FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAHMAN v COMMONWEALTH OF AUSTRALIA AS REPRESENTED BY THE AUSTRALIAN TAXATION OFFICE | [2014] FCCA 6 |
| Catchwords: CONTRACT – Implied term of trust and confidence – application to public sector employment. |
| Legislation: Evidence Act 1995 (Cth), s.76 |
| Applicant: | FAHMID RAHMAN |
| Respondent: | COMMONWEALTH OF AUSTRALIA AS REPRESENTED BY THE AUSTRALIAN TAXATION OFFICE |
| File Number: | SYG 842 of 2011 |
| Judgment of: | Judge Driver |
| Hearing dates: | 24-26 September, 1 October 2013 |
| Date of last submission: | 28 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2014 |
REPRESENTATION
| Counsel for Mr Rahman: | Mr Rogers |
| Solicitors for Mr Rahman: | JESUS Advocacy International |
| Counsel for the ATO: | Ms K Eastman, SC with Mr T Glover |
| Solicitors for the ATO: | Clayton Utz |
ORDERS
The application filed on 2 May 2011 and, to the extent that it has not already been disposed of, the application filed on 2 April 2012, as amended, are dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 842 of 2011
| FAHMID RAHMAN |
Applicant
And
| COMMONWEALTH OF AUSTRALIA AS REPRESENTED BY THE AUSTRALIAN TAXATION OFFICE |
Respondent
REASONS FOR JUDGMENT
Introduction and background
Mr Rahman is a Commonwealth public servant employed in the Australian Taxation Office (ATO). On 2 May 2011 he applied for relief under the Fair Work Act 2009 (Cth) (Fair Work Act) alleging contraventions of general protections. The events complained of commenced before the commencement of the Fair Work Act and continued up until the time of the commencement of proceedings.
I referred the proceedings for mediation but the matter did not resolve.
By Application in a Case filed on 2 April 2012, Mr Rahman sought further and interlocutory relief on the basis that contraventions of general protections were continuing, specifically in relation to disciplinary charges and recruitment action which was said to disadvantage Mr Rahman. I ordered that the proceedings be dealt with concurrently.
The proceedings have since been before the Court many times. The case presented a case management challenge, both because of the very substantial amount of material filed, changes in Mr Rahman’s legal representation and the numerous iterations of his pleadings in the matter. I dismissed Mr Rahman’s applications for interlocutory relief on the basis of an undertaking proffered on behalf of the ATO that further disciplinary action would not be taken against Mr Rahman pending the outcome of the proceedings. The proceedings became protracted, however, and the ATO later sought to be released from that undertaking. While that aspect of the matter was not formally resolved prior to this judgment, there was an understanding that Mr Rahman could not use the proceedings to continually defer disciplinary action while, for its part, the ATO should not seek to pre-empt the outcome of the proceedings by taking precipitant disciplinary action.
On 27 July 2012 the ATO applied to have the proceedings dismissed summarily. The parties prepared for a hearing on that application but, in the end result, the application was not pursued when Mr Rahman changed legal representation and, with the benefit of advice from his current legal representatives, agreed to narrow the scope of the proceedings and to withdraw that part of his claim that had (rather challengingly) asserted that the Fair Work Act applied retrospectively to events which predated its commencement. Mr Rahman now relies both upon the Fair Work Act and the Workplace Relations Act 1996 (Cth) (Workplace Relations Act).
The ATO then applied for its costs thrown away by reason of multiple amendments to the pleadings by Mr Rahman. I dealt with that application on 12 July 2013[1]. I also made some fairly stringent procedural orders limiting Mr Rahman (and his legal representatives) in their preparation for a hearing of the matter, which ultimately took place on 24-26 September and 1 October 2013.
[1] see Rahman v Commonwealthof Australia as Represented by the Australian Taxation Office [2013] FCCA 388
The pleadings and evidence
Mr Rahman relies upon his second further amended statement of claim (statement of claim) filed on 30 April 2013 in which he:
a)alleges breaches of contract, the Workplace Relations Act and the Fair Work Act as well as the Public Service Act 1999 (Cth) (Public Service Act); and
b)seeks damages, compensation, a pecuniary penalty and an order that he be promoted from his current level of APS4 to APS6.
The factual allegations raised in the statement of claim may be summarised as follows:
a)Mr Rahman made application for a transfer to Sydney in late 2008 and early 2009[2]. In summary, Mr Rahman alleges that by reason of his membership of the Community and Public Sector Union (CPSU) the ATO neglected, failed and/or refused to transfer Mr Rahman from Brisbane to Sydney as requested on 21 October 2008. The ATO denies this allegation;
b)Mr Rahman made a leave request on 28 February 2011[3]. In summary, Mr Rahman alleges the ATO refused to allow Mr Rahman to take leave of about one hour, in breach of a policy regarding flexi leave and/or Mr Rahman’s contract of employment. This allegation is denied;
c)Mr Rahman alleges harassment and belittling conduct[4]. In summary, Mr Rahman alleges two employees of the ATO, Ms Vidhya Balasubramaniam and Mr Corrado Biondi, engaged in harassing and belittling conduct of him. In Ms Balasubramaniam’s case, Mr Rahman alleges Ms Balasubramaniam issued a public reprimand to him on or about 15 March 2011. This allegation is denied. In Mr Biondi’s case, the alleged conduct comprised issuing Mr Rahman with formal written directions and formal written warnings on two occasions: 22 March 2011 and 17 May 2012. Although the ATO admits issuing such directions and warnings, it denies the allegations of harassing and belittling conduct;
d)Mr Rahman made Code of Conduct “charges” and a “whistleblower” report[5]. Mr Rahman alleges that by:
i)four Code of Conduct “charges” brought against him between December 2008 and May 2011; and
ii)Mr Rahman’s reporting two alleged Code of Conduct breaches by another ATO employee on two occasions, on or about 21 January 2011 and 2 February 2012, Mr Rahman has been harassed, injured, discriminated against and victimised. The ATO admits that Code of Conduct “processes were instigated on these occasions but denies the allegations of injury, discrimination and victimisation”;
e)Mr Rahman alleges discrimination and victimisation in respect of applications for transfer and promotion[6]). Mr Rahman alleges he was discriminated against or victimised by the ATO’s refusal to transfer him to a different site and failed to promote him in his employment (which applications for transfer or promotion are not otherwise pleaded or particularised in the statement of claim). This allegation is denied; and
f)Mr Rahman alleges racial discrimination[7]. The statement of claim provides two particulars in support of this allegation, first, alleged comments of a racial nature by an ATO employee, Ms Furner, in November 2008, and secondly, failing to promote Mr Rahman by reason of the complaint he made in relation to that incident. Those allegations are denied.
[2] statement of claim at [4]‑[7]
[3] [8] and [9]
[4] [10]-[13]
[5] [14]-[18]
[6] [18]
[7] [19]
Paragraphs [21] and [22] of the statement of claim allege that the ATO:
a)injured Mr Rahman in his employment;
b)engaged in a “course of conduct” that altered his position to his prejudice; and
c)discriminated between him and other employees of the ATO.
Mr Rahman relies upon his affidavits made on 22 February 2012 (first Rahman affidavit), 4 July 2012 (second Rahman affidavit), 6 July 2012 (third Rahman affidavit) and 7 December 2012 (fourth Rahman affidavit) as well as the oral evidence of his friend, Mr Muhammad Ahsanul Haque. Mr Rahman and Mr Haque were cross-examined.
The ATO relies upon its defence filed on 17 May 2013 as well as on the following affidavits of:
a)Vidhya Balasubramaniam affirmed 7 May 2012 (first Balasubramaniam affidavit);
b)Vidhya Balasubramaniam affirmed 26 June 2013 (second Balasubramaniam affidavit);
c)Daren Glanville affirmed 7 May 2012 (Glanville affidavit);
d)Elider Zamarano affirmed 19 June 2012 (Zamarano affidavit);
e)Corrado Biondi affirmed 26 June 2013 (Biondi affidavit);
f)Paul Bak affirmed 26 June 2013 (Bak affidavit); and
g)Jane Reid affirmed 27 June 2013 (Reid affidavit).
All of those deponents were cross-examined on their affidavits.
I also received the following exhibits:
·A1 – Copy of Driver Licence of Muhammad Haque;
·R1 – Email correspondence between Mr Glanville and Mr Rahman, 12.11.2008;
·R2 – Email correspondence between Mr Lapidos and Mr Rahman, 06.10.2009;
·R3 – Email correspondence between Mr Lapidos and Mr Rahman, 27.07.2010;
·R4 – Email correspondence between Mr Lapidos and Mr Rahman, 27.08.2010;
·R5 – Email correspondence between Mr Lapidos and Mr Rahman, 29.07.2011;
·R6 – Email correspondence between Mr Casimir and Mr Rahman, 17.04.2013;
·R7 – Affidavit of Mr Rahman, sworn 13.02.2012 at page 7;
·R8 - Email correspondence between Ms Lenard and Mr Atila, 28.06.2012;
·R9 – Email correspondence between Mr Rahman and Mr Lapidos, 25.01.2012;
·R10 – Email correspondence between Ms Brennan and Mr Bak, 12.03.2013;
·R11 – Letter from ATO to Mr Rahman, 20.05.2013;
·R12 – ATO Workplace Harassment Discrimination Practice Statement from April 2008 and July 2008;
·R13 – Email correspondence between Mr Rahman and Ms Balasubramaniam, 28.02.2011; and
·R14 – Email correspondence between Ms Biondi and Mr Rahman.
The parties made extensive written as well as oral submissions.
Issues for determination
A persistent complaint of the ATO in these proceedings has been the difficulty it has encountered to connect the evidence relied upon by Mr Rahman to his pleadings. In general terms, Mr Rahman makes seven claims:
a)that his membership of the CPSU affected his rights of a transfer from Queensland to New South Wales;
b)that the ATO had a policy and/or it was an implied term of his contract of employment that the ATO would not prevent Mr Rahman from absenting himself from duty for periods up to one hour, which policy or terms were breached on 28 February 2011 by the action of Ms Balasubramaniam and Mr Biondi;
c)that there were implied terms to Mr Rahman’s contract of employment that Mr Rahman would be treated with due courtesy and not be subject to undue harassment and that Mr Rahman could repose trust and confidence in the ATO such that it would not, without good cause, act so as to injure him;
d)that the implied terms were breached on 15 March 2011 and 17 May 2012 when Ms Balasubramaniam publicly reprimanded Mr Rahman (15 March 2011) and Mr Biondi issued formal warnings to Mr Rahman (on both dates);
e)that certain Code of Conduct charges were brought against Mr Rahman in bad faith and constituted either prohibited conduct under the Workplace Relations Act or adverse action under the Fair Work Act, or that in the alternative, the ATO was bound by ss.15 and 16 of the Public Service Act, in particular being obligated to establish procedures to avoid the victimisation of employees;
f)that in January 2011 and February 2012, Mr Rahman made “whistleblower” reports against Mr Glanville and suffered thereby; and
g)that Mr Rahman has been the subject of adverse action by reason of his race.
For its part, the ATO has identified from the statement of claim 20 issues which require determination. They are:
Workplace Relations Act claim
a)Issue 1: Did the ATO neglect, fail or refuse to transfer Mr Rahman to Sydney because of his union membership contrary to ss.792 and 793(1)(a) of the Workplace Relations Act?
Fair Work Act claims
b)Issue 2: Did the ATO neglect, fail or refuse to transfer Mr Rahman to Sydney because of union membership contrary to ss.342 and 346(a) of the Fair Work Act?
c)Issue 3: In relation to the Notice of Suspected Breach of the APS Code of Conduct issued to Mr Rahman on 27 July 2009:
i)what workplace rights does Mr Rahman say he was exercising?
ii)did the process injure Mr Rahman in his employment, alter his position to his prejudice or cause him to be discriminated against?
iii)If so, did the ATO take the action because of a proscribed reason?
d)Issue 4: In relation to the Notice of Suspected Breach of the APS Code of Conduct issued to Mr Rahman on 16 December 2010:
i)what workplace rights does Mr Rahman say he was exercising?
ii)did the process injure Mr Rahman in his employment, alter his position to his prejudice or cause him to be discriminated against?
iii)if so, did the ATO take the action because of a proscribed reason?
e)Issue 5: In relation to the Notice of Suspected Breach of the APS Code of Conduct issued to Mr Rahman on 27 May 2011:
i)what workplace rights does Mr Rahman say he was exercising?
ii)did the process injure Mr Rahman in his employment, alter his position to his prejudice or cause him to be discriminated against?
iii)if so, did the ATO take the action because of a proscribed reason?
f)Issue 6: In relation to Mr Rahman’s applications for transfer and promotion:
i)what workplace rights does Mr Rahman say he was exercising?
ii)did failing to transfer or promote Mr Rahman in accordance with his applications injure him in his employment, alter his position to his prejudice or cause him to be discriminated against?
iii)If so, did the ATO take the action because of a proscribed reason?
g)Issue 7: Did the ATO discriminate between Mr Rahman and other employees of the ATO on the ground of race?
Contract claims
h)Issue 8: Has Mr Rahman proved there was a contract of employment?
i)Issue 9: If the answer to Issue 8 is yes, has Mr Rahman proved the term alleged to be incorporated into the contract that the ATO would not prevent Mr Rahman from absenting himself from duty for periods of up to one hour notwithstanding the absence of prior approval by the ATO[8]?
j)Issue 10: If the answers to Issues 8 and 9 are yes, did Ms Balasubramaniam or Mr Biondi breach the terms of the contract on 28 February 2011 by refusing to allow Mr Rahman to take leave for one hour?
k)Issue 11: If the answer to Issue 8 is yes, has Mr Rahman proved the term alleged to be implied into the contract that the ATO would treat Mr Rahman with due courtesy and consideration and not subject him to undue harassment[9]?
l)Issue 12: If the answer to Issue 8 is yes, has Mr Rahman proved the term alleged to be implied into the contract that Mr Rahman could repose trust and confidence in the ATO that it would not, without good cause, act so as to injure Mr Rahman in his employment[10]:
m)Issue 13: If the answers to Issues 8, and 11 and/or 12 is yes, did Ms Balasubramaniam on 15 March 2011 engage in conduct that embarrassed and belittled Mr Rahman before other employees of the ATO and, thereby, breach the contract of employment?
n)Issue 14: If the answers to Issues 8, and 11 and/or 12 is yes, did Mr Biondi breach the terms of the contract on 22 March 2011 by issuing a formal written direction and formal written warning to Mr Rahman?
o)Issue 15: If the answers to Issues 8, and 11 and/or 12 is yes, did Mr Biondi breach the terms of the contract on 17 May 2012 by issuing a formal written direction and formal written warning to Mr Rahman?
p)Issue 16: If the answers to Issues 8, and 11 and/or 12 is yes, did any of the Code of Conduct processes commencing on 22 December 2008, 27 July 2009, 16 December 2010 or 27 May 2011 breach the terms of the contract?
q)Issue 17: If the answers to Issues 8, and 11 and/or 12 is yes, did the ATO’s treatment of Mr Rahman in relation to his applications for transfer and promotion breach the terms of the contract?
[8] at [8]
[9] at [10]
[10] at [11]
Public Service Act claims
r)Issue 18: Was Mr Rahman denied procedural fairness, contrary to s.15 of the Public Service Act, in relation to the Code of Conduct processes commencing on 22 December 2008, 27 July 2009, 16 December 2010 or 27 May 2011?
s)Issue 19: Did the ATO victimise or discriminate against Mr Rahman, contrary to s.16 of the Public Service Act, by reason of his reporting of alleged breaches of the Code of Conduct by Mr Glanville on or about 21 January 2011?
t)Issue 20: Did the ATO victimise or discriminate against Mr Rahman, contrary to s.16 of the Public Service Act, by reason of his reporting of alleged breaches of the Code of Conduct by Mr Glanville on or about 2 February 2012?
The issues identified by the ATO cover essentially the same ground as those identified by Mr Rahman, but in somewhat more prescriptive terms. I will deal with all of the issues identified by the parties to the extent necessary to resolve the proceedings.
Claims arising after the commencement of the proceedings
Significant parts of the statement of claim make claims which arose after the commencement of the proceedings on 2 May 2011. The relevant issues are ATO Issues 5, 6 (in respect of applications for promotion made after 2 May 2011), 15, 16 and 18 (in respect of the Code of Conduct process commenced on 27 May 2011) and 20.
The ATO submits that Mr Rahman should not be permitted to rely on alleged causes of action arising after the commencement of a proceeding on 2 May 2011, for the following reasons.
First, the ATO contends that without statutory authority or the ATO’s consent, an applicant cannot amend the claim by adding a cause of action which has accrued since the commencement of the proceeding[11]. Further, a cause of action arising after the commencement of a proceeding is not permitted to be adjudicated in that proceeding[12].
[11] Eshelby v Federated European Bank Ltd [1932] 1 KB 254 applied in Keldote Pty Ltd & Ors v Riteway Transport Pty Ltd [2010] FMCA 394 at [72]
[12] eg Styles v Clayton Utz (No. 3) [2011] NSWSC 1452 at [182], Vamuta Pty Ltd v Sogo Co Ltd (1996) 68 FCR 151 at 154-155 per Burchett J citing Oh Ho v Minister for Immigration & Ethnic Affairs (1987) 14 FCR 274, Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 47 and Wigan v Edwards (1973) 47 ALJR 586 at 596
Secondly, Mr Rahman was given the opportunity to amend his pleadings on four occasions. On none of those occasions did Mr Rahman seek leave to plead matters occurring after the commencement of the proceedings.
I have concluded that, to the extent the amendments raise causes of action occurring after commencement of the proceedings on 2 May 2011, they were outside the scope of leave granted by the Court and should not be considered. Issues of continuing loss or damage after the commencement of proceedings can be considered, however, if liability is established.
Consideration
Application for a transfer to Sydney
Allegation
In the statement of claim at [6], Mr Rahman alleged that by reason of his membership of the CPSU, the ATO “neglected, failed and / or refused transfer [him] from Brisbane to greater Sydney … as requested by Mr Rahman on 21 October 2008”.
In cross-examination, Mr Rahman resiled from this allegation, in the following exchange[13]:
[13] Transcript (T)17.38-18.2
...you make an allegation that you were not transferred to a position in Sydney because of your union membership; do you agree with that?‑‑‑Not the way you’re telling me.
Well, you allege, don’t you, that you were refused a transfer because of union membership, don’t you?‑‑‑No.
You don’t make that allegation?‑‑‑No, not that way.
You make an allegation that the ATO neglected to transfer you to Sydney because of your union membership; is that right?‑‑‑No.
Based on Mr Rahman's oral evidence, the ATO contends with some force that no issue arises with respect to this aspect of the claim.
However, Mr Rahman has not formally abandoned a claim that he was refused a transfer or the ATO failed or neglected to transfer him because of his membership of the CPSU. In relation to that, the ATO says:
a)Mr Rahman has not established that there was any right to be transferred or that the ATO was required to create a position for him in Sydney. Mr Rahman accepted this in cross-examination[14]; and
b)in any event, the evidence shows that Mr Rahman was transferred to a position in Sydney in February 2009. There was no refusal, neglect or failure to transfer Mr Rahman.
[14] T 28.5-6
Relevant factual background
Mr Rahman asserts he “has been” a member of the CPSU and the Australian Services Union[15].
[15] statement of claim [4]; first Rahman affidavit [5]
Mr Rahman claims he joined the CPSU in “mid 2008”[16].
[16] fourth Rahman affidavit [6]. Also Mr Rahman’s opening: T6.6
Mr Rahman has not presented any evidence to prove current membership but documents produced by the CPSU show that Mr Rahman joined as a member on 7 October 2008 and remained a member until 18 August 2009[17].
[17] see T19.39-46
The factual background to this allegation is as follows.
On 28 February 2008, Mr Rahman commenced employment as an APS4 in the ATO’s Chermside Office based in Brisbane. At the time, his family resided in Sydney and Mr Rahman commuted between Sydney and Brisbane.
Mr Rahman assumed that he could be transferred to Sydney at some point in time. On 10 June 2008, Mr Rahman applied for APS6 Tax Technical Officer 290508[18]. His application was unsuccessful.
[18]Reid affidavit [4a]
On or about 30 July 2008, Mr Rahman was involved in a car accident in Parramatta[19]. He had three weeks leave as a result of the injuries sustained in the accident.
[19]first Rahman affidavit [75]. In his affidavit evidence, Mr Rahman describes his injuries, initially, as being “to his back” (first Rahman affidavit [75]) and, subsequently, as comprising “whiplash, and severe pain in my muscles, back, neck, both knees” (third Rahman affidavit [38]). Another description appears at fourth Rahman affidavit [4]. As at 6 July 2012, Mr Rahman says he is frequently visiting a general practitioner and attending physiotherapy sessions twice a week since the accident: third Rahman affidavit [38]
After returning to work in Brisbane, on 22 August 2008, Mr Rahman complained of chest pain at work. He was taken to Prince Charles Hospital[20].
[20] Glanville affidavit, annexure A, page 1
On 22 August 2008, Mr Mark Gregory, Mr Rahman's two up line manager notified Mr Glanville. Mr Gregory suggested that a transfer to Sydney might be appropriate. At this time, Mr Rahman had not sought a transfer for medical or compassionate reasons.
On 21 October 2008, Mr Wally Stiller, an officer of the CPSU, wrote to Mr Glanville and made an application on behalf of Mr Rahman, that Mr Rahman be transferred from Brisbane to greater Sydney on compassionate grounds[21]. Prior to this point in time, Mr Glanville was unaware Mr Rahman had (apparently) involved the union in various matters relating to his employment[22].
[21] statement of claim [5]; fourth Rahman affidavit [7], fourth Rahman affidavit, annexure FR4, page 3
[22] T155.1-10
On the same day, Mr Rahman emailed Mr Glanville a copy of his CV and a document titled “Operations Sub-Plan – Mobility Application Form”[23]. After receiving those documents, Mr Glanville sent an email to “site leaders” in ATO offices in greater Sydney advising of Mr Rahman’s transfer request and forwarding Mr Rahman’s email[24]. Mr Glanville then forwarded a copy of this email to Mr Stiller[25].
[23] fourth Rahman affidavit, annexure FR4, pages 4-14
[24] T155.15-19
[25] Glanville affidavit, annexure A, page 2
In cross-examination Mr Rahman accepted there was nothing in Mr Glanville’s email that suggested Mr Glanville was unwilling or would refuse to look at transfer opportunities because Mr Rahman was a union member[26].
[26] T22.15
On 30 October 2008, Mr Rahman claims he had a meeting with Mr Glanville at the ATO’s Parramatta office.
This was the first time Mr Rahman met Mr Glanville in person[27]. In cross-examination, Mr Rahman described the meeting as “pleasant”[28]. Nevertheless, Mr Rahman alleges Mr Glanville said, “Why did you join the union? Why did you jump the gun?”[29]. No further evidence of this conversation is adduced in Mr Rahman’s extensive affidavit material. Mr Glanville denied this allegation in cross-examination[30].
[27] T24.23-24
[28] T24.26
[29] fourth Rahman affidavit [9]
[30] T157.26-29
Mr Glanville emailed Mr Rahman with notes he took of the meeting. Mr Rahman was invited to comment on anything that might not be accurate in Mr Glanville’s account of the meeting. Mr Rahman raised nothing about union membership, nor about Mr Glanville’s alleged comment about “jumping the gun”[31].
[31] T24.12
In his oral evidence, Mr Rahman claimed he took notes during the meeting with Mr Glanville. These notes were not included in any of Mr Rahman's affidavit evidence. Mr Rahman made no reference to the notes in his evidence in chief. Mr Rahman failed to produce the notes in answer to a call[32].
[32] T24.41, 25.13
Mr Glanville gave evidence that he did not recall seeing Mr Rahman take notes during the meeting[33].
[33] T152.24
I find that Mr Glanville did not say the words alleged and Mr Rahman’s allegation is without foundation.
On 4 November 2008, Mr Rahman sent an email to Ms Smallacombe and Mr Gregory, copied to others including Mr Glanville, requesting[34]:
consider my application to transfer me to any of the offices located at Sydney, Parramatta, Hurstville, Penrith or a suitable one close to my home.
[34] fourth Rahman affidavit, annexure FR4, page 15
On 27 November 2008, Mr Rahman claims he attended a telephone conference with Mr Glanville and Ms Woods (a senior consultant from ATO Concern) attending by telephone and Mr Gregory, Ms Smallacombe and Mr Rahman’s support person Ms Chau present with Mr Rahman. Mr Rahman alleges Mr Glanville repeated his earlier comments to Mr Rahman verbatim: “Why did you join the union? Why did you jump the gun?”[35].
[35] fourth Rahman affidavit [11]
In cross-examination, Mr Rahman was shown pages 173-174 of Mr Glanville’s affidavit, which contained Ms Smallacombe’s notes of the telephone conference[36].
[36] T27.6ff
Despite making some revisions to the minutes, Mr Rahman did not mention Mr Glanville’s alleged comment[37]. Mr Glanville was also taken to these pages of his affidavit during his cross-examination[38]. He confirmed there was no specific discussion about Mr Rahman’s involvement with the union at that meeting[39]. Mr Glanville also stated that he “asked [Mr Rahman] to give his management team an opportunity to resolve any issues on his behalf prior to involving third parties, and that included the union”[40]. He explained that this was a conversation he had with all his staff “regardless of situation”[41]. Mr Glanville denied he said the words attributed to him by Mr Rahman[42]. I accept Mr Glanville’s explanation as persuasive.
[37] T29.6-9
[38] T155.25ff
[39] T156.11-21
[40] T156.24-26
[41] T156.36-39
[42] T157.16-17
In December 2008, the ATO undertook a second process for a possible transfer to Sydney on compassionate grounds for Mr Rahman[43]. Mr Rahman was aware of this process[44]. This process was successful.
[43] Glanville affidavit [11], DG1, tab A, page 4
[44] T29.18-23
On 5 February 2009, a temporary position became available in the ATO’s Hurstville office[45]. Mr Glanville emailed Mr Rahman regarding the position[46]. Mr Rahman responded to the email noting, “I do appreciate your ongoing support to me”.
[45] Glanville affidavit [12]
[46] Glanville affidavit, annexure B
Mr Rahman accepted the offer to transfer to Hurstville to take up the position for the period 23 February – 1 July 2009[47].
[47] first Rahman affidavit [3]
On 12 June 2009, Mr Glanville informed Mr Rahman that he would be transferred permanently to the ATO’s Parramatta office effect from 22 June 2009[48].
[48] Glanville affidavit [13]. See also the email sent by Mr Rahman on 12 January 2009, which stated “I do appreciate your ongoing support on [sic] my difficult time”: Glanville affidavit, annexure P, page 178. See also an email from Mr Rahman sent 24 February 2009: Glanville affidavit, annexure P, page 158
On 22 June 2009, Mr Rahman moved from Hurstville to the ATO’s office in Parramatta where he presently works[49].
[49] first Rahman affidavit [3]
As noted above, the Court must determine the following issues:
a)Issue 1: Did the ATO neglect, fail or refuse to transfer Mr Rahman to Sydney because of his union membership contrary to ss.792 and 793(1)(a) of the Workplace Relations Act?
b)Issue 2: Did the ATO neglect, fail or refuse to transfer Mr Rahman to Sydney because of union membership contrary to ss.342 and 346(a) of the Fair Work Act?
Workplace Relations Act
Section 792 of the Workplace Relations Act stated:
792 Dismissal etc. of members of industrial associations etc.
(1)An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:
(a)dismiss an employee;
(b)injure an employee in his or her employment;
(c)alter the position of an employee to the employee's prejudice;
(d)refuse to employ another person as an employee;
(e)discriminate against another person in the terms or conditions on which the employer offers to employ the other person as an employee.
(2) Subsection (1) is a civil remedy provision.
Section 793(1)(a) of the Workplace Relations Act relevantly stated:
(1)Conduct referred to in subsection 792(1) or (5) is for a prohibited reason if it is carried out because the employee ... concerned:
(a) is ... a member of an industrial association.
Based on Mr Rahman’s evidence, it is not apparent that s.792(1) is engaged. The ATO assumes that Mr Rahman relies on s.792(1)(b) of the Workplace Relations Act[50].
Mr Rahman has adduced no evidence to support a proposition that he enjoyed a right to be transferred to another office on demand.
I accept the ATO’s evidence that there is no right for an APS employee to be transferred to a new location under any of the Public Service Act (or Workplace Relations Act), the ATO (General Employees) Agreement 2009 (2009 Agreement) or the common law. This conclusion is based on the following legal analysis submitted by counsel for the ATO.
Employment in the APS, like other employment, derives rights and obligations from a number of sources, including the Public Service Act, contract, and formerly the Workplace Relations Act.
Formally, the employer of employees within Commonwealth agencies is the Commonwealth unless there is a separate statute conferring on an agency the power to employ[51]. No such power is conferred on the ATO.
[51] Public Service Act, ss.6, 20 and 22
The scheme of the Public Service Act constitutes the APS and provides for the engagement of APS employees for purposes of a department or an agency. The Public Service Act has effect subject to the Fair Work Act[52]. The ATO is an “agency” for the purposes of the Public Service Act[53].
[52] Public Service Act, s.8(1)
[53] Taxation Administration Act 1953 (Cth) (Taxation Administration Act), s.4A(2)(a)
Obligations under the Public Service Act are placed on “Agency Heads”. The relevant Agency Head is the Commissioner of Taxation[54].
[54] Taxation Administration Act, s.4A(2)(b)
Section 6 of the Public Service Act states:
[a]ll persons engaged on behalf of the Commonwealth as employees to perform functions in a Department or Executive Agency must be engaged under this Act, or under the authority of another Act.
Section 22(1) of the Public Service Act states that an:
Agency Head, on behalf of the Commonwealth, may engage persons as employees for the purposes of the Agency.
The “usual basis” for employment is as an ongoing APS employee[55]:
[55] Public Service Act, s.22(3)
Section 24(1) of the Public Service Act provides that an Agency Head “may from time to time determine in writing the terms and conditions of employment applying to an APS employee or APS employees in the Agency”.
An Agency Head, on behalf of the Commonwealth, has all the rights, duties and powers of an employer in respect of APS employees in the Agency[56]. By way of example of an employer power, which is relevant to Mr Rahman’s claim in these proceedings, is that an Agency Head may, in writing, direct an APS employee to do either or both of the following within a specified period:
a)undergo an examination by a nominated medical practitioner for an assessment of the employee’s fitness for duty;
b)give the Agency Head a report of the examination[57].
[56] Public Service Act, s.20(1)
[57] Public Service Regulations 1999 (Cth) (Regulations), regulation 3.2(2)
This power is exercisable if an Agency Head believes that the state of health of an APS employee in the Agency:
a)may be affecting the employee's work performance; or
b)has caused, or may cause, the employee to have an extended absence from work; or
c)may be a danger to the employee; or
d)has caused, or may cause, the employee to be a danger to other employees or members of the public; or
e)may be affecting the employee's standard of conduct[58].
[58] regulation 3.2(1)(a)
Having regard to the evidence, I accept that Mr Rahman has not discharged the onus of establishing he was injured in his employment for the prohibited reasons within the meaning of ss.792(1)(b) and 793(1)(a) of the Workplace Relations Act, as alleged in the statement of claim for the following reasons.
First, the factual background does not support Mr Rahman’s allegation that the ATO “neglected, failed and/or refused” to transfer Mr Rahman. The ATO took steps upon receipt of Mr Rahman’s request for transfer to find him a position in Sydney. A suitable position was thereafter identified. Mr Rahman took up this position in February 2009. In other words, there is no evidence Mr Rahman was injured in his employment by reason of “neglect, failure and/or refusal” to transfer him, as alleged at [7] of the statement of claim.
Secondly, even assuming Mr Rahman was injured (which I do not accept), there is no basis to find the injury occurred because of Mr Rahman’s union membership for the following reasons:
a)there is no evidence Mr Glanville or any other employee of the ATO managing Mr Rahman was aware of Mr Rahman's membership of the CPSU between 7 October 2008 and 21 October 2008;
b)Mr Glanville was aware of the CSPU's involvement when he received Mr Stiller’s letter dated 21 October 2008;
c)Mr Rahman did not make an application to transfer to Sydney until 21 October 2008 after receiving advice from Mr Glanville;
d)Mr Glanville acted on the application promptly and also notified Mr Stiller;
e)there is no evidence that Mr Glanville refused, neglected or failed to act on Mr Rahman's request for a transfer because of Mr Rahman's membership of the CPSU;
f)in any event, Mr Rahman's evidence does not point to any inaction because of Mr Rahman's union membership. The objective evidence, Mr Glanville’s emails of 21 October 2008 and Mr Rahman’s email to Mr Glanville of 5 February 2009, disclose Mr Glanville was actively attempting to fulfil Mr Rahman’s request that he be transferred to Sydney.
With respect to the claim under the Fair Work Act, the ATO notes that Mr Rahman was transferred to Sydney in February 2009. There are no relevant factual allegations with respect to a requested transfer after 1 July 2009, when the Fair Work Act commenced. Therefore, no issue arises with respect to the Fair Work Act.
Request for leave on 28 February 2011 (requesting leave of one hour)
Allegation
Paragraphs 8 and 9 of the statement of claim allege:
8.It was a policy of the ATO and a term of the contract of employment of Mr Rahman that the ATO would not prevent Mr Rahman from absenting himself from duty for periods of up to 1 hour notwithstanding the absence of prior approval by the ATO.
…
9.In breach of the said Policy and / or of the said contract of employment, on or about 28 February 2011, the ATO, by its servants or agents Vidhya Balasubramania [sic] and Corrado Biondi, refused to allow Mr Rahman to take leave of 1 hour as pleaded in paragraph 8 hereof.
I find that there is no substance to the allegation.
Relevant factual background
Mr Rahman’s evidence apparently in support of these allegations appears in the first Rahman affidavit[59], and an email chain appearing at exhibit FH1[60], and extensively in reply in the second Rahman affidavit[61]. The ATO notes exhibit FH1 at pages 52-53 is not a complete email chain[62]. The complete email chain appears at the first Balasubramaniam affidavit[63].
[59] [20]-[21]
[60] pages 52-53
[61] [36]-[49]
[62] first Balasubramaniam affidavit [45]
[63] annexure N, pages 32-34
The leave requested by Mr Rahman on 28 February 2011 was not requested or applied for through the usual online leave system[64].
[64] first Balasubramaniam affidavit [45]
On 28 February 2011, Mr Rahman claims that he wanted to take his wife for a scheduled hospital appointment at 3:30pm that day[65]. In cross-examination, Mr Rahman confirmed he was aware:
i)there was a range of leave types available; and
ii)if he wished to take unplanned or unexpected leave, that it would usually be taken as flex leave[66].
[65] first Rahman affidavit [20]
[66] T68.4-8
Mr Rahman also confirmed his understanding that the usual process was that he provided his Team Leader, who had to approve the leave, with a reason for why he wished to take leave[67]. At 7:40am, Mr Rahman emailed his Team Leader, Ms Balasubramaniam[68], and Mr Biondi requesting them to allow Mr Rahman to leave at 2:00pm[69]. Mr Rahman sent this email to obtain permission before taking leave[70].
[67] T68.10-13
[68] Ms Balasubramaniam became Mr Rahman’s Team Leader, to whom he directly reported, in October 2010. Immediately prior to this, Mr Rahman reported to Mr Zamorano. The change arose when, in late September 2010, the ATO’s Parramatta staff were given the option of transferring to the ATO’s Penrith office. Mr Zamorano elected to move to Penrith. The remaining members of his team in the Parramatta office, including Mr Rahman, were merged into Ms Balasubramaniam’s team: First Balasubramaniam affidavit [9]
[69] first Rahman affidavit [21], Biondi affidavit [14], fifth Rahman affidavit, annexure FR6, page 20
[70] T68.1-2
In the email, Mr Rahman advised neither the reason for leave, nor the type of leave he was proposing to take.
At 11:47am, Ms Balasubramaniam sent an email to Mr Rahman asking what was the reason for him taking leave. Ms Balasubramaniam says she made this request to ascertain the appropriate leave (for example, personal leave or flex leave) to be taken[71].
[71] first Balasubramaniam affidavit [45]
Mr Rahman replied at 11:57am querying why she was asking him “the reason for personal matter” [sic][72]. In cross-examination Mr Rahman confirmed he posed a question, rather than answering Ms Balasubramaniam's question[73].
[72] first Balasubramaniam affidavit, annexure N, page 33, fifth Rahman affidavit, annexure FR6, page 18
[73] T68.33-34
About this time, Mr Biondi and Ms Balasubramaniam had a telephone discussion where Mr Biondi said he was prepared to grant Mr Rahman’s request for leave despite a moratorium on leave that was then in force. Mr Biondi also suggested to Ms Balasubramaniam that, if Mr Rahman did not tell her what type of leave he would be taking, she should inform him that flex leave would be appropriate given the short notice and the unexpected nature of the request[74].
[74] Biondi affidavit [16]
At 12:13pm, Ms Balasubramaniam asked what type of leave Mr Rahman was applying for, noting that there was a moratorium on leave requests for February 2011 and all leave requests from staff had to be forwarded to Mr Biondi for approval[75].
[75] first Balasubramaniam affidavit, annexure N, page 33, Biondi affidavit [15], fifth Rahman affidavit, annexure FR6, page 18
At 12:22pm, Mr Rahman replied that it “could be personal leave or flexi leave or annual leave which is suit for you” [sic][76]. In cross‑examination Mr Rahman refused to accept this was a question and not an answer to Ms Balasubramaniam’s question[77].
[76] first Balasubramaniam affidavit, annexure N, page 33, fifth Rahman affidavit, annexure FR6, page 18
[77] T68-43
At 1:02pm, Ms Balasubramaniam again asked Mr Rahman to provide the reason for his leave, and the type of leave he was applying for[78].
[78] first Balasubramaniam affidavit, annexure N, page 33, fifth Rahman affidavit, annexure FR6, page 18
At 1:07pm, Mr Rahman replied to Ms Balasubramaniam’s email stating, “I already told you it is a personal matter and can’t undersatnd [sic] why you are keep asking to know [sic]. I also advise you that it could be any either [sic] personal leave or flexi leave or annual leave which is suit for you [sic]”[79]. In cross-examination, Mr Rahman stated he did not have to “disclose a personal matter because before I did, I victimised”[80].
[79] first Balasubramaniam affidavit, annexure N, pages 32-33, fifth Rahman affidavit, annexure FR6, pages 17-18
[80] T69.23-24, T70.12-13
At 1:40pm, Ms Balasubramaniam emailed Mr Rahman stating “I provided you with an opportunity to advise the reason for your leave request. You are unwilling to provide the information other than the fact that it is a ‘personal matter’. I have discussed this situation with Corrado. Given the circumstances, we think you could apply for flex leave as the ATO does encourage the use of flexi time for short term/unexpected leave.’’[81]. Mr Biondi understood this email as encouraging Mr Rahman to apply for flex leave[82].
[81] first Balasubramaniam affidavit, annexure N, page 32, fifth Rahman affidavit, annexure FR6, page 17
[82] Biondi affidavit [17]
At 1:52pm, Mr Rahman replied stating he “may prepare to leave later”[83]. Mr Biondi read this email as indicating that Mr Rahman may be prepared to apply for flex leave[84].
[83] first Balasubramaniam affidavit, annexure N, page 32, fifth Rahman affidavit, annexure FR6, page 17
[84] Biondi affidavit [17]
Mr Rahman alleges at [21] of the first Rahman affidavit:
By her emails [Ms Balasubramaniam] kept asking me my reasons for wanting to take this leave. I declined to share my personal information and as a result was not allowed to leave early. Accordingly I was unable to take my wife to hospital. To the best of my knowledge I am not required to obtain permission for an hour flexi and my decision to seek the permission was out of courtesy and respect. [emphasis added]
However, the email chain reveals Mr Rahman was not prevented from leaving early on 28 February 2011. Ms Balasubramaniam states, in unequivocal terms:
I deny that [Mr Rahman] was ‘not allowed to leave early’ because he declined to share personal information with me. Rather, my email to [Mr Rahman’ sent at [1:40pm] indicated that he could apply for flex leave. I recall that [Mr Rahman] did not leave the office early that day, however this was not because he was refused the opportunity to leave early, but rather as a result of his own decision not to leave. [emphasis added]
This is also confirmed by Mr Biondi, who states at [18] of the Biondi affidavit:
As far as I was concerned, there was no outright prohibition on [Mr Rahman] had he needed to leave work at 2 pm that day. At no stage, did I communicate to Ms Balasubramaniam that [Mr Rahman] was prohibited to leave. Ms Balasubramaniam’s email to [Mr Rahman] at 13:40, in my mind was clear and accurate and offered [Mr Rahman] the option of applying for flex leave. This is notwithstanding the general moratorium on leave, the purpose of which was to discourage the taking of annual leave.
Ms Balasubramaniam also notes that all employees are required, by clause 73.5 of the 2009 Agreement, to obtain permission to access flex time and to leave the workplace during working hours for personal or non-work related reasons[85].
[85] first Balasubramaniam affidavit [48]
Additionally, clause 79 of the 2009 Agreement states that employees have to apply for leave[86]. Mr Rahman refers to clause 79.3 of the 2009 Agreement which states in cases of “unplanned leave applications must be forwarded to the employee’s Team Leader as soon as practicable after returning to work”[87]. Of course, Mr Rahman’s leave was not “unplanned”. By his own evidence, and emails to Ms Balasubramaniam and Mr Biondi, he had planned to take the leave.
[86] first Balasubramaniam affidavit, exhibit VB1, page 68
[87] second Rahman affidavit [36]
It is not necessary for me to determine whether any issue arises with respect to an alleged breach of contract.
I find that Mr Rahman has not discharged his onus of establishing any of the matters necessary to support his allegations at [8] and [9] of the statement of claim in summary for the following reasons.
First, there was not, in fact, any “policy” that the ATO would not prevent Mr Rahman from absenting himself from duty for periods of up to one hour notwithstanding the absence of prior approval by the ATO.
Secondly, in any event, the ATO did not, in fact, refuse to allow Mr Rahman to take leave of 1 hour on 28 February 2011.
Contract claim with respect to harassment and belittling conduct
Paragraphs 10 and 11 of the statement of claim plead two implied terms of “the contract of employment” between Mr Rahman and ATO, respectively:
a)that the ATO would treat Mr Rahman with due courtesy and consideration and not subject Mr Rahman to undue harassment; and
b)that Mr Rahman could repose trust and confidence in the ATO that the ATO would not, without good cause, act so as to injure the ATO in his employment.
In respect of these allegations, the ATO by its defence admits:
a)its employees should be treated with “due courtesy and consideration” and not be subjected to harassment; and
b)trust and confidence is a term that may be implied by law, but does not admit that such a term was an implied term of any contract between Mr Rahman and the ATO,
and otherwise denies the allegations.
I accept that while no Court has previously recognised an implied term of “due courtesy and consideration”, an implied term of “mutual trust and confidence” is gaining increasing judicial acceptance[88]. At the same time, courts also recognise there are circumstances when a state of facts will exist to exclude the implication.
[88] see eg, Commonwealth Bank of Australia v Barker [2013] FCAFC 83, State of South Australiav McDonald (2009) 104 SASR 344 and Shaw v New South Wales (2012) 219 IR 87
The ATO submits such a state of facts exists in the present circumstances to exclude the implication of a term of mutual trust and confidence from Mr Rahman’s contract of employment (if there was one). The following matters are said to produce that result:
a)first, employment in the APS is, to use the words of the Full Court of the South Australian Supreme Court in State of South Australia v McDonald[89] “heavily regulated by statute [being the Public Service Act and Public Service Regulations] and binding industrial instruments [being the 2009 Agreement]”;
b)secondly, the Public Service Act and Public Service Regulations provide restraints on the exercise of power by the Commissioner of Taxation (as relevant Agency Head) and his or her delegate[90];
c)thirdly, the 2009 Agreement provides for significant employee and employee association consultation in relation to matters affecting employment in the ATO and the workplace at the ATO[91];
d)fourthly, the existence of a means of redress for APS employees (through the whistleblowing protections in s.16 and review of actions framework in s.33 of the Public Service Act and Part 5.2 of the Public Service Regulations) “can be taken as a normative influence on the behaviour of” the Commissioner of Taxation and his or her delegate[92].
[89] at 397 [269]
[90] see eg, Public Service Act, ss.15(4), 16(1)
[91] see eg, Section B
[92] McDonald at 398 [270]
By reason of those matters in the preceding paragraph, an ATO employee obtains the “kind of protection to which … the implied term as to mutual trust and confidence is directed”[93]. In this respect, it is telling that Mr Rahman, in fact, exercised his rights in making a complaint about the conduct alleged at [12] of the statement of claim[94].
[93] McDonald at 398 [270]
[94] second Balasubramaniam affidavit, annexure A, page 7
For that reason, I accept that it is unnecessary to imply a term concerning mutual trust and confidence in the case of Mr Rahman’s contract of employment, if there was a contract, which is itself a question that I need not resolve.
Alleged harassing and belittling conduct
Mr Rahman alleges the ATO breached the implied terms described above, in two respects, being:
a)on or about 15 March 2011, the ATO, by its servant or agent Ms Balasubramaniam, “embarrassed and belittled the [a]pplicant before other employees of the [r]espondent”[95]. In opening, Mr Rahman described this incident as a matter “of lower significance” and being “in the less serious category”[96]; and
b)on or about 22 March 2011 and 17 May 2012, the ATO, by its servant or agent, Mr Biondi, “issued to the [a]pplicant a Formal Written Direction and Formal Written Warning”[97].
[95] statement of claim [12]
[96] T6.31, 6.34-35
[97] statement of claim [13]
The ATO notes that the allegation concerning 17 May 2012 post dates the commencement of this proceeding.
My finding that no terms such as those pleaded in [10] and [11] of the statement of claim should be implied into Mr Rahman’s contract of employment (if there was one) is sufficient to dispose of the allegations of harassment and belittling conduct contained in [12] and [13] of the statement of claim. However, in case I am wrong in that finding, I have considered the factual allegations in those paragraphs.
Relevant factual background to the allegation involving Ms Balasubramaniam
The ATO denies the allegation in [12] of the statement of claim.
Paragraph 24 of the first Rahman affidavit:
On 15 March I had a discussion with Ms Bronwyn, a Comcare delegate. During this discussion Vidhya [Balasubramaniam] came to me, sat on my desk and said in a raised voice, “I told you to refrain from discussing your personal views about management. It is disruptive and does not contribute to a healthy working environment.”
This is the totality of Mr Rahman’s affidavit evidence in relation to this allegation[98]. It appears from his cross-examination that Mr Rahman’s real complaint is that Ms Balasubramaniam should have called Mr Rahman into a “break room”[99]. He said[100]: “She can call me break room and ask me ….. you did this, you should not do that way. but she did not. She came, sit on my desk, yelling me and there is a lot of witness.” Notwithstanding this statement, Mr Rahman called no other witness to support his allegation.
[98] T72.1
[99] T72.32-33
[100] at T73.27-29
Paragraphs 5-10 of the second Balasubramaniam affidavit describe this interaction in significantly more detail than Mr Rahman does. Ms Balasubramaniam states:
a)at approximately 1:00pm, she overheard Mr Rahman having a telephone conversation at his office desk;
b)she heard Mr Rahman saying “they forced me to take leave” and “We have rotten management here. They should be performance managed”[101];
c)she formed the view that Mr Rahman’s comments were inappropriate because they were made in front of other ATO employees;
d)once Mr Rahman finished his telephone conversation, she approached him and had a conversation which included her saying “You are entitled to your opinions but it is inappropriate to make such derogatory personal comments about management in the work environment” and “As your manager, I have a responsibility to alter any of my staff if their actions are not aligned to the APS values and Code of Conduct”; and
e)after more discussion, Mr Rahman’s personal mobile telephone rang, which he answered and proceeded to have a conversation with the caller. At that point, Ms Balasubramaniam returned to her desk.
[101] In cross-examination Mr Rahman recalled he could have said something like that but could not recall what language he used: T72.44-45, T73.1-4
As Ms Balasubramaniam did not feel she had finished her conversation with Mr Rahman, so she proceeded to email him[102]. Page 54 of exhibit FH1 annexes an email from Ms Balasubramaniam to Mr Rahman sent at 2:28pm the same day stating:
As discussed, please refrain from discussing your personal views about management out loud in the team environment when you have other staff members in the vicinity. It is disruptive and does not contribute to a healthy working environment.
[102] second Balasubramaniam affidavit [11]
Ms Balasubramaniam explains how she came to send her email at [55] of her first affidavit as follows:
The email … was sent by me in response to comments that I overhead [Mr Rahman] make about members of the management team. Our office is open planned and my desk is not far from [Mr Rahman’s]. I felt the nature and tone of these comments were inappropriate in an open plan setting as [Mr Rahman’s] peers could easily hear them. I specifically recall one of the comments [Mr Rahman] made during his phone conversation was “We have rotten management here. They should be performance managed”. After [Mr Rahman] finished his phone conversation, I approached [Mr Rahman] at his desk and advised him that it is inappropriate to make such derogatory personal comments in the work environment. During this conversation [Mr Rahman’s] personal mobile phone ran and [Mr Rahman] answered his phone in the midst of my conversation. I returned to my desk and emailed [Mr Rahman], reiterating my advice.
Ms Balasubramaniam gives further context to her discussion with Mr Rahman, and subsequent email, by observing at [56] of her first affidavit that this was not the first time she had heard Mr Rahman discuss his personal views of management in an open plan environment. Indeed, she had previously counselled Mr Rahman about this issue[103].
[103] first Balasubramaniam affidavit, annexure P
In response to Ms Balasubramaniam’s email, Mr Rahman sent an email at 3:35pm stating:
There are other staff sitting closer to me then [sic] you are but they haven’t advised that they have been disrupted and I was loud. You have changed your desk yesterday and it appears you are listening to my conversations. I do not appreciate this unwarranted attention. Could you please refrain from doing so.
Significantly in the ATO’s submission, this email contains no complaint of Mr Rahman being embarrassed and belittled. Indeed, if this email can be said to be complaining of anything it is that Ms Balasubramaniam, Mr Rahman’s supervisor, was being intrusive.
Ms Balasubramaniam also gives evidence about Mr Rahman’s complaint to ATO Concern about the events of 15 March 2011[104]. The delegate who examined Mr Rahman’s complaint, Ms Balik, concluded that Ms Balasubramaniam’s actions were “reasonable in the circumstances”[105].
[104] second Balasubramaniam affidavit [14]-[16]
[105] second Balasubramaniam affidavit, Annexure A, page 8
Even on Mr Rahman’s own version of this event, while it may be accepted that he was embarrassed at being overheard, there is no evidence that he was embarrassed and belittled in front of his colleagues.
Relevant factual background to the allegations involving Mr Biondi
The ATO admits it issued Formal Written Warnings to Mr Rahman on or about 22 March 2011 and 17 May 2012 respectively, but otherwise denies the allegations at [13] of the statement of claim.
The Formal Written Direction and Formal Written Warning issued to Mr Rahman on 21 March 2011 (First Written Warning) appears at pages 58-59 of the exhibit FH1 and annexure S of the Balasubramaniam affidavit and annexure AQ of the Glanville affidavit[106]. Mr Rahman complains this is harassment and belittling conduct, because he did not want to attend a midyear performance review at the time his Team Leader requested[107].
[106] Mr Glanville was aware of the First Written Warning from discussions with Mr Biondi. As Mr Biondi’s director, Mr Glanville was kept informed by him of any issues arising in relation to an employee’s behaviour, including Mr Rahman’s: Glanville affidavit [88]
[107] T75.1-8
The circumstances which led to the First Written Warning are as follows.
Early on the morning of 15 March 2011, Mr Rahman and Ms Balasubramaniam had a conversation about scheduling Mr Rahman’s Personal Development Assessment (PDA)[108]. There is dispute about the actual contents of this discussion but it is sufficient to note Ms Balasubramaniam emailed Mr Rahman at 10:03am to schedule the PDA for 11:00am that day.
[108] first Rahman affidavit [27], first Balasubramaniam affidavit [57]
Mr Rahman replied at 11:39am that he was “exhausted this week … So, please make it some time on next week”[109]. This was Mr Rahman’s first day back after a period of leave[110].
[109] exhibit FH1, page 61; first Balasubramaniam affidavit, annexure Q
[110] T74.30-31
At 12:27pm the same day, Ms Balasubramaniam emailed Mr Rahman advising that the discussion had been rescheduled to 9:30am on Thursday, 17 March 2011[111]. That email also outlined the reasons for the rescheduling as follows:
As I outlined in our discussion this morning, I am required to conduct a mid year discussion with all my staff before the 31st of March. As you have an impending leave situation with your wife due to give birth very soon, I was planning to have this discussion as soon as possible. I understand that you have just returned from leave and would want to complete a few tasks to get on top of your work.
[111] first Balasubramaniam affidavit, annexure Q
At 2:31pm on 16 March 2011, Ms Balasubramaniam emailed Mr Rahman asking him to indicate whether the rescheduled time was suitable and if he intended to have employee representation. Mr Rahman replied by email at 4:17pm stating “I already requested you to make it some time on next week, if it not suit for you then following week”[112]. Ms Balasubramaniam considered this response “unacceptable and inadequate”[113].
[112] exhibit FH1, page 60; first Balasubramaniam affidavit, annexure R
[113] first Balasubramaniam affidavit [59]
On 21 March 2011, Mr Biondi issued Mr Rahman with the First Written Warning. It directed Mr Rahman to attend a meeting on 22 March 2011. The purpose of the meeting was to “discuss your mid year review and talk about your performance and behaviours in the workplace”.
At 10:51am on 22 March 2011, Mr Rahman emailed Mr Biondi about the First Written Warning[114]. The email was copied to Mr Diment (a First Assistant Commissioner), Mr D’Ascenzo (then Commissioner of Taxation) and Mr Edwards. Ms Balasubramaniam also recalls Mr Rahman attended the meeting on 22 March[115]. Mr Rahman gives no evidence of this. In cross-examination, Mr Rahman said he attended because he was ready to go from 20 March onward[116].
[114] first Rahman affidavit, exhibit FH1, page 57
[115] first Balasubramaniam affidavit [61]
[116] T74.45-46
On 28 March 2011, Mr Rahman sent a further email to Mr Biondi “outlining my views on the issuing of” the First Written Warning[117]. That email states:
I find that it is capricious and unreasonable that a FORMAL WRITTEN DIRECTION & FORMAL WRITTEN WARNING was just robotically issued at me to attend the meeting on Tuesday the 22 March. I believe, you are abusing your power while I have already agreed to attend on 21 March onward (emphasis in original).
[117] second Rahman affidavit [33]. The email appears at exhibit FH1, page 56
Mr Rahman claims no response was received to this email[118].
[118] second Rahman affidavit [33]
Mr Rahman has adduced no evidence in chief of the Formal Written Direction and Formal Written Warning issued to him on 17 May 2012 (Second Written Warning).
The Second Written Warning significantly postdates the commencement of the proceedings and, for the reasons identified above, I will not entertain this aspect of Mr Rahman’s claim. The only evidence from Mr Rahman relating to the Second Written Warning appears in the second Rahman affidavit[119]. These all purport to be evidence in reply.
[119] [60]ff and annexures R-U and fifth Rahman affidavit, exhibit FR6, page 153
Having regard to the evidence outlined above, there is no evidence Mr Rahman was “harassed”,[120] “belittled” or “injured”[121] by the First Written Warning.
[120] Being the apparent content of the implied term pleaded at [10] of the statement of claim
[121] Being the apparent content of the implied term pleaded at [11] of the statement of claim
Code of Conduct “charges”
Mr Rahman notes at [44] of the first Rahman affidavit that he has “received seven Code of Conduct Charges” during his four years’ employment at the ATO[122]. He goes on to say he “suspects” that Mr Glanville was “either directly or indirectly responsible for those Code of Conduct Charges”. For his part, Mr Glanville states he has “always acted in a professional manner” in his dealings with Mr Rahman and has “never contrived any charge” against him[123]. This view is supported by Mr Zamorano[124].
[122] at the time of the affidavit
[123] Glanville affidavit [91]
[124] Zamorano affidavit [40]
Legislative framework
I adopt the submissions of counsel for the ATO concerning the legislative framework bearing upon this aspect of the matter. Section 13 of the Public Service Act contains the Code of Conduct, which “provides a list of behavioural requirements for APS employees”.[125]
[125] Glanville affidavit [39]
An Agency Head may impose the following sanctions under s.15(1) of the Public Service Act on an APS employee who is found to have breached the Code of Conduct:
a)termination of employment;
b)reduction in classification;
c)re-assignment of duties;
d)reduction in salary;
e)deductions from salary, by way of fine;[126]
f)a reprimand.
[126] See also Public Service Regulations 1999 (Cth), regulation 2.3 (amount of fine limited to 2 per cent of employee’s annual salary)
Agency Heads are required to establish procedures for determining and investigating potential breaches of the Code of Conduct[127]. Such procedures must comply with basic procedural requirements set out in Australian Public Service Commissioner’s Directions and have “due regard to procedural fairness”[128].
[127] Public Service Act, s.15(3)
[128] Public Service Act, s.15(4)
ATO procedures
The relevant ATO document is entitled Procedures for determining whether an employee has breached the Australian Public Service (APS) Code of Conduct, dated October 2007 (ATO Code of Conduct Procedures)[129]. That document appears at annexure O of the Glanville affidavit.
[129] Glanville affidavit [39]
Paragraph 40 of Mr Glanville’s affidavit outlines the ATO’s procedures when an employee is suspected of having breached the Code of Conduct. He was not cross examined on that paragraph. Mr Glanville notes:
a)a Director (such as Mr Glanville) will issue a letter of suspected breach to the employee in question. The purpose of this letter is to allow the employee an opportunity to put forward any information he or she wishes to have considered before any decision is made with respect to the suspected breach;
b)all the material presented by the employee is then carefully considered;
c)a decision is then made to either:
i)take no further action;
ii)deal with the matter through general management processes such as counselling; or
iii)recommend an investigation of the matter in accordance with the ATO Code of Conduct Procedures.
If a decision is made to investigate the matter, then a “Notice of Suspected Breach” is issued to the employee. A more formal investigation is then undertaken, typically over a number of weeks, by a senior employee in the ATO who is also specifically trained by the Australian Public Service Commissioner to undertake investigations[130]. If an investigation reveals a breach of the Code of Conduct, the matter then proceeds to determination of a sanction for the breach. This is carried out by a different officer who is referred to as a “determining officer”.
[130] Glanville affidavit [40]
Mr Rahman confirmed in cross-examination that he was aware of the process for investigating a suspected breach of the Code of Conduct and then determining the sanction for the breach[131].
[131] T34.35-41
Allegations
Notwithstanding there being, apparently, seven Code of Conduct “charges”[132], [14]–[18] of the statement of claim concern allegations with respect to Code of Conduct “charges” brought against Mr Rahman on only four occasions:
a)22 December 2008 (First Code of Conduct Process);
b)27 July 2009 (which should be 2010) (Second Code of Conduct Process);
c)16 December 2010 (Third Code of Conduct Process); and
d)27 May 2011 (Fourth Code of Conduct Process).[133]
[132] the ATO does not accept nomenclature used by Mr Rahman and instead refers to the investigation into the allegations that Mr Rahman breached the APS Code of Conduct by referring to “processes” rather than “charges”
[133] see also Glanville affidavit [42]
Those processes are alleged, by [14] of the statement of claim, to have been “brought in bad faith solely or principally with a view to harassing the [applicant] and injuring him in his employment” (emphasis added)[134]. Paragraph 18 of the statement of claim alleges Mr Rahman was “discriminated against or victimised” by reason of the matters pleaded in [14] (although this may be a reference to [17], or both [14] and [17]).
[134] see, too, T6.45-7.1
The ATO by its Defence admits Code of Conduct proceedings under s.13 of the Public Service Act were instigated against Mr Rahman on or about those dates but otherwise denies the allegation in [14] of the statement of claim.
Each Code of Conduct Process can be considered in turn. In doing so, the ATO submits it is necessary to keep in mind the actual allegation pleaded; namely that the processes were brought in bad faith and with a view to harassing, discriminating against and victimising Mr Rahman. In other words, the allegation is not that the suspected breaches were investigated in bad faith etc, or that sanction/s imposed on Mr Rahman arising from the processes was in bad faith etc.
Relevant factual background in relation to the First Code of Conduct Process
The First Code of Conduct Process arose out of incidents which occurred on or about 4 November 2008 and 4 December 2008 while Mr Rahman worked at the ATO’s Chermside office[135]. Mr Glanville denied these were matters of the “greatest triviality” or “of no consequence”[136]. He also denied he “sent them forward” because he had an animus against Mr Rahman[137].
[135] Glanville affidavit [49]. It can be noted that on 2 February 2009 Mr Rahman brought allegations of breaches of the Code of Conduct against Ms Hansen, Ms Furner and Ms Smallacombe: first Rahman affidavit [58]. These allegations were investigated by Ms Hardiman: Glanville affidavit [56]-[58], first Rahman affidavit, exhibit FH2, page 176. Mr Rahman’s allegations in relation to that investigation are not the subject of any allegation in the statement of claim
[136] T163.42-164.2
[137] T164.4-5
The circumstances leading to the First Code of Conduct Process are as follows.
On 4 November 2008, Mr Rahman attended a meeting to discuss the management of the injury Mr Rahman had sustained in July 2008 when he was involved in a motor vehicle accident[138]. Also in attendance were Mr Rahman’s then case manager Ms Hansen, a risk manager Mr Gregory and Mr Rahman’s Team Leader Ms Smallacombe.
[138] first Rahman affidavit [76]
Mr Rahman says the meeting “was of great concern” to him and that when he put questions to Ms Hansen expressing these concerns she “did not seem to have an answer”[139]. At that meeting, Mr Rahman allegedly failed to treat Ms Hansen with “respect and courtesy, and without harassment”[140].
[139] first Rahman affidavit [79]
[140] Glanville affidavit [50]
On 4 December 2008, Mr Rahman was suspected of failing to treat a fellow employee, Ms Furner, with “respect and courtesy, and without harassment”[141]. Ms Hansen complained Mr Rahman questioned her integrity and professionalism in the presence of external organisations[142].
[141] Glanville affidavit [51]
[142] T205.42-44
Mr Glanville says that subsequent to the complainants lodging their complaints, he commissioned a formal investigation and report from Mr Des Woods, Investigating Officer[143].
[143] Mr Rahman seems to suggest at [23] of the second Rahman affidavit that Mr Woods was not independent and unbiased as an investigator because he was “the successor of Mr Granville for that position and is in contact with him for advice in relation to that position”, however this issue was never raised previously
On 13 February 2009, Mr Rahman met with Mr Woods[144]. He was provided with a copy of the notes of the meeting[145]. He was given an opportunity to make any comments in relation to the interview[146]. He asserts that the “entirety of this meeting lasted for about 45 minutes” and not two hours as stated in Mr Woods’ report[147]. In cross-examination, Mr Rahman confirmed his “only complaint” about the interview was that Mr Woods was not accurate in the amount of time that he described for the interview[148].
[144] first Rahman affidavit [61], T32.6ff
[145] exhibit FH3, page 60
[146] T32.33-34
[147] first Rahman affidavit [63]
[148] T32.41-43
On 14 May 2009, Mr Rahman alleges he met with Mr Glanville. He confirmed in cross-examination this was a telephone conversation, during which Mr Glanville told him that Mr Woods had finalised his report and made a finding that Mr Rahman had been suspected to breach the Code of Conduct with respect to both Ms Hansen and Ms Furner[149]. Mr Rahman also alleges, “in relation to the Woods” report, Mr Glanville said “If you say it is a conspiracy against you, I will chuck you out of the door. I don’t care about any legal proceeding”[150]. Mr Glanville denies saying the words Mr Rahman attributes to him[151]. Mr Glanville was not cross examined in relation to this alleged conversation.
[149] T33.42-34.6
[150] first Rahman affidavit [64]
[151] Glanville affidavit [59]
On 15 May 2009, Mr Glanville provided a copy of Mr Woods’ report to Mr Rahman[152]. It can be noted that Mr Woods found that one of Ms Hansen’s complaints, referred to in his report as the “second issue raised by Ms Hansen”, as not being substantiated[153].
[152] Glanville affidavit, annexure Q, page 181, T34.6-7
[153] Glanville affidavit, annexure Q, pages 188-189, T34.19-21
After considering Mr Woods’ report, on 2 July 2009, Mr Glanville issued a Notice of Suspected Breach of the APS Code of Conduct to Mr Rahman[154]. Mr Glanville was asked a number of questions about this document in cross-examination[155]. I accept that his answers were truthful and honest. The notice appoints Ms Sutherland to act as Determining Officer, that is, “to investigate and determine whether there had been one or more breaches of the Code of Conduct”[156]. Mr Rahman recalled receiving this document and said he read it carefully[157].
[154] Glanville affidavit [52], T159.6-8. A copy of this notice appears at annexure R of the Glanville affidavit
[155] T159.14-163.17
[156] Glanville affidavit [52] and annexure R, page 194
[157] T35.3-5
Mr Rahman was given an opportunity to provide a written response to Ms Sutherland[158]. On 18 August 2009, Mr Rahman and Mr Patterson from the CPSU met with Ms Sutherland[159].
[158] T35.17-18
[159] The arrangements for the meeting were put in place by exchange of emails which appear at second Rahman affidavit, annuexre J, page 61
Ms Sutherland’s investigation found that one of the breaches had been proven[160]. Mr Rahman was provided a copy of Ms Sutherland’s report to Mr Rahman[161]. He was given an opportunity to respond to it[162].
[160] Glanville affidavit [54]
[161] T36.24, first Rahman affidavit, annexure FH3, page 47
[162] T37.1-2
On 1 October 2009, Ms Sutherland granted Mr Rahman an extension of time to respond to her report[163]. Mr Rahman then took the opportunity to obtain advice from Mr Lapidos[164]. At [55] of the first Rahman affidavit, Mr Rahman complains Ms Sutherland’s report stated “Mr Rahman declined my invitations to meet with him”. Sometime after receiving the sanction, on 9 November 2009, Mr Rahman spoke to Mr Glanville about this statement. Mr Rahman and Mr Glanville exchanged emails on 10 November 2009[165]. Mr Glanville decided to take no further action in relation to this issue.
[163] exhibit R2, page 3, T37.36
[164] exhibit R2, pages 2-3
[165] exhibit FH2, pages 170-172 and Glanville affidavit, annexure T
On 6 October 2009, Mr Lapidos sent an email to Mr Rahman containing “fairly extensive advice”, including that he should apologise to Ms Hansen[166]. Mr Rahman considered an apology would “undermine [his] complaints” against Ms Hansen, Ms Furner and Ms Smallacombe[167]. He agreed in cross-examination that he thought he had not done anything wrong and was not ready to apologise[168].
[166] exhibit R2, page 2
[167] exhibit R2, page 1
[168] T38.6-7
On 23 September 2009, Mr Rahman received a sanction in respect of these breaches[169]. Mr Rahman was unhappy about the imposition of the sanction, and sought a review by the Merit Protection Commissioner[170].
[169] Glanville affidavit [54]
[170] first Rahman affidavit, annexure FH3, page 77ff, T39.15-20
On 4 April 2011, a delegate of the Merit Protection Commissioner wrote to Mr Rahman advising that a review had been undertaken and the Merit Protection Commissioner recommended to the ATO that the relevant decisions be confirmed[171].
[171] first Rahman affidavit, annexure FH3, page 76, T39.43-46. Mr Rahman was dissatisfied with the Merit Protection Commissioner’s assessment and commenced proceedings in the Federal Court against the Merit Protection Commissioner: T40.5-9. Those proceedings were transferred to this Court where they were discontinued on 17 July 2012
Relevant factual background in relation to the Second Code of Conduct Process
Paragraph 33 of the first Rahman affidavit states:
On 27 July 2010, a day before I was going to be interviewed for a promotion, Glanville issued another Code of Conduct Charge. I believe his timing in doing so was designed to harass me and upset me. These charges related to allegation that I had failed to accurately record my time. The claim was not found.
Mr Rahman claims that Mr Glanville mentioned this allegation on his referee report, and then failed to notify the recruitment panel about the outcome[172].
[172] first Rahman affidavit [34], T47.11-17
The circumstances leading to the Second Code of Conduct Process are outlined in Mr Glanville’s affidavit[173] as follows.
[173] at [24]–[29]
On or about 16 April 2010, Mr Rahman’s Team Leader, Mr Zamorano, received an email from Mr Rahman[174]. Mr Glanville confirmed this in cross-examination[175]. The email caused Mr Glanville to suspect that Mr Rahman was sending communications externally, including “In-Confidence” information to external sources without authority[176]. Mr Rahman’s material includes numerous other emails which were also sent or copied to Mr Rahman’s private email account. This was his common practice[177]. Mr Rahman was unconvincing in his explanation that he had permission to send these emails externally[178].
[174] Glanville affidavit, annexure F, pages 30-31
[175] T165.1-7
[176] Glanville affidavit [26]
[177] T44.21
[178] T44.12-19
On or about 28 June 2010, Mr Glanville telephoned the ATO’s People HelpLine “to request a system integrity check to be carried out” on Mr Rahman. The officer Mr Glanville spoke to also recommended that a check of Mr Rahman’s log on/log off times also be carried out, to which Mr Glanville agreed[179]. In cross-examination, Mr Rahman agreed it was very important to keep accurate time records and that it was his responsibility to do so[180].
[179] Glanville affidavit [26]
[180] T41.23-34
On 13 July 2010, Mr Glanville received a report from Mr Dawson containing Mr Rahman’s log on/log off times[181]. It was this report, and not any issue with the transmission of emails to recipients outside the ATO, that led to the following events[182]. In cross-examination, Mr Glanville explained the log in/log off report gave an indication of, generally, 10-15 minutes of an employee’s start and finish times[183].
[181] Glanville affidavit [27], annexure G, pages 32-37, T206.14-15
[182] T165.11-16
[183] T165.18-24
On 15 July 2010, Mr Glanville forwarded the report to Mr Zamorano[184]. Mr Glanville requested in a follow up conversation with Mr Zamorano that he confirm Mr Rahman’s log in/log off times[185]. Mr Zamorano had undertaken a similar task before in relation to another employee[186].
[184] Glanville affidavit, annexure G, page 38, T207.8-13
[185] Glanville affidavit [27], T166.40-45, 271.39-42
[186] T272.1-2
On 19 July 2010, Mr Zamorano sent to Mr Glanville a complete spreadsheet of Mr Rahman’s log on/log off times[187]. Mr Glanville explained the spreadsheet in re-examination[188]. From this spreadsheet Mr Glanville identified five dates from November 2009 to June 2010 in which he appeared to inaccurately record his time[189].
[187] Glanville affidavit, annexure H
[188] T207.18-39
[189] Glanville affidavit [28], T207.41-43
On 27 July 2010, Mr Glanville sent an email to Mr Rahman notifying him that Mr Glanville had received a report indicating a suspected breach of the Code of Conduct[190]. Mr Glanville explained the purpose of this email was to allow Mr Rahman an opportunity to respond with any information before he made a decision whether to take any further action or not[191]. Mr Glanville provided Mr Zamorano’s report to Mr Rahman[192]. Mr Rahman then forwarded Mr Glanville’s email to Mr Lapidos[193].
[190] Glanville affidavit [29], first Rahman affidavit, annexure FH1, page 71, T164.27-38
[191] Glanville affidavit [30]
[192] Glanville affidavit, annexure I, page 45, T208.15-16
[193] exhibit R3, T42.36-37
On 9 August 2010, Mr Rahman replied to Mr Glanville suggesting it is appropriate for Mr Glanville to speak to Mr Zamorano because his TMS is subject to approval by his Team Leader[194]. Mr Glanville replied saying that Mr Rahman could not shift his responsibility for accurate time recording to his Team Leader[195].
[194] Glanville affidavit, annexure J, page 61
[195] Glanville affidavit, annexure J, page 60, T45.29
Mr Rahman, of course, commented on the referee comments made by Mr Zamorano and Mr Glanville in Section C of the report[363]. He understood his comments would be considered in the recruitment process[364]. Mr Rahman made it clear he disagreed with Mr Zamorano’s and Mr Glanville’s comments[365]. It was nevertheless his view that, because of those comments, he did not get shortlisted for the position[366]. However, Mr Rahman later stated he was shortlisted for the position[367].
[363] annexure A, page 20, T79.7-8
[364] T79.25-26
[365] T79.38-39
[366] T79.41-42
[367] T80.10-11
Notwithstanding being issued with Mr Glanville’s email, Mr Rahman attended the interview for the position, did not ask for the interview to be postponed, nor told anyone at the interview that he was upset because of the Second Code of Conduct Process[368].
[368] T80.37-41
Mr Rahman complains that when the charge “had not been proved”, Mr Glanville “failed to notify the recruitment panel about the outcome”[369]. Mr Glanville notes there was no requirement that he contact the recruitment panel and that it would be incumbent on the delegate and/or recruitment panel to seek further information if the suspected breach was likely to affect their selection decision in relation to Mr Rahman”[370].
[369] first Rahman affidavit [34]
[370] Glanville affidavit [32]
On 9 September 2010, Mr Rahman was informed that he was unsuccessful at the interview.
Again, Ms Reid's evidence indicates that Mr Rahman's referee's reports were not checked[371].
[371] Reid affidavit, exhibit JR1, page 38
Mr Rahman has not adduced any evidence that Mr Glanville had any knowledge or involvement in the interview stage.
I find that there is no evidence to support Mr Rahman's allegations that he was denied these opportunities for promotion because of CPSU membership (noting that at Mr Rahman ceased being a member of the CPSU on 18 August 2009 and there is nothing in the applications which indicates membership of any union).
Likewise, I am not persuaded that the code of conduct issues were a determining factor with respect to these applications.
Application 4: APS5 Compliance Officer - EXT-CMP-1428-11
The position was advertised on 25 October 2010. Ms Reid's evidence was that 1736 candidates applied of which 1275 were ATO employees[372].
[372] Reid affidavit, exhibit JR1, page 39
On 15 November 2010, Mr Rahman was invited to attend an interview.
On 22 November 2010 referee reports were requested on the basis that the reports would only be used if Mr Rahman was successful at interview.
Mr Rahman was not successful at the interview and he was advised on 20 January 2011.
Mr Rahman gives no evidence about this application.
Mr Rahman has not adduced any evidence that Mr Glanville had any knowledge or involvement in this application process.
Mr Glanville was not asked any questions about his involvement in the application.
I find that there is no evidence to support Mr Rahman's allegations that he was denied this opportunity for promotion because of CPSU membership (noting that at Mr Rahman ceased being a member of the CPSU on 18 August 2009 and there is nothing in the application which indicates membership of any union). Likewise, there is no evidence that any issue concerning the code of conduct issues was raised or considered with respect to this application.
Application 5: APS6 Application
Paragraph 38 of the first Rahman affidavit states:
In March 2011, I applied for an APS6 application [sic] (pages 114-125). At the same time I applied with a “dummy application” (pages 126-137) using a different name. I also completed the dummy application on the basis that the dummy applicant was an external candidate with no ATO experience. The dummy applicant was short-listed but I was not.
Mr Rahman only read the first sentence of this paragraph as part of his evidence[373]. Mr Rahman’s handwriting appears on page 126[374].
[373] The remainder of the paragraph, and pages 126-137 of annexure FH1 became exhibit R7
[374] T88.18
Notwithstanding his claim to have prepared this “dummy application” he abandoned this in cross-examination[375]:
You didn’t. Who did?---One of my friend. When I was going a job application, I gave my friend for proof reading. For proof reading. He also apply for ..... job in ATO. He didn’t get to, but on that occasion, he – he used my selection criteria and applied the position.
[375] at T87.17-20
Mr Rahman could not explain when he gave “his friend” the information[376]. Rather, Mr Rahman apparently gave him most of his applications[377].
[376] T104.45-46
[377] T105.30-31
Mr Rahman sought to explain this state of affairs as follows[378]:
And you’ve seen that Ms Reid has extracted a number of applications made by Mr [Haque]?---Yes, because he is looking for job, but this time, he – he is looking for, I guess, three, four job. But this time, he use my selection criteria, and that’s why I said it’s a dummy application, because that is not his ..... selection criteria. It’s my selection criteria, and that’s why I did ..... I relied on Mr Blank. Whatever he prepare, I sign and ..... that one. That is my terrible mistake.
And how is it that you have a copy, then, of Mr [Haque’s] application, Mr Rahman?---Yes, because once he got short-listed he said, “Fahmid, did you make it?” I said no. He said, “I made it.” I said, “Yes. Well, congratulations.” Then he said, “I used your selection criteria.” I said, “Why you use your – my selection criteria?” As an APS officer, I advise him, “Can you call the ATO and withdraw your position.” In that case, what he did – he chose not to go for interview. Even though he short-listed, he didn’t go for interview, and that is the reason I don’t like to ..... I don’t like to get the benefit. I ..... myself. That finding is not made by ..... I disclose myself. [emphasis added][379]
[378] T87.46-88.14
[379] see also T104.30-37
Mr Rahman claimed that the dummy application was made by his friend, Mr Haque. I permitted him to be called to give oral evidence. Mr Haque claimed that he made several ATO job applications using material provided by Mr Rahman. He was, however, a poor witness and appeared confused about the circumstances. His evidence was in part[380]:
[380] at T246.46-247.36
And after you put in this application, did you tell Mr Rahman that you had been shortlisted for an interview?---Did I tell him?
Did you tell him?---No. I didn’t even know that I was shortlisted.
…
But - - -?---But I didn’t withdraw it, did I?
- - - you have just told his Honour you didn’t know that you had been shortlisted for the job - - -?---Yes. I didn’t know.
- - - for two or three months later?---I’m shocked ..... this is different thing.
Right?---This is – whenever ..... application, there is a thing you can withdraw application any time you want.
But this application - - -?---This is the main page.
- - - was withdrawn after the notification for the interview; isn’t that right?---I didn’t withdraw, did I?
You didn’t – you can’t remember whether you withdrew it?---No, I didn’t withdraw it. I never withdraw it. There is a option [sic] of withdrawing it, but I didn’t withdraw it.
In cross-examination, Mr Rahman confirmed that his complaint in relation to this application was that he was not shortlisted for the position as a result of something Mr Glanville did[381]. Again, Mr Rahman gives little evidence of this application.
[381] T82.4-11
It appears that Mr Rahman sought to establish some improper interference by showing that his application was unsuccessful when compared to Mr Haque's application.
A comparison between Mr Rahman’s application and the “dummy application” reveals the dummy applicant had considerably more experience and skills than the “real” application[382].
[382] compare question 2.23 (current duties/responsibilities at the ATO) on page 116 of exhibit FH1 with question 2.23 on page 130 of exhibit FH1(current duties / responsibilities as a “financial accountant” at the dummy applicant’s current dummy employer, Suncorp); and question 3.5 on page 131 of exhibit FH1 (duties/responsibilities as a “financial accountant” at the dummy applicant’s former dummy employer, National Bank Ltd)
I find that Mr Rahman has not discharged his burden of proving he was discriminated against or victimised in his application.
Application 6: APS5 Application Compliance Officer EXT-CMP-1468-11
This allegation post dates the commencement of the proceeding in this Court. Consistently with my earlier rulings, I will not consider this allegation in the present proceeding. It clearly raises new and different issues to those identified in the originating application. For completeness, however, I will set out the relevant facts.
Mr Rahman “applied for an APS5 on 9 October 2011 and was shortlisted for interview on 22 November 2011”[383]. Mr Rahman alleges:
Mr Glanville failed to follow procedures by not completing section B Yes or No question of referee report … It seems obvious that Mr Glanville did not wish to complete section B in writing, creating a permanent record but would prefer to respond to this question over the phone if, or when the recruitment team contact him. This way Mr Glanville may influence the selection process with leaving any record of his personal bias.
[383] first Rahman affidavit [36]
Mr Irwin, who by that time was acting as Mr Rahman’s Team Leader, rated Mr Rahman “suitable” for the APS5 Compliance Officer role[384]. Mr Irwin stated[385]:
During my short period of managing [Mr Rahman], I have found that … he does possess sound knowledge of his role. His QA is very good. His ability to communicate with myself and fellow staff member is clear. I have also found that he takes on feedback readily. Any question that he has asked of me he responds well to the reply, taking any learnings on board very quickly.
[384] annexure FH1, page 95, T113.3-10
[385] first Rahman affidavit, annexure FH1, page 95, Glanville affidavit, annexure L, page 97
Mr Glanville supported Mr Irwin’s referee report and the comments made[386]. He noted[387]:
In May 2011, Ms. Balasubramiam [sic] had discussed some issues with [Mr Rahman] around the quality of his work. [Mr Rahman] has accepted this feedback and his results have improved as a result.
[386] T113.17-18
[387] first Rahman affidavit, exhibit FH1, page 96, Glanville affidavit, annexure L, page 98
Notwithstanding that Mr Irwin and Mr Glanville both supported his application, Mr Rahman provided comments in response to the referee report in Section C[388]. He accused Mr Glanville of “discrimination, bullying and intentionally harassing” him. He drew particular attention to Mr Glanville’s failure to complete a question in Section B of the report and made essentially the same allegations in these proceedings[389]. In cross-examination, Mr Rahman explained his “suspicion” for thinking this as follows[390]:
Intentionally, he did mistake so that ….. committee would contact with him ….. to complete. Then he will give oral evidence without keeping permanent record.
[388] T113.37
[389] first Rahman affidavit, exhibit FH1, page 97
[390] at T113.33-114.2
It was, according to Mr Rahman, retaliation related to the code of Conduct issues[391]. This “theory” was put to Mr Glanville a number of times in cross-examination, all of which he emphatically denied[392].
[391] T114.4-7
[392] T204.1-18
Mr Glanville addresses Mr Rahman’s allegation about his failing to complete a question in Section B at [35] of his affidavit. He states:
I recall I received four or five referee reports from various members in my direct line of reporting between 14 and 17 November 2011. At the time, and for reasons relating to budget, there were no available positions in my team. Accordingly, I did not complete that particular question in section B for any staff that had applied for APS 5 and/or APS 6 positions.
His evidence was maintained in cross-examination[393].
[393] T203.16-24
Mr Glanville also explains his interactions with Mr Irwin about failing to complete the question. Mr Glanville says he asked Mr Irwin to follow up with the recruitment team to see if the question was mandatory because, if it was, Mr Glanville would have to resubmit all the referee reports he submitted for that recruitment campaign. On 16 November 2011, Mr Irwin sent an email to the recruitment team about the issue. He received no response[394].
[394] Glanville affidavit, annexure M, page 101
Mr Rahman also complains about an incident that occurred during his interview for the position on 22 November 2011[395]. At the commencement of the interview, the interviewers introduced themselves to Mr Rahman using false names[396]. On 6 January 2011, Mr Rahman received an email from the ISAC convenor, Mr Faulkner, who advised Mr Rahman the interviewers had changed their names[397]. Mr Rahman states the “false names given by the interviewers led me to believe that this was another attempt to prejudice my prospects of securing the position”[398].
[395] T112.18-22
[396] T114.25-33
[397] third Rahman affidavit [8], T114.39-40
[398] third Rahman affidavit [9]
Ms Reid provided extensive affidavit evidence of the circumstances leading up to the interview, and events afterwards. She was not cross examined on any of these matters.
Ms Reid gave evidence that there were 700 applicants for the position with 197 candidates successful in progressing to interview[399].
[399] Reid affidavit, exhibit JR1, page 41
Mr Rahman was sent an email invitation for interview and assessment 9 November 2011.
There was also an email requesting referee reports sent on 9 November 2011(only to be used if successful at interview).
Ms Reid's evidence also addressed the particular circumstances of this application.
On 10 November 2011, Mr Rahman sent an email to the “Recruitment Outcomes” email address requesting information about obtaining another referee report and to speak with the ISAC convenor for the APS5 Compliance process[400]. Ms Reid had a conversation with her manager, Mr Higgs, who advised her he would speak to Mr Rahman.
[400] Reid affidavit [41], annexure JR1, pages 43-44
On 17 November 2011, Mr Rahman sent an email requesting the ISAC convenor to attend his interview, or if he could not attend, that Mr Rahman be granted permission to tape record his interview[401]. Also attached to the email was a referee report and copies of court documentation. Upon receiving the email, Ms Reid telephoned the ISAC convenor, Mr Faulkner. Mr Faulkner told Ms Reid he would have to speak to the APSC about the request[402].
[401] third Rahman affidavit [16], Reid affidavit [42], exhibit JR1, page 45. (Mr Rahman confirmed this in cross-examination: T115.25-26)
[402] Reid affidavit [44]
On 21 November 2011, Mr Faulkner sent Ms Reid an email stating he would not be attending the interview[403]. Mr Faulkner asked Ms Reid to inform the interviewers of Mr Rahman’s request.
[403] Reid affidavit [46], exhibit JR1, pages 92-93
Later that day, Ms Reid telephoned Mr Rahman, who in cross‑examination recalled this[404]. Ms Reid says the telephone conversation lasted about 30 minutes. She informed Mr Rahman that the ISAC convenor would not be attending the interview and Mr Rahman was not allowed to record the interview. Ms Reid also says she and Mr Rahman discussed Mr Rahman’s dissatisfaction with the referee report and his concern the process would be biased[405]. Mr Rahman says he asked Ms Reid about the timing of referee reports[406]. After their telephone conversation, Ms Reid sent an email to Mr Rahman[407].
[404] T115.37-38
[405] Reid affidavit [48]
[406] third Rahman affidavit [17]
[407] Reid affidavit [49], exhibit JR1, pages 94-96
Ms Reid also accessed Mr Rahman’s details on the ATO’s e‑recruitment database to ascertain the identities of the interviewers so she could inform them of Mr Rahman’s request[408].
[408] Reid affidavit [50]
On 22 November 2011, Ms Reid telephoned one of the interviewers, Mr Siu, and told him about Mr Rahman’s requests that the ISAC convenor be present during the interview and otherwise to tape record the interview. Mr Rahman was interviewed later that day by Mr Siu and Ms Circosta[409].
[409] Reid affidavit [52]
On 30 November 2011, after numerous unsuccessful attempts to contact one another, Ms Reid spoke to Mr Siu. Mr Siu informed Ms Reid that he and the other interviewer decided to change their names for the interview[410]. Ms Reid sought the guidance of Mr Higgs. Mr Higgs informed the delegate and an ATO officer in Compliance, Ms Neal. During a regular briefing with ISAC members and RW&D team members later that day, Ms Reid informed the attendees that aliases had been used by the interviewers during their interview with Mr Rahman[411].
[410] Reid affidavit [54]
[411] Reid affidavit [56]
On or about 9 December 2011, Ms Reid had a conversation with her Acting Director, Ms Lombardi about the APSC wanting details about what happened at Mr Rahman’s interview[412]. Numerous emails were exchanged between the ATO and APSC over the following days[413].
[412] Reid affidavit [60]
[413] Reid affidavit, exhibit JR1, pages 100-102
On 14 December 2011, Ms Reid received an email from Ms Circosta setting out Mr Siu’s and Ms Circosta’s recollections of the events the day of the interview[414]. Ms Reid also had a telephone conversation with Mr Siu and Ms Circosta that day.
[414] Reid affidavit, exhibit JR1, pages 118-119
On 22 December 2010, Ms Reid became aware the APSC had determined Mr Rahman should be re-interviewed[415]. Mr Higgs had a telephone discussion with Mr Rahman about a second interview[416].
[415] Reid affidavit, exhibit JR1, pages 103-106
[416] third Rahman affidavit [18], T114.42-46
On 23 December 2011, Mr Higgs sent an email to Mr Rahman advising him of a second interview because of a “potential procedural issue” with his first interview[417].
[417] Reid affidavit [63], exhibit JR1, pages 107-117
On 3 January 2012, Mr Rahman forwarded Mr Higgs’ email to Mr Lapidos[418]. Mr Rahman stated “It looks very dark but I don’t have much hope that I will actually get successful e.g. I can think that if I do this interview, they will have a kind of proof that I was unsuccessful on merit, and this means that I was unsuccessful in previous job applications for same reason not because they treated me unfairly.” At this time, Mr Rahman was unaware that the interviewers had changed their names[419].
[418] exhibit R9
[419] T116.37-38
Approximately 35 minutes later, Mr Lapidos replied saying “I think the reason [you] will be unsuccessful will be your approach to your application for this position as well as your refusal to find a compromise with the Office in relation to your concerns, Fahmid. That said you may as well have the re-interview. It is good experience”[420]. Although Mr Rahman thought this was “good advice”, he nevertheless did not proceed with a second interview[421].
[420] exhibit R9
[421] T117.7-15
On 6 January 2012, Mr Faulkner sent an email to Mr Rahman which responded to questions Mr Rahman had asked him in, presumably, a previous email which is not in evidence[422]. Under the heading “Question 2: Why interviewers were contacted and what was verbally conveyed to them prior to my interview?”, Mr Faulkner noted:
Interviewers were contacted following your request to have the convenor present at your interview or alternatively to tape the interview. Interviewers were advised of your requests and that these had been considered and denied. However, at the same time, the interviewers were also provided information relating to previous legitimate review action that you had taken, including that you had made use of internal ATO processes such as ATO Concern and external processes such as the Federal Court. This information was not relevant to your assessment. It is understood that, based on this information, the interviewers altered their names when introducing themselves at the interview.
This information did not come to the attention of the ISAC until after your interview was conducted. As noted in the email from Mr Higgs your interview formed part of the quality assurance process involving MPC representatives. As the assessment was agreed by the ISAC, it believed that the provision of information did not impact the result. However, to ensure that there is no perception that the information biased the interviewers’ assessment, a new interview has been offered to you.
[422] third Rahman affidavit, annexure B, page 18, T117.40
Also on that day, Mr Rahman sent an email to Ms Reid stating that he was “not in a position at this stage” to make a decision about attending a second interview[423].
[423] third Rahman affidavit, annexure B, page 25
On 11 January 2012, Mr Rahman sent an email to Mr Faulkner, Ms Reid and Mr Higgs requesting[424]:
a copy of the current interview records, information, documents, files including & not limited to all forms of communication, storage, electronic or otherwise, all notes or material [on a database called] PIES; and any notes including diary notes, agenda or meetings or material of meetings or reports of any that both interviewers or ISAC or APSC or MPC or ATO or consultant or contractor created, received or sent … in relation to I, Fahmid Rahman and the ATO.
[424] third Rahman affidavit, annexure B, page 19
On 16 January 2012, Mr Rahman sent an email to Mr Faulkner, Ms Reid and Mr Higgs noting he remained unable to make a decision about whether to attend a second interview[425].
[425] third Rahman affidavit, annexure B, page 24
Mr Rahman does not “believe” all of his concerns outlined in his email to Mr Faulkner on 16 January 2012 have been addressed[426]. Mr Rahman provides no details about what aspects of his email have not been addressed.
[426] third Rahman affidavit [22]
It appears, however, that the Merit Protection Commissioner, Ms Godwin, was of the view that the[427]:
best option to address [the possible procedural issue that material irrelevant to your assessment was provided to Mr Rahman’s interviewers was to] offer a new interview with a different panel.
[427] third Rahman affidavit, annexure B, page 22, T118.18-21
Nevertheless, Mr Rahman did not attend the second interview, which had been scheduled for 19 January 2012[428].
[428] Reid affidavit [66(c)]
On 23 January 2012, Mr Rahman responded to the Merit Protection Commissioner’s email. He copied his response to Mr Lapidos. Mr Lapidos responded[429]:
You are continuing to handle these matters very badly, Fahmid. I do not see how I can be off [sic] assistance to you any further with these issues. You are making matters worse and worse. You are even making the Merit Protection Commissioner herself very frustrated with your refusal to co-operate.
[429] exhibit R9, page 5
Mr Rahman did not accept this advice[430].
Resolution of Issue 6 (Did the ATO contravene the Fair Work Act in relation to Mr Rahman’s applications for promotion or transfer?)
[430] T119.15
The objective evidence does not disclose that Mr Rahman was discriminated against because of his race or any other status with respect to promotions.
Further, there is no evidence that Mr Rahman was victimised in any of these applications.
Mr Rahman has not established with respect to any of these positions that he was qualified to perform the duties associated with the positions.
Mr Rahman has adduced no evidence that he was the best qualified candidate for the positions.
Mr Rahman has not adduced any evidence that the persons who were appointed to the positions were not better qualified or performed better at the interviews than him. He has not demonstrated that the candidates who were successful for these positions did not have the same characteristics as him (ie race, union membership, disciplinary record, complaints about senior managers). Mr Rahman's claim is simply based upon his own ruminations as to the reasons he was either not shortlisted for positions or did not advance beyond the interview stage.
There is no basis for me to make a finding that the referee reports were the cause of Mr Rahman's failure to be shortlisted or advance beyond the interviews.
Conversely, I accept Ms Reid's uncontested evidence. At pages 33-42 of exhibit JR1, the document identifies Mr Rahman was assessed as being unsuitable following the interview stage in each of the relevant application processes[431]. Ms Reid states:
The [interview] panel members would generally not have access to [Mr Rahman’s] written application. They would not, under any circumstance, have access or reviewed any referee reports provided by [Mr Rahman] prior to or at the time the assessment of [unsuitable] was made. The assessment of [Mr Rahman] at the interview stage in each of the Six Application processes he applied for would have been based solely on his performance in the interview. This is demonstrated in each case in the record of [Mr Rahman’s] interview scores, a summary of which are included in the attached document.
Issue 7: Racial discrimination in employment
[431] Reid affidavit [40]
Allegation
Paragraph 19 of the statement of claim alleges Mr Rahman, in the course of his employment with the ATO, “has been the subject of adverse action by reason of his race”. (emphasis added) This allegation is particularised as follows:
[c]omments of a racial nature directed to Mr Rahman by APS3 officer Furner and acquiesced in by the ATO by its failure to investigate such matter upon complaint by Mr Rahman.
The allegation appears to be directed to comments and then a failure to investigate Mr Rahman's complaint.
Relevant factual background
Prior to Mr Rahman’s transfer to the ATO’s office at Hurstville, he was involved in two incidents in November and December 2008 with his co-workers, Ms Hansen and Ms Furner.
Ms Hansen and Ms Furner made complaints which were investigated by Mr Woods and then Ms Sutherland. Mr Rahman was found to have breached the Code of Conduct in respect of one of the incidents (the one involving Ms Hansen). He was fined $1,180[432]. The ATO’s decision was reviewed by the Merit Protection Commissioner. The Commissioner’s decision affirming the ATO finding was the subject of a discontinued judicial review proceeding before me[433].
[432] first Rahman affidavit, annexure H and exhibit FH1, page 47ff
[433] SYG 1554 of 2011
The background to Mr Rahman’s complaint about his colleagues and Ms Furner in particular is as follows.
On 2 February 2009,[434] Mr Rahman made complaints to Mr Glanville against Ms Furner, Ms Hansen, Ms Smallacombe (his Team Leader in the ATO’s Brisbane office) arising out of the incidents in November and December 2008[435].
[434] noting this is at a point in time when the Fair Work Act had not yet commenced
[435] first Rahman affidavit [58], exhibit FH1, page 168, exhibit FH2, page 4, Glanville affidavit [57], annexure U. The complaints are described in similar terms in Ms Hardiman’s investigation report: Glanville affidavit, annexure Y, page 238
Relevantly, Mr Rahman alleged that Ms Furner made derogatory statements about “Asian origin”, trying to provoke Mr Rahman, that he found offensive, intentionally disrespectful and outside of acceptable standards prescribed by the Code of Conduct[436].
[436] exhibit FH2, page 9, T124.37-38
In cross-examination, Mr Rahman confirmed the allegation of racial discrimination related to [6] of that document, which states[437]:
In showing my respect to her knowledge about plant and gardening and in an attempt to establish rapport with her, I talked to Adrienne and told her that I like to take some plants to Sydney and asked her if she have any idea about fire ant zone in Brisbane and she made derogatory comments that “This country was very good. We do note [sic] have foot and mouth diseases, mad cow diseases etc. and you Asian people don’t care about it and making this country waste”.
[437] T125.37-38
Mr Rahman said “I was feeling very embarrassed, I was become displeased”[438].
[438] T126.8-9
However, Mr Rahman could not recall when this alleged conversation occurred.
Mr Rahman agreed he did nothing about it until 2 February 2009[439]. He was motivated to make the complaint because Mr Furner had made a complaint about him on 4 December 2008[440].
[439] T126.14, T126.25
[440] T126.34-36
On 4 February 2009, Mr Glanville engaged Ms Hardiman, to investigate Mr Rahman’s allegations and emailed the complaints to Ms Furner, Ms Hansen and Ms Smallacombe[441].
[441] Glanville affidavit [58], Bak affidavit [9], annexure B
Mr Rahman was advised on 5 February 2009[442].
[442] first Rahman affidavit, exhibit FH1, page 167, T127.30-33
Mr Rahman had concerns that Ms Hardiman would not be able to “appear to be independent and unbiased” given the “close proximity” of her workstation to Mr Glanville’s in the ATO’s Penrith office[443].
[443] second Rahman affidavit [23]
Mr Rahman had an opportunity to both speak with Ms Hardiman and send her information[444].
[444] T128.8-9
On 17 February 2009, Mr Rahman emailed Mr Glanville stating[445]:
I lack confidence that an officer at the same or lower level than someone who may be [the] subject of complaints being made against them will be able to effectively undertake this task objectively.
[445] In this respect, Mr Rahman appears to consider Mr Woods as holding a higher position than Ms Hardiman, describing Mr Woods as a “high profile officer”: first Rahman affidavit [59]. This description is repeated at second Rahman affidavit [23]. However, Mr Glanville notes both hold “substantive Executive Level” positions: Glanville affidavit [60]. It can also be observed that Mr Woods’ position at the time of his investigation was as “Acting Director” meaning he was a substantive Executive Level 1 officer
Mr Glanville emailed Mr Rahman noting he had tried unsuccessfully to contact Mr Rahman about his email and that while he was “happy to discuss” he would not change his decision to appoint Ms Hardiman as the investigating officer[446]. On 10 March 2009, Mr Rahman spoke with Ms Hardiman about his complaints[447]. He did not consider this interaction “consultation” because it was not a face-to-face meeting[448].
[446] first Rahman affidavit, exhibit FH1, page 166, Glanville affidavit [58], annexure X
[447] first Rahman affidavit, exhibit FH1, page 177
[448] T128.23-24
On 16 March 2009, Mr Rahman emailed additional documentation to Ms Hardiman[449].
[449] first Rahman affidavit, exhibit FH1, page 177
On or about 24 June 2009, Ms Hardiman completed the investigation and issued an investigation report[450]. Ms Hardiman found Mr Rahman’s complaints in respect of Ms Furner unsupported. She stated in her report[451]:
[i]t is evident that working relationships have been tested by the events but at no time was it established that Ms Furner was offensive or intentionally disrespectful. In fact it could be found that Mr Rahman was this way with Ms Furner.
[450] Bak affidavit [10]
[451] Bak affidavit, annexure C, page 21
Also on the day, Mr Glanville informed Mr Rahman by email that Ms Hardiman had completed her investigation and had not made any findings of harassment or discrimination by any of Ms Furner, Ms Hansen or Ms Smallacombe. Accordingly, Mr Glanville proposed to take no further action and considered the matter formally closed[452].
[452] Glanville affidavit [61], annexure Y, first Rahman affidavit, exhibit FH1, page 14, T128.32-129.3
Mr Rahman was dissatisfied with that outcome[453]. On 4 August 2009, Mr Rahman forwarded emails to Mr Glanville about his attempts to have ATO People, the ATO’s human resources division, investigate the events (presumably) the subject of the complaints[454]. Mr Glanville responded by email to Mr Rahman noting that if ATO People had advised that his complaint did not fit within the review process and could not recommend an alternative approach, then Mr Rahman “will need to consider what other options are available to you”[455].
[453] T129.5-6
[454] exhibit FH1, pages 25, 28
[455] exhibit FH12, page 25
In cross-examination, Mr Rahman could not recall if he had initiated any other type of proceeding with respect to the allegations against Ms Furner[456].
Resolution of Issue 7 (did the ATO discriminate between Mr Rahman and other employees on the ground of race?)
[456] T129.20-22
Contrary to Mr Rahman’s assertions, Mr Glanville was not “initially reluctant” to have Mr Rahman’s complaints investigated[457]. He appointed an investigating officer within three days of receiving Mr Rahman’s complaint. The apparent reason it took that time was Mr Glanville was attempting to ascertain whether the complaints were fresh and required separate investigation from the complaints Mr Furner and Ms Hansen had made against Mr Rahman[458].
[457] cf first Rahman affidavit [59], T129.8-9 (where Mr Rahman says Mr Glanville “repeatedly declined to investigate”)
[458] first Rahman affidavit, exhibit FH1, pages 167-168, Glanville affidavit, annexure U
Ms Hardiman was qualified to conduct the investigation, including having completed the investigations training course conducted by the Australian Public Service Commission, and holding a substantive Executive Level position in the ATO[459].
[459] Glanville affidavit [60], Bak affidavit [13]
Contrary to Mr Rahman’s thinking[460], there was no “disparity”[461] between the level, qualifications and suitability for appointment between:
a)the officer appointed to investigate allegations against Mr Rahman (Mr Woods); and
b)the officer appointed to investigate allegations made by Mr Rahman (Ms Hardiman)[462];
[460] T129.11-12
[461] first Rahman affidavit [65]
[462] Glanville affidavit [60]; cf, first Rahman affidavit [65]
In any event, Mr Bak in cross-examination gave evidence that it was not unusual for an investigator to be investigating people at a level at or above the investigator’s level[463].
[463] T255.44-47, 259.1-5
Ms Hardiman was an appropriately independent and unbiased person to conduct the investigation into Mr Rahman’s complaints[464];
[464] cf second Rahman affidavit [23]
Ms Hardiman did not complete her investigation without consulting Mr Rahman[465]. Indeed, Mr Rahman noted “[m]ost of my claims [are] based on documentary evidences”[466]. Ms Hardiman spoke with Mr Rahman on 10 March 2009. He provided additional information on 16 March 2009. Mr Bak, who has conducted over 40 investigations, expressed the view that procedural fairness was afforded to Mr Rahman in accordance with the ATO’s workplace harassment, discrimination and bullying policies and guidelines[467].
[465] cf first Rahman affidavit [60]
[466] first Rahman affidavit, exhibit FH1, page 178
[467] Bak affidavit [15]
Mr Rahman has adduced no evidence that he was not promoted on account of his complaints about Ms Furner, Ms Hansen or Ms Smallacombe. In relation to the application processes, considered above, there is no suggestion by Mr Rahman that he was unsuccessful because of these complaints. For those reasons, Mr Rahman’s claim, in [19] of the statement of claim, that he has been discriminated against on the grounds of his race, is not made out.
Summary of the issues
The answers to the issues described above are therefore as follows:
Workplace Relations Act claim
a)Issue 1: the ATO did not neglect, fail or refuse to transfer Mr Rahman to Sydney because of his union membership contrary to ss.792 and 793(1)(a) of the Workplace Relations Act.
Fair Work Act claims
b)Issue 2: the ATO did not neglect, fail or refuse to transfer Mr Rahman to Sydney because of union membership contrary to ss.342 and 346(a) of the Fair Work Act (noting he was already in Sydney when the Fair Work Act commenced).
c)Issues 3, 4 and 5: The ATO did not contravene the Fair Work Act in bringing the Code of Conduct Charges.
d)Issue 6: The ATO did not contravene the Fair Work Act by discriminating against Mr Rahman in relation to Mr Rahman’s applications for transfer and promotion.
e)Issue 7: The ATO did not discriminate between Mr Rahman and other employees of the ATO on the ground of race.
Contract claims
f)Issue 8: It is not necessary to determine whether there was a contract of employment between Mr Rahman and the ATO.
g)Issue 9: Mr Rahman has not proved the term alleged to be incorporated into the alleged contract that the ATO would not prevent Mr Rahman from absenting himself from duty for periods of up to 1 hour notwithstanding the absence of prior approval by the ATO.
h)Issue 10: Ms Balasubramaniam and Mr Biondi did not breach the terms of any contract of employment on 28 February 2011 by refusing to allow Mr Rahman to take leave for one hour.
i)Issues 11, 13 and 14: Mr Rahman has not proved the term alleged to be implied into the alleged contract that the ATO would treat Mr Rahman with due courtesy and consideration and not subject Mr Rahman to undue harassment.
j)Issues 12, 13 and 14: Mr Rahman has not proved the term alleged to be implied into the alleged contract that Mr Rahman could repose trust and confidence in the ATO that the ATO would not, without good cause, act so as to injure the ATO in his employment.
k)Issue 15: It is inappropriate to decide whether Mr Biondi breached the terms of any such contract on 17 May 2012 by issuing a formal written direction and formal written warning to Mr Rahman.
l)Issue 16: The bringing of the Code of Conduct charges issued to Mr Rahman on 22 December 2008, 27 July 2009, 16 December 2010 or 27 May 2011 did not breach the terms of any such contract as alleged by Mr Rahman.
m)Issue 17: The ATO’s treatment of Mr Rahman in relation to Mr Rahman’s applications for transfer and promotion did not breach the terms of any such contract.
Public Service Act claims
n)Issue 18: Mr Rahman was not denied procedural fairness, contrary to s 15 of the Public Service Act, in relation to the Code of Conduct charges issued to Mr Rahman on 22 December 2008, 27 July 2009, 16 December 2010 or 27 May 2011.
o)Issue 19: The ATO did not victimise or discriminate against Mr Rahman, contrary to s.16 of the Public Service Act, by reason of his reporting of alleged breaches of the Code of Conduct by Mr Glanville on or about 21 January 2011.
p)Issue 20: It is inappropriate to decide whether the ATO victimised or discriminated against Mr Rahman, contrary to s.16 of the Public Service Act, by reason of his reporting of alleged breaches of the Code of Conduct by Mr Glanville on or about 2 February 2012.
The answers to these questions also mean, necessarily, that Mr Rahman has not been injured, or had his position altered by reason of the “course of conduct” pleaded at [21] of the statement of claim.
Mr Rahman has not established the basis of any claim entitling him to relief sought in his statement of claim. Accordingly, Mr Rahman’s application should be dismissed.
Conclusion
I will order that Mr Rahman’s extant applications be dismissed.
I will hear the parties concerning any issue of costs.
I certify that the preceding four hundred and twenty-eight (428) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 28 February 2014
- AGLC
- Rahman v Commonwealth of Australia as represented by the Australian Taxation Office [2014] FCCA 6
- Case
- [2014] FCCA 6
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the ATO's actions constituted adverse action under the general protections provisions of the Fair Work Act, and whether the ATO breached implied terms of Mr. Rahman's contract of employment. Specifically, the court needed to assess whether Mr. Rahman was prevented from leaving work early on 28 February 2011, and if any such refusal was a result of racial discrimination or a breach of contractual terms.
Judge Driver found that Mr. Rahman had not discharged his onus of proof. The evidence, including email exchanges and affidavits, indicated that Mr. Rahman was not prevented from leaving work early on 28 February 2011. Rather, he was offered the option of applying for flex leave, and his decision not to leave was his own. The court noted that while a moratorium on leave existed to discourage annual leave, it did not amount to a policy preventing employees from taking short periods of leave without prior approval. Furthermore, the court found that the ATO did not refuse Mr. Rahman leave on that day. Consequently, the court determined that the factual basis for Mr. Rahman's allegations regarding being prevented from leaving work and the subsequent breaches of implied contractual terms was not established.
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