Poonam Kathuria v The Commonwealth of Australia as represented by the Commissioner of Taxation t/as Australia Taxation Office

[2015] FWC 8553

[2015] FWC 8553

FAIR WORK COMMISSION

DECISION

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

Poonam Kathuria
v
The Commonwealth of Australia as represented by the Commissioner of Taxation t/as Australia Taxation Office
(U2015/7764)

DEPUTY PRESIDENT SAMS SYDNEY, 11 DECEMBER 2015

Termination of employment – longstanding employee of the Australian Tax Office – failure to lodge personal tax returns for four consecutive years – two Local Court proceedings – applicant fined and conviction recorded – family, domestic and medical issues – claims of bullying – investigation and numerous opportunities to respond – explanations for failing to lodge tax returns or respond to serious communications from management – difficult to reconcile applicant’s circumstances with excuses and explanations – all relevant matters considered by the employer – no issues of procedural unfairness – dismissal not harsh, unreasonable or unjust – application dismissed.

BACKGROUND

[1] This decision will determine an application lodged with the Fair Work Commission (the ‘Commission’) by Ms Poonam Kathuria (the ‘applicant’), pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) in which she seeks a remedy for her alleged unfair dismissal. The applicant commenced employment with the Commonwealth of Australia as represented by the Commissioner of Taxation t/as Australian Taxation Office (ATO or the ‘respondent’) in October 1986. She is obviously a longstanding employee of the ATO and, at the time of her dismissal, was employed as a Debt Collection Case Manager.

[2] The applicant was notified of her dismissal in a letter from Sanction Delegate, Ms Margaret Jamieson, on 27 April 2015, which was expressed as follows:

‘As you are aware, I have been considering what sanction to impose following the determination that you have breached the APS Code of Conduct.

I note that on 30 March 2015, Mr Anthony Brobbel sent an email to your work email address, titled ‘Letter from Sanction Delegate”, dated 27 March 2015. This advised, among other things, that I was considering terminating your employment. I specified that you had until 5.00pm on 9 April 2015 to respond.

Mr Brobbel advised on 13 April 2015 that no response had been received from you. Following this, on 13 April 2015, Mr Brobbel sent you an email to your personal email address to inquire whether you had responded to my letter. Again, he received no response.

On 15 April 2015, Mrs Wendy Buntine contacted you on your mobile phone number. You advised her that you were in India and that you did not get a chance to respond to my letter.

Mrs Buntine also provided me with the following information from your telephone conversation:
● You are currently overseas in India, having travelled there on 13 April 2015. You will return to Australian on approximately 4 May 2015.
● You have been in training prior to your leave, and did not have a chance to look at the email.
● You also advised that you had not been well and were recovering from a car accident.
● Throughout 8-10 April 2015 you were busy finishing your cases prior to your leave.
● You advised that you meant to reply and apologised for not looking at the email.
● Furthermore, you advised that where you are in India, you have no computer and you are not sure if you will be able to get access to one.
● You also stated in your discussion with Mr Brobbel, following the matter being determined, that you had papers and letter regarding some medical issues that you wanted to share. You indicated that Mr Brobbel suggested that, as the determination was complete, this information should be provided to the sanction delegate.

I have weighed carefully all of the information I have been provided. I am satisfied that you received the sanction consideration letter and did not respond. Nor did you attempt to seek an extension.

I have decided that your employment with the ATO is to be terminated. The basis for my decision relates to the determination that you failed to lodge income tax returns for the financial years 2010, 2011, 2012 and 2013.

I consider that, given you have been an employee of the ATO since 30 October 1986, you would have been well aware of your obligation to lodge your tax returns on time. During this period, the ATO used various communications to highlight and remind all staff of their obligations to lodge tax returns on time, both via email and News Extra.

In addition, the Corporate Practice Management Statement “Compliance with Taxation Obligations’, PS CM 2003/15, which was applicable at the time, clearly specified the responsibilities of ATO employees in regards to compliance with taxation obligations.

The potential for the ATO’s reputation to be adversely affected in this matter is significant, should it become known that an employee, particularly one in the debt recovery area, failed to lodge her own tax returns for years on end. If this had only occurred once or even twice, it could be accepted as a mistake, but a non-compliance over four consecutive years indicates a complete disregard for your obligations. Furthermore, the fact you did not act on my letter of 27 March until you were contacted on 15 April 2015 indicates to me that you do not appreciate the seriousness of these breaches.

Attached is a formal notice of Termination of Employment, which sets out the ground for termination of your employment, the date of effect of the termination and your right of review.

Final monies will normally be paid out within two pay periods of cessation.

If you have any enquiries in relation to this matter please contact me on the above number.’

[3] The Notice of Termination referred to in the email above was expressed as follows:

‘I, Margaret Jamieson, being a person delegated to exercise powers under section 29 of the Public Service Act 1999,

GIVE NOTICE TO YOU, Poonam Kathuria, APS3, AGS Number [redacted] that:

In accordance with the provisions of sub-section 29(1) of the Public Service Act 1999, your employment is terminated on the ground that you have breached the APS Code of Conduct, being a ground specified in paragraph 29(3)(g) of the same Act.

Date of Effect

Termination of your employment will take effect at the close of normal business on 29 April 2015.

In accordance with section 117 (3) of the Fair Work Act 2009 and Clause 120 of the ATO’s enterprise agreement 2011, you will be paid two weeks remuneration as compensation in lieu of the required period of notice.

If you are dissatisfied with this decision, you may seek advice from the Fair Work Commission regarding any possible remedy in respect of your employment. The Fair Work Commission can be contacted by telephone on 1300 799 675 or via email: [email protected]. Alternatively, you may refer to the web site:

[4] The applicant’s unfair dismissal claim was lodged on 20 May 2015. An unsuccessful telephone conciliation was conducted by a Fair Work Conciliator on 29 June 2015 and the matter was listed for arbitration before me on 17 and 18 September 2015. However, on 16 September 2015 (one day before the arbitration was to commence), the applicant sought an adjournment on the basis that her solicitor, Mr Lance Jackson of Grech and Bannerman, had recently ceased to act for her and she had been unable to retrieve documents relevant to her case from him. I granted the adjournment application, but directed the applicant to attend a conciliation conference before the Commission on 17 September 2015.

[5] Later on the afternoon of 16 September 2015, the applicant forwarded a medical certificate from Dr T Somasundaram disclosing that she was ‘suffering from a medical condition, And is unfit for work and conciliatory meeting.’ Regrettably, the conciliation conference was adjourned and the matter was relisted for mention and directions on 28 September 2015. As the applicant claimed that the materials filed by her solicitor were incomplete, I issued directions for her to provide any further evidentiary material and for the respondent to provide any evidentiary materials in reply. The matter was listed for arbitration on 20 October 2015. The applicant appeared for herself and Ms J Ferry appeared with Ms R Devereux for the ATO.

[6] At this juncture and pursuant to s 396 of the Act, I can dispose of any preliminary issues by making the following findings:

(a) the applicant’s unfair dismissal application was lodged within the 21 day statutory time period set out in s 394(2)(a) of the Act;
(b) the applicant was a national system employee and the respondent is a national system employer, as defined (ss 13, 14);
(c) as the respondent is not a small business, as defined, the Small Business Fair Dismissal Code is not relevant in this case (s 396(c));
(d) the applicant’s dismissal was not a case of genuine redundancy (ss 382, 396(d));
(e) the applicant was a person protected from unfair dismissal in that:

(i) she had completed the minimum employment period (s 383); and
(ii) her employment was covered by the ATO Enterprise Agreement 2011 [AE889771].

[7] The only extant matters left to be determined by the Commission are whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’ (ss 385(b)), within the meaning of s 387 of the Act and, if so, what, if any remedy should be ordered by the Commission, pursuant to s 392 of the Act.

THE EVIDENCE

[8] The following persons gave written and/or oral evidence in the proceeding:

• The applicant;



• Ms Pamela Comty; the applicant’s former colleague and



• Ms Margaret Jamieson, Assistant Commissioner, Assistant Commissioner, ATO People, in the People, Systems and Services Group of the ATO’s Canberra office.

The applicant also relied on correspondence from a number of medical professionals in support of her explanations for her conduct.

The applicant

[9] In written evidence, the applicant set out the various roles in which she had worked since first being employed by the ATO in 1986. These have included Administrative Officer, Operations Officer, Client Case Manager, Drought Case Manager, Non-Profit Organisation Case Manager and Administrative Clerk. She was promoted to the position of Debt Collection Case Manager in January 2005 and had worked as a Coaching, Training and Support Officer between 2009 and 2010. From 2009 until her dismissal, she dealt predominantly with insolvency practitioners, dealing with liquidations and bankruptcy issues.

[10] The applicant described a history of abuse by her former husband between 1988 and the end of their marriage. The abuse began when she gave birth to a daughter, rather than a son. She was physically, verbally and psychologically abused. Her husband sought to isolate her from her friends and family and would not allow her to use money, without his permission. She had left her husband, taken out AVOs and had been placed in a refuge for a period of time, but had later reconciled with him. She suffered a miscarriage in 1992. Her husband would not allow her to attend her mother’s funeral in India in 1991. These issues had contributed to her depression from 1989 onwards.

[11] The applicant said that when her son was born in 1995, things briefly became better, but her husband threatened her and had covertly recorded a conversation with her and her daughter. He left her briefly in 1997 and for several months in 1998. The marriage ultimately broke down in August 2001 after the police had asked him to leave the family home. She became overwhelmed by having to deal with financial pressures and with looking after her children on her own. Her former husband did not pay child support, creating financial problems for her.

[12] The applicant said that her son had gone missing a couple of times in 2002. Her daughter had attempted suicide in 2003 and 2005 and had been hospitalised. She had to deal with these issues alone. Her husband would still come to her home and stand out the front abusing her. He continued to harass her and use her daughter’s vulnerability against her. Her daughter was hospitalised again in 2007 when she became violent during an anxiety attack. Her son, being exposed to this behaviour, also became violent towards her at times.

[13] The applicant had been involved in a motor vehicle accident in 2004 in which she narrowly avoided physical injury, although she suffered great shock. She reported this to the ATO. She was involved in two more car accidents in 2006-2007. Her car was ‘written off’ on one of these occasions. The ATO had been informed of these incidents and she had provided doctors’ certificates.

[14] The applicant claimed that she had been bullied by a Team Leader at the Parramatta office of the ATO between 2008 and 2011. She had brought the matter to the Director’s attention, but it was not resolved. This had caused her further stress and anxiety. She had been placed on a health management plan by her doctor in May 2009. She sought further medical treatment in July 2009 and had worked shorter hours throughout 2010. Her son had suffered a ‘viral fever’ in July 2009. She had requested an extension of to lodge her tax return in November 2009.

[15] The applicant variously described her managers as undermining her and ‘misusing their powers’ in an attempt to demonstrate that they were managing her. Successive managers bullied her and she was subject to unrealistic targets. She had suffered repetitive strain injuries. A request to move to non-phone work was initially refused by her manager, but she was later moved to the correspondence team.

[16] The applicant claimed that she developed a phobia of opening any mail as she was not physically or mentally able to deal with paperwork. She fell behind with her bills and missed opportunities for promotion at work. She had always been on time with her personal tax return lodgement before separating from her husband. She frequently communicated with the ATO as to her issues in lodging her tax returns, but she no longer had access to this material since the termination of her employment. She had received an extension of time to lodge her return in March 2011 for the 2010 financial year.

[17] The applicant described other injuries and incidents, including:

• an injury to her knees and wrists incurred when she slipped on steps outside the ATO’s Parramatta Office on 11 November 2011;



• attending Court for a wrongly issued parking fine on 12 December 2011; and



• twisting her ankle while walking to work on 8 March 2012;

[18] On 31 May 2012, the applicant suffered whiplash injuries when was involved in a serious car accident. She was away from work for a few months and was on medication for pain, inflammation and depression. By this time, as she had exhausted her personal and annual leave, she accessed leave without pay. She returned to work in August or September 2012 with shorter hours and attended physiotherapy and hydrotherapy during this period. She had kept the ATO apprised of these treatments. At the end of 2012, the applicant was concerned with her daughter’s troubles with the police. She had regularly advised ATO managers that she was unable to lodge her tax return.

[19] The applicant returned to full time work in July 2013. Although she had not fully recovered, she met the requirements of her job. However, she claimed she was continually monitored. She kept records of all conversations and notes of instances of bullying and harassment. She claimed that these were later destroyed by a Team Leader. She had approached ATO Directors to advise them of this conduct. The applicant said that she tripped and fell at work on 22 October 2013. She continued to have side effects from her medication.

[20] The applicant conceded that the ATO had taken her to court for her failure to lodge income tax returns between 2010 and 2013. She described this action as harsh and unfair, as there were exceptional and mitigating circumstances.

[21] The applicant was involved in another car accident on 23 October 2014. The other driver was at fault, having collided with the rear of her car. The other driver fled the scene and the applicant made a police report. Her injuries were aggravated and she continued to take medication, including painkillers, anti-inflammatory medication and antidepressants. She restarted hydrotherapy and physiotherapy treatments.

[22] The applicant returned to work on restricted hours in November 2014 and she was transferred to a new Team Leader. This Team Leader would not allow her to take personal or annual leave and she was directed to take leave without pay. The new Team Leader told her that she would only be able to take annual leave when she returned to full time work. However, her request for annual leave to attend a wedding in India in April 2015 was granted.

[23] The applicant described the process leading up to her dismissal. On 16 January 2015, she received an email from Mr Anthony Brobbel attaching a report by Mr Stan Zuzek, Delegate of the Commissioner. The report was expressed as follows:

‘I have received a report regarding a suspected breach of the APS Code of Conduct. Briefly, the report alleges that you were prosecuted on 27 November 2014 for failing to lodge income tax returns on 4 occasions, specifically financial years ending 2010, 2011, 2012 and 2013 (copy of report attached).

Under Regulation 3.10 of the Public Service Regulations 1999, an employee may be suspended from duty where it is reasonable to believe that:

a) the employee has, or may have, breached the Code of Conduct; and

b) the employee’s suspension would be in the public, or the ATO’s, interest.

In accordance with regulation 3.10, I must decide whether you should be suspended and, if so, whether suspension should be with or without remuneration.

The purpose of this advice is to allow you an opportunity to put forward any information you wish me to consider in making my decision. The information should be forwarded to Mr Martin Leonard at [redacted] and must reach him no later than 5:00pm on 23 January 2015.’

Mr Brobbel followed this up with an email later that day advising that he had brought this matter to the attention of the applicant’s manager, Ms Singh. The applicant emphasised that, at this time, she was on light duties arising from a gradual return to work program. Nevertheless, she was pressured by her Team Leader to produce benchmark targets of over five calls per hour.

[24] The applicant had a conversation with Ms Singh on the morning of 19 January 2015. She asked Ms Singh whether she was aware of her personal situation. She reminded Ms Singh of her difficult circumstances and of the injuries she had suffered. The applicant annexed a number of doctor’s certificates relating to her whiplash injury from the car accident in November 2014. Ms Singh had told the applicant that the only assistance she could provide was proofreading her statement in response to be provided to Mr Brobbel. Ms Singh advised the applicant to seek help from the ATO’s Employee Assistance Provider (EAP).

[25] The applicant described a further conversation with Mr Brobbel in which he told her that he had directed her Team Leader to ensure that she had sufficient free space in her email account to receive an important email he would be sending shortly. The applicant had discussed the situation with her Acting Team Leader, ‘Melissa’. ‘Melissa’ had allowed her time to respond to Mr Brobbel’s email.

[26] On 21 January 2015, the applicant had a telephone conversation with Mr Brobbel in words to the following effect:

Applicant:	The ATO has already taken me to Court for not lodging my income tax returns and the presiding magistrate has already made decision to fine me then why ATO has to put me through this. In the Court I provided supporting doc, statement from my psychologist and the magistrate understood my situation. The ATO lawyers were asking the magistrate to have my details recorded as a criminal conviction with for me to be fingerprinted. My exceptional circumstances were taken into account and the magistrate decided to not to make an order for fingerprints to be taken or to record a conviction. The magistrate imposed a fine which I’m paying off by instalments.
Mr Brobbel:	They do not have all the info, the doc. that were provided in the court and they were not given all these by ATO prosecution area.
Applicant:	I’m happy to provide them to him.
Mr Brobbel:	Provide it later.

[27] Later that day, Mr Brobbel emailed the applicant, attaching a Notice of Suspected Breach, which identified the allegation as follows:

‘1) A report from Private Groups and High Wealth Individuals (PHG) dated 27 November 2014 has been provided to me concerning a suspected breach of the APS Code of Conduct (the Code). A copy of that report is at Attachment A. Based on the information in that report, you are suspected of breaching the following sub-section of the Code (section 13 of the Public Service Act 1999).

● 13(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.

The PGH Report details the recent court action taken against you in relation to 4 charges of failing to comply with a requirement under a taxation law to lodge an approved form namely the Income Tax return for the financial years ended 30 June 2010, 2011, 2012 and 2013.

2) It is suspected that by not lodging the relevant income Tax Returns you have failed to comply with a Corporate Management Practice Statement which constitutes lawful and reasonable directions. Therefore, it is suspected that you have breached sub section 13(5) of the Code.

[28] The notice also identified the material to be considered by Mr Brobbel (which included any response made by the applicant). It also advised that Mr Brobbel intended to adopt the report and the Court documents as his findings of fact. The applicant was given until 28 January 2015 to provide a written response. She was also given an opportunity to make an oral response. Mr Brobbel advised that in the event that he determined that the Code had been breached, he would advise a ‘Sanction Delegate’, who would determine the appropriate sanction, which could include, among other things, termination of employment.

[29] On 22 January 2015, the applicant contacted Mr Martin Leonard, Director, Conduct, Performance & Probation Support about her opportunity to make a verbal submission as to the decision as to whether she should be suspended. He wrote back to say that Ms Megan Boyd, Executive Director, Issues Resolution & Conduct, Performance & Probation Support, would be in contact with her. She responded by providing her contact details and setting out a time to make the submission. Mr Leonard responded by indicating that Ms Boyd would not be available at that time and assured her that this would not affect the deadline. She wrote to Ms Boyd on 23 January in an attempt to set up a meeting time. Ms Boyd responded on 27 January 2015 to advise that she would be free all afternoon. On the morning of 28 January 2015, the applicant wrote to Mr Leonard and Ms Boyd in the following terms:

‘I apologise for unable to response & arrange time to speak to you. I have been unwell due to car accident on 23/10/2014, seeking treatments and working shorter hours at the moment (GRTWP) also as it is a personal matter I were unable to arrange time with the manager for our discussion.

I believe it would be best that I response in writing and please accpt my request for time to response in writing till the end of the coming weekend [31 January 2015].’

I appreciate your help and consideration!’

[30] On Sunday 1 February 2015, the applicant wrote to Ms Boyd in the following terms:

‘I took the day off from work on Friday 30/01/2015 (without pay leave) for my treatment as well as to prepare my response.

As I’m a member of the CPSU I wanted to get help & insight from them in regards to this matter to make sure that my response is in accordance as well as worded properly.

Prior to the Friday I have been speaking to a CPSU officer but that particular office was unavailable on Friday and other officer I got through to said he can check it for me but was unable to check there and then on Friday.

Officer said as they are not open on the weekend so he will check my response on early Monday morning as he will be starting around 8Am.

I’ll make sure that it’s done early morning and my response reach to you by the afternoon lunch time therefore I would request time till the afternoon lunch time Monday 02/02/2015.’

[31] Ms Boyd responded on 2 February 2015 to advise that she would be making her decision on 3 February 2015 and she would not be granting any further extensions. The applicant provided her response on 2 February 2015. She had emphasised that she was not a threat to the community. She acknowledged what she had done, but also drew Ms Boyd’s attention to her family and health issues as mitigating factors.

[32] On 3 February 2015, Mr Brobbel wrote to the applicant to remind her that the written response as to the Notice of Suspected Breach was due by 28 January 2015. She responded by email to say that she thought the deadline of seven days did not include the weekend and that she had been unable to contact him. On 4 February 2015, Ms Boyd advised that she had decided that the applicant should not be suspended from duty.

[33] On 25 February 2015, Mr Brobbel informed the applicant of his determination of the investigation, which set out his finding that the applicant had committed a breach of the Code of Conduct and that the matter would be remitted to a Sanction Delegate for consideration. A revised version of the Determination Report was sent to the applicant on 10 March 2015, as Mr Brobbel had apparently sent her an earlier draft of the document. The applicant called Mr Brobbel and restated that she had already been fined by the Magistrate, who had taken into account the relevant mitigating circumstances. Mr Brobbel again said that persons making the report did not have all the material before the Magistrate. The applicant offered to provide the further material. She was told by Mr Brobbel to provide it when a new delegate was appointed.

[34] The applicant said that in March 2015, she confirmed her annual leave request so she could travel to India in April 2015. The workplace was busy, people were being ‘shuffled’ between duties and she was involved in training. She attended her doctor on 30 March 2015, who confirmed that she could work full time hours for a two week trial. She commenced leave on 13 April 2015.

[35] The applicant had received a phone call from ‘Wendy’ on 15 April 2015 asking why she had not responded to the ATO’s emails. She replied that she was unaware of the correspondence dated 27 and 30 March 2015, as they had been sent to her work email address. This was during the period of ‘shuffling’ and extended training. She apologised and told ‘Wendy’ that she would be back in Australia on 4 May 2015. She explained that she had no computer access in India and that both she and her daughter were unwell. She asked ‘Wendy’ for an extension to 5 May 2015 to respond. This request was ignored and she was dismissed on 27 April 2015. She received the letter of termination on her return on 4 May 2015. She and her daughter were sick for a further week and a half.

[36] The applicant explained that she spoke to an officer of ATO personnel, who advised that she would receive a letter setting out her termination entitlements. The applicant asked for her pay history and last time sheet. When she attended work to collect her personal effects, she was unable to access her work floor. She was not allowed to access her work email account to access personal emails she had saved. These emails contained information as to the ATO’s treatment of her. The applicant said that her Team Leader, Ms Kathy Mitcherson, advised that her personal effects had been thrown out. While the applicant later clarified that Ms Mitcherson did provide some of her personal effects to her, her notepads and diary had been ‘recycled’. The applicant complained of being treated like a criminal when she was escorted on and off the workfloor.

[37] The applicant claimed that she then called Mr Brobbel to complain that she had not received the letters of 27 or 30 March 2015 and remind him that he had told her to wait until receiving an email from the new delegate, before providing further materials from her psychologist and other supporting documents. She noted that she had been on approved leave. Mr Brobbel denied that this was unfair, as the letters had been sent to her work email and Ms Mitcherson had been directed to let her know that she would receive an important email. Mr Brobbel said that ignoring this correspondence reflected a pattern of behaviour on the applicant’s part. He had discussed this pattern of behaviour with management and the decision was made to terminate her employment. He advised her to speak to Ms Margaret Jamieson, the Delegate who made the decision to terminate her employment.

[38] The applicant denied that Ms Mitcherson had told her of a pending important email and noted that at this point, she had been working part time, due to her health issues. She believed that Mr Brobbel should have sent her the material in the emails of 27 and 30 March 2015 by post, in accordance with the ATO’s communications policy.

[39] The applicant believed that the bullying and harassing conduct engaged in by the ATO was intended to force her to resign. She acknowledged that she was prosecuted and fined for failing to lodge tax returns, but there were no issues relating to her work performance. It was ‘harsh’ to terminate her employment, as she was being punished twice. The respondent had not had any regard to her long service. It would have been open for the ATO to consider other sanctions, like redeploying her to another area. She had been denied natural justice and procedural fairness. She sought reinstatement to a ‘different section, different office’ (of the ATO).

[40] In cross examination, the applicant explained that she had communicated with the ATO’s lodgement division, seeking extensions to lodge her returns, due to the car accidents in which she was involved in 2006 and 2007. She received extensions for 2010 and 2011. Dr Kirmani’s letter was clear in stating that she was unable to attend to paperwork. She acknowledged that she was aware of her legal obligations to lodge tax returns.

[41] The applicant was shown emails she had sent to ATO officers in 2011 and 2013 seeking extensions for her tax return lodgement. She conceded that the emails of 2013 set out that her request for a deferral was not approved. She had communicated with an ATO officer and had subsequently been given a further period to lodge her return, but she could not recall by what date.

[42] The applicant acknowledged that there was a difference between advising her managers of her health and other issues and advising the ATO’s lodgement area, although she had advised one Director of her difficulties and sought their help.

[43] The applicant agreed that she had attended Court after being prosecuted by the ATO for failing to lodge her tax returns. The hearing was adjourned when she was involved in the car accident on 23 October 2014. Acting on her lawyer’s advice, she had pleaded guilty at the proceeding on or about 25 November 2014. However, her breach was not intentional and there were significant mitigating circumstances. She had actually lodged returns for the outstanding years at some point before the Court proceedings. The applicant was not sure as to whether she had been ‘convicted’, but agreed she had been fined. The Magistrate had taken her long service into account and issued a fine, which she had paid. When shown a Prosecution Report prepared by the Commonwealth Director of Public Prosecutions, she acknowledged that the report set out that she had pleaded guilty, was convicted and fined. However, she had not previously seen a copy of this document.

[44] The applicant said she had lodged her tax return for 2014 some time at the end of 2014 or the beginning of 2015. She was working on her tax return for 2015, which was not yet due at the time of the hearing before the Commission.

[45] The applicant recalled being in Court on or about 18 October 2011 for failing to lodge her 2010 tax return. She could not recall whether she pleaded guilty, although there was a small fine imposed. She had told the Court that the lodgement had been posted and that it should have been received by the ATO. She recalled that a conviction was not recorded, but that Court costs were imposed. She was ‘pretty sure’ she had spoken to the ATO to confirm that her tax return had not been received. Because of her health and family issues, she was unable to lodge it again. She had not kept the copy she claimed to have posted in 2010. She accepted that she only lodged her 2010 tax return at the end of 2014.

[46] The applicant could not remember discussing the Court proceeding for failing to lodge her tax returns with her manager. In any event, it was a personal matter and she would not have discussed it with her manager. She could not recall having been formally counselled about this matter by Director, Ms Bronwyn Dumont, though there had been a short meeting in or about October 2012. Her health was poor at this time and she was in tears during the meeting. She had asked for help and further time to lodge her return. Ms Dumont advised her to seek assistance from the ATO’s EAP. The EAP had advised her to seek further external treatment. She could not recall an officer of the CPSU being at this meeting. She could not remember being told that she was being formally counselled for her failure to lodge her tax return, with a letter to be placed on her file for two years. She could not recall refusing to sign the formal counselling document. When it was shown to her, she could not recall having seen it before.

[47] The applicant clarified that in the discussion with Ms Singh on 19 January 2015, she had not asked for a further extension, because her tax returns were all up to date. It was just to advise of her lodgement history and the ongoing investigation. She confirmed that she was aware that she needed to ensure her email account was sufficiently clear to receive an important email. She agreed that her Acting Team Leader, had informed her that she would be receiving correspondence from Mr Brobbel, to which she was expected to respond. She did not want to openly tell other Team Leaders what was going on, as it was a personal matter.

[48] The applicant acknowledged that she had some access to work emails at home through her son’s laptop. She had made an effort to follow up correspondence with Mr Leonard and Ms Boyd and had communicated with them from home. The Acting Team Leader had been understanding as to her taking time to respond to these emails, but Ms Mitcherson had not. Ms Mitcherson had directed her to attend to calls during work hours.

[49] The applicant was asked about the Show Cause letter sent to her work email account around the end of March 2015. She denied having forwarded it to her personal email account. When shown an email chain from Mr John Heydon, Assistant Director, Internal Investigations, Forensics & Investigations, she said it was possible that she had sent the relevant email to her personal email account as part of a ‘bulk of emails’ sent to her personal email account. She explained that she may have just ‘flicked’ them to clear her work account. In any event, Mr Brobbel had said he would call her when the new Delegate was appointed, but he had not done so. She had never seen, or received the email setting out the proposed sanction.

[50] It was the applicant’s evidence that said she had not clearly understood the email communication of 16 January 2015 setting out a possible suspension from duty. She could not recall the exact date on which she was initially required to respond, but she had continually communicated with Mr Leonard and Ms Boyd to explain her reasons for not responding within the set timeframe. She accepted that she had sought an extension to 28 January and another one to 1 February and had provided the response on 2 February 2015.

[51] The applicant was referred to the initial Notice of Suspected Breach. She clarified that the statement she provided to Ms Boyd on 2 February 2015 was intended to be used as a statement both in relation to her suspension and to the substantive issue of the suspected breach. However, she had only told Mr Brobbel of this on 2 February 2015.

[52] The applicant reiterated that after receiving the updated determination from Mr Brobbel on 10 March 2015, he said his role in the matter and concluded and again told her to hold on to her supporting material until the Sanction Delegate was appointed. She was told by Mr Brobbel that she would be contacted once this occurred. She tried her best to watch for the email, but she had not been working full time and there had been no set time for her to be advised of the new delegate. Moreover, her Team Leader would not allow her extra time to deal with the disciplinary process. She did not feel it was her place to tell the Team Leader about the findings against her, as it was a personal matter.

[53] The applicant agreed that she was working in the Debt Compliance section of the ATO. However, she was not dealing with the non-payment of tax debts. Her role was primarily to try to ‘resolve and finalise the case’ in relation to bankruptcy and liquidation. She accepted a proposition that it would be important for someone doing that kind of work to be compliant with their own personal tax obligations. Nevertheless, she believed that the public would understand that she was a human being, going through tough times.

[54] The applicant clarified that she separated from her husband in 2001, but that the divorce was not finalised until 2005. There were then child support issues requiring her attendance at various Tribunals. She had lodged her tax returns up to 2010 and she had later kept the ATO ‘in the loop’ when she needed more time. She was aware of many other examples in which the ATO had been more lenient than with her. She added that ‘A lot of (ATO) debt was ‘written off’’.

Ms Pamela Comty

[55] Ms Comty has been employed by the ATO in a variety of roles since 1986. Since July 2014, she has worked as an Insolvency Officer. She worked with the applicant between November 1986 and 1988, then again briefly in 2005. She has maintained a personal and social relationship with the applicant. Ms Comty provided a witness statement, but was not required by the ATO for cross-examination.

[56] Ms Comty said that she was aware of the breakdown of the applicant’s marriage and her subsequent depression. She was also aware of ‘issues with ATO management in respect to work output’ and the legal action by the ATO arising from the applicant not filing her income tax returns for the financial years 2010-2013. She believed the applicant had taken these issues ‘in her stride’.

[57] Ms Comty said that the applicant had phoned her on 2 August 2015 to ask for a character reference for the purpose of supporting her unfair dismissal application. The applicant had not previously told her of the issues surrounding her dismissal. Ms Comty believed that, given the significant mitigating circumstances surrounding the applicant’s failure to lodge her tax returns on time, her dismissal seemed ‘harsh’.

Medical evidence
[58] The applicant relied on correspondence from Dr T Somasundaram dated 27 July 2015. The doctor had been treating her since 4 June 2013. This treatment included a consultation on 23 October 2014 following her injury in a motor vehicle accident and another consultation on 23 October 2013 after she tripped on a carpet at work. Dr Somasundaram confirmed that the applicant was still being treated for back problems.

[59] The applicant provided the Commission with correspondence dated 20 October 2014 from Ms Helen Cruikshank, Psychologist, of Wentwell Psychology addressing the Presiding Magistrate at Downing Centre Local Court. Ms Cruikshank explained that the applicant had been referred to her from her GP in February 2012. Ms Cruikshank believed the applicant was suffering from a major depressive disorder. Her symptoms included:

‘depressed mood; pleasure in life has markedly decreased; sleep is disturbed leading to fatigue, procrastination, feelings of worthlessness and inappropriate guilt, reduced concentration (indecisive and has trouble thinking). These symptoms cause clinically important distress and impair her work, social and personal functioning.’

Ms Cruikshank also set out the applicant’s domestic and family issues and her involvement in a major car accident.

[60] A further letter from Ms Cruikshank, dated 28 July 2015, described similar symptoms to the above, set out difficulties the applicant had with her ex-husband, her adult daughter and her involvement in two major motor accidents. The applicant had also reported bullying and harassment by her managers and supervisors.

[61] The applicant also relied on a letter from Mr David Broadbent, Psychologist of Optum Health & Technology (‘Optum’). Optum provides Employee Assistance Programs to the ATO. He confirmed that the applicant had first received counselling from Optum on 31 December 2008. However, due to contractual arrangements between Optum and the ATO, he was unable to comment on any psychological impact that work-related issues may have had on the applicant.

[62] The applicant provided a letter from Dr Shuja Kirmani, dated 17 July 2015. Dr Kirmani said that the applicant was his patient between April 1998 and 2011. He had seen her several times after she had been physically abused by her then husband. He confirmed that the applicant had suffered from anxiety, depression, helplessness, feelings of persecution and loss of self-esteem. She had experienced difficulty in balancing work, financial problems and bringing up two young children. He was aware that the applicant had consulted a psychiatrist in 2006.

[63] The applicant provided a large amount of documentary material, including medical certificates; records relevant to the applicant’s injuries described above; a Return to Work Schedule issued in 2012 and 2013; workplace rehabilitation reports; her medical records supplied from Argyle Street Medical Centre in Parramatta; correspondence from her Union representative to the ATO in 2009, recommending that she be taken off phone work; correspondence with the ATO in 2011 seeking extensions of time to lodge her tax returns and documentation relevant to the issuing of the Court’s penalty and her repayment plan. I note that Ms Ferry did not seek to cross examine any of the medical practitioners whose reports were tendered in the proceeding by the applicant.

For the respondent

Ms Margaret Jamieson

[64] Ms Jamieson has worked for the ATO for over seven years, having been employed in the Australian Public Service (APS) for over seventeen years. As Assistant Commissioner, ATO People, in the People, Systems and Services Group, Ms Jamieson is responsible for overseeing issues relevant to conduct, complaints, underperformance, workplace health and safety, health case management and attendance management.

[65] In her written statement, Ms Jamieson set out that she had been appointed as a Sanction Delegate, pursuant to s 15 of the Public Service Act 1999 (the ‘PS Act’) to decide the sanction to be imposed on the applicant, after the determination that she had breached the Code of Conduct. Mr Brobbel had sent Ms Jamieson an Executive Summary on 13 March 2015, which summarised the applicant’s case and provided relevant documents.

[66] Ms Jamieson said that having received the Executive Summary, she clicked various links and considered the following documents:

• The Prosecution Report, dated 27 November 2014;



• The Notice of Suspected Breach of Conduct forwarded to the applicant;



• The applicant’s statement to Ms Boyd;



• The Determination Report;



• The covering letter for the amended Determination Report; and



• The applicant’s training history.

[67] After considering these documents, Ms Jamieson formed the view that the applicant had failed to lodge her personal income tax returns for the 2010, 2011, 2012 and 2013 financial years. By so doing, she had shown a disregard for her obligations to do so, of which she would have been well aware. Ms Jamieson noted the various communications forwarded to ATO employees as to this obligation, in particular, the ‘Compliance with Taxation Obligations’, PS CM 2003/15 (which is annexed to this decision and marked as ‘Annexure A’). Ms Jamieson also formed the view that there was a potential for the ATO’s reputation to be adversely affected, if it were widely known that an ATO employee in the debt recovery area, had failed to lodge their personal tax returns over four years.

[68] Ms Jamieson understood that Mr Brobbel had forwarded an important email to the applicant on 30 March 2015. A previous attempt to send her an email had been unsuccessful, as her email inbox was too full to accept the email. Mr Brobbel had then contacted the applicant’s line manager to ensure that the applicant had properly cleared her inbox. The email attached a letter from Ms Jamieson, dated 27 March 2015. It set out Mr Brobbel’s findings, Ms Jamieson’s appointment as Sanction Delegate and advised the applicant as follows:

‘The purpose of this letter is to advise you of the sanction I am considering imposing and to give you the opportunity to comment, before I make my decision. To make comment, you can provide a written statement or make an oral statement. if you prefer to make an oral statement, please contact Mr Jarrod Sharman on [redacted] to arrange a suitable time. Either way, your statement should be provided no later than 5pm 9 April 2015.

4. Based on the information provided to me, I am of the view that the appropriate sanction is termination of employment. Detailed below are the factors I have considered in arriving at my current view that termination of employment is the appropriate sanction.’

[69] The letter went on to summarise the circumstances and mitigating factors described by the applicant. The letter concluded as follows:

‘Effect of the proposed action on the employee
16. You will no doubt be placed in a very difficult situation should you lose your employment; however, I believed that protecting the reputation of the ATO and the APS overrides that in this particular case.

17. There is a real potential for the loss public confidence [sic] in the ATO if it is widely known that a staff member, particularly one in the debt recovery area, consistently failed to lodge her own tax returns. If this had occurred once, or even twice, it could be accepted as a mistake, but non-compliance over four consecutive years indicates a complete disregard for your obligations.

18. A copy of the Procedures for determining whether an employee has breached the Australian Public Service (APS) Code of Conduct and the imposition of sanction is included for your reference at Attachment B.

19. As stated above, I should receive your statement no later than 5pm 9 April 2015.’

[70] As the applicant had failed to respond by the due date, Mr Brobbel sent her an email to enquire whether she intended to provide a response. A copy of this email was annexed to Ms Jamieson’s statement. No response was received from the applicant. On 15 April 2015, Mrs Wendy Buntine, Senior Consultant – Conduct, Performance and Probation Support, contacted the applicant. At this point, the applicant requested an extension of time to respond. On 16 April 2015, Mrs Buntine forwarded an email to Mr Leonard, which was forwarded to Ms Jamieson for her consideration. Mrs Buntine set out her conversation with the applicant as follows:

‘I contacted Ms Kathuria on 15 April 2015 via mobile phone and she advised the following:

• she is currently overseas in India and travelled on 13 April 2015. She will return to Australia on approximately 4 May 2015. SAP indicates that she is due to return to work on 6 May 2015.



• she had been in training and did not have a chance to look at email.



• she also advised that she had not been well and was recovering from a car accident.



• on 8,9 10 April 2015 she was busy finishing her cases prior to her leave.



• she indicated that where she is in India she has no computer and is not sure if she will be able to get access to one



• she indicated that in her discussion with Anthony Brobbel following the matter being determined, she had papers and letters regarding some medical issues that she wanted to share. She indicated that Anthony suggested this be provided to the sanction delegate.

I recommend that given the possible consequence of your decision, Ms Kathuria be advised that she is required to respond to your letter, by no later than 5:00pm Friday 8 May 2015.

If you agree with this recommendation, I will notify Ms Kathuria by telephone and via her home email address.’

[71] Ms Jamieson responded to Mr Leonard on 20 April 2015 as follows:

‘Based on the information provided below, in particular the fact that we know Ms Kathuria did receive the show cause letter and did not respond at all, even to seek an extension, I will proceed with termination.

Please prepare the relevant documentation.’

Ms Jamieson explained that she formed this view as the applicant had followed the instruction of her manager to delete emails to make space for an incoming email and was therefore aware of its existence. She had an opportunity to request an extension prior to 9 April 2015, but had not done so.

[72] In cross examination, Ms Jamieson said that she had not had a verbal discussion with Mr Brobbel. The procedure was for the formal Determination to be sent to her as Sanction Delegate. Ms Jamieson had not received any communication from Mr Brobbel indicating that he had told the applicant to hold on to her documentation until the Sanction Delegate was appointed. Ms Jamieson had not believed she had taken away the applicant’s right to seek a review within sixty days of the determination having been made. This had been advised to her in the letter when making the decision to terminate the applicant. It was expressed as follows:

‘Right of Review
Note: A determination that an employee has breached the Code is an action that may be reviewed in accordance with Public Service sub-regulation 5.24(2). An application for review of such a determination must be made to the Merit Protection Commissioner within 60 days of the date of the determination. Regulation 5.36 provides that the making of an application for review does not operate to stay the action.’

[73] Ms Jamieson reiterated that she had not accepted the request for an extension of time, later communicated through Mrs Buntine, because the applicant had had the opportunity to request an extension before going overseas and had not taken it. She believed the applicant had seen the earlier email and her manager had been aware of it.

[74] Ms Jamieson confirmed that prior to making her decision, she had considered alternatives to terminating the applicant’s employment. She was aware that the applicant had been punished for not lodging her tax returns in Court proceedings. She had not been specifically aware that the applicant was on a return to work program. She was not aware that the applicant had been offered a redundancy in the previous year. In any event, this was an irrelevant consideration. While she had considered the applicant’s length of service in making her decision, this added to her belief that the applicant would have been well aware of her obligations to lodge her tax returns.

[75] In re-examination, Ms Jamieson explained that the 60 day period of review referred to in the ATO’s correspondence referred to rights of review with the Merit Protection Commissioner. She did not believe there was any issue with making her decision, within the 60 day review period.

[76] Ms Jamieson restated that she was aware that the applicant had received Mr Brobbel’s email on 30 March 2015, as she had been directed to clear her inbox and had done so.

SUBMISSIONS

The applicant

[77] In oral submissions, the applicant relied on the 60 day period in which she could seek a review of the determination under the Public Service Act 1999. She emphasised that since commencing her employment with the ATO in 1986, she had always ‘done the right thing’ and had done everything in her power to lodge her tax returns. She said that her difficult personal circumstances, her depression and other health issues had impacted on her life and her ability to lodge her tax returns. She could not pay her bills due to her health issues. Neverthelss, she was now up to date with her tax returns.

[78] The applicant said that instead of being rewarded for her long service with the ATO, she was being punished for the same issue twice. The ATO had not shown any compassion or understanding of her circumstances. ‘They’ had put her under unfair scrutiny, to put more pressure on her to force her resignation.

[79] The applicant explained that she had intended to provide Mr Brobbel with the statement of the psychologist which was provided to the Magistrate in the Court proceedings in 2014. Mr Brobbel had prevented her from providing these documents to him.

[80] The applicant submitted that she had given her whole professional life to the ATO and that it would be difficult, at her age, to start again. She wanted a second chance to do her job and to retire with respect.

The respondent

[81] In written submissions, the respondent argued that the applicant’s dismissal was not ‘harsh, unjust or unreasonable’, within the meaning of s 385(b) of the Act. In determining whether this was the case, the Commission is required to consider all of the criteria set out in s 387, with no particular weight assigned to a particular criterion; See: Crozier, in the matter of an application for Writs of Certiorari and Mandamus against the Australian Industrial Relations Commission [2001] FCA 1031. The respondent emphasised that the applicant’s dismissal was not related to her unsatisfactory performance and that this was not relevant to the matter before the Commission (s 387(e)).

[82] The respondent submitted that in order to find that there was a valid reason for the applicant’s dismissal, the Commission was required to be satisfied, on the balance of probabilities, that the conduct said to constitute a valid reason for dismissal, had occurred; See: Edwards v Justice Giudice (1999) 94 FCR 561 and Rail Corporation New South Wales v Vrettos (2008) 176 IR 129. To this end, the respondent drew the Commission’s attention to evidence establishing that the applicant had appeared at the Downing Centre Local Court on 25 November 2014, on four separate counts of failing to furnish an approved form under s 8C(1)(a) of the Taxation Administration Act 1953 (Cth). These charges arose from the applicant’s failure to lodge income tax returns for the financial years ending 2010, 2011, 2012 and 2013. The applicant had pleaded guilty to the charges and was fined $800.

[83] The respondent also drew the Commission’s attention to the applicant’s obligations under the PS Act. Section 13(5) of the PS Act set out that the applicant, as 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.’

The applicant’s failure to lodge her tax return constituted a breach of the Code of Conduct, as set out in s 13 of the PS Act and such a breach was a valid reason for dismissal; See: Paunovska v The Commonwealth of Australia (Centrelink)[2011] FWA 2505.

[84] The respondent further submitted that the applicant’s failure to lodge her tax returns also constituted serious misconduct, within the meaning of s 12 of the Act and r 1.07 of the Fair Work Regulations 2009 (the ‘Regulations’), in that the applicant failed to follow her employer’s direction to comply with her tax obligations. She had acted in a manner inconsistent with the continuation of her contract of employment. In these circumstances, the Commission would be satisfied that there was a valid reason for the termination of the applicant’s employment.

[85] The respondent said that the evidence supported the submission that the applicant had been given notice of the reasons for her dismissal (s 387(c)) in plain, clear and explicit terms; See: Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 (‘Crozier v Palazzo’) and Previsic v Australian Quarantine Inspections Services (Dec 907/98 M Print Q3730,per Holmes C, 6 October 1998). On 16 January 2015, she was advised of the respondent’s receipt of a Prosecution Report and that the question of whether she was to be suspended was to be determined in accordance with r 3.10 of the Public Service Regulations 1999. She was issued with the Notice of Suspected Breach on 21 January 2015 and provided with an earlier copy of the Determination Report on 25 February 2015 and an amended finalised copy on 10 March 2015. The applicant had also received the Executive Summary outlining the material on which the Sanction Delegate relied in determining the appropriate sanction. Finally, a Show Cause letter was forwarded to her on 30 March 2015.

[86] The respondent put that the applicant had been given numerous opportunities to respond in relation to the question of her suspension and the Notice of Suspected Breach. She provided a response to the issue of her suspension on 2 February 2015 (after the original deadline of 28 January 2015) and confirmed on 3 February 2015 that she relied on this response in relation to the Notice of Suspected Breach. Accordingly, that response was assessed by Mr Brobbel and Ms Jamieson in their respective roles.

[87] Further, the respondent submitted the applicant was afforded an opportunity to respond to the Show Cause letter of 30 March 2015. She did not respond by 9 April 2015, as directed. A request for an extension of time to do so was declined. The applicant claimed that training commitments, case responsibilities, her health issues and a lack of awareness prevented her from responding by the earlier date. The respondent countered that the applicant was on notice of the imminent issue of the Show Cause letter after being directed to delete emails in her inbox. There was evidence to show that she had forwarded the Show Cause letter to her personal email address on 30 March 2015. The respondent did not accept that the applicant’s work and training responsibilities prevented her from responding by 9 April 2015.

[88] The respondent said that as the communications concerning the applicant’s termination of employment were in writing, the question of whether there was an unreasonable refusal to allow the applicant to have a support person present, was not relevant in this case (s 387(d)).

[89] The respondent stated that the processes which it followed in relation to the applicant’s dismissal, were generally in accordance with the ATO’s procedures for determining whether an employee had breached the Code of Conduct. The ATO has access to human resource specialists (ss 387(f), (g)). However, the respondent acknowledged human error in relation to the issue of the Determination Report to the applicant on 25 February 2015, which was incomplete. In any event, the final version was forwarded to her on 10 March 2015. It highlighted her right of review to the Merit Protection Commission. While the termination notice incorrectly set out that the applicant was to receive two weeks’ pay in lieu of notice; she was subsequently paid the correct amount of five weeks. The Commission would consider that these minor errors have little bearing on the question of whether the dismissal was ‘harsh, unjust or unreasonable’.

[90] Nevertheless, the respondent accepted that the applicant’s dismissal had serious consequences for her. Obviously, her unemployment would cause extra stress for her. It was clear that she was under considerable pressure in her personal life. However, it was relevant to consider the requirements of the APS Values, the Code of Conduct and the taxation obligations on all ATO employees. The applicant’s behaviour did not reflect the ethical standards required of APS employees.

[91] The respondent denied that the applicant had been subject to a ‘double punishment’. Her employment as an APS employee imposed special requirements on her and all ATO employees. The maintenance of public confidence in public servants was a relevant consideration. The applicant’s compliance with her taxation obligations was necessary to ensure that public confidence was protected. The imposition of both criminal and administrative sanctions were appropriate.

[92] In the event that the Commission found that the applicant’s dismissal was ‘harsh, unjust or unreasonable’, the respondent opposed reinstatement on the basis that, as a result of the applicant pleading guilty to a charge relating to her failure to lodge her tax returns, the trust and confidence between the applicant and the employer had irretrievably broken down.

[93] If compensation were to be ordered, the respondent said that an amount of four weeks’ should be considered by the Commission. This would reflect the amount of time the applicant would have remained employed, had she been granted an extension of time until 8 May 2015, to respond to the Show Cause letter. No further compensation was appropriate.

CONSIDERATION

Legislative provisions and relevant principles

[94] There is little doubt that the ATO regarded the applicant’s failure to lodge her 2010, 2011, 2012 and 2013 personal income tax returns, as serious misconduct, although it was expressed in terms of a breach of the APS Code of Conduct and notwithstanding the applicant was paid five weeks’ pay in lieu of notice. To similar effect, the reason for the applicant’s dismissal was also expressed as a failure to comply with the employer’s lawful and reasonable direction, to comply with her tax obligations, in accordance with s 13(5) of the PS Act.

[95] It was also said that the applicant’s failure to lodge her tax returns, in a sense, compounded the seriousness of the misconduct, because she was employed by the ATO in the very department responsible for debt recovery. This weighed heavily against the applicant’s reinstatement, as the ATO’s reputation and public standing would be adversely impacted by any other sanction, than dismissal. Further, it was said that ordinarily an employee’s long and otherwise unblemished service would mitigate in favour of the employee. However, it weighed against her as someone of her experience and knowledge would have been very much ‘live’ to her own tax obligations.

[96] Given the ATO’s characterisation of the applicant’s dismissal, it is necessary to consider the meaning of ‘serious misconduct’. Section 12 of the Act states that the meaning of ‘serious misconduct’, has a meaning prescribed by the Regulations. The relevant regulations are r 1.07(1) and (2), which I set out below:

1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

[97] As will be seen from the definition in the Act, ‘serious misconduct’ generally equates to conduct which is inconsistent with the continuation of the contract of employment. This notion can be framed as a question – did the employee’s conduct disclose a wilful and/or deliberate intent to commit an act/s which strike/s at the heart of the employment relationship?

[98] This question has been considered in a number of well-known authorities: In North v Television Corporation Ltd (1976) 11 ALR 599, Franki J said at p 616:

‘It is clear that a single act of disobedience may be sufficient to justify dismissal on the ground of misconduct but it was held in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285, that to justify summary dismissal a single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions.’

[99] The 1959 English case referred to above makes it plain that an act of disobedience or misconduct (justifying dismissal) requires also that the disobedience must be ‘wilful’:

‘... I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is “wilful”: it does (in other words) connote a deliberate flouting of the essential contractual conditions (P288).’

[100] In Concut Pty Ltd v Worrell (2000) 103 IR 160, his Honour, Kirby J, dealt with the ordinary relationship of the employer and employee at common law, where he said at para [51]:

‘The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust. At common law:

“[c]conduct which in respect of important matters is incompatible with the fulfilment of an employee’s duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal. ...[T]he conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises.”

In the present case, the findings at trial went beyond mere uneasiness as to the future. They necessitated, or at least warranted, a conclusion that the “confidence” essential to the relationship of employer and employee had been destroyed. Instead of pursuing the interests of the company and its shareholders, the employee had pursued his own private interests. Not only was the employee in breach of his duty of fidelity and trust owed to the employer, he had remained in breach of that duty to the date of the trial. Until that time he had not accounted for the benefits wrongly appropriated by him. Indeed, he had denied any wrongful appropriation. The issue so tendered at the trial was determined against the employee. He was then subject to the employer’s counter-claim for an order to make a refund. Such order was duly made at trial. It was not contested on appeal. Given his senior status in the company’s service and the nature and extent of the misconduct disclosed in the evidence and accepted by the primary judge, it was open to him to find that the employee had undermined the confidence essential to the ongoing relationship of employment. Prima facie, this had afforded a legal justification for the employee’s summary dismissal.

It is, however, only the exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily. Whatever the position may be in relation to ‘isolated’ acts of negligence, incompetence or unsuitability, it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal. Exceptions to this general position may exist for trivial breaches of the express or implied terms of the contract of employment. Other exceptions may arise where the breaches are ancient in time and where they may have been waived in the past, although known to the employer. Some breaches may be judged irrelevant to the duties of the particular employee and an ongoing relationship with the employer. But these exceptional cases apart, the establishment of important, relevant instances of misconduct, such as dishonesty on the part of an employee like Mr Wells, will normally afford legal justification for summary dismissal. Such a case will be classified as amounting to a relevant repudiation or renunciation by the employee of the employment contract, thus warranting summary dismissal.’

[101] In Farquharson v Qantas Airways Limited (Print PR971685, 10 August 2006), the Full Bench of the Australian Industrial Relations Commission (AIRC) referred, with approval, to the following analysis of Ross VP (as he then was) in Rose v Telstra, (Print Q9292, 4 December 1998):

‘[19] The issue, then, is whether the “out of hours” conduct involves a breach of an express or implied term of the contract of employment. Ross VP then considered the relevant implied terms:

An employee's implied duty of fidelity and good faith is particularly relevant here. One of the most concise and authoritative statements of what is generally encompassed by the duty of fidelity and good faith is to be found in Blyth Chemicals v Bushnells. In that case their Honours Dixon and McTiernan JJ said:

“Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty. Or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal ... But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to future conduct arises.”

In the same case their Honours Starke and Evatt JJ note:

“The mere apprehension that an employee will act in a manner incompatible with the due and faithful performance of his duty affords no ground for dismissing him; he must be guilty of some conduct in itself incompatible with his duty and the confidential relation between himself and his employer.”

...

The obligations imposed by the common law duty of fidelity and good faith operate to prohibit acts outside of the employment which are inconsistent with the continuation of the employment relationship. But as Spender AJ observed in Cementaid (NSW) Pty Ltd v Chambers, ‘an actual repugnance between the employee's acts and his relationship with his employer must be found’.

More recently the implied term of fidelity and good faith has been expressed as an obligation to serve the employer loyally and not to act contrary to the employer's interest. In England this obligation appears to have been subsumed by the more general obligation of mutual trust and confidence. The implied term of mutual trust and confidence imposes reciprocal duties on the employee and employer that they shall not ‘without reasonable and proper cause, conduct themselves in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee’.

If conduct objectively considered is likely to cause serious damage to the relationship between employer and employee then a breach of the implied obligation may arise.

There is some support for the proposition that the existence of an implied term of trust and confidence in contracts of employment has been accepted in Australia.

The words `trust and confidence' in this context are used in a contractual sense rather than as an ingredient of a personal relationship. As McCarry notes:

“... the words `trust and confidence', just like the employee's reciprocal duties of ‘fidelity and good faith’, do not now refer to the ingredients of a personal relationship, even if they once did. The words now represent, in shorthand form, a bundle of legal rights which have more to do with modes of behaviour which allow work to proceed in a commercially and legally correct manner than with ingredients in an interpersonal relationship.”

The above statement is consistent with the shift in the nature of the employment relationship, from status to contract, referred to earlier.

[20] His Honour then formulated a summary of principle which has now been applied on a number of occasions:

“It is clear that in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited:

• the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or
• the conduct damages the employer's interests; or
• the conduct is incompatible with the employee’s duty as an employee.

In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.”’

[102] While a finding of serious misconduct will invariably constitute a sound basis for an employee’s dismissal, it should not be confused with the statutory language, which sets out that one of the criteria for establishing ‘unfairness’ is a finding as to whether there was a valid reason for the employee’s dismissal; See: Royal Melbourne Institute of Technology v Asher [2010] FWAFB 1200.

[103] It is trite to observe that in any unfair dismissal application, brought under s 394 of the Act, in which the Commission is required to consider whether an employee’s dismissal was ‘harsh, unjust or unreasonable’, see: Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 (‘Byrne’), all of the matters under s 387 of the Act, in so far as relevant, must be taken into account. That section is expressed as follows:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[104] The first and significant consideration is whether there was a valid reason for the applicant’s dismissal. The meaning of ‘valid reason’ in s 387(a) is drawn from the judgment of Northrop Jin Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371. This meaning has been applied by members of the Commission and its predecessors for many years:

‘In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly.’

[105] For completeness, it is necessary to note that a dismissal may still be ‘harsh, unjust or unreasonable’, notwithstanding the establishment of a ‘valid reason’ for the dismissal. So much so was forcefully made clear by the majority in B, C and D v Australian Postal Corporation T/A Australia Post[2013] FWCFB 6191, where Lawler VP and Cribb C said at paras [41] and [42]:

‘[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button[2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited[2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High Court in Victoria v Commonwealth and is consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.

[42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:

(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.

(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]

(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.]’

[106] Often in cases of misconduct, the applicant will dispute that the alleged conduct took place. The accepted principle in such cases is that the onus shifts to the employer to prove, to the Commission’s satisfaction, on the balance of probabilities; See: Briginshaw v Briginshaw (1938) 60 CLR 336, that the misconduct had taken place; See: Culpeper v Intercontinental Ship Management Pty Ltd (2004) 134 IR 243and Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201.

[107] In this case, it cannot be disputed that the misconduct alleged against the applicant, not only took place, but that she twice faced charges in the Local Court in 2011 and 2014 for failing to lodge her tax returns. No conviction was recorded in 2011, but she was fined and convicted in 2014. Given these facts and the applicant’s own admissions, I am satisfied there was a valid reason for the applicant’s dismissal.

[108] Obviously, however, the applicant argues a number of significant mitigating factors which would result in a finding that her dismissal was otherwise ‘harsh, unjust and unreasonable’; although I apprehend her primary focus was on the ‘harsh’ consequences of her dismissal; See: Byrne: ‘May be harsh in its consequences for the personal and economic situation of the employee.’. Her further complaint was that she was being penalised twice. I shall return to these matters shortly.

[109] Subsections (b) - (e) of s 387 of the Act might be broadly characterised as issues relating to whether a dismissed employee was afforded procedural fairness. It is a well known principle that even if there was a valid reason or reasons for an employee’s dismissal, the dismissal may still be held to be unfair, if the employee was not afforded procedural fairness, or, in other words, natural justice. This has been a long held industrial principle adopted and applied by this Commission, its predecessors, other Courts, industrial tribunals and the High Court. In the High Court case of Byrne, supra above, their Honours McHugh and Gummow JJ said at para [130]:

‘130. That is not to say that the steps taken, or not taken, before termination may not in a given case be relevant to consideration of whether the state of affairs that was produced was harsh, unjust or unreasonable. Thus, it has been said that a decision which is the product of unfair procedures may be arbitrary, irrational or unreasonable (168). But the question under cl 11(a) is whether, in all the circumstances, the termination of employment disobeyed the injunction that it not be harsh, unjust or unreasonable. That is not answered by imposing a disjunction between procedure and substance. It is important that matters not be decided simply by looking to the first issue before there is seen to be any need to enter upon the second.’

[110] I refer to three further authorities on the subject of procedural fairness in an unfair dismissal case. In Crozier v Palazzo, a Full Bench of the AIRC said at para [73]:

‘As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment.’

[111] In Wadey v Y.M.C.A. Canberra [1996] IRCA 568, Moore J made it clear that an employer cannot merely pay ‘lip service’ to giving an employee an opportunity to respond to allegations concerning the employee’s performance or conduct. His Honour said:

‘In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware of allegations concerning the employee's conduct so as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.’

[112] Nevertheless, procedural fairness steps should always be applied in a commonsense and practical way. In Gibson v BosmacPty Ltd (1995) 60 IR 1 (‘Gibson’), Wilcox CJ said at 7:

‘Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical, commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.’

[113] Finally, s 381(2) of the Act is an important and overarching Object of Part 3-2. It is expressed in these terms:

‘381 Object of this Part
...
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in In re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.’

[114] I turn now to consider each of the matters to be considered under ss 387(b)-(g) of s 387 of the Act.

Was the applicant notified of the reason(s) for her dismissal (s 387(b))?

[115] In an email of 17 January 2015, the applicant was advised that a report had been prepared in respect to her suspected breach of the APS Code of Conduct arising from her failure to lodge her tax returns for four financial years. She was not dismissed until three months later and the reasons for her dismissal did not change between these dates. On any objective view, the period between 16 January and 27 April 2015 was a lengthy period of investigation and consultation with the applicant.

Was the applicant given an opportunity to respond to any reason related to her capacity or conduct (s 387(c))?

[116] There can be no dispute that the applicant was given an opportunity to respond to the allegations against her and she did so. Indeed, she was given numerous opportunities to respond to the allegations and she sought and was granted extensions of time. Moreover, when she was advised to provide further material to the Sanction Delegate, she declined to do so.

Was there an unreasonable refusal by the respondent to have a support person present (s 387(d))?

[117] There was no evidence that the applicant was denied an opportunity for a support person to assist her at any discussions relating to her dismissal, although given that the formal processes were conducted in writing by email, this criterion is problematic.

Was the applicant warned about unsatisfactory performance (s 387(e))?

[118] The respondent concedes that the question of the applicant’s performance is not relevant to this mater. I accept this concession.

The degree to which the size of the respondent’s enterprise and its access to dedicated human resources specialists affected the process leading up to the applicant’s dismissal (ss 387(f), (g))

[119] As might be expected, the ATO is a large and well-resourced Commonwealth Government Department with access to human resources specialists. The ATO is required to comply with the detailed and comprehensive processes when dismissing an employee according to the PS Act and the APS Code of Conduct. These processes were followed by the ATO and there can be no serious challenge to the fairness of the processes followed by the ATO in respect to the applicant’s dismissal. The process produced a thorough and carefully considered outcome, balancing all the relevant considerations.

[120] Nevertheless, two concessions were made by the ATO in its submissions. Firstly, advice of the determination of the investigation was first sent to the applicant on 25 February 2015. Apparently, it was a ‘draft’ and was incomplete. The correct version was resent to her on 10 March 2015. Secondly, the 27 April 2015 letter advising the applicant of her termination set out that she was to receive two weeks’ pay in lieu of notice. This was later corrected to five weeks’ pay in lieu of notice.

[121] In my view, both of these errors were insignificant and inconsequential. They were quickly corrected. More importantly, neither of them impugned or otherwise tainted the investigation of the applicant’s dismissal and, in my assessment, would not have altered the outcome.

[122] The applicant made an oblique reference to her rights to make an application within 60 days for a review of the Determination by Mr Brobbel to the Merit Protection Commissioner. Presumably, the applicant was aggrieved that Ms Jamieson had made her sanction decision on 27 April 2015, prior to the expiry of the 60 days for her to make a review application. In my opinion, such a proposition is misconceived. This did not invalidate Ms Jamieson’s decision. So much so is clear from the last sentence of the relevant paragraph of the Regulations, which states: ‘Reg 5.46 provides that the making of an application for review does not operate to stay the action.’

[123] In other words, Ms Jamieson was not prevented from making her decision until the sixty days for a review application to be made had expired. In any event, given the applicant’s regrettable and frequent incapacity to comply with deadlines to respond to the ATO’s directions, it was perfectly reasonable for Ms Jamieson to no longer tolerate the applicant’s lack of diligence in this regard.

Other relevant matters (s 387(h))

[124] The applicant’s case was relatively straightforward. She blamed her failure to lodge her tax returns, on four occasions, on her difficult personal and family circumstances, her depression and other health issues. She believed she had been punished twice for the same conduct and that this was unfair, because of her long and meritorious service with the ATO. Given her age, it would be difficult for her to find alternative employment and she just wanted a second chance.

[125] At this point, I comment on Ms Comty’s character reference for the applicant. I have no reason to quibble with Ms Comty’s uncontested evidence that she believed the applicant’s dismissal was ‘harsh’. Accepting that Ms Comty is, at the very least, an acquaintance, if not a friend of the applicant, her feelings of loyalty are understandable and commendable, but not determinative. Moreover, Ms Comty could hardly be said to be an objective bystander to the events surrounding the investigation of the applicant’s conduct, which she would unlikely to have been aware of, given she had not worked with the applicant for the last ten years.

[126] That said, I have no reason to doubt that the applicant’s life over many years has been plagued by a plethora of personal and family difficulties which would have adversely impacted on her physical, psychological, financial and workplace circumstances. However, I think it is somewhat unfair and contrary to the evidence for the applicant to claim that the ATO had shown her no compassion or understanding of her circumstances. It had provided her with time off on a number of occasions and agreed to various extensions of time for filing her tax returns and to respond to disciplinary matters.

[127] Moreover, there was no cogent evidence that her managers or supervisors had bullied or harassed her by placing her under extra scrutiny. In any event, as the respondent conceded that the applicant’s dismissal was not based on her performance, and as it was perfectly plain why the applicant was dismissed, such claims of extra scrutiny, constituting bullying, do not take the applicant’s case very far.

[128] While I have some sympathy with the applicant’s unhappy personal and other difficult circumstances, I am concerned by some aspects of her evidence. Overall, it appears to me that her evidence tends to corroborate the respondent’s contentions as to her deliberate intent in not lodging her tax returns. I identify below some of my concerns.

[129] Firstly, had her failure to lodge tax returns been on one or even two occasions, one might reasonably conclude, given all of the other circumstances, that dismissal was a disproportionate disciplinary response (which the ATO itself had acknowledged; See letter of dismissal at para [2]). The applicant pleaded for a second chance. Regrettably, ‘that ship has long since sailed’. She had three more chances and still did not comply with her tax obligations. Given her position and years of experience, it is almost beyond belief that the applicant would not have attended to her own personal tax affairs, or have someone else do so, over a period of four years.

[130] Secondly, in my view, it is difficult to reconcile the applicant’s stated belief that she was meeting ‘all the job requirements of her work’ but was unable to meet the very legal obligations she was looking at in respect to other taxpayers. Surely, if the applicant was so incapacitated by her personal and health issues, it would have been manifest in her primary work and other activities, including travel when she wished to go to a wedding in India at the very time she knew she was being investigated for her conduct. While I would not put her attitude as highly as a ‘flippant and wilful disregard for her obligations’, it seems to me that she had at least a ‘careless indifference’ to them and when queried or questioned, raised any excuse she could think of.

[131] Thirdly, it is also difficult to reconcile her reasons for not lodging her tax returns, with the fact that she told the Magistrate in November 2011, that she had prepared her 2010 return and had posted it to the ATO, but that the ATO had not received it. It is curious that she did not retain a copy of this return. It is extraordinary that having been before the Courts once for failing to lodge her personal tax returns, she ended up there again in 2014 for the very same reason.

[132] Fourthly, the very serious family circumstances with her former husband began in 1988 and led to her ultimate divorce in 2005. Yet throughout these tumultuous years and up to 2010, during which time she said she had problems with her children and three car accidents, she was still able to file her tax returns. This contradiction is difficult to rationalise.

[133] Fifthly, it was not as if the applicant was unaware that the ATO regarded her conduct as serious. The fact that she frequently sought extensions of time to file her returns or to reply to disciplinary letters, demonstrates that she was under no illusion as to what was expected of her. Her evidence was that she understood that she had to comply with her tax obligations. She was even formally counselled in 2012 about her late tax return, but did not seem to take this warning seriously. Indeed, her evidence about this counselling was evasive, defensive and conveniently unclear.

[134] Sixthly, I also find it difficult to accept one of the applicant’s later explanations for not engaging with her managers and supervisors or asking for their help because the issues were personal. However, this excuse does not sit comfortably with her earlier requests to seek extensions for filing her returns because of her difficult and personal circumstances.

[135] Seventhly, regrettably, I was most troubled by the applicant’s evidence that she could not recall receiving emails from management, she did not have time to access emails (despite being told she could respond in work time), or that she was engaged in training at the time. These were not ‘run of the mill’ work emails, but very serious communications likely to affect her future employment, which any sensible employee would have taken very seriously indeed. The following exchange in cross examination discloses that, contrary to the applicant’s claims that she did not see Mr Brobbel’s show cause letter of 30 March 2015, she had sent it to her own personal email account:

‘Okay.  Could I just ask you to have a look at this email trail, please.  Now, this is an email trail from Adrian Dieni, who is a lawyer and general counsel, and one of my colleagues, to a Stewart Coulson.  And I understand Mr Coulson is within the forensic investigations, IT security area of the Tax Office, asking to see whether there was any IT record about you receiving or acknowledging the letter – or the email from Mr Brobbel on 30 March; is that correct?---Sorry, could you repeat that, please?

Sorry, that was quite long-winded.  My apologies.  This begins with an email from Mr Dieni to a Stewart Coulson asking him to see whether there's any issue or any record about you receiving or dealing with the email from Mr Brobbel of 30 March?---Mm-hm.

And then a Mr John Heydon, who's the Assistant Director, Internal Investigations, responds to Adrian to indicate that they've located an email in your sent items from your ATO inbox sending that email to your Bigpond email address?---Sorry, there's a question, sorry?  What's the question?

Sorry, the top part of the document?---Yes.

Is an email from a Mr John Heydon?---Yes.

Back to Adrian Dieni, saying that they located an email in your sent items?---Right.

Indicating that that email from Mr Brobbel of 30 March had been sent from your Tax Office account to your Bigpond account at home?---Mm-hm.

Is that your understanding of what that email says?---No, I'm just seeing this now, and I am not even aware of it.  I was not - - -

Yes.  No, I appreciate you weren't aware of it, but what I'm asking you is to essentially confirm that that's what the email says from Mr Heydon?---I'm not aware of it.  I don't know which email was that, and I don't recall sending it to my Bigpond, and, as I mentioned before, that I was time to time sending some of the – like, whenever I had to clear my account, I was going in my account and just highlighting under the name and just in a bulk.  I was just either saving it in personal item, and also sending it to mine, so I don't remember seeing the date, but, as Mr Anthony's name was there, and I might have just – I don't recall it, but if that's the case, if you're saying it did happen, then it would've been the case that I might've just – to clear the account, I would have forwarded it to – as under the name and in bulk to my home, but I don't recall that.

Okay.  I accept that, but you've just told the Commission, when I asked you if you had sent emails to your home address, that you would have then checked your home email account to see what it was that you had sent there?---As I mentioned - - -

So are you just saying now that you would have just, at some stage, gone through your emails, if there were certain ones, you would have sent them home and then you'd never look at them again?---No.  As you can see in my statement clearly showing that what documents were sent to me at work, all the communication took place.  So after speaking to Mr Brobbel, after receiving his letter dated 10 March, I had a conversation with him, and he did say that when, you know, not to send me my supporting documents, "Hold on to them, and when you receive another email then you send it", you know, so all this time - - -

So you were forewarned that there was another email to come?---He mentioned, "You will be informed, and I will be calling you as well", and we were not only communicating via phone or email, he was – or I was, we both were communicating through the communicator, the internal communicator that we had.

Yes?---So initially he was even calling me leaving a message on my phone as well, but later on, at the stage when I – this letter, 30 March, I did not receive a call; I did not receive any communication on the communicator, and I was not told by the – Ms Kathy Mitchelson that this conversation took place between her and Mr Brobbel asking her to give me the time.  Nothing was said to me, and no mail received at home as well.  So, as Mr Brobbel said it in his email to me, after me – my leave, that he send it to my home address as well which was not the case.  I did not receive in the mail at all.  At all.

So you never received a letter regarding your proposed Sanction?---No.  I did not see that at all.  And I only became aware of it at that point when Ms Wendy called me while I was on leave, and I had a discussion with her and that was on the day when I had a discussion with her was some time – I think 15 April, around that time.

So would you accept that if somebody has gone through your ATO email account, and discovered that there was an item in your sent items, forwarding an email to your personal Bigpond account, that that has probably happened?---Sorry, what's the question?  I'm not understanding.

Well, what I'm saying is, if somebody in the ATO IT area has gone in and accessed your ATO email account and identified an item in your sent items, so that what it indicates is that you probably have at least forwarded it, even if you haven't read it or sent it, you've at least forwarded it to your Bigpond account?---Even if that's the case, my answer to that is that I was presuming that the discussion so far what took place between me and Mr Brobbel, and I've already opened those ones, so I just quickly flicked them to clear my account so I could keep receiving the new emails to make sure, you know, I have the space.  So that's what I was doing regularly, and that's what I did, if that's the case.  If that's what it indicates.

And you weren't necessarily checking them at home regularly either?---No, because as per my understanding that those email were - I have already dealt with them, with Mr Brobbel, and I did not look into the - what exactly email was and I did not realise the date, or if that's the case you're saying that I have forwarded it, I have not seen that email.’

[136] In my view, this long exchange in cross examination is very troubling. When the applicant realised her claim of not seeing the Show Cause letter had been disproved by the email investigation of Mr Coulson, she offered implausible explanations and excuses. I am satisfied that the applicant had viewed, or at least was aware that Mr Brobbel had sent her a very important email on 30 March 2015. Either way, she chose to ignore it. This is most disappointing and raises real questions as to the veracity of her other claims as the reasons why she did not file her tax returns and her claim that she had posted her 2010 tax return, but it went missing.

[137] While I can understand why the applicant believes she has been penalised twice for the same offence, it is not unusual for employees who are convicted and penalised in separate civil or criminal proceedings for conduct engaged in at the workplace, to be dismissed for the same conduct. For example, if two employees are found to have been involved in fighting at the workplace, and one is charged and convicted of assault and penalised, he/she are still likely to lose their job for the same offence. In other cases, a dismissed employee might be charged with a criminal offence, found not guilty, on the evidentiary test of beyond reasonable doubt, and then found guilty of the same offence by the Commission on the lesser test on the balance of probabilities and their dismissal is not overturned.

[138] After considering all of the criteria the Commission is required to take into account, despite the applicant’s long service with the ATO and my sincere sympathies for the difficult personal, health and family issues she has experienced, I cannot be satisfied that her dismissal was ‘harsh, unjust or unreasonable’, within the meaning of s 387 of the Act. It follows that the applicant’s unfair dismissal application must be dismissed. Orders to that effect will be published contemporaneously with this decision.

[139] Finally, I would add that the applicant sought reinstatement to a different section or different office of the ATO, presumably because she felt under pressure or uncomfortable with the manager/s in her former department. Given the findings of the Full Bench in Cartisano v Sportsmed SA Hospitals Pty Ltd[2015] FWCFB 1523 that reinstatement on terms or conditions is not permissible, under s 391(1) of the Act (See also: Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539), a claim for reinstatement on the terms and conditions proposed by the applicant, would, at the very least, be arguable. In any event, as the Commission does not get to remedy in this case, such a claim for reinstatement does not arise for determination.

[140] This proceeding is now concluded.

DEPUTY PRESIDENT

Appearances:

Applicant in person.

Ms J Ferry and Ms R Devereux for the respondent.

Hearing details:

2015:

Sydney.

20 October

<Price code G, PR574941>