight. This is because the witness was not present to be cross-examined in the proceedings, and for the following reasons. Comments regarding Mr Bensley’s evidence are included below. However the majority of complaints levelled against Mr Bensley by Mr Dave Thompson, also can be characterised as reasonable management action (as also identified as such to Mr Thompson in an email from his Union), as those instances identified by the Applicant in his complaints. It was apparent from Mr Thompson’s statement (in the context of not having had the witness for cross-examination), and his email exchanged with the Applicant that was in evidence, that he was an employee unwilling to be managed (by a former colleague), to any degree. It also evidences a level of insubordination.
[120] For instance, paragraphs 20 to 21 of Mr Thompson’s statement, recount an instance in 2012 where Mr Bensley contacted the Applicant to discuss some matters. At the time of the phone call the Applicant, Mr Thompson and Ms Galea were at the Applicant’s desk. The three employees then proceeded to listen to the conversation between Mr Bensley and the Applicant. It is unclear whether Mr Bensley was made aware of this fact. If he was not, this is deceptive behaviour and questionable conduct by an employee to their manager.
[121] The “statement” of Ms Galea was in the form of an email to the Applicant, comprising of three paragraphs. Again, they are broad statements made about alleged bullying behaviour of Mr Bensley in general and, given Ms Galea was not present at the Hearing in this matter, and they contain a lack of detail, they are not of much assistance to this Tribunal (particularly as it was untested evidence). In the circumstances, mere agreement (between these witnesses where commentary about Mr Bensley was sought) is not corroborative evidence, upon which much weight can be placed. Particularly given the evidence of collusion between the Applicant and Mr Thompson (discussed below).
[122] It was also conceded by the Applicant during cross-examination that he was aware of issues between Mr Bensley and Ms Galea. 38 It was put to the Applicant that he was specifically aware that Ms Galea was being performance managed by Mr Bensley. The Applicant’s answers regarding this are unconvincing. The Applicant conceded that he and Mr Thompson discussed matters a lot and “debriefed” regarding their work.39
[123] The Respondent advanced the argument, in their cross-examination and submissions, that the Applicant colluded with Mr Thompson, and Ms Galea (mentioned above) to target Mr Bensley. 40 A number of exhibits were introduced by the Respondent which go to this alleged collusion between the employees.
[124] An example is to be found in an email trail between Mr Thompson and the Applicant between 23 March 2012 and 27 March 2012. 41 The chain starts when Mr Thompson sought advice from his Union in relation to his complaints regarding Mr Bensley. The Union advised Mr Thompson that, after reviewing some correspondence upon which Mr Thompson relied on as evidence of bullying behaviour, it did not, on face value, amount to bullying or harassment.
[125] Mr Thompson forwarded this correspondence to the Applicant stating:
“Here is a response from the union and a slap in the face for me.
They win...”
[126] The Applicant’s response is significant, in the context of the allegations made by the Respondent against the Applicant, in terms of the manner in which he pursued Mr Bensley:
“That’s OK...
We try a different tack, verbal communication is an issue for me, especially the way he talks to me like a little boy. I have based my points on this and the manner in which he has addressed me.
That’s only round 1.
Take a breath and get ready for the next.” (emphasis added)
[127] The further email of 15 March 2012 (below), from the Applicant to the Mr Dave Thompson also highlights the active nature of the Applicant’s endeavours to entrap his supervisor, relying on the ‘indigenous’ issue:
“The email neil (sic) sent you about the wild river rangers making out you have a conflict of interest is a gem, he hasnt (sic) realised that he has now given us a pearl of an issues (sic) to point out how ignorent (sic) they are. It’s deadly, now we can really play the Indigenous card bros.
LOLs also he has made a formal allegation in writing stating you are acting inapropriatly (sic) as an Aboriginal staff member lol (smiley faces) put on your seat belt cos we going for a ride lol” 42(emphasis added)
[128] The Applicant conceded during cross-examination that he was the author of this email. 43
[129] It is relevant that these emails are sent in March 2012, which is around the time that the Applicant’s allegations of threatening behaviour by Mr Bensley were forwarded to PSS by Ms Howlett. In the midst of these emails to Mr Dave Thompson, the Applicant was advised by PSS that he was to maintain confidentiality, in relation to the allegations and at least one email (being the email of 27 March 2012 to Mr Thompson) was sent after the Applicant was specifically directly by PSS (by way of email of 19 March 2012), to refrain from discussing this matter with others and that if he was unsure in this regard, he should contact PSS.
The Complaint
[130] The full version of the Applicant’s complaint was in evidence in this proceeding. 44 In this document the Applicant outlines his allegations in relation to Mr Bensley.
[131] The matters raised in the Complaint are considered throughout this decision.
[132] A specific example in the document relates to the Bunya Mountains Rangers (approximately August of 2012). As discussed above, this incident occurred while the Applicant and Mr Bensley were Executive Level 1 employees. During this, the Applicant stated that he had a phone conversation with Mr Bensley in which Mr Bensley, allegedly said, after discussing with the Applicant some organisational issues regarding the Bunya Mountains event, “now what have you learnt”.
[133] The Applicant and Mr Bensley later discussed the Applicant’s concerns regarding this conversation. Mr Bensley stated, in a later report for the purposes of the Applicant’s fitness for duty assessment that this situation arose because the Applicant was not coping, in Mr Bensley’s view, with arranging the Bunya Mountains event.
[134] This event occurred prior to Mr Bensley’s appointment as the Applicant’s Director and the Applicant took issue with the manner in which Mr Bensley allegedly addressed him.
[135] A further incident involved an allegation made by the Applicant that Mr Bensley “singled out” the Applicant, during a telecom meeting with other staff, by questioning him on the “intricate detail” of his proposed work in relation to a meeting in Cairns. The Applicant compared this to what he alleged was cursory questioning by Mr Bensley in relation to other staff and the “intricate detail” he appeared to require from the Applicant.
[136] The full copy of the Complaint filed by the Applicant has been taken into account. These instances are given as examples of the matters highlighted by the Applicant.
Credibility
[137] There is a significant divergence between the parties as to the intent or otherwise of the Applicant’s complaint in this matter. Accordingly, it is necessary to make some comments on the credibility of the evidence of key witnesses in this matter.
[138] The cross-examination of the Applicant proceeded for a length period. The cross-examination conducted by Ms Wright was necessarily detailed. Ms Wright, was clearly frustrated with the Applicant’s lack of responsiveness to the questioning. The Applicant complained of fatigue (although not wanting a break when offered by the Commission) when it suited him or when he was becoming boxed in during cross-examination. The transcript clearly reflects the repetition required by the Respondent’s representative in cross-examination of the Applicant, to adequately address the issues with him.
[139] The Applicant was, at times, evasive to the questions. 45 This finding is not made lightly. It became obvious during proceedings that the Applicant exhibited two demeanours. Whilst being cross-examined the Applicant presented as overly placid and reserved in his responses, was unable to recall specific details, dates or emails, despite clear evidence provided to him and was unwilling to make appropriate concessions, until pushed with overwhelming evidence that required him to do so. In contrast however, when the Applicant was cross-examining witnesses he was increasingly articulate, able to formulate questions which showed at least a basic knowledge of the concepts of cross-examination, was able to recall specific details about correspondence or events (in contrast to his lack of recall during cross-examination), and could construct quite complex questions to put to and challenge the Respondent’s witness’s evidence. It is to be remembered that the Applicant is well educated, currently undertaking or having recently completed, a PhD, and held an executive level position within the APS.
[140] This view of the Applicant is further compounded, by the fact that some emails in evidence (referred to above), which the Respondent submitted were evidence of collusion or improper motive on the Applicant’s part in making the complaints against Mr Bensley. These emails are not reflective of the actions of a person who is vulnerable and is intimidated by his Director. They are indicative of determined and calculating conduct, to achieve a particular purpose, to the detriment of Mr Bensley.
[141] The Commission has also taken into account the apparent unreliability of the Applicant’s evidence which arises from the inconsistencies of the accounts given by the Applicant. For example, in relation to a crucial phone call that the Applicant alleged occurred between himself and Mr Bensley, the following exchange occurred during cross-examination:
“So you haven't answered my question, Mr Hunter. If you had already explained to him what happened in this so-called conversation on Friday the 16th, why did you email him on Sunday and tell him everything that had happened? Why would you need to do that?---Sorry, can I see that email?
No. Can you please answer my question. Why would you need to email him and tell him what had happened and where you'd been on Friday? Why would you need to do that if you had spoken to him on the Friday? Why would you need to explain where you'd been? You'd had this long, deep conversation with him sometime around 5 pm that's not recorded on any phone records?---I understand, yes. That was my recollection.
It's not just your recollection, Mr Hunter. You have said this in numerous documents?---Well, that's the case. There was a conversation.
You've put it to ComCare, you put it in your complaint, you've put it in your submission to this Commission, this conversation of 16/9?---Yes, there was. There was a conversation.
You've said this is the conversation that enables you to make a ComCare claim that by the absolute critical issue for your ComCare claim is that you prove that something happened with Neil Bensley before 22 September. That's critical to your ComCare claim because that is your ComCare date of injury, isn't it, 22 September 2011?---There was a number of issues.
Is that your ComCare date of injury, Mr Hunter? It's a simple question and you know the answer, so just answer?---Yes, yes.
So in order to establish that you need to show something happened before 22 September 2011, don't you? And what you have made up is a conversation on 16 September 2011. Unfortunately, it doesn't fit with any phone records or emails or anything, and you have absolutely no evidence of it. Let's have a look at your email of 18 September then. It's at 67.” 46
[142] A further example is evidenced in the following exchange in cross-examination of the Applicant:
“When did you send your May complaint to David Thompson, Mr Hunter?---Yes.
Do you remember?---Yes. To the best of my knowledge it didn't compromise the investigation but I can't tell - - -
Well the investigation didn't - do you remember when the investigation finished by Mr Spencer?---Yes, that was - - -
What you're calling the investigation?---November.
So it wasn't before November?---Not that I can recall.
So it wasn't before 13 November?---Not that I can recall.
That's your honest answer is it?---I've just said not that I can recall.” 47
[143] Mr Bensley also gave evidence in the matter. Mr Bensley’s evidence was conveyed in a formal way. His answers were, at times, short and given in an abrupt manner. I do not find that his intention was to be rude, but that is simply the communication style. Having viewed both the Applicant and Mr Bensley, I recognise that the two, very different personalities, communication styles and approaches to work, were not (on the Applicant’s stance) compatible. The conflict continued when Mr Bensley was promoted from being the Applicant’s colleague, on the same level, to his supervisor. On hearing of Mr Bensley’s elevation, it was alleged that the Applicant’s reaction was to laugh to Mr Bensley. 48
[144] Mr Bensley’s evidence was not entirely transparent. In fact, whilst initially denying during cross-examination, that he had a discussion with the Applicant, where he allegedly identified that he had an aboriginal family member, Mr Bensley later conceded that he had discussed such with the Applicant. He stated it was an attempt to connect with the Applicant. The Applicant stated he was offended by remarks referring to the colour of the skin. The context of this concession is the email from Mr Bensley to the Applicant of 5 March 2013, which was annexed to the Applicant’s initial grievance and was in evidence in this matter, 49 which gives rise to the Comcare claim made by the Applicant. Mr Bensley conceded that he had discussed this in some small part with the Applicant.50 This was in direct contrast with the email from Mr Bensley to the Applicant which initially stated “[D]id you have this conversation with someone else by any chance?”.
[145] Mr Bensley’s denial of this statement, does not make logical sense and was, self-serving. It is recognised that Mr Bensley was short in his dealing with the Applicant, this can be ascribed to his particular communication style but also given his view of the Applicant’s performance and, also as, he was, at the time, the subject of a complaint from the Applicant. That is, of course, no excuse for his denial of the statement. The remainder of Mr Bensley’s evidence, however, was given in a consistent and measured way. There was clearly a friction between the Applicant and Mr Bensley, that was exacerbated by Mr Bensley’s promotion and the rigour that he brought to managing the Applicant. Prior to Mr Bensley commencing as the Applicant’s supervisor, the Applicant conducted his work in an autonomous way, without it being necessary to report his exact movements. Mr Bensley was entitled to enforce Department policy; for example, that meant that the Applicant could not use his private vehicle for work related purposes, but it must be emphasised that he did not provide any cab charges to the Applicant in lieu of this, or assist the Applicant in establishing the system to attain such. These matters, that emerged during the cross-examinations of the Applicant and Respondent witnesses, have been taken into account in assessing the allegations levelled against the Applicant.
In addition to prosecuting his complaints of serious misconduct against Mr Bensley within the Department (and ultimately to the Merit Protection Commissioner (MPC)), Ms Kemp also found that the applicant provided false and misleading information to Comcare in pursuit of a claim for workers’ compensation.
The respondent contends that each of these proven acts of misconduct (the prosecution of false complaints and the provision of false and misleading information to Comcare) individually provided a valid reason for the applicant’s dismissal.
Further evidence was led during the unfair dismissal proceedings regarding the applicant’s collusion (Macquarie Online Dictionary: 1. agreement or cooperation, usually secret, for the purpose of fraud, deception, or the gaining of an advantage at the expense of others) with a fellow employee (David Thompson) which was not available to Ms Kemp at the time of her decisions. This evidence of collusion casts the applicant’s conduct in an even poorer light, demonstrates the deliberate nature of the misconduct and exacerbates the overall seriousness of the misconduct.” 60
[181] In addition to having reviewed the additional statements that the Applicant wished to bring in the process, these conclusions, on the material before the Commission, are supported by the evidence and form a valid reason for the dismissal.
(b) whether the person was notified of that reason; and (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[182] The evidence is clear that the Applicant was notified of the reasons for his dismissal. He was provided with a number of opportunities to respond to the allegations against him, and did so.
[183] The Applicant was issued with a Code of Conduct letter on 21 December 2012, which set out, in detail, the matters giving rise to the concerns under the Code of Conduct. The correspondence also included the relevant section of the Code of Conduct allegedly breached by the Applicant.
[184] He was requested to respond by 11 January 2013. The Applicant responded that he was on leave until February. The Applicant also responded:
“Hello,
I am on leave until February, Please (sic) forward the relevant allegations relating to the false statements I have allegedly made, (sic)
I am also very concerned that this process is not a form of vindictive behaviour.
I must let you know if I find any wrong doing that the department is complicit in I will take my concerns to the relevant body.
Again, I am requesting clear indication of the suspected evidence which is in supposed breach. From the process of natural Justice (sic) I am entitled to understand the allegations thoroughly.
So what is it that the department believes I have made false allegations about?” 61
[185] Accordingly Mr Thomas responded to the Applicant on 24 December 2012 and stated:
“I confirm that the allegations about your conduct, as are outlined in the Code of Conduct Notice, relate to information and material you have provided to the department, as well as to Comcare in support of your claim for compensation, and in which you have made numerous allegations of serious misconduct about your manager Mr Neil Bensley.” 62
[186] Mr Thomas also went into some details about the formal Code of Conduct process, which included, as a second step, a recorded interview to discuss the allegations against the Applicant in further detail. The Applicant was also advised, at this time, that if the Applicant did not wish for this step to occur, Mr Thomas had, as an option open to him, a third step which was to prepare a report for consideration of the Delegate of the Secretary. Mr Thomas confirmed to the Applicant that if this option was taken the Delegate would then consider the investigation report, prepared by Mr Thomas, and provide a preliminary view on whether there may have been a breach of the Code of Conduct by the Applicant. This would also include the Delegate’s preliminary views as to the sanction that the Delegate is considering imposing should a final determination be made against the Applicant. The correspondence also stated that the Delegate would provide a full copy of the report to the Applicant, and request his “comments” about the report at that time.
[187] The evidence in this matter includes the correspondence from the Delegate, Ms Kemp, with her preliminary views to the Applicant and requesting his response to those views (extracted above).
[188] The exchange of documents with the Applicant demonstrated that the Applicant was clearly notified, in sufficient detail, of the reasons being considered for dismissal and that the Applicant was given an opportunity to appropriately respond and then clearly notified of the termination and reasoning for the decision.
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;
[189] The Applicant was appropriately afforded the opportunity to have a support person present in accordance with the required process and whenever he sought such.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[190] The Applicant had some performance issues (eg reporting and attendance) which were in the preliminary stages of performance management by Mr Bensley. The reasons for dismissal however relate, principally, to the Applicant’s conduct in pursuing the unsubstantiated complaint and allegations against Mr Bensley arising from this initial performance management. While this criterion, in relation to unsatisfactory performance, is not strictly applicable in this matter (given the dismissal related to his conduct), it is however important to note, that the Applicant was warned, very early in the process, that any dishonest conduct or vexatious complaints could lead to disciplinary action being taken against him.
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal
[191] The Commonwealth is a significant and large employer with ready access to specialised human resources, industrial relations and legal advice. This has been taken into account in the assessment of the processes that were undertaken by the Respondent and afforded to the Applicant.
[192] In the course of this decision, on a review of the process, some deficiencies have been identified in the Respondent’s correspondence or timing of actions taken by the Respondent’s investigators. However I am clearly of the opinion that the procedural deficiencies (in what became a lengthy process) were not fatal, and even if modifications to the process had occurred, the outcome would not have been different. They were not critical flaws to the overall disciplinary investigation or fairness of the procedure. In addition, it was the Applicant’s conduct that, on review, brought about the dismissal. The substantive elements of the dismissal are not undermined by any of the noted procedural issues.
(h) any other matters that the FWC considers relevant
[193] It is notable that the Applicant was employed in the position of Indigenous Land Management Facilitator. Part of this position was to engage with the indigenous community on behalf of the Commonwealth.
[194] The evidence before this Commission included a reference by the Applicant of playing the “indigenous card” in allegations against Mr Bensley. This is a serious matter generally, but is an aggravating factor in the context of the Applicant’s role and duties within the APS.
[195] Throughout the consideration of the evidence and issues between the parties in this matter, the Commission has had the benefit of hindsight in reviewing the circumstances and resulting process. It is recognised that formality is commonplace and expected as part of managing the Respondent’s significant workforce, and, at times, strict compliance with procedures are required, in accordance with the applicable regulation, when interacting within the workplace or undertaking their duties. This was quite clearly part of the concerns that the Applicant had; namely the requirements that the Applicant considered that Mr Bensley imposed on him in performing his duties. However the requirements Mr Bensley identified were entirely legitimate.
[196] The view that I have formed is that throughout this process, each person acting upon the Applicant’s complaint did so appropriately, and in accordance with the processes and procedures as required. They did so in good faith (in assessing the circumstances as they stood at the time) and with no intent to stifle the Applicant’s complaints - although the Applicant may have perceived it that way. While the Commission has pointed to some procedural matters, they are not otherwise fatal to the investigatory processes undertaken. Rectification of these issues may have reduced the Applicant’s concerns, in relation to the process, but the end result, is justified and would have remained the same. Where flexibility of process (such as mediation) was offered to the Applicant, it was rebuffed.
[197] The Applicant’s complaints in relation to procedural fairness issues in the conduct of the PSS investigation are not accepted on the material. As regards to the interviewing of witnesses the PSS made it clear to the Applicant, that they were only in the preliminary stages of considering his complaints against Mr Bensley. This preliminary stage was undertaken to assess the complaints and whether they warranted formal investigation. In any event, the evidence of the witnesses upon which the Applicant intended to rely was considered in determining this matter.
[198] As regards to the bias allegations that the Applicant made against the PSS, also conducting the investigation against the Applicant, after having just dismissed his complaint against Mr Bensley, further separation of these processes could have occurred. It may have been beneficial to have an independent person conduct the consideration of this matter, but neither Mr Thomas nor Mr Spencer made the final decision; it was made by Ms Kemp, who had no part in the original complaints process. Ms Kemp’s evidence also confirms that she had not had prior dealings with either the Applicant or Mr Bensley. 63 The Applicant also put to Ms Kemp whether she had had regard to all of the material before her, including the Applicant’s materials. Ms Kemp stated that she had done so.64 The Commission accepts Ms Kemp’s evidence in this regard. Further, all of this material was before the Commission.
[199] The eventual decision made by Ms Kemp occurred after Ms Kemp provided an opportunity to the Applicant, to respond directly to her and Ms Kemp questioned Mr Thomas and Mr Spencer as to the report, although the specific nature of those questions was not in evidence. As submitted by the Respondent, in applications for judicial review, the Court will generally apply the principle that persons who are conducting mere investigations or making recommendations are not strictly required to avoid any reasonable apprehension of bias. 65
[200] In any event the Applicant’s complaints of the process and outcome have been assessed before the Commission. It should also be mentioned that the Applicant did make submissions in relation to the justification and to proportionality of the sanction imposed in all of the circumstances. By the time the issues arose the Applicant had been employed with the Respondent for approximately 3 and a half years. This service, and his level of employment, has been considered, as has the seriousness of the conduct of which the Applicant was found to have committed; a lesser sanction could not have been imposed given the Applicant’s conduct and the unsubstantiated basis and the nature of the Applicant’s allegations against Mr Bensley. The dismissal was determined to be made for valid reasons, and in all the circumstances was not harsh, unjust or unreasonable.
[201] The Commission has also taken into account the conduct of the Applicant during the PSS investigation in discussing the matter with Mr Thompson and Ms Galea. The following exchange occurred during cross-examination of the Applicant:
“So you weren't forwarding just about every single email on to David Thompson and Kathryn Galea that you were receive - that you were sending and receiving about Mr Bensley?---No, not every single email. No.
You weren't forwarding numerous emails within a short period after you received them, or you sent them to Mr Bensley, on to David Thompson and Kathryn Galea with commentary?---It depends. Sometimes I may have because I needed to get that support. I need a secondary opinion. I needed to know am I right or am I wrong, or am I specifically thinking the wrong thing.” 66
[202] This evidence is considered in the context that the Applicant was specifically, and in no uncertain terms, directed, by PSS, not to discuss the matter with potential witnesses, or more generally. 67
Conclusion
[203] The Applicant’s allegations against Mr Bensley are without merit. While the Commission has accepted, on the basis of the evidence and through the witnesses throughout the Hearing, that there was a personality clash between Mr Bensley and the Applicant, this did not justify, or give rise to, the complaint against Mr Bensley, by the Applicant. The conduct engaged in by the Applicant, should not have occurred at the Executive Level of the APS. Mr Bensley was required to manage the Applicant within the bounds of “reasonable management action” and this is what the evidence reveals occurred. The Applicant is not entirely blameless in the conduct which occurred. Expectation would fall on both parties to maintain appropriate working relationships. Making a serious and vexatious complaint is inconsistent with an ongoing working relationship.
[204] The Commission has found that the Applicant’s conduct was deliberate, and seriously unsatisfactory and deceptive; his motives for doing so breached the APS Code of Conduct. On the basis of the evidence, particularly the email exchanges between the Applicant and Mr Thompson; which highlighted the unsubstantiated nature of the complaints. It can be accepted, on the balance of probabilities, that the Applicant simply did not like Mr Bensley or approve of his promotion to his Director, and therefore took steps to have Mr Bensley removed from his position or some other punitive outcome. The Respondent took appropriate steps to investigate the Applicant’s complaints, despite the minor procedural deficiencies identified, altering such would not, on the evidence, have changed the outcome.
[205] Despite the Applicant’s views to the contrary, he was afforded a procedurally fair investigation of the allegations against him. It is concluded that the reasons (as set out in this decision) for the dismissal are well founded and defensible.
[206] The Complaint document, eventually prepared by the Applicant and provided to PSS, has been considered in full. It is noted that this document is written from the Applicant’s perspective and conveys, and includes commentary about, the Applicant’s view of the various interactions. Mr Bensley’s evidence in relation to these matters has also been considered, in the context of the full copies of the correspondence and witness evidence which has been filed in these proceedings.
[207] The Commission is satisfied, on the balance of probabilities that the Applicant has engaged in conduct that is not commensurate with an Executive level APS employee and the Code of Conduct. There were several occasions where the Applicant was warned of the possible consequences of making a vexatious complaint, and where the Applicant was asked to confirm his intentions on progressing the matters against Mr Bensley further. This is in contrast to the portrayal of the situation pressed by the Applicant in this matter, that Ms Howlett commenced the grievance and that the Applicant was otherwise caught in the middle of the PSS processes. The evidence is clearly to the contrary. The Applicant pursued Mr Bensley (against the cautions he received) and was the instigator of various Departmental mechanisms (eg the s.33 review), despite being warned as to the seriousness of the issue.
[208] In addition, serious concerns arise as to the inability of the Applicant to continue his role (on this issue alone), regarding the apparent willingness of the Applicant to invoke the “Indigenous card” in false allegations against Mr Bensley. The Applicant’s position as an Indigenous APS employee, with specific responsibility for facilitating work between the Commonwealth Government and Indigenous communities, means that the Applicant should have been aware of the sensitivities with such matters. To flippantly comment on a matter as serious as using the “Indigenous card” without basis, and to use such for self-advantage and to the detriment of another employee shows a serious lack of judgment on the Applicant’s part and demonstrates the Applicant’s active role in pursuing his fabricated allegations against Mr Bensley. This conduct in combination with the other breaches of the Code of Conduct, as referred to in the reasoning, support the termination of the Applicant’s employment.
[209] The Commission is not satisfied that the dismissal was harsh, unjust or unreasonable. The Applicant was not unfairly dismissed. The application, made pursuant to s.394 of the Act, for all of the aforementioned reasons, is dismissed.
[210] I Order accordingly.
COMMISSIONER
1 Respondent’s bundle of documents, Volume 1, Attachment H.
2 Respondent’s bundle of documents, Volume 1, Attachment I.
3 Respondent’s bundle of documents, Volume 1, Attachment 1.
4 Ibid.
5 Respondent’s bundle of documents, Volume 1, Attachment 2.
6 Respondent’s bundle of documents, Volume 1, Attachment 3.
7 Respondent’s bundle of documents, Volume 1, Attachment 4.
8 Respondent’s bundle of documents, Volume 1, Attachment 6.
9 Respondent’s bundle of documents, Volume 1, Attachment 7.
10 Respondent’s bundle of documents, Volume 1, Attachment 9.
11 Respondent’s bundle of documents, Volume 1, Attachment 10.
12 Respondent’s bundle of documents, Volume 1, Attachment 11.
13 Respondent’s bundle of documents, Volume 1, Attachment 12.
14 Respondent’s bundle of documents, Volume 1, Attachment 13.
15 Respondent’s bundle of documents, Volume 1, Attachment 14.
16 Respondent’s bundle of documents, Volume 1, Attachment 15.
17 Respondent’s bundle of documents, Volume 1, Attachment 16.
18 Respondent’s bundle of documents, Volume 1, Attachment RK1, sub-attachment 16.
19 Respondent’s bundle of documents, Volume 1, Attachment 17.
20 Respondent’s bundle of documents, Volume 1, Attachment 19.
21 Respondent’s bundle of documents, Volume 1, Attachment 21.
22 Respondent’s bundle of documents, Volume 1, Attachment 26.
23 Respondent’s bundle of documents, Volume 1, Attachment 29.
24 Respondent’s bundle of documents, Volume 1, Attachment 31.
25 Respondent’s bundle of documents, Volume 1, Attachment 32.
26 Respondent’s bundle of documents, Volume 1, Attachment 35.
27 Respondent’s bundle of documents, Volume 1, Attachment 36.
28 Respondent’s bundle of documents, Volume 1, Attachment 38.
29 Respondent’s bundle of documents, Volume 1, Attachment 39.
30 Respondent’s bundle of documents, Volume 1, Attachment 40.
31 Statement of Wesley Spencer at 21.
32 Respondent’s bundle of documents, Volume 2, Attachment 42.
33 Statement of Wesley Maxwell Spencer at 24.
34 Respondent’s bundle of documents, Volume 4, Attachment 57.
35 Respondent’s bundle of documents, Volume 4, attachment 59.
36 Respondent’s bundle of documents, Volume 4, attachment 60.
37 Respondent’s bundle of documents, Volume 1, attachment RK1.
38 PN1295 to PN1297.
39 PN1334.
40 PN1288.
41 Exhibit 3.
42 Exhibit 7.
43 PN3074.
44 Respondent’s bundle of documents, Volume 2, attachment 42, sub-attachment 5.
45 For example PN2667 - PN2671, PN2710 - PN2711 and PN2334 - 2339.
46 PN2981 to PN2987.
47 PN1267 to PN1273.
48 See for example PN2241 to PN 2298.
49 Respondent’s bundle of documents, Volume 1, attachment RK1, annexure 10, sub-annexure 7.
50 PN4022.
51 Selvachandran v Peteron Plastic Pty Ltd [1995] IRCA 333 at [48].
52 Kolodka v Virgin Australia Airlines Pty Ltd [2012] FWA 7828.
53 Streeter v Telstra Corporation Ltd (2008) 170 IR 1.
54 Respondent’s outline of submissions at 10.
55 Respondent’s bundle of document, Volume 1, attachment RK1 at page 37.
56 Exhibit 6.
57 PN2462 to PN2465.
58 PN2472.
59 PN1200.
60 Respondent’s closing submissions at paragraphs 6 to 9.
61 Respondent’s bundle of documents, Volume 4, attachment 58.
62 Respondent’s bundle of documents, Volume 4, attachment 59.
63 Statement of Ms Kemp at 9 and PN549.
64 PN4141.
65 In this regard the Respondent referred to Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; Preston v Carmody (1993) 31 ALD 309 per Wilcox J.
66 PN1274 to PN1275.
67 Email from Mr Thomas to the Applicant dated 19 March 2012.
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