Nandana Gunawardana v Commonwealth of Australia, as represented by Services Australia

[2021] FWC 2243

[2021] FWC 2243

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Nandana Gunawardana
v
Commonwealth of Australia, as represented by Services Australia
(U2020/9859)

COMMISSIONER MCKINNON MELBOURNE, 23 APRIL 2021

Application for an unfair dismissal remedy.

[1] Mr Nandana Gunawardana was employed on an ongoing basis by Services Australia, a federal government department, from 16 December 2002. He worked in an area responsible for customer debt recovery in the role of APS4 Compliance Support Officer. On 3 July 2020, Mr Gunawardana’s employment was terminated for breaches of the Public Service Act 1999 (Cth) (the PS Act) and the Australian Public Service (APS) Code of Conduct.

[2] On 17 July 2020, Mr Gunawardana applied in time for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act).The application seeks reinstatement to Services Australia, but to a different role and location. It also seeks compensation for the dismissal after what is said to have been a flawed 2-year investigation into his conduct, involving false claims as well as unreasonable and unlawful directions related to the notorious ‘Robodebt’ program.

[3] It is agreed that Mr Gunawardana was dismissed and that he is protected from unfair dismissal: Services Australia is a national system employer; Mr Gunawardana was employed for more than the minimum employment period; and the Department of Human Services Enterprise Agreement 2017-2020 covered and applied to his employment. The Commonwealth is not a small business employer so the dismissal could not have been consistent with the Small Business Fair Dismissal Code. 1 Mr Gunawardana’s dismissal was not a redundancy, genuine or otherwise.

[4] The question is whether his dismissal was unfair, in the sense that it was harsh, unjust and/or unreasonable. I have decided that the dismissal was not unfair. These are my reasons.

Relevant history

[5] The history below is a summary of relevant events and interactions involving Mr Gunawardana and other staff of Services Australia. There are also additional events and interactions in evidence in the proceeding that are not summarised here. This is because it is not necessary for every detail to be recorded in a decision. The purpose of the summary is to set out the facts as I find them and to provide context for the conclusions I have reached.

[6] On 17 March 2015, an investigation began into allegations that some of Mr Gunawardana’s interactions with his supervisors and Quality Development Officers (QDOs) in the Rowville office, between 30 January 2011 and 27 November 2014 were in breach of the APS Code of Conduct (the 2015 Investigation). The allegations were in summary: that Mr Gunawardana did not “treat everyone with respect and courtesy and without harassment”; did not comply with certain “lawful and reasonable directions”; and did not always “uphold APS Values and Employment Principles and the integrity and good reputation” of Services Australia and the APS.

[7] On 26 June 2015, Services Australia’s Conduct Standards Team issued its final report into the 2015 Investigation. Some of the allegations made against Mr Gunawardana were substantiated and some were not. The adverse findings against Mr Gunawardana were:

1. Failure to demonstrate respect and courtesy to his colleagues over the period from June 2013 to November 2014. His actions in many instances were harassing in nature and had adverse effects on other employees, and

2. Repeated failure to comply with reasonable instructions (but not formal directions) issued to him by his supervisors over a prolonged period and wilfully disobeyed or disregarded instructions given.

[8] These failures were found to be in breach of departmental policies and guidelines, the APS Code of Conduct, and to have occurred in circumstances where Mr Gunawardana knew, or ought to have known both:

1. about his obligations in relation to following departmental policy and the APS Values and Code of Conduct and his obligation to act with respect and courtesy; and

2. that failure to do so may result in disciplinary action.

[9] On 26 September 2015, Mr Gunawardana was sanctioned for breaches of the Code of Conduct by salary reduction and formal reprimand. The breach determination and sanction decisions were reviewed by the Merit Protection Commissioner and confirmed on 29 February 2016. Mr Gunawardana does not accept the validity of either the 2015 Investigation or its findings. He says it arose from false allegations against him by his Team Leader at the time, Kevin Rose-Meyer, an experience that led Mr Rose-Meyer to influence Maree Oswald against him in 2018 when she became his Team Leader.

[10] This matter is not about the validity of the 2015 Investigation, which concluded long before the events leading to Mr Gunawardana’s dismissal and has already been reviewed by an independent statutory office holder. It is, however, relevant for reasons including that it was a factor in the decision to dismiss and its effect on Mr Gunawardana since that time.

[11] From late 2017, Mr Gunawardana took an extended period of leave. On 13 August 2018, he contacted Pradeep Rathod, Assistant Director, about coming back to work at Services Australia’s Box Hill office the following week. Mr Rathod told Mr Gunawardana he would be reporting to Mr Rose-Meyer for the first week because his usual supervisor (Bernie Gaffney) was on leave. Mr Gunawardana did not react well to the news. He asked for another option and then sent this text message to Mr Rathod:

“So I have to come to a new office and before even starting, I have to get stressed because I am now forced to report and put trust in a person who put me through hell and back and made false accusations. I think I will start the week by writing to the secretary of the Department about this and few other issues, I have no choice. Regards Nandi”.

[12] Mr Rathod replied:

“Hi Nandi I had hoped that you had moved on from the past issues through this break. Anyway I have asked Leesa your team leader to contact you. Is it OK if I give your mobile to her. Other than that you have a right to contact the Secretary as any one else. Regards”

[13] “Actually Maree Oswald is your team leader. Her phone no is 9XXX6409 2. If you need help with moving your stuff let Fawz know.” He was referring to Fawz Demagi, Mr Gunawardana’s previous Team Leader.

[14] Two days later, Mr Rathod sent another text message to Mr Gunawardana about contacting Ms Oswald. This time the phone number he gave for Ms Oswald was wrong – it was the same set of numbers, but the “6” and the “4” were inverted.

[15] On the morning of 21 August 2018, Mr Gunawardana was scheduled to start work at 7.45am. He arrived at 7.30am and waited in his vehicle until 7.45am when he entered the building. There he attended the security desk and was issued with a temporary pass. At 7.53am, Mr Gunawardana tried to call Ms Oswald - but on the wrong number, given to him by Mr Rathod. Another employee was waiting by her phone upstairs for Mr Gunawardana’s call which never came. By coincidence, a team leader working on the same floor arrived at work and escorted him upstairs at 8.00am.

[16] Mr Gunawardana and Ms Oswald met that morning for the first time. Ms Oswald explained the team’s local practices and hours of work. They agreed on a fixed working pattern. Ms Oswald asked Mr Gunawardana why he was late. She did not accept his explanation that he had arrived early and called the wrong number. From her perspective, Mr Gunawardana had called her on the correct number only the day before. Inquiries with security about his time of arrival did not correlate with his version of events. Ms Oswald told Mr Gunawardana he would lose 7 minutes of ‘flex time’ – a deduction that is “standard practice” for new starters in Ms Oswald’s team who are late on their first day. Mr Gunawardana was offended and insulted. He regards himself as a punctual person and felt he was being called a liar. The exchange seeded his belief – which he holds to this day - that Ms Oswald “had an issue” with him “from day one”.

[17] Mr Gunawardana’s first week of work was mostly settling in, reading emails and policy updates, understanding what was required, undertaking training and negotiating a suitable desk and chair. He was placed on “100% Quality On Line checking” – a process where all changes made to a customer record are reviewed by a quality checker for accuracy. Employees are moved from 100% checking as they achieve proficiency in an area. All employees must re-establish their accuracy every 12 months or when there is a change in the work they are performing.

[18] On 3 September 2018, two weeks after his return, Mr Gunawardana lodged the first of many “Incident or Injury Reports” about how he was being treated at work. The report described his “stress and humiliation, demeaning and feel harassed” after two incidents that day involving Ms Osmond as well as her taking issue with him for being late on his first day. One incident involved his being discouraged from helping other employees with particular work where there was an established process, and the other involved a request for information about his access to scanned documents. Mr Gunawardana felt disrespected given his years of experience and the public nature of the exchanges. It reminded him “of all the issues I had in the past and all coming back in this new place”. He described his use of the Incident or Injury Report as “a measure of assurance to defend myself”.

[19] The report prompted a response from HR Support, which occurred mostly by email at Mr Gunawardana’s request. In the context of this exchange on 6 September 2018, Mr Gunawardana described Ms Oswald’s conduct as feeling like “bullying and harassment”. He was sent links to Services Australia’s Preventing and Resolving Workplace Bullying Policy and its Managing Complaints Policy as well as contact details for Harassment Contact Officers.

[20] Mr Gunawardana forwarded his email chain with HR Support to Ms Oswald, asking her to help with booking a room to meet with HR Support. The meeting was booked for 11 September 2018 but was cancelled by Mr Gunawardana because he did not feel it was a genuine attempt to sort out the issues he had raised.

[21] Ms Oswald felt Mr Gunawardana was being inflammatory in forwarding his emails with HR Support to her – including the allegation that she had bullied and harassed him. It was at least insensitive of him – but arguably provocative – to ask Ms Oswald to help book a room for the purpose of a private meeting to complain about her only to email her again the next day to say that the meeting had been withdrawn and the room booking was no longer needed.

[22] In the meantime, Ms Oswald provided a detailed response to the allegations of bullying and harassment. She described them as extraordinary, unreasonable, distressing, malicious and unfair. She said she had been extremely supportive of Mr Gunawardana on his return to work, answering his many questions.

[23] Subsequent Incident or Injury Reports were lodged by Mr Gunawardana on 20 September 2018, 7 November 2018, 9 January 2019, 5 March 2019, 11 April 2019, 30 April 2019, 12 June 2019, and 23 July 2019. Each dealt with particular workplace interactions with either Ms Oswald, Mr Gaffney or employees employed as Quality Development Officers (QDOs). In each case, Mr Gunawardana reported psychological symptoms such as stress, depressive feeling, headaches, heart palpitations, sweating, loss of focus and feeling frightened.

[24] The Incident or Injury Report on 20 September 2018 recorded Mr Gunawardana’s mental and physical distress after receiving an email from Mr Gaffney about the incident report lodged on 3 September 2018, seeking a meeting to discuss that and other matters. He asked for the email to be reviewed. In response, HR Support set out the steps to follow if he wished to progress a complaint about his concerns. Mr Gunawardana did not take any of the identified steps.

[25] The Incident or Injury Report on 7 November 2018 complained of “constantly listening to what I believe is illegal directions” from QDOs about applying social security legislation and guides he felt would put him in the unethical position of “breaking the law”. He referred to escalating the matter to “the minister himself”. The report was copied to the relevant Deputy Secretary and referred to Services Australia’s policy team. This was followed by a series of email exchanges with the policy team about the way Services Australia applied and interpreted social security legislation in the context of his work over the period from 30 November 2018 to 23 January 2019.

[26] On 9 November 2018, Ms Oswald sent an email to a group of employees about performance expectations for Compliance Officers. On 15 November 2018, she met with Mr Gunawardana for a regular coaching session. This was followed up in writing with coaching notes and an exchange about his request for a different desk and the possibility of working overtime. On 20 December 2018, at a further coaching session, Ms Oswald told Mr Gunawardana that he was not performing to the required level of 1 review on average per 90 minutes of processing time, or for Multical cases, 1 review per 4 hours processing time. Once he achieved 95% accuracy, he could be moved off 100% checking.

[27] On 22 November 2018, Mr Gunawardana spoke with Mr Gaffney about the option of working with another Team Leader, because he felt he was being discriminated against by Ms Oswald in connection with his requests for a different desk. Mr Gaffney “said no”.

[28] On 21 December 2018, Mr Gunawardana wrote to Ms Oswald with a number of concerns. As both parties were heading off on annual leave, the issues were deferred for discussion until a coaching session on 4 January 2019.

[29] On 9 January 2019, Mr Gunawardana raised concerns about a response received from a QDO, Hugo Sermano to an email query he had sent and copied to his team. Mr Sermano’s response was to the effect that as Mr Gunawardana had years of experience, he would be able to resolve his queries himself by reference to Services Australia’s Operational Blueprint (“OB”). An Incident or Injury Report was logged by Mr Gunawardana about the response, including that it was copied to others in the team – the result of Mr Sermano sending his email using the “reply all” function.

[30] The initial response from HR Support proposed a meeting to discuss and noted that steps had been taken to have Ms Oswald and Mr Gaffney follow up the matter. Mr Gunawardana took the next day off as he was feeling humiliated and quite stressed. On his return, he wrote a lengthy email to HR Support asking for a view on the conduct of Mr Sermano, raising concerns about how he was treated at work and asking if Ms Oswald needed to be involved in any work issues of this kind because of the way she had treated him.

[31] HR Support did not answer his questions about Mr Sermano’s conduct directly. Instead, apologies were made about the first response making him feel uneasy of stressed, and the process for dealing with workplace bullying concerns was again set out, this time in greater detail. Information was provided about how to raise concerns about technical and performance issues. In the meantime, presumably at the direction of Ms Oswald or Mr Gaffney, Mr Sermano later apologised to Mr Gunawardana. Mr Gunawardana did not accept that the apology was genuine.

[32] On 5 February 2019, Mr Gunawardana was told by Ms Oswald and Mr Gaffney that he would be placed on a 4-week Support Action Plan to assist in lifting his performance and that despite his expression of interest, he would not be acting as a buddy for new labour hire staff. This upset Mr Gunawardana. He alleged that he was being discriminated against and took personal leave due to stress from 6 to 8 February 2019.

[33] On 15 February 2019, Mr Gunawardana forwarded the draft Support Action Plan to HR Support, setting out his concerns about the plan and his unfair treatment at the hands of Ms Oswald and Mr Gaffney. He asked for an extension of time to prepare and respond. The request was granted and meetings to discuss the proposed Support Action Plan were deferred on 15 February 2019, 20 February 2019, and 5 March 2019.

[34] Eventually, Mr Gunawardana asked that there be no meeting and that he be sent the Support Action Plan by email instead. He raised concerns about not getting clear or confusing advice and direction about expectations. He asked for more information about how expected review numbers were calculated and whether these expectations were consistent with the purpose and principles of performance management in the enterprise agreement. Pointing to his own recent efforts to increase output, he asked if this might be enough to avoid the need for a Support Action Plan.

[35] On 20 February 2019, Mr Gunawardana emailed Ms Oswald with a concern about comments made by Mr Sermano implying that he had been demoted from Multical work.

[36] On 5 March 2019 a draft Support Action Plan was sent to Mr Gunawardana for his input with a link to the Managing Complaints Policy. In response, he lodged an Incident or Injury Report stating that he was “too frightened of Bernie (Gaffney) and Maree” and that he was unsure when he would come back to work. He took sick leave from 6-8 March 2019.

[37] The Incident or Injury Report of 5 March 2019 prompted telephone calls to Mr Gunawardana from Rehabilitation Case Manager, Christine Dixon, on 12 and 13 March 2019. Ms Dixon sent Mr Gunawardana an email on 13 March 2019 summarising their conversation and setting out a number of possible steps to assist resolving his concerns or provide him with support. Mr Gunawardana responded, declining the various options suggested by Ms Dixon which he describes as “Utopian”.

[38] On 8 March 2019, Ms Oswald provided detailed information to Mr Gunawardana about his performance, comparing statistics against expectations for the previous month and providing a link to Services Australia’s Performance Management Policy. A coaching session booked for 18 March 2019 was cancelled at Mr Gunawardana’s request for fear of coming out of the meeting stressed, anxious and feeling like going home. In deferring the session, Ms Oswald explained the importance of coaching to assist employees achieving performance goals and address learning needs. She reminded him that he could contact HR Support or the Employee Assistance Program if he felt stressed.

[39] On 22 March 2019, Mr Gunawardana raised two separate issues about his dealings with QDOs with Ms Oswald:

1. He had asked for assistance on 18 March 2019 and had not received it, even though Mr Sermano had put his initials against the request indicating that he had provided assistance. Mr Gunawardana said this had happened twice in the last two weeks. Ms Oswald looked into the issue and responded to Mr Gunawardana to the effect that two QDOs, Mr Sermano and Qinghao Jia, had seen him in the relevant period.

2. An incident at Mr Gunawardana’s desk with two QDOs, where Mr Gunawardana sought advice about a formula used to calculate customer earnings, which he felt was incorrect. One of the QDOs, Debra Bunker, provided advice about the issue that Mr Gunawardana was having, but he did not accept it. She then asked another QDO, Danny Elkhawand, to assist in explaining the issue. Mr Gunawardana agreed with what Mr Elkhawand was saying but did not agree the formula was working. The conversation became audible to others around him, and Mr Gunawardana was unhappy about the way the issue had been handled by the QDOs. After looking into the issue, Ms Oswald offered to sit down with he and Ms Bunker to help address the issues. Mr Gunawardana did not want to accept the offer.

[40] On 18 and 25 March 2019 Mr Gunawardana provided his responses to the Support Action Plan – questioning how realistic the performance targets were, stating his performance was affected by factors outside his control including work relationships, software/data errors and unclear/incorrect policy issues and having to write and respond to emails about those matters, and arguing that the Support Action Plan was setting him up “for failure from day one”. He asked Ms Oswald to consider giving him different types of work and allocating Mr Jia as the QDO to support him. Ms Oswald responded on 22 March 2019 and 25 March 2019. The requests for different work and Mr Jia as the QDO were not agreed for reasons that in my view were reasonable. Instead, Katrina Bilic would provide dedicated support to Mr Gunawardana as QDO for the period of the Support Action Plan.

[41] The Support Action Plan commenced on 25 March 2019. One aspect of the Support Action Plan was a section on “Behaviour”, referring to various complaints made by Mr Gunawardana where he had either delayed responding or not provided the information requested to allow allegations he had made to be investigated and resolved. The “Measure of Improvement” was adherence to the Managing Complaints Policy. Coaching meetings under the Support Action Plan were intended to be held weekly and were held on 3 April 2019, 10 April 2019, 18 April 2019, 1 May 2019, 10 May 2019 and 21 June 2019.

[42] On 26 March 2019, Mr Gunawardana pushed back on Ms Bilic as his QDO, accusing Ms Oswald of making decisions without any genuine consultation with him or consideration of his concerns, and saying he felt he was being set up for some incident to occur that could be used against him to terminate his employment. He alleged that Ms Bilic had given him incorrect advice in the past. Ms Oswald provided a detailed response and advised that the allegation about Ms Bilic’s advice was being reviewed.

[43] On 28 March 2019, Mr Gunawardana met with Andrew Thompson, Director, to discuss his concerns about the work he was doing and how he was being treated. Mr Thompson sought to reassure Mr Gunawardana that the work he was doing had been signed off by the relevant Minister and Departmental Secretary and that as long as he followed the agreed processes in the Operational Blueprint, he would be doing the right thing and following the nationally endorsed process. Mr Gunawardana asked if he could transfer to the relationships team at Bentleigh. He was told this was not possible because he was on a Support Action Plan and because there were no vacancies at Bentleigh at that time. They discussed the culture at Box Hill and Mr Gunawardana’s concerns about the Support Plan and his ability to meet set targets. They discussed ways of working and the need for him to provide clear examples of his concerns about people feeling bullied so they could be followed up. The meeting ended with Mr Thompson encouraging Mr Gunawardana to try and focus on building trusting and positive working relationships with Ms Oswald and QDOs.

[44] On 3 April 2019, the first weekly meeting scheduled under the Support Action Plan was held between Mr Gunawardana, his representative from the Community and Public Sector Union - Kate Cooke, Mr Gaffney, Ms Oswald and Mr Rathod. Mr Gunawardana left work after the meeting on personal leave. He came to work the following day but left in the early afternoon due to work related stress.

[45] On 9 April 2019, Mr Gunawardana sent a message to Mr Thompson stating that he could stop raising all the issues about the “Guided Procedure” if Mr Thompson could consider moving him to the relationships team at Bentleigh. He separately raised issues with Services Australia’s automated decision-making guidelines and coding of matched data. Mr Thompson responded by saying that a move to Bentleigh was not possible due to desk space, but that Mr Gunawardana’s work would likely be changing soon with a move to a new online system.

[46] Also on 9 April 2019, Mr Gunawardana complained to Ms Oswald that he was receiving so many emails from management, it was taking up so much of his time to read and respond, that not responding could be seen as not complying with directions and that it was overwhelming.

[47] On 10 April 2019, Mr Gunawardana made inquiries of HR Support about a Comcare claim for an injury some years prior and requested access to his personal file. He foreshadowed a general protections application relating to unreasonable management action and unlawful decisions about whether the work he was doing was consistent with social security legislation. He complained about the targets set in his Support Action Plan and asked for a reasonable and workable solution. He advised that he would be seeking a review of the decisions taken by Ms Oswald and Mr Gaffney about his Support Action Plan. He was put in touch with a Rehabilitation Case Manager about his Comcare claim and given information about how to take some of the steps he had foreshadowed.

[48] On 11 April 2019, there was a meeting between Mr Gunawardana, Ms Bilic and Ms Oswald. The meeting did not go well. Ms Bilic told Mr Gunawardana he was bullying her. He complained of being victimised and discriminated against. After the meeting, Mr Gunawardana lodged an Incident or Injury Report alleging bullying by Ms Bilic and left work for the day on personal leave. Ms Bilic separately complained to Mr Gaffney about her interactions with Mr Gunawardana, stating she was finding it increasingly difficult to provide him with support and assistance. She felt he was constantly deflecting from feedback, alleging discrimination and saying he was being targeted. She found his behaviour to be bullying due to continuously challenging her instructions and in most instances deviating to negative discussion about the department and its processes. She complained of feeling harassed and stressed. These were not about differences of opinion but rather about the way these were communicated and received.

[49] Mr Gaffney forwarded the complaint from Ms Bilic to HR Support and sought advice about how to proceed, noting his view that “we are reaching an impasse with the support that we are trying to provide to” Mr Gunawardana.

[50] A meeting scheduled for 15 April 2019 to discuss Ms Bilic’s complaint with Mr Gunawardana did not take place. Mr Gunawardana advised that he would need to consult with the union and was exploring the possibility of legal advice about Ms Bilic’s allegation of bullying and harassment. In the meantime, Ms Oswald offered to remove QDO support sessions from his Support Action Plan to address his concerns about dealing with both Ms Bilic and Ms Bunker.

[51] On 18 April 2019, following discussion in a meeting between Mr Gunawardana, Mr Gaffney, Ms Oswald, and David Rhee from the union, Mr Gunawardana was advised that the complaint from Ms Bilic was considered resolved. Mr Gunawardana was reminded about the APS Code of Conduct and upholding the APS Values. The need to seek approval before leaving the office on unplanned leave was discussed and Mr Gunawardana’s dedicated QDO for the Support Action Plan was changed to Kendall Mathieson.

[52] On 24 April 2019, Mr Gunawardana complained that Ms Bunker had attended to his request for QDO support despite his previous requests not to deal with her. Ms Oswald responded to the issues raised and advised that he was expected to continue to access QDOs in the ordinary way as and when he needed support. She offered to sit in with him on interactions with Ms Bunker if needed and reiterated the earlier offer to sit with them both to work through any relationship issues. She also offered him support through his Rehabilitation Case Manager and the Employee Assistance Program.

[53] A meeting to review week 4 of the Support Action Plan was scheduled for 26 April 2019 but did not take place as Mr Gunawardana was absent from work. The meeting was rescheduled to 1 May 2019.

[54] On 29 April 2019, Mr Gaffney wrote to Mr Gunawardana about their meeting on 18 April 2019. The email summarised the discussion and set out Mr Gaffney’s expectations that all staff must behave honestly and with integrity, act with care and diligence, and treat everyone with respect and courtesy, and without harassment. It advised that failure to comply with the APS Values and Code of Conduct may lead to more formal action being taken. It prompted Mr Gunawardana to reply that he was going to seek legal advice and needed an extension of time to respond. He then lodged an Incident and Injury Report on 30 April 2019 about the effect of receiving the email from Mr Gaffney. Mr Gaffney offered to meet and discuss his concerns and extended the timeframe for response to his email to 17 May 2019.

[55] On 7 and 8 May 2019, Ms Oswald sent Mr Gunawardana meeting notes for the Support Action Plan meeting on 1 May 2019 and some additional statistics about performance targets. On 8 May 2019, Mr Gunawardana responded, taking issue with the reliability or comparability of information provided by Ms Oswald to his own situation and asking that the Support Plan be null and void because it was unfair.

[56] On 9 May 2019, Ms Oswald advised all affected staff that they would be transitioning to “Check and Update Past Income (CUPI)” work over the next week or so. Mr Gunawardana raised issues with Ms Oswald about the online training provided for this new type of work. Ms Oswald offered to rebook Mr Gunawardana for further CUPI training. Mr Gunawardana said that what he wanted was training at his desk. Ms Oswald advised that training on CUPI was online only. A further exchange about online instead of ‘at the desk’ training occurred on 24 May 2019.

[57] On 10 May 2019, a final Support Action Plan meeting was held between Mr Gunawardana, the union, Ms Oswald and Mr Gaffney. Mr Gunawardana reported that he had been bullied and harassed by Ms Oswald since he had started at Box Hill. The union suggested Mr Gunawardana’s re-allocation to a new team leader. He was offered a move to Mr Rose-Meyer’s team but declined – reasonably in my view, because of his issues with Mr Rose-Meyer in connection with the 2015 Investigation. Mr Gaffney said he would see if there were any internal transfers available within the Division.

[58] On 14 May 2019, Mr Gaffney wrote to Mr Gunawardana asking for details of his allegation that Ms Oswald had engaged in bullying and harassment. Mr Gunawardana forwarded the request to his union representative on 20 May 2019 (copying in Mr Gaffney), advising that he had not yet prepared anything in response to Mr Gaffney’s request. He thought the union had asked for Ms Oswald to no longer manage him and he was waiting for advice in this regard. He also asked that investigation of his bullying and harassment allegations be put on hold or extended pending a response from Mr Gaffney.

[59] Mr Gaffney responded to Mr Gunawardana that Ms Oswald remained his team leader and that a Harassment Contact Officer would be available during any meetings between them going forward. The timeframe to provide information about his bullying and harassment allegation was extended to 29 May 2019.

[60] On 21 May 2019, Ms Oswald emailed Mr Gunawardana a copy of notes for him to review from their meeting on 10 May 2019 and stating that he would be given an hour of working time to read through the notes the following day. Mr Gunawardana forwarded the advice to his union representative. He complained that he was only given an hour to respond to the notes and that it took an hour to read it, let alone respond and asking what to do. Mr Rhee from the union responded to the effect that he had read the notes, it had taken him about 10 minutes, and that Mr Gunawardana should prepare his comments and send them to the union for review before submission.

[61] On 24 May 2019, Mr Gunawardana sent a request to HR Support for access to his personnel file. A meeting was arranged to review his file on 28 May 2019. Mr Gunawardana then met with the union on 31 May 2019.

[62] On 6 June 2019, Ms Oswald wrote to Mr Gaffney asking that the allegations of bullying and harassment against her be investigated and that she be given an opportunity to respond. Her email was forwarded to HR Support on 7 June 2019.

[63] On 7 June 2019, Mr Gaffney wrote to Mr Gunawardana asking again that he provide details of his allegations against Ms Oswald so they could be investigated and resolved. Mr Gunawardana forwarded the email to Mr Rhee at the union (copying in Mr Gaffney) to the effect that he felt he had satisfactorily replied to Services Australia’s requests for information through the union and why had his responses not been communicated to Services Australia?

[64] There is no evidence of what Mr Gunawardana sent to the union in the period between 20 May 2019 and 7 June 2019, or the union’s response. Mr Gunawardana did not separately forward what he had sent to the union to Mr Gaffney. I infer that what Mr Gunawardana was referring to in his email of 7 June 2019 was his comments on the Support Action Plan, provided to the union on or about 23 May 2019. An email from the union that same week asked Mr Gunawardana to send Mr Rhee comments about the Support Action Plan so they could be reviewed and submitted to Services Australia.

[65] On 12 June 2019, Mr Gaffney wrote to Mr Gunawardana to advise that as he had not provided further details or fact regarding the allegations of bullying and harassment by Ms Oswald, the allegations were found not to be supported by evidence and the matter was now recommended as resolved. Mr Gunawardana was reminded of his obligations under section 11 of the PS Act and section 13 of the APS Code of Conduct and of the expectation that any complaints be made in accordance with the Managing Complaints Policy.

[66] On 21 June 2019, Mr Gunawardana lodged an Incident or Injury Report about Ms Bunker reading his private emails when she came over to his desk after an exchange between them where Ms Bunker was trying to provide him with assistance. Ms Bunker asked him to action a particular task on his computer to see if it resolved his problem. Mr Gunawardana said he was reading private emails. Ms Bunker insisted he do what she had asked. Mr Gunawardana said his priority was to read his emails and a document and that he could only do one thing at a time – that he might as well go home if he was going to be stressed out like this. Mr Gunawardana felt Ms Bunker was rude to him and did not want to deal with her because of previous interactions.

[67] The same day, a final coaching meeting under the Support Action Plan was held between Mr Gunawardana, Ms Oswald, Ms Cooke from the union and a support person for Ms Oswald. Before the meeting, Mr Gunawardana asked Ms Oswald via Skype if someone other than Ms Oswald could conduct the coaching. During the meeting, Mr Gunawardana again alleged bullying and harassment and asked for relocation to another role and location. Ms Oswald escalated the request to Mr Gaffney. They discussed the incident with Ms Bunker. Ms Oswald advised Mr Gunawardana that Ms Bunker’s reason for interacting with him and her requests in that regard were reasonable and appropriate as it was the QDO role to have work duties/process discussions with staff. This was confirmed in an email to Mr Gunawardana after the meeting. His response was to the effect that Ms Oswald may have misunderstood his report because while management had the right to give directions, he had rights too.

[68] Mr Gunawardana left early for the day on 21 June 2019 and missed a follow up from Ms Dixon about his most recent Incident or Injury Report. Noting that he had reported an increased heart rate and feeling stressed, Ms Dixon advised that support for psychological care was available either through the Employee Access Program or by reimbursement of fees on production of a medical certificate.

[69] On 24 June 2019, Ms Oswald wrote to Mr Gunawardana to arrange a meeting to discuss his Injury Report of 21 June 2019. Rather than respond to Ms Oswald, Mr Gunawardana wrote to HR Support on 25 June 2019 asking that he not have to meet with Ms Oswald to resolve issues and stating that there was no prospect of him moving forward if Ms Oswald kept managing him. He expressed concern that rather than helping to resolve his issues, HR Support were acting as a referral agent and that the situation had not improved because there had been no genuine arrangement looked at for resolution. He also expressed concern that he was “getting paid by the tax payer to sit here and take lots of sick leave and raise issues everyday”, said he wanted to work and knew how to work hard, and blamed his problems on issues with Ms Oswald from “day 1”, evidenced by emails, his diary, essential logs and discussions with Directors.

[70] A response from HR Support on 25 June 2019 advised Mr Gunawardana that in addition to a support person in the meeting requested by Ms Oswald, he could ask that Mr Gaffney attend. Mr Gunawardana again requested that he not have to meet with Ms Oswald. He was advised that it was important to maintain communication with his leadership, especially as he had lodged an Incident or Injury Report. Mr Gunawardana’s email was then escalated internally by HR Support with a note to the effect that a timeline of Mr Gunawardana’s behaviour and constant complaints of being bullied had been sent to Ann Bagnall, Director, Conduct and Reviews Team, People Division.

[71] On 9 July 2019, Mr Gunawardana wrote to Mr Gaffney to follow up on the request that he be managed by a different team leader. He complained that Ms Oswald had recently walked past him while talking to a colleague, ‘Malek’ and that she had been abrupt and unprofessional, but asked that no inquiries be made of Malek to avoid intimidation and creating tension.

[72] On 16 July 2019, Mr Gunawardana sent an email to Mr Gaffney, copying in the union’s governing council for Services Australia, complaining about work practices he felt were unfair or problematic, including the requirement to rely on QDOs for advice. Mr Gaffney responded on 23 July 2019 asking for examples of incorrect and inconsistent advice from QDOs. Mr Gunawardana did not reply directly to Mr Gaffney. Instead, he copied him into an email forwarding the request to the union and stating that he had provided the requested information plenty of times to management and that if he could not find it again, he would keep a log of new issues from now on.

[73] On 19 July 2019, a formal direction (dated 15 July 2019) was issued to Mr Gunawardana requiring him to adhere to the Managing Complaints Policy when lodging further complaints. The direction was issued on the basis that Mr Gunawardana had “made a number of complaints to a range of leaders within the department where he failed to” provide substantiating evidence, lodge complaints in good faith and provide relevant information when requested. The direction reminded Mr Gunawardana that failure to comply with directions may be a breach of the APS Code of Conduct and that sanctions may be imposed ranging from reprimand to termination of employment.

[74] On 23 July 2019, Mr Gunawardana lodged an Incident or Injury Report about his attempts to get help with a ‘red card’ customer interaction on the phone. The QDO (Mr Jia) told him to refer to the Operational Blueprint for answers. Ms Oswald followed it up with Mr Jia, who had a different version of events. Mr Gunawardana was asked to provide more information by 13 August 2019.

The 2019 Investigation

[75] On 30 May 2019, Mr Gaffney asked HR Support to consider referring Mr Gunawardana’s conduct for investigation as a Code of Conduct breach. The reason for the request was his view that Mr Gunawardana had failed to provide supporting information for his complaint of bullying and harassment against Ms Oswald.

[76] On 21 June 2019, Mr Gunawardana was referred to Services Australia’s Conduct Standards Team for potential investigation into breaches of the APS Code of Conduct. A decision to investigate was then made by Ms Bagnall.

[77] On 11 July 2019, after receiving quotes from three law firms on the Commonwealth Legal Services Panel, Services Australia tasked Mills Oakley with the investigation. The decision to engage Mills Oakley was made by Ms Bagnall and the person nominated by Mills Oakley to perform the contract was Andrew Klein, Partner and Practice Group Leader of the firm’s Workplace Relations, Employment and Safety team in Canberra. At the time, Ms Bagnall was not aware that Mr Klein had been an employee of Services Australia’s predecessor Centrelink from 2006 to 2007– only that he had once been employed as a lawyer in the APS. No conflict of interest was disclosed on the materials put forward by Mills Oakley in connection with its tender for the investigation work.

[78] On 30 July 2019, the Terms of Reference for the investigation were sent to Mr Klein. The purpose of the investigation was described as:

“To investigate allegations that Mr Nandana Suminda Gunawardana has engaged in inappropriate behaviour, including making serious unsubstantiated bullying and harassment allegations against his Team Leader and other colleagues, continually making unsubstantiated complaints alleging that he has been victimised and discriminated against and continually challenging and questioning work processes, performance measures and feedback provided to him (the Allegations).

The investigator will need to formulate the allegations and consider what elements of the Code Mr Gunawardana is suspected of breaching. The investigator will also provide a recommendation on whether the matter should be referred for consideration by a Suspension Delegate at the earliest possible opportunity.”

[79] On 7 August 2019, the investigation began. Ms Bagnall wrote to Mr Gunawardana to advise that formal action to consider allegations against him would be taken. Michelle Bethune, Assistant Director, Conduct and Reviews, wrote to Mr Gunawardana standing him down on miscellaneous leave while the question of whether he should be suspended from duty was considered. Mr Klein wrote to Mr Gunawardana advising that he had been appointed to investigate three broad “allegations” against him, as set out in the Terms of Reference. He detailed the proposed investigation process and listed the range of possible sanctions for breaches of the APS Code of Conduct. A decision to suspend Mr Gunawardana from duty with pay was confirmed on 15 August 2019.

[80] On 12 September 2019, Mr Klein wrote again to Mr Gunawardana providing details of the allegations made against him (under the headings of Allegation One, Allegation Two and Allegation Three) He asked for a response the following day about whether Mr Gunawardana wished to respond to the allegations and whether he would like to meet with Mr Klein for that purpose. Documents relevant to the allegations were provided to Mr Gunawardana with the letter of allegations. A summary of the detailed allegations and related findings are at Annexure A.

[81] On 20 February 2020, Mr Klein sent a draft Investigation Report to Services Australia and to Mr Gunawardana for comment.

[82] On 27 February 2020, Mr Gunawardana called Ms Bagnall to raise concerns about the bias of Mr Klein, the law firm Mills Oakley, its consultant Chris Sexton, and the investigation process. He then sent an email on 1 March 2020 in response to Ms Bagnall’s request, detailing his concerns. The email and attachments called for the investigation to be terminated and for his reinstatement to work under a different manager and position. Also foreshadowed were concerns about the conflict of interest of any employee of Services Australia making decisions about what the outcome of the investigation should be.

[83] On 2 March 2020, Ms Bagnall forwarded Mr Gunawardana’s concerns about bias and conflict of interest to Mr Klein.

[84] On 3 and 5 March 2020, Mr Gunawardana’s responses to the draft Investigation Report were provided to Mr Klein. A response from his representative reagitated, and made further, allegations of unreasonable behaviour against Ms Oswald, including that she had spread inaccurate rumours about Mr Gunawardana among his co-workers and superiors; falsely acted on the basis that he was not “working to capacity”; and breached the APS Code of Conduct. Management was accused of ignoring Mr Gunawardana’s various reports of bullying and intimidation and his requests to be relocated to another position or location.

[85] Mr Gunawardana’s own response complained that despite a drawn-out investigation process, he was given a short amount of time to respond to a lengthy report. He said his ability to respond was hampered by Mr Klein’s decision to refuse him access to important evidence including his emails and Outlook notes. He questioned Mr Klein’s independence, experience and knowledge of local workplace dynamics, policies and systems. He strongly refuted all of Mr Klein’s findings as vexatious and asked that all allegations be withdrawn or dismissed. He took issue with the draft allegations and findings. Mr Gunawardana requested that his health and wellbeing be taken into account and raised concerns about the legality and reasonableness of ‘Robodebt’ work and related work practices.

[86] On 21 April 2020, Mr Klein issued his final Investigation Report. He found that Mr Gunawardana had breached sections 13(2), (3), (5) and (11) of the PS Act and responded to a range of other matters, including the allegations of bias and conflict of interest.

[87] On 1 May 2020, Mr Gunawardana asked the Merit Protection Commissioner to review the findings made by Mr Klein in the Investigation Report. The Merit Protection Commissioner commenced dealing with the request but ceased on 3 July 2020 when Mr Gunawardana’s employment was terminated.

[88] On 9 June 2020, Carl Princehorn, National Manager – HR Support, Corporate Enabling and ICT, People Division, was appointed to Mr Gunawardana’s case as Sanction Delegate. Mr Princehorn wrote to Mr Gunawardana on 10 June 2020 advising his preliminary view that termination of employment was the appropriate sanction and seeking his response within 7 days (later extended at Mr Gunawardana’s request).

[89] On 11 and 15 June 2020, Mr Gunawardana wrote to the CEO of Services Australia, Rebecca Skinner, about his rights to challenge the investigation process. A response was provided on Ms Skinner’s behalf on 17 June 2020.

[90] On 1 July 2020, the union, on behalf of Mr Gunawardana, provided a response to Mr Princehorn about the proposed sanction. It asked that there be no sanction of dismissal and that instead Mr Gunawardana be reassigned to a different location within Services Australia, noting his concerns about procedural fairness in connection with the investigation. It pointed to two “fundamental flaws” in the investigation:

1. that Mr Klein did not gather evidence or investigate the conclusions of Services Australia about whether complaints made by Mr Gunawardana were unsubstantiated or correct; and

2. that the final outcome was confined to Services Australia’s pre-selected evidence and did not take into account any (or almost all) of his own evidence.

[91] On 3 July 2020, a Sanction Delegate, Carl Princehorn, confirmed his decision that termination of employment was the appropriate and proportionate sanction in Mr Gunawardana’s case. Mr Gunawardana was dismissed on the grounds of serious misconduct. He was paid five weeks in lieu of notice, together with his accrued entitlements.

Was the dismissal harsh, unjust or unreasonable?

Termination of employment: APS employees

[92] Under section 29 of the PS Act, ongoing APS employees can only be terminated on specified grounds. These are:

(a)  that the employee is excess to the requirements of the Agency;

(b)  that the employee lacks, or has lost, an essential qualification for performing his or her duties;

(c)  non-performance, or unsatisfactory performance, of duties;

(d)  inability to perform duties because of physical or mental incapacity;

(e)  failure to satisfactorily complete an entry-level training course;

(f)  failure to meet a condition imposed under subsection 22(6);

(g)  breach of the Code of Conduct;

(h)  any other ground prescribed by the regulations.

[93] The APS Code of Conduct is found in section 13 of the PS Act. It provides as follows:

13 The APS Code of Conduct

(1) An APS employee must behave honestly and with integrity in connection with APS employment.

(2) An APS employee must act with care and diligence in connection with APS employment.

(3) An APS employee, when acting in connection with APS employment, must treat everyone with respect and courtesy, and without harassment.

(4) An APS employee, when acting in connection with APS employment, must comply with all applicable Australian laws. For this purpose, Australian law means:

(a) any Act (including this Act), or any instrument made under an Act; or

(b) any law of a State or Territory, including any instrument made under such a law.

(5) An APS employee must comply with any lawful and reasonable direction given by someone in the employee’s Agency who has authority to give the direction.

(6) An APS employee must maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister’s member of staff.

(7) An APS employee must:

(a) take reasonable steps to avoid any conflict of interest (real or apparent) in connection with the employee’s APS employment; and

(b) disclose details of any material personal interest of the employee in connection with the employee’s APS employment.

(8) An APS employee must use Commonwealth resources in a proper manner and for a proper purpose.

(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.

(10) An APS employee must not improperly use inside information or the employee’s duties, status, power or authority:

(a) to gain, or seek to gain, a benefit or an advantage for the employee or any other person; or

(b) to cause, or seek to cause, detriment to the employee’s Agency, the Commonwealth or any other person.

(11) An APS employee must at all times behave in a way that upholds:

(a) the APS Values and APS Employment Principles; and

(b) the integrity and good reputation of the employee’s Agency and the APS.

(12) An APS employee on duty overseas must at all times behave in a way that upholds the good reputation of Australia.

(13) An APS employee must comply with any other conduct requirement that is prescribed by the regulations.

Was there a valid reason for dismissal, relating to Mr Gunawardana’s capacity or conduct?

[94] The reasons for Mr Gunawardana’s dismissal, as set out in the letter of termination from Mr Princehorn, were these:

1. Continual refusal to accept responsibility for actions or acknowledge the significant impact of conduct on colleagues.

2. No demonstrated remorse for the conduct in question.

3. Unwillingness to adhere to the expected standard of conduct despite significant efforts to correct workplace behaviour.

4. No genuine regard for or insight into the impact frivolous complaints and unsubstantiated allegations may have had on your colleagues.

5. Conduct in repeatedly challenging and disregarding reasonable instructions and feedback is extremely serious in nature.

6. Two separate breaches of the APS Code of Conduct (in 2015 and 2019) for behaviours including acting without respect and courtesy and failure to take direction and follow instructions.

7. Fundamental lack of genuine regard to the APS Code of Conduct and the obligations it imposes on employees.

8. The trust and confidence between the parties had been significantly undermined and the employment relationship irreparably damaged, with no confidence that Mr Gunawardana’s employment obligations would be met in the future.

Valid reason - Allegation One: Making serious unsubstantiated bullying and harassment allegations against Team Leader and other colleagues

[95] I agree with findings in the Investigation Report to the effect that Mr Gunawardana did not respond to repeated requests for further information to support his frequent complaints of bullying and harassment against Ms Oswald, and that this was disrespectful and discourteous to Ms Oswald. His notes in the mid-cycle review on 28 February 2019 were not in the nature of detailed allegations against Ms Oswald – and certainly not sufficient to indicate any bullying or harassment on her behalf. The primary focus of his concerns in that context were technical ones, about his difficulties with QDOs and the tools he was required to use among other things. His complaint about Ms Oswald was general, referring to how she was treating him or responding to his concerns. It did not detail any conduct on her part that might indicate interactions that were inappropriate or that might support further inquiries being made.

[96] The evidence does not establish that Ms Oswald did bully or harass Mr Gunawardana. She did not deliberately and unreasonably change Mr Gunawardana’s work schedules instead of giving him a mix of phones and processing. Changes to his work were made to support his improved productivity, often in response to Mr Gunawardana’s concerns about the difficulties he was having with particular types of work. Some of the work allocation was out of her control. If Mr Gunawardana received more coaching than others, it was because of his difficulties undertaking daily work tasks rather than any malintent. His performance was under scrutiny for longer than most on 100% checking because Mr Gunawardana did not achieve the targets that would have allowed him some relief. I do not agree that Ms Oswald imposed petty and restrictive work rules hindering his ability to learn, develop and communicate. Ms Oswald was trying to support him to prioritise his work in a way that would allow his performance to improve. Ms Oswald was an experienced member of the Compliance Risk Branch. She knew the work and what was required.

[97] Taken at its highest, Ms Oswald’s conduct toward Mr Gunawardana was close supervision, together with a high level of support and an emphasis on following the rules. Perhaps not all managers would deal with lateness on the first day as strictly as Ms Oswald did, but it was her role and responsibility as Team Leader to manage Mr Gunawardana’s employment on a day-to-day basis. This included dealing with attendance and performance. I do not find that in fulfilling these responsibilities, Ms Oswald was asking Mr Gunawardana to do anything that was not an ordinary incident of his employment. This was reasonable management action. It was not bullying or harassment.

[98] I am also not persuaded that Mr Gaffney bullied and harassed Mr Gunawardana, either generally, or on 19 September 2018 when he sent him an email about making complaints and proper process, or on the various subsequent occasions that Mr Gaffney asked Mr Gunawardana to provide supporting evidence for his claims. Mr Gaffney’s conduct toward Mr Gunawardana in following up on the allegations of bullying and harassment was reasonable management action.

[99] Mr Gunawardana relies on the case of Jennifer Watts 3 – a decision under the stop bullying provisions of the Act – in connection with the submission that his own repeated complaints of bullying and harassment were not investigated. I can see the parallels, and for reasons that will become apparent I agree that at least one of his complaints – in relation to Mr Sermano, could have been followed up but was not. The reason given for not following the matter up was that the name of the person who had reported to the incident to Mr Gunawardana had not been disclosed. In my view, this was not an adequate response.

[100] However, the facts and circumstances of the Watts case are quite different to these, particularly in connection with the complaints of bullying and harassment made against Ms Oswald. Services Australia was trying to investigate the complaints. Questions were asked. Meetings were set up with HR Support, but later cancelled by Mr Gunawardana. Ms Oswald provided a detailed response to the initial concerns. Requests were made for further information from Mr Gunawardana but were not fruitful. Both Mr Gunawardana and Ms Oswald were given the option of having a support person or Harassment Contact Officer sit in on meetings between them as time went on. The allegations were only closed when Mr Gaffney formed the view that there was not enough information to support the allegations.

Valid reason - Allegation Two: Makes unsubstantiated complaints alleging victimisation and discrimination

[101] I do not agree with the findings in the Investigation Report in relation to Allegation Two. This is because there is a distinction between allegations that cannot be substantiated on the evidence and allegations that are not substantiated on the evidence. In the former case, there is insufficient evidence to permit a finding being made. In the latter, the evidence permits a finding that the allegation was false.

[102] Most of the findings in relation to Allegation Two depend on the credibility of witnesses and for that reason are unreliable. That is not because of any concern about the credibility of those interviewed – of which I hold none. It is because Mr Gunawardana was not interviewed as part of the investigation process and no finding was thus able to be made about his own credibility.

[103] Nothing in the evidence suggests that Mr Gunawardana was not being truthful in relaying his perception of events relating to his employment for Services Australia. I agree with Mr Klein’s observation to the effect that whether or not Mr Gunawardana’s concerns had a sound basis, they were genuinely held. Accordingly, no decision could reasonably be made that one persons’ version of events should be preferred over the version of another without some form of additional corroborating evidence.

[104] The incident on 15 February 2019 falls more appropriately under Allegation One, because it relates to the continuing allegation that Ms Oswald was engaged in bullying, harassment and conduct of a similar nature. It does not warrant a separate finding under Allegation Two.

[105] The incident on 21 June 2019 did not involve allegations of victimisation or discrimination. It involved allegations that Ms Bunker had been rude to Mr Gunawardana, was usually loud, and had interrupted his preparation time. There was sufficient material available to Services Australia to ascertain the nature of the exchange between Mr Gunawardana and Ms Bunker, including the incident report from Mr Gunawardana and an email, as well as Ms Bunker’s detailed account. From those materials, Ms Oswald formed the view that mediation may assist. She offered this to Mr Gunawardana. He did not directly refuse mediation but nor did he accept it, presumably because of his already expressed preference that he not have to deal with Ms Bunker in the future. The incident did not fall within the scope of Allegation Two and should properly have been dealt with under Allegation Three.

[106] I also note that perhaps because of the substantial overlap between Allegations One and Two, Mr Klein’s findings in relation to Allegation Two appear to be affected by a ‘copy and paste’ error – the result of which is that findings in relation to Allegation Two are in substance the findings made in relation to Allegation One.

Valid reason - Allegation Three: Challenging and questioning work processes, performance measures and feedback provided

[107] I agree with some of the findings in relation to Allegation Three and I do not agree with others.

[108] Often when Mr Gunawardana raised issues about QDO advice, work practices, procedures and events, he did so without providing the necessary supporting detail to allow his concerns to be addressed. Even in his dealings with QDOs, he sometimes raised issues at the same time as indicating that he did not want them fixed. I agree that he continued to agitate matters that Services Australia considered had been addressed – presumably because they had not been resolved to his satisfaction and had not led to his relocation to another team or role. Mr Gunawardana frequently challenged and questioned the work processes, performance measures and feedback provided to him. Some of this was legitimate and some of it was not. His actions consumed an inordinate amount of both his time and that of Ms Oswald, and caused them both stress.

[109] I do not agree with the findings of Mr Klein in relation to the incident on 23 July 2019. For the reasons discussed later in this decision, I do not agree that complaints made by Mr Gunawardana on that day were frivolous in nature. I do agree that Mr Gunawardana did not follow the appropriate process to deal with his concerns. This was contrary to the formal direction given to him by Mr Gaffney on 15 July 2019 to comply with the Managing Complaints Policy when lodging further complaints.

Reasonable apprehension of bias

[110] Mr Gunawardana submits that Mr Klein, and the firm Mills Oakley, were biased and had undisclosed conflicts of interest undermining their impartiality in connection with the investigation. I do not agree.

[111] The test in relation to reasonable apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the person might not bring an impartial mind to resolution of the matters at issue. 4 It requires there to be some logical connection between the decision maker and the possibility that they might depart from impartial decision making, either because of pre-judgment or some other reason. Examples include a particular interest in the outcome, or some form of association with, or connection to, a person involved or an issue arising that might tend to suggest that the matter will be decided other than on its merits. It is not concerned with apprehensions that are fanciful or unreasonable.

[112] Mr Gunawardana submits that bias was apparent from the outset of the investigation in the language used by Mr Klein to formulate the allegations against him. The submission is misconceived. The language used to describe the “Detail of Allegations” is certainly direct, but it is also clear. It fulfils the purpose of ensuring that Mr Gunawardana knew clearly what was put against him, so that he could respond. The details of each allegation are set out under the heading “Allegation”. A reasonable observer would not understand, through the language used by Mr Klein, that the allegations were no such thing and were instead final conclusions. It did not give rise to a reasonable apprehension of bias.

[113] There is any logical connection between the time spent in the public service early in their professional careers by Mr Klein and Mr Sexton and the possibility that they would not bring an impartial mind to the task for which they were engaged. The link is tenuous at best.

[114] The fact that Mills Oakley performs a range of valuable work for Services Australia and is on the Whole of Australian Government Legal Services Panel does not of itself give rise to a conflict of interest. There is no evidence that it is a condition of his engagement that his findings be favourable to Services Australia. The Terms of Reference are expressed in neutral terms and it was open to Mr Klein to make findings on the evidence without regard to whose interests would be served by the findings he might make. The mere fact that Mills Oakley is on the Legal Services Panel takes the matter no further. Commonwealth agencies can only engage law firms on the Legal Services Panel. If that were sufficient to give rise to a conflict of interest, it would defeat the purpose of having access to external lawyers to assist in the conduct of government affairs.

[115] The submission that Mills Oakley and Services Australia were engaged in dealings “behind” Mr Gunawardana’s “back” arises from a misreading of the date on an email, which was in the American format rather than that traditionally used in Australia, and had the date and month inverted. It is no evidence of anything untoward.

[116] As to why Mr Klein did not disclose any conflict of interest at the time he was engaged, the answer is presumably that he did not perceive any relevant conflict. Once the issue arose, Ms Bagnall took appropriate and reasonable steps to address conflict of interest issues in relation to Mr Klein and Mills Oakley. She considered the matter for herself and brought the allegations to Mr Klein’s attention, asking him to respond. The material put in support of the apprehension of bias contention was not persuasive. It was reasonable for Ms Bagnall to consider that there was no relevant conflict of interest and to act accordingly, just as it was for Mr Klein to reach the same conclusion.

[117] It is customary for a person acting in a decision-making capacity, against whom allegations of bias are made, to determine for themselves whether they should step aside on the grounds of reasonable apprehension of bias. No procedural failing arises from the fact that Mr Klein was asked to turn his mind to the matter, or that he did so, and rejected the concerns as without merit.

[118] Finally, I do not agree that Mr Klein did not have the relevant skills to investigate the allegations against Mr Gunawardana. Mr Klein is a qualified lawyer with prior public service experience. It was not necessary for him to have intimate knowledge of the systems and processes used by the Compliance Risk Branch in order for him to inquire into whether the allegations made against Mr Gunawardana could be sustained.

Was Mr Gunawardana given adequate time to respond to the draft report?

[119] The answer to this question is plainly yes. There is a difference between not being given an opportunity and choosing not to take an opportunity when given. It is true that initial timeframes set by Mr Klein for responses to his correspondence were relatively short, having regard to the breadth of allegations against Mr Gunawardana, the volume of supporting information and his limited access to evidence to prepare his response while suspended from duty. However, additional time was subsequently given to Mr Gunawardana to respond each time it was requested.

[120] On 12 September 2019, Mr Klein wrote to provide Mr Gunawardana with details of the allegations against him. He asked for an indication about whether he wished to provide a response by the following day. This timeframe was subsequently extended to 25 September 2019. In the meantime, on 19 September 2019, Mr Klein provided a link to most of the documents relied on by Services Australia to support the allegations against him to Mr Gunawardana. On 25 September 2019, Mr Gunawardana responded by requesting additional documents so that he could respond to the allegations.

[121] On 19 and 27 November 2019, some of the documents were provided to Mr Gunawardana and the timeframe for his response was extended to 23 December 2019. Some of the requested documents were not provided, including documents pre-dating August 2018 (the month before the incident that became the first detail of Allegation One) and all skype chats, emails and Outlook notes not already provided for the period from November 2017 – 15 August 2019. Instead, Mr Gunawardana was invited to request specific documents and explain how they were relevant so the request could be considered further. Mr Gunawardana did not respond to this invitation. Despite his limited access to Lync messages, emails and Outlook notes for the period from November 2017 to 15 August 2019, I am satisfied that Mr Gunawardana had adequate information to enable him to respond properly to the allegations.

[122] On 20 December 2019, Mr Gunawardana advised that he would be unable to comprehensively and accurately respond to the allegations because of his concerns with the investigation process.

[123] On 21 February 2019, the draft Investigation Report (dated 20 February 2020) was received by Mr Gunawardana. A response was requested within 7 days. The timeframe was subsequently extended to 6 March 2020. Mr Gunawardana’s responses were provided on 3 and 5 March 2020 respectively.

[124] I agree that the timeframe given to Mr Gunawardana to respond to the draft report was short. Had it been the first time he had seen the detail of the various allegations against him, I would have agreed the timeframe was too short. But the documents relied upon had been accessible by Mr Gunawardana since 27 November 2019 at the latest. He had then invested “considerable time” preparing a comprehensive response. He was able to provide his response one day earlier than the extended deadline.

[125] The draft report by Mr Klein traversed the same allegations and factual matrix about which Mr Gunawardana had been put on notice since mid-September 2019 – approximately five months earlier. I do not agree that the draft report contained a new allegation in relation to the incident on 23 July 2019. The content of this allegation was set out in the body of “Detail of Allegations” document sent to Mr Gunawardana on 12 September 2019 in the row dated “16 July 2019”.

[126] In all of the circumstances, I consider that Mr Gunawardana had adequate time to respond to the allegations and the draft report before it was finalised.

Was Mr Gunawardana’s response ignored or not genuinely considered by Mr Klein?

[127] Mr Gunawardana submits that his comprehensive response was ignored or not genuinely considered by Mr Klein, because a line-by-line comparison of the draft and final report shows that no changes were made other than inclusion of a table of information requested by Mr Gunawardana and a new section 7, discussing Mr Gunawardana’s response to the draft report. Not even the methodology was updated to reflect events between the draft and final report.

[128] To the extent that it relies on form rather than substance, the submission is misconceived. It is not enough that large sections of the document remained unchanged, if it were apparent from the contents of the report that the substance of Mr Gunawardana’s response had been considered. Section 7, which was added to the final version of the report, dealt expressly with Mr Gunawardana’s response and that of his representative. There can be no doubt that Mr Klein read the responses before finalising the Investigation Report.

[129] Regrettably, it is not apparent from the terms of the final report that Mr Klein gave genuine consideration to the substance of Mr Gunawardana’s detailed response to the allegations in a lengthy document of more than 200 pages, which for the first time set out his detailed answers to the particular allegations against him.

[130] Section 7 of the final report explains Mr Klein’s approach to responses received from Mr Gunawardana and his representative. It notes that the majority of Mr Gunawardana’s response is concerned with either making new allegations of misconduct or reiterating previous complaints, but without providing any additional evidence or information that would result in the relevant complaints being substantiated. On my assessment, the statement is not entirely correct.

[131] The remaining observations made by Mr Klein in relation to Mr Gunawardana’s response are found in section 7 of the final report. Section 7 is divided into 10 subsections, each dealing with matters ancillary to the allegations under investigation. These are:

1. Matters not relating to the Allegations and/or outside of the scope of the TOR (terms of reference

2. Contention that matters raised in the Incident Reports are not Allegations

3. Contention that the Respondent not provided with all relevant information relation to the Allegations

4. Allegations of bias

5. Allegations of bias – Mr Chris Sexton

6. Allegation of bias – Appointment to the Whole of Australian Government Legal Services Panel

7. Allegations of a pre-existing Relationship between Ms Oswald and Mr Beutler/disclosure of information prior to our engagement

8. Briginshaw considerations

9. References to case involving Ms Jennifer Watts in the Fair Work Commission

10. Various matters not directly relevant to the Allegations

[132] Section 7 does not engage in any material way with new information contained in the responses given by Mr Gunawardana to the allegations. Nor is that information dealt with substantively in any other sections of the report.

[133] One example is the summary of evidence about complaints on 22 March 2019 from paragraphs 6.113-7. Mr Klein summarised the relevant evidence as emails between Mr Gunawardana and Ms Oswald and an excerpt from Mr Gunawardana’s diary. These dealt with two separate incidents, one of which was essentially a ‘he said, he said’ situation. Mr Gunawardana was found to have made a false claim about lack of QDO support. But neither he, nor the QDO, were interviewed as part of the investigation. Mr Gunawardana’s response to the draft report asked that his diary entries be cross checked against information sources including the QDO support register, emails, a CRAM report, softphone and the work scheduler. It is not apparent that any of these lines of inquiry were considered or acted upon. The correct conclusion then, on the available evidence, was that the allegation could not be substantiated either as true or false. Absent any additional evidence, there was no reason to prefer one version of events (that of Mr Gunawardana or the QDO) over the other.

[134] At paragraph 6.10 of the report, Mr Klein wrote that Mr Gunawardana “chose to withdraw” his injury claim of 3 September 2018. This was not correct - an error emphasised in Mr Gunawardana’s response with references to diary evidence supporting his version of events. Mr Gunawardana had only indicated that he did not wish to proceed with a formal complaint. The subtlety is not reflected in the Investigation Report.

[135] At paragraphs 6.30-4, Mr Klein summarised the evidence about Mr Gunawardana’s alleged failure to provide requested information as: emails provided by Services Australia and Mr Gunawardana’s diary notes. Mr Gunawardana’s response to the draft report also identified the existence of emails to his union representatives in the relevant period and extensive coaching and performance notes recording “the many conversations and discussions” with management. Mr Klein had access to the performance and coaching notes and could have asked for a search of Mr Gunawardana’s email account from Services Australia covering the relevant period in an attempt to locate the email to the union. These avenues do not appear to have been pursued before findings were made. Certainly, no adjustment was made to the draft report in this respect.

[136] At paragraph 6.141 of the report, dealing with the incident of 23 July 2019, Mr Klein described Mr Gunawardana as taking issue with an “established work practice” in an “OB system”. Mr Gunawardana’s response to this paragraph denied that the incident involved an established work practice (the new CUPI system) and explained that it was more of a software than an “OB issue”. This permitted a conclusion that, contrary to the observation of Mr Klein, the incident was not a case of Mr Gunawardana taking issue with an established work practice. He was trying to follow an established work practice by using the ‘red card’ system to seek urgent QDO advice while on the phone to a customer. The system failed him and he logged a report. His complaint about the incident was not frivolous.

[137] The examples I have given are some of the various instances in the final report where it is available to conclude that Mr Gunawardana’s responses were not fully considered or given due weight by Mr Klein before the report was finalised. I agree with Mr Klein’s observation to the effect that many of Mr Gunawardana’s responses did not offer up new information and thus did not warrant any changes to the report. However, this was not so in every case.

[138] I do not agree that no finding was made in relation to Allegation Three so far as it dealt with an incident on 16 July 2019. These findings were bound up in the findings about the incident of 23 July 2019. Findings were also made in relation to the incident on 5 February 2019 at paragraph 6.60 of the final report. In any event, a failure to make findings in relation to two allegations is unlikely to have had any relevant adverse effect on the investigation or its consequences for Mr Gunawardana. All it would do is narrow the scope for potential adverse findings against him.

[139] Mr Gunawardana did not help matters by his substantial delay in responding to the allegations. His response was not given until after the draft report had already been prepared. It did not warrant significant changes to the primary conclusions reached by Mr Klein, at least in relation to Allegations One and Three. In some cases, Mr Gunawardana’s responses were inconsistent with contemporaneous evidence or could not overcome his consistent lack of follow through on his complaints.

[140] It seems likely that some of the substance of Mr Gunawardana’s response was not given any weight in the final report because of the curious observation at paragraph 5.25 of the report that it was not “within scope” of the Terms of Reference to “gather evidence, or otherwise investigate whether the conclusions reached” by Services Australia as to “whether the complaints raised by the Respondent were unsubstantiated or correct”. This led Mr Klein to rely on the evidence provided by Services Australia and to not undertake any independent investigation of the substance of Mr Gunawardana’s complaints.

[141] If this was the correct approach, then what was the purpose of an investigation into Allegations One and Two? The terms of reference required Mr Klein to investigate allegations including that Mr Gunawardana had made “unsubstantiated” complaints and allegations. It is hard to see how that function could have been discharged without inquiring into whether the relevant complaints were able to be substantiated. And despite this self-imposed restriction, Mr Klein did make findings of this kind. For example, at paragraph 6.135, Mr Klein found that issues raised by Mr Gunawardana “had no basis in fact” including the incident on 23 July 2019 even though on the evidence, this conclusion was not entirely correct.

[142] For these reasons, I agree with Mr Gunawardana that his response to the draft report was not fully considered by Mr Klein before the final report into the 2019 Investigation was issued.

Was it unfair for Mr Klein to take into account the 2015 Investigation and related sanctions?

[143] The Terms of Reference for the 2019 Investigation were not limited to the events that ultimately became the subject of allegations formulated by Mr Klein. Relevant background in the Terms of Reference cited events in 2019 as well as historical complaints in 2015 and 2016, culminating in the 2015 Investigation.

[144] It was not strictly necessary for the Terms of Reference to refer to the prior investigation process, or for Mr Klein to be apprised of the 2015 Investigation. The inquiry ultimately made by Mr Klein did not deal with the matter in any substantive way.

[145] However, I am not persuaded that it was unfair for Mr Klein to be informed about, or to take into account, the 2015 Investigation and related sanctions. This is because the conduct under investigation in 2015 had substantial similarities to the conduct under investigation in 2019. On this basis, it was open to Mr Klein to consider those matters at least through the lens of whether Mr Gunawardana’s conduct amounted to a continuing pattern of behaviour.

Mr Gaffney’s involvement in both the 2015 and 2019 Investigations

[146] I do not accept that any flaw in the 2019 Investigation arose from the mere fact of Mr Gaffney’s involvement. His involvement in both the 2015 and 2019 Investigations was a matter of circumstance - he was one of the relevant managers on both occasions. And employees who are involved in an incident are not always given the full picture when it comes to outcomes, including whether disciplinary action has been taken against other employees. I do not know if Mr Gaffney treated Mr Gunawardana fairly or unfairly in relation to the 2015 Investigation. I think it is unlikely. The supportive and well-intentioned evidence of Ms Carolyn Rickard about Mr Gaffney’s role in connection with an incident in 2014 is hearsay. It does not corroborate the assertions made by Mr Gunawardana about Mr Gaffney’s conduct.

[147] From 2018, Mr Gaffney was involved in many interactions with Mr Gunawardana as the next line manager above Ms Oswald. There is no evidence that his dealings with Mr Gunawardana had any malintent or that his involvement in matters before 2018 had any material influence on the matters under investigation in 2019. I do not accept the submission that either Mr Gaffney or any other employee of Services Australia had it in for Mr Gunawardana or were “setting him up to fail”. Services Australia, mostly through Ms Oswald, but also others in the Compliance Risk Branch and HR Support, went to significant lengths to manage both their own concerns and those of Mr Gunawardana about the work relationship. It was only when substantial efforts to resolve those concerns failed that a formal investigation process was invoked.

[185] The submission is not compelling because Mr Gunawardana’s difficulty dealing with certain people was not confined to Ms Oswald, Mr Gaffney and a small number of QDOs. Almost without exception, his managers, QDOs, HR Support persons, and even union representatives who became involved in dealing with his concerns were the subject of complaints. These complaints ranged from bullying or targeting, or not being trustworthy, to being inexperienced or incompetent. Even those he preferred to deal with, including QDOs Mr Jia (over a ‘red card’ incident) and Ms Mathieson (over an email clarifying appropriate use of a certain mailbox), were not immune.

[186] It will usually be reasonable for an employer to choose not to transfer an employee to another place or position while it has concerns about their performance. Services Australia considered, but chose not to action, the repeated requests made by Mr Gunawardana for his relocation or reassignment. This was due to availability of space but mostly due to the issues he was having at work.

[187] The fact is that Mr Gunawardana was not meeting the performance targets that his colleagues were able to achieve. He had already transferred offices twice following the 2015 Investigation – from Rowville, to Springvale, and then to Box Hill. He was exhibiting a repeated pattern of behaviour that was impeding his ability to perform. In those circumstances, it was not unreasonable to prioritise efforts to improve Mr Gunawardana’s focus and lift his performance over a relocation which would likely simply transfer the same issues elsewhere.

[188] Mr Gunawardana separately takes issue with Services Australia’s engagement of an inexperienced contractor (Ms Dixon) to assist him with complex issues. Nothing turns on it in my view – it was another avenue to provide him with support that he did not find useful.

QDO Advice

[189] Mr Gunawardana submits that he was given incorrect, ambiguous and inconsistent advice and directions on how to do reviews. His frequent complaint to this effect was relied upon to support allegations in the 2019 Investigation that he had failed to provide information to support his claims.

[190] Diary entries on 16 and 21 January 2019 and 23 April 2019 record advice from QDOs to Mr Gunawardana which he considered was either wrong or in the latter case, involved two opposite instructions. Mr Gunawardana submits that these issues were raised with Mr Gaffney in a meeting on 17 September 2019 as part of a bundle of 64 concerns. I cannot find evidence to support the submission. There was a meeting between Mr Gunawardana and Mr Gaffney on 17 September 2018, but that was before the various diary entries were made. By 17 September 2019, Mr Gunawardana was absent from the workplace because the 2019 Investigation was underway.

[191] The issue was the subject of correspondence between Mr Gunawardana and Mr Gaffney on both 21 January 2019 and 16 July 2019. In each case, Mr Gaffney requested more information about the concerns and despite indications from Mr Gunawardana that he would provide relevant information in writing, he did not do so.

[192] I accept that Mr Gunawardana was regularly frustrated with the advice he received from QDOs. He often did not accept their advice, including when he thought it was wrong or when he had been given two sets of competing advice. Mr Gunawardana considered himself knowledgeable on relevant social security legislation and guidelines and preferred to take his guidance from the source rather than from materials prepared for his daily use by Services Australia. Whether or not Mr Gunawardana had knowledge that was superior to that of the QDOs tasked with assisting him is not established.

[193] I am not satisfied that the provision of QDO advice amounted to unreasonable management action. It was a way to provide support to employees including Mr Gunawardana.

Training was insufficient and inadequate, coaching was discriminatory, and communication was suppressed

[194] Mr Gunawardana submits that the training he was provided was insufficient and inadequate. He says that in terms of coaching, he was treated differently to other employees by Ms Oswald. He also says he was restricted in the content and format of his communication, which hindered his learning and development and the ability to communicate and make accurate decisions.

[195] The training issue relates to online CUPI training, which Mr Gunawardana felt was insufficient in the context of an expectation that he immediately start work on the new processes after receiving the training – although when he raised his concern, he was allowed to continue other work rather than transition to the new work straight away. Mr Gunawardana asked for additional ‘at the desk’ training, a request underpinned by his general objection to having to rely on QDOs for advice about the new system. Ms Oswald refused the request as all employees were receiving the training online. Mr Gunawardana was offered a second online training session but did not accept it – although at one point he said he would do it if he had to, but he did not see the point. The content of the training is not before me and I have no way of knowing whether it was fit for purpose or not. The fact that Mr Gunawardana was offered the same training as everyone else suggests that the refusal to provide additional ‘at desk’ training was not unreasonable.

[196] The coaching issue arises from comments made to Mr Gunawardana from another employee that his own coaching sessions had not taken place for some time, while Mr Gunawardana’s coaching sessions were given particular focus and priority. The concerns arise in the context of Mr Gunawardana’s resistance to the Support Action Plan and his efforts to bring it to an end.

[197] The only evidence that Ms Oswald’s approach to coaching sessions for other employees was different for Mr Gunawardana is his own diary note and an email to the union about comments from another employee, Frank. The evidence is hearsay. There is no objective evidence about how many coaching sessions were held for Mr Gunawardana compared to other employees, or other relevant comparators such as the relative performance of employees, whether all were on a Support Action Plan or whether their duties, hours of work and attendance were the same. Put plainly, I am not satisfied that in relation to coaching sessions, Mr Gunawardana was treated in a materially different way compared to other employees, or that the coaching sessions were unreasonable management action in the circumstances.

[198] Acknowledging the delegations given to APS4 employees, I am not satisfied that requests for Mr Gunawardana to be more concise in his communications, or to use particular methods of communication for particular purposes, were unreasonable. Mr Gunawardana invested a lot of time and energy illustrating the problems he saw with departmental guidelines and procedures, often in a very detailed way. Directions from Ms Oswald to leave certain information out of his emails must be understood in the context of Ms Oswald knowing the issues he was raising well. Ms Oswald had worked in the Compliance Risk Branch for more than ten years. It can safely be assumed that her request was directed to reducing the time Mr Gunawardana was spending on raising concerns, in circumstances where she did not need the additional information to understand his concerns. Such requests had two obvious purposes – to allow Mr Gunawardana to focus on his ordinary tasks and to reduce her own workload associated with reading and responding to his concerns. The requests were reasonable management action.

[199] A request from QDO Ms Mathieson to limit use of the QDO mailbox to certain purposes and to use a different process to ask for assistance was also a reasonable request. Mr Gunawardana did not like it because he did not find the process effective, but that does not mean the request was unreasonable.

Performance targets

[200] Mr Gunawardana submits that the performance targets he was required to meet - an average of 1 review per 4 hours (Multical) and 1 review per 90 minutes (other) – were fabricated and unreasonable.

[201] In order to establish that the targets did not exist, Mr Gunawardana relies on a one-line media response by a senior executive of Services Australia to the effect that there were no required weekly finalisations. The comment proves nothing. All it does is indicate that the maker of the statement was either being careful with his choice of words or that he misstated or misunderstood the position. This must be seen in light of emails to employees in the Compliance Risk Branch about their targets and the many communications with Mr Gunawardana in connection with the Support Action Plan about performance targets. I have no doubt that performance targets were set for Compliance Support Officers in the Compliance Risk Branch – including Mr Gunawardana.

[202] The accusation that Ms Oswald wrongfully made these targets up for the purpose of setting Mr Gunawardana up to fail is itself unreasonable. It has no basis in fact. It is not necessary to decide whether the targets were unreasonable. While the material suggests that the targets were achievable having regard to average outcomes across the group, it also suggests that they were not mandatory in the sense that failure to meet set targets would automatically give rise to disciplinary action. In any event, Mr Gunawardana was not dismissed for performance reasons or for his failure to meet set targets. This is not the forum to conduct a broader examination of Services Australia’s work practices and procedures.

Compliance by Services Australia with its enterprise agreement, policies, APS Values and the APS Commissioners’ directions

[203] Submissions to the effect that Services Australia did not comply with its own instruments, policies and procedures are made in a general way without sufficient detail or illustration. They do not persuade me that there was any relevant breach of this kind.

[204] Issues around the Robodebt policy and program might well raise legitimate concerns about exposing employees to conduct in conflict with the overarching values and expectations that set the standard for APS employment. There may also be issues around the extent to which Services Australia is required to consult, and has consulted, about the introduction of changes under the enterprise agreement, or its engagement of labour hire workers, or other matters of collective interest to Services Australia and its employees.

[205] For the reasons already stated, I do not agree that Services Australia did not follow its own Managing Complaints Policy by requesting specific detail from Mr Gunawardana about his complaints. It was not for Mr Gunawardana to decide if what he had provided was sufficient. Mr Gunawardana had a duty to cooperate with the requests for more information, just as Services Australia had a duty to deal with his complaints.

[206] Mr Gunawardana’s concerns about the flawed Robodebt policy should have been afforded proper consideration. When those matters were raised in the appropriate way, this is what occurred. The matters were also being dealt with in different areas of the Commonwealth, separate to the context in which they were identified by Mr Gunawardana.

[207] Mr Gunawardana submits that he did not know that complaints made in Incident or Injury Reports would be treated as allegations requiring substantiating evidence, and that it was not reasonable for his filing of Incident or Injury reports to be treated as making ‘allegations’ against employees he named as having caused or contributed to his distress. He submits that he would not have filed Incident or Injury reports had he known they would be treated as allegations.

[208] Employee complaints about matters such as bullying and harassment by another employee – in any workplace context - give rise to an obligation on the employer to take appropriate action as part of their duty to provide a safe workplace. It was both reasonable and necessary for Services Australia to take steps to investigate the matters further. Mr Gunawardana may not have intended for the contents of his reports to be formally treated as complaints, and certainly his intention was to avoid making a formal complaint under the Managing Complaints Policy, as early as September 2018, Mr Gunawardana was asked to provide more information to substantiate his complaints about Ms Oswald and expressly told about the Managing Complaints Policy. He knew, or should have known, by then that allegations of misconduct made against others – including in the context of reporting safety concerns - would likely be followed up.

Other relevant matters

[209] I accept that some of the complaints raised by Mr Gunawardana were about systemic issues, but I do not agree with the characterisation of his treatment as being “targeted for speaking up about … flaws, deficiencies and illegal procedures in the Robodebt program”. Mr Gunawardana attracted significant attention from more senior staff – primarily Ms Oswald. The reason for this was not his having identified issues with the validity of the Robodebt program but the manner in which he dealt with his concerns and his related performance difficulties. It was the responsibility of his managers and HR Support to make inquiries, to follow up his concerns and to manage his performance. The amount of attention he received was responsive to the volume of his concerns. While Mr Gunawardana may not have expressly refused to follow directions given to him, his constant questioning and challenging of advice given and decisions made, together with his lack of trust in the systems and processes he was required to use, at times amounted to obstruction.

[210] I also do not agree that Mr Gaffney and Ms Oswald should have been excluded from any involvement in the investigation or management of Mr Gunawardana because of his complaints about them. Firstly, the submission is impractical. Mr Gaffney and Ms Oswald were responsible for managing Mr Gunawardana’s employment. They were key witnesses in relation to the allegations and the fact that Mr Gunawardana had made complaints about them was one of the primary reasons for the investigation. Secondly, Mr Gunawardana made complaints about Ms Oswald within two weeks of his arrival to the Box Hill Office. The making of complaints about one’s manager is not a sufficient reason on its own for an employee to secure relocation to a different role or team. It may be an appropriate response if complaints in a particular case can be substantiated, but in this case they had not been.

[211] I have no reason to doubt that his difficulties at work in 2018-19 led Mr Gunawardana to take many days of personal leave, attend his doctor and psychologist and to speak to the Employee Assistance Program and Harassment Contact Officers. I accept his submission to the effect that this was all directed at his trying to “find a way out”. It is clear from the early days at Box Hill that he wanted to be relocated out of Ms Oswald’s team and once it began, to avoid the Support Action Plan. I accept that the Incident or Injury Reports and his various complaints were his way of expressing his everyday battles and management issues and how it was affecting his performance, QDO relationships and wellbeing.

[212] At the time of hearing, Mr Gunawardana was a 46-year-old father who financially supports his wife and 17-year old son. Though he received a valuable sum on termination of employment for his accrued entitlements, he was finding it difficult to make ends meet, and the pandemic did not improve the position for him. I accept that dismissal caused distress to Mr Gunawardana, both emotionally and financially.

[213] Mr Gunawardana submits that for much of his time in the APS, he had an unblemished work history. His performance reviews tend to indicate that Mr Gunawardana was generally upholding the APS Values, Employment Principles and Code of Conduct. This is not surprising although the comments are unreliable in the sense that they were made at the same time as the parties were dealing with the issues that ultimately led to contrary findings. From Mr Gunawardana’s perspective, he worked under Ms Demagi without incident. His diary indicates that even after 2015 he continued to face challenges with QDO advice, systems and processes. I accept Mr Gunawardana’s submission, supported by Ms Carolyn Rickard, that his work relationships with colleagues at APS4 level and below were generally positive and at least uncontroversial.

[214] The quality of his union representation is a matter between Mr Gunawardana and the union. It does not go to the question of whether he was unfairly dismissed. It is also not reasonable to rely on Mr Gaffney’s failure to engage directly with the union instead of requesting evidence from Mr Gunawardana. Services Australia is entitled to correspond directly with its employees in the context of managing their complaints. Further, Mr Gunawardana was able to copy Mr Gaffney into an email to the union asking why it had not responded to Mr Gaffney. He could easily have forwarded Mr Gaffney a copy of the response he said he had already sent to the union. Until being copied into the email to the union, Mr Gaffney had no way of knowing that Mr Gunawardana had prepared a response or that it was in the hands of the union. How then, should he have known to contact the union to follow it up?

Conclusion

[215] On or about 15 April 2019, Mr Gunawardana wrote to Ms Oswald about why he felt he was being treated unfairly. He wrote:

“It is unfair that I have to defend myself constantly when I have been forced to engage with staff that I have raised as possible conflict of interest and causing health and work issues but my concerns have not been adequately addressed leading to multiple incidents, I can provide evidence of ample opportunity provided to the Management to avoid such incidents and that I had genuine intentions to prevent every one of the incidents at all times and was not the instigator but rather the recipient of inadequate work practices, work arrangements and not listening to my genuine concerns.”

[216] That seems to me to sum up Mr Gunawardana’s position generally in relation to the challenges he faced at work and in relation to his unfair dismissal application. Mr Gunawardana’s diary entries and the voluminous written evidence in this case make it clear that as early as 2013, Mr Gunawardana was having difficulties in the workplace and with the work he was doing. He lacked trust in Services Australia’s systems, processes and people in positions of authority. He had constant issues with the quality of instructions given to him, affecting his ability or willingness to comply. He often felt targeted and undervalued. He was afraid to the point of paralysis about making mistakes or wrong decisions. As a result, he struggled to complete much of his work and his performance suffered.

[217] As I have already observed, I do not doubt that Mr Gunawardana genuinely held the concerns that he raised. But his concerns about how he was treated by his managers and QDOs and the reasons for that treatment were not always reasonably held. The steps he took to follow through on those concerns were not always the reasonable steps expected of him.

[218] Mr Gunawardana’s conduct caused unnecessary stress and unreasonable additional work not only for himself, but for those around him. This was not limited to issues with “four staff out of almost 30,000”. Ms Oswald did not ‘have it in for him’ from the start, even if he saw it that way. There is no evidence that she deliberately set out to bring his employment to an end, or that she was motivated to do so because of her friendly relationship with Mr Rose-Meyer.

[219] The notion that the dismissal was part of some broader conspiracy to exclude him from the workplace because of his issues with the Robodebt program and his disclosures to the union and others is unsustainable. I simply do not accept the proposition because there is no evidence that would enable the necessary link to be drawn between actions taken against him and the alleged improper motives.

[220] Mr Rathod expressed his (seemingly dashed) hope that Mr Gunawardana had moved on from the issues of the past in the week before Mr Gunawardana resumed work at Box Hill. From then on, it cannot be said that asking Mr Gunawardana to remain in his team, to do his job, and to seek assistance from the available QDOs were steps in a deliberate strategy to provoke complaints against him. They were genuine efforts to assist with the difficulties Mr Gunawardana faced, in the context of reasonable expectations that he would perform effectively, cooperate and take advantage of the support offered. And there was no certainty that what Mr Gunawardana saw as a practical solution to his problems –relocation to another team or location – would in fact resolve the issues of concern.

[221] The 2019 Investigation was affected by procedural flaws, primarily because Mr Klein did not properly engage with the substance of Mr Gunawardana’s response. But the omissions do not alter the substance of the findings made in relation to Allegations One and Three, which are consistent with my own findings about the nature of Mr Gunawardana’s conduct. They are not of such significance that the entire process, or the decisions dependent upon it, should fall away.

[222] The mitigating circumstances do not tip the balance in favour of a finding of unfair dismissal. Mr Gunawardana was a public servant of longstanding, and the dismissal came at a bad time for him and his family. But he is relatively young and his son is almost a man. I am confident that Mr Gunawardana will find new opportunities in the labour market.

[223] The Robodebt program clearly had its failings. I am unable to conclude that it was the reason that things ended up as they did at Box Hill. I note Mr Gunawardana’s submission that the program he was dealing with in 2015 later evolved into the “Robodebt initiative”. Yet if his only issue was dealing with flaws in the underlying policy, constant allegations of bullying and harassment by Ms Oswald and an unwillingness to see complaints through make no sense.

[224] In the end, there are appropriate ways of dealing with concerns and there are ways that strain the employment relationship to its limits. On balance, I find that termination of employment was an available sanction to Services Australia under the PS Act and that in all the facts and circumstances, it was a proportionate response. The dismissal was not harsh, unjust or unreasonable. It was not an unfair dismissal.

[225] The application is dismissed.

COMMISSIONER

Appearances:

N. Gunawardana on his own behalf.
D. Fuller of Counsel instructed by MinterEllison for the Respondent.

Hearing details:

2020.
Melbourne (video hearing):
November 4, 5, 25, 26.

Final written submissions:

Applicant, 18 December 2020 & 29 January 2021 (in reply).
Respondent,15 January 2021.

Printed by authority of the Commonwealth Government Printer

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Annexure A – Summary of Allegations and Adverse Findings

Allegation One – Makes serious unsubstantiated bullying and harassment allegations against Team Leader and other colleagues
Date	Detail of allegation	Adverse findings
3 September 18	Incident report: M Oswald’s conduct at desk, complaints withdrawn 17 September 2018	•  Allegation of bullying and harassment made •  Failure to provide additional evidence or information without reasonable explanation •  Relevant information or evidence did not exist •  Not substantiated, frivolous and made recklessly and without care or diligence •  Disrespectful and discourteous to M Oswald
19 September 18	Incident report: email from B Gaffney etc. Process for making complaints provided 24 September 2018. No steps taken to progress the complaint	•  Allegation of bullying and harassment made •  Failure to provide additional evidence or information without reasonable explanation •  Relevant information or evidence did not exist •  Not substantiated, frivolous and made recklessly and without care or diligence •  Disrespectful and discourteous to M Oswald
20 February 19	Email to M Oswald – conduct of QDO Hugo Sermano about demotion from Multical work. Repeated requests for information about source of information to aid investigation. Information not provided	•  Allegation of bullying and harassment made •  To date, the name of relevant individual that would enable complaint to be addressed has not been provided •  Failure to provide additional evidence or information without reasonable explanation •  Relevant information or evidence did not exist •  Not substantiated, frivolous and made recklessly and without care or diligence •  Disrespectful and discourteous to M Oswald
5 March 19	Incident report: emails from M Oswald and B Gaffney. Allegations made without sufficient detail. Despite follow up with C Dixon and A Thompson, no steps taken to progress concerns or to provide details of colleagues’ concerns	•  Allegation of bullying and harassment made •  Failed to provide any further details about complaint about Ms Oswald and Mr Gaffney, allegations or unethical or unlawful application of policy or the names of colleagues alleged to have shared their own concerns with him •  Failure to provide additional evidence or information without reasonable explanation •  Relevant information or evidence did not exist •  Not substantiated, frivolous and made recklessly and without care or diligence •  Disrespectful and discourteous to M Oswald
28 March 19	Meeting with A Thompson – request for examples of issues raised about managers, team leaders and QDOs not acted upon	•  Allegation of bullying and harassment made •  To date, none of the requested information has been provide to Mr Thompson •  Failure to provide additional evidence or information without reasonable explanation •  Relevant information or evidence did not exist •  Not substantiated, frivolous and made recklessly and without care or diligence •  Disrespectful and discourteous to M Oswald
10 May 19	Meeting with M Oswald and B Gaffney where bullying and harassment allegation made against M Oswald. Three subsequent requests for further information not actioned	•  Allegation of bullying and harassment made •  Did not provide further details to support allegations in the meeting, despite being asked to do so. •  Did not respond to 3 further requests for information despite two extensions. •  Matter could not be progressed as there was no evidence to indicate that Ms Oswald had bullied and harassed Mr Gunawardana. •  Failure to provide additional evidence or information without reasonable explanation •  Relevant information or evidence did not exist •  Not substantiated, frivolous and made recklessly and without care or diligence •  Disrespectful and discourteous to M Oswald
9 July 19 (document states 2018 in error)	Request for a different team leader despite earlier advice of no change; complaint about conduct involving colleague ‘Malek’ made together with a request that he not be asked about it.	•  Allegation of bullying and harassment made •  Did not allow Mr Gaffney to investigate the allegation by telling him that he did not want him to confirm with Malek that the relevant interaction had occurred •  Failure to provide additional evidence or information without reasonable explanation •  Relevant information or evidence did not exist •  Not substantiated, frivolous and made recklessly and without care or diligence •  Disrespectful and discourteous to M Oswald
Additional finding: Making a number of frivolous and unsubstantiated allegations of bullying and harassment against M Oswald was acting in a harassing way toward her, in breach of the APS Code of Conduct, Section 2 (acting with “care and diligence”) and Section 3 (acting with respect and courtesy and without harassment)

Allegation Two – Makes unsubstantiated complaints alleging victimisation and discrimination
Date	Detail of allegation	Adverse findings
5 February 19	In connection with denial of opportunity to be “buddy” or “floorwalker” for new starters	Not substantiated: subject of allegations provided reasonable explanations; no evidence to contradict their version of events or doubt their credibility. Allegation made frivolously because the complaint had no substance. Complaint made recklessly and without care or diligence
15 February 19	In querying the reasonableness of Support Action Plan with HR Support and insinuating that further allegations against M Oswald could be made	Unsubstantiated: subject of allegations provided reasonable explanations; no evidence to contradict their version of events or doubt their credibility Failure to provide further evidence or information about further allegations Relevant information or evidence did not exist Allegation made frivolously because the complaint had no substance. Complaint made recklessly and without care or diligence
11 April 19	Incident report: claim of being victimised and discriminated against in feedback session with QDO Bilic about coding error	Not substantiated: subject of allegations provided reasonable explanations; no evidence to contradict their version of events or doubt their credibility Allegation made frivolously because the complaint had no substance. Complaint made recklessly and without care or diligence
30 April 19	Incident report: claiming that meetings with M Oswald and B Gaffney have agenda and nothing will change until job is terminated	Not substantiated: subject of allegations provided reasonable explanations; no evidence to contradict their version of events or doubt their credibility Allegation made frivolously because the complaint had no substance. Complaint made recklessly and without care or diligence
9 May 19	In connection with refusal of CUPI work and issues with adequacy of both training and advice about it, as well as refusal of further training	Not substantiated: subject of allegations provided reasonable explanations; no evidence to contradict their version of events or doubt their credibility Allegation made frivolously because the complaint had no substance. Complaint made recklessly and without care or diligence
21 June 19	Incident report: complaint that QDO Bunker was rude when asking about an EAT sheet in preparation time; not providing further information about incident when asked by Ms Oswald	Unsubstantiated: subject of allegations provided reasonable explanations; no evidence to contradict their version of events or doubt their credibility Failure to provide further information about complaint Relevant information or evidence did not exist Allegation made frivolously because the complaint had no substance. Complaint made recklessly and without care or diligence
Additional finding: Frivolously making a number of unsubstantiated complaints of bullying and harassment against Ms Oswald and other colleagues was in breach of the APS Code of Conduct, Section 2 (acting with “care and diligence”) Making a number of frivolous and unsubstantiated allegations of bullying and harassment against M Oswald was not acting with respect and courtesy, and acting in a harassing way toward her, in breach of the APS Code of Conduct, Section 3 (acting with respect and courtesy and without harassment)
Allegation Three –Challenges and questions work processes, performance measures and feedback provided
Date	Detail of allegation	Adverse findings
21 January 19	Complaint to B Gaffney that two critical instructions from QDOs were completely wrong without providing further information	Issue raised had no basis in fact.
11 February 19	Not providing comments foreshadowed about minutes of a meeting on 5 February 2019	Issue raised had no basis in fact.
19 February 19	Challenge to Ms Oswald about her skype reminder to take scheduled tea break; questioning new contractor staff floor walking	Continuing to agitate matters already dealt with by Services Australia
1 March 19	Concerns about content of mid-cycle review and resistance to participate in process; re-agitation of earlier issues	Issue raised had no basis in fact. Continuing to agitate matters already dealt with by Services Australia
18 March 19	Late email to M Oswald with concerns about Support Action Plan and resistance to participation in process	Unreasonable challenge to Support Action Plan; recalcitrant in manner of engagement in process
22 March 19	False complaint about not receiving assistance from QDOs	Claim of having received no support had no basis in fact and was false
25 March 19	Complaint about the purpose of Support Action Plan being to set Mr Gunawardana up for failure from day one	Continuing to agitate matters already dealt with by Services Australia Unreasonable challenge to Support Action Plan; recalcitrant in manner of engagement in process
24 April 19	Email about why QDO Bunker was attending to assist despite earlier issues and resistance to process to resolve those issues
8 May 19	Email to M Oswald questioning SAP statistics and attempting to delay or impede the SAP	Unreasonable challenge to Support Action Plan; recalcitrant in manner of engagement in process
15 May 19	Email to M Oswald, copying in the union, questioning whether M Oswald was Team Leader despite refusing offer from B Gaffney of an alternative supervisor	Continuing to agitate matters already dealt with by Services Australia
16 and 23 July 19	Complaints to B Gaffney about incorrect advice from QDOs; staff not following process; inability to provide feedback; not following up with examples or specifics in requested time Incident report: QDO assistance in connection with ‘red card’ request for advice	Issue raised had no basis in fact. Failure to follow reasonable and lawful direction by making frivolous Incident and Injury Report Breach of section 5 of the APS Code of Conduct (comply with lawful and reasonable directions)
Additional findings: Continually challenging and questioning work processes, performance measures and feedback provided to him by Ms Oswald and other managers Evidence supports finding of breach of APS Code of Conduct (Section 3) in failing to act in a respectful and/or courteous manner towards Ms Oswald in the course of her attempting to implement the Support Action Plan process Failure to properly engage in a process relating to the performance of his duties supports finding of breach of APS Employment Principles (which require effective performance from each employee) and thus APS Code of Conduct (Section 11) (behaving in a way that upholds the APS Values and Employment Principles)

 1   Fair Work Act 2009 (Cth), s.388.

 2   The telephone number has been partly redacted for privacy reasons.

 3 AB2017/517

 4   Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.

 5   Comcare v Banerji [2019] HCA 23 (7 August 2019)

 6   Amato v Commonwealth of Australia VID611/2019 (27 November 2019) per Davies J; see also Prygodicz v Commonwealth of Australia [2020] FCA 1454 (17 September 2020) per Murphy J.

 7   Comcare v Banerji [2019] HCA 23 (23 July 2019) per Gageler J.

 8   Settlement period 5.

 9   Settlement period 6.

 10   Settlement period 8.

 11   Settlement period 9.