Samuel Singh v Australian Taxation Office
[2015] FWCFB 5258
•15 SEPTEMBER 2015
| [2015] FWCFB 5258 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Australian Taxation Office
(C2015/2321)
VICE PRESIDENT HATCHER |
|
Permission to appeal sought against decision [2015] FWC 1579 of Deputy President Gooley at Melbourne on 10 March 2015 in matter number U2011/1489.
Introduction
[1] On 31 March 2015 Mr Samuel Singh filed a notice of appeal in which he sought permission to appeal and appealed against a decision of Deputy President Gooley issued on 10 March 2015 1 (Decision). The Decision concerned an application made by Mr Singh for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (FW Act) with respect to his former employment with the Australian Taxation Office (ATO). In the Decision the Deputy President found that Mr Singh’s dismissal was harsh, unjust and unreasonable, but declined to order any remedy with respect to the dismissal. Mr Singh’s appeal, as he made clear in his oral submissions in support of his application for permission to appeal, was confined to challenging that part of the Decision in which the Deputy President refused to grant him the remedy of reinstatement.
[2] Mr Singh’s application for permission to appeal was initially listed for hearing on 20 May 2015. Mr Singh sought an adjournment of that hearing date on the ground of ill-health, and the adjournment was granted. His application was then listed for hearing on 17 June 2015, but was again adjourned because of Mr Singh’s ill-health. The hearing ultimately occurred on 25 August 2015.
[3] The background to this matter is that Mr Singh was employed by the ATO in March 2005 in the role of Senior Internal Auditor. In September 2006 Mr Singh became unfit for work and ceased performing work because of mental illness which, he contended, was the result of bullying and harassment during his employment with the ATO. He made a workers’ compensation claim in respect of this illness. This claim was accepted by the ATO’s workers’ compensation insurer, Comcare.
[4] There were subsequently attempts made to have Mr Singh return to work pursuant to a rehabilitation plan, but these were unsuccessful. After Mr Singh failed to attend work in accordance with a direction to do so, he was dismissed on 6 May 2008. Mr Singh then applied for an unfair dismissal remedy in respect of this dismissal. That application was settled on a basis which included Mr Singh’s reinstatement. Following this, the ATO required Mr Singh to return to work pursuant to a return to work plan. Mr Singh returned to work on 9 October 2009, but disputed the role assigned to him under that return to work plan. He went off work again because of mental illness on 19 October 2009, and did not thereafter return to work. 2
[5] The ATO subsequently attempted to have Mr Singh attend for work pursuant to a return to work plan, but the plan was disputed by Mr Singh on medical grounds. After Mr Singh failed to attend for work on 19 May 2011 and 21 June 2011 pursuant to directions to do so, Mr Singh was dismissed on 8 July 2011. 3
[6] Mr Singh lodged his unfair dismissal remedy application on 22 July 2011. The hearing of his application was postponed for an extensive period of time because of Mr Singh’s mental ill-health. Eventually, in a decision issued on 1 May 2014 4, the Deputy President determined that the matter would not be adjourned further, and made directions to facilitate the hearing of the matter. After no further action was taken by Mr Singh to prosecute his application, the ATO moved to have it dismissed. This was refused by the Deputy President in a decision issued on 3 September 2014.5
[7] By agreement, the matter was eventually heard by way of the receipt of written submissions and documentary material only. As earlier stated, the Decision was issued on 10 March 2015. In the Decision, the Deputy President found that there was no valid reason for Mr Singh’s dismissal, and on that basis determined that his dismissal was harsh, unjust and unreasonable. The Deputy President then considered the primary remedy of reinstatement which was sought by Mr Singh. The Deputy President’s reasoning and conclusions on this issue were as follows:
“[70] Mr Singh is seeking reinstatement to his position with the ATO. Mr Singh relies on his doctor’s report to support his reinstatement.
[71] Dr Stanley states that Mr Singh may over time regain trust sufficient to function in an appropriate context within the ATO. He advises that Mr Singh is resolute in wishing to be employed by the ATO. He advised should he be reinstated he would require:
1. a period of three months at home - during this time he would require regular psychiatric visits and possible hospitalisation for more intensive treatment.
2. a graduated return to work which may take six months before he could work full time.
3. the work must be consistent with his skills as an accountant/auditor.
4. he must not be returned to a work site where he previously suffered harassment.
5. he would need some retraining due to his absence from the workplace.
[72] Dr Stanley says that Mr Singh’s mental health has continued to deteriorate. He is diagnosed with affective disorder and major depression. Dr Stanley notes that unless he is reinstated his prognosis is poor.
[73] Mr Singh acknowledges that there is broken trust between him and the ATO. He attributes that broken trust solely to the conduct of the ATO and its employees.
[74] In his submissions Mr Singh has made serious allegations against the ATO.
[75] I do not consider it appropriate in all the circumstances to reinstate Mr Singh. It is clear that from his own medical report that he is still not fit to return to work. Dr Stanley says he would require three months of additional treatment before he could even participate in a graduated return to work.
[76] It also clear from the material that the trust necessary to make a return to work successful is not present. Mr Singh remains very suspicious of the ATO.”
[8] The Deputy President went on to decline to award Mr Singh any monetary compensation on the basis that he had not suffered any loss because, had he not been dismissed, his mental illness would have prevented him from returning to work, he would not have earned any remuneration, and he would within a short period of time have been dismissed in any event on medical grounds. As earlier stated, Mr Singh did not appeal this aspect of the Decision.
[9] Mr Singh submitted that he should be granted permission to appeal against the Deputy President’s decision to refuse him the remedy of reinstatement because, in summary:
- the appeal raised an issue of importance and general application, namely the effects of mental health problems including depression caused by workplace bullying and harassment;
- the decision was unjust, in that Mr Singh’s mental ill-health was caused by the harassment and bullying which Mr Singh suffered at the workplace for which the ATO was responsible and therefore could not justly constitute a proper basis to deny him the remedy of reinstatement;
- the Decision misrepresented the medical evidence concerning Mr Singh’s state of health, and failed to reconcile the competing medical evidence;
- the Decision dealt with the issue of loss of trust and confidence in a manner which was inconsistent with the principles stated in the Full Bench decision in Thinh Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australian Chapter 6; and
• Mr Singh’s submissions were misrepresented or not considered in various identified respects.
Consideration
[10] This appeal is one to which s.400 of the FW Act applies 7. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[11] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 8 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment9. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 10
[12] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 11 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.12
[13] It is apparent from her reasons that the Deputy President declined to order the remedy of reinstatement because she concluded that Mr Singh was not medically fit to return to work with the ATO. It is well established that medical incapacity is a proper basis upon which the Commission may decline to exercise its discretion to order reinstatement. In Smith v Moore Paragon Australia Ltd 13, a Full Bench of the Australian Industrial Relations Commission said (in relation to an unfair dismissal remedy application under the Workplace Relations Act 1996):
“[51] The weight to be accorded to ongoing incapacity on the part of an employee when considering whether reinstatement pursuant to s.170CH(3) is appropriate will depend upon all the circumstances of the case. However, when considering whether reinstatement is appropriate for an employee who has an ongoing incapacity arising from illness or injury, the guiding principle ought be that generally reinstatement of a materially incapacitated employee will not be appropriate where:
- further performance of the employee's contractual obligations in the future would either be impossible or would be a thing radically different from that undertaken by him or her and accepted by the employer under the agreed terms of his or her contract of employment;
- reinstatement would involve imposing a material future productivity burden or some other unreasonable burden on the employer; or
- reinstatement would impose an unreasonable burden on other employees.
Exceptional circumstances would be necessary before reinstatement could properly be regarded as appropriate in such cases.
[52] Reinstatement will involve a material future productivity burden on an employer when the employee cannot be fully or substantially fully productive within the ambit of the employee's substantive position.”
[14] The approach taken in Smith v Moore Paragon Australia Ltd was consistent with the High Court’s analysis of the reinstatement power in Blackadder v Ramsey Butchering Services Pty Ltd. 14 In that matter members of the High Court emphasised that the power of reinstatement necessarily involved not just a restoration of remuneration but a practical return to work. McHugh J said:
“[14] To construe the power "to reinstate" as confined to restoring contractual or other legal rights fails to give full effect to the term "reinstate". To reinstate means to put back in place. In this context, it means that the employment situation, as it existed immediately before the termination, must be restored. It requires restoration of the terms and conditions of the employment in the broadest sense of those terms. It empowers the Commission to do more than restore the contract of employment. So far as practicable, the employee is to be given back his "job" at the same place and with the same duties, remuneration and working conditions as existed before the termination.”
[15] Similarly Hayne J said that to effect reinstatement “The employer must provide work to be done by the employee of the same kind and volume as was being done before termination” 15, and Callinan and Heydon JJ said that “To pay the appellant but not to put him back in his usual situation in the workplace would not be to reinstate him.”16
[16] The same approach has been taken in relation to the reinstatement power under the FW Act. In Cartisano v Sportsmed SA Hospitals Pty Ltd 17a Full Bench of this Commission said that a reinstatement order under s.391(1)(a) “must be one which achieves an actual return to work in the employee’s pre-dismissal position”, and that likewise an order under s.391(1)(b) appointing a person to an alternative position that is no less favourable “must achieve an actual return to work in the alternative position identified in the order”. In that connection the Full Bench went on to say:
“If the Commission cannot be satisfied that the relevant employee is fit to perform the inherent duties of his or her former position, or those of an alternative position that is no less favourable, then the proper course will be to find that reinstatement is not the appropriate remedy and to turn to the alternative remedy of compensation.” 18
[17] We consider that on the basis of the medical evidence recited in paragraphs [71]-[72] and [75] of the Decision it was reasonably open for the Deputy President to conclude that Mr Singh was not medically fit to return to work at the ATO and consequently the discretion to order reinstatement should not be exercised. We reject Mr Singh’s submission that the Deputy President in any relevant sense misstated the evidence; to the contrary, we consider that the Deputy President fairly and accurately summarised the relevant parts of Dr Stanley’s medical report of 27 November 2014. We also reject Mr Singh’s submission that the Deputy President failed to reconcile competing medical evidence in reaching the conclusion that she did concerning Mr Singh’s capacity to return to work. Dr Stanley’s report was placed into evidence, and relied upon, by Mr Singh himself, and represented the most recent expert opinion in respect of Mr Singh’s health. In that circumstance, it was reasonably open to the Deputy President to make the findings that she did based on the contents of that report.
[18] Mr Singh’s submission that the refusal to order reinstatement was unjust because the ATO bore responsibility for his mental ill-health must also be rejected for two reasons. Firstly, the Deputy President made no finding that in fact the ATO was responsible for Mr Singh’s medical condition. The finding that Mr Singh’s dismissal was harsh, unjust and unreasonable was made on the basis that the reason for his dismissal, namely that he failed to attend for work in 2011 when directed, was not a valid one because Mr Singh’s own medical advice at the time was that any return to work to an inappropriate position would aggravate his condition. No finding that Mr Singh’s condition was the ATO’s responsibility could have been made by the Deputy President because the substance of the allegations of bullying and harassment advanced by Mr Singh as the cause of his ill-health was not the subject of evidence at first instance. Secondly and in any event, even if Mr Singh’s ill-health was the fault of the ATO, that could not have operated to alter the fact that Mr Singh could not be reinstated because he was not medically fit to return to work.
[19] The Deputy President’s alternative conclusion that reinstatement should be refused because the trust necessary for a viable return to work could not be re-established was, we consider, reasonably open to her given that Mr Singh himself submitted that trust between himself and the ATO had been broken (due, he said, to the conduct of the ATO and its employees). In any case, even if that conclusion was in any sense erroneous, that would not affect the Deputy President’s primary conclusion that Mr Singh was not medically fit to return to work.
[20] We have considered the other submissions advanced by Mr Singh. To the extent that they raise any contention of appealable error at all (as distinct from simply seeking to re-argue the matter), we do not consider that they are seriously arguable.
[21] We do not consider that Mr Singh has demonstrated that the Decision, in respect of the refusal of reinstatement, is attended by sufficient doubt to justify the grant of permission to appeal in the public interest. Nor do we consider that the appeal raises any issue which is novel, of general application, or exposes any diversity in first instance decision-making that would attract the public interest.
[22] We are not satisfied that it would be in the public interest to grant permission to appeal. Therefore, in accordance with s.400(1) of the FW Act, permission to appeal must be refused.
VICE PRESIDENT
Appearances:
S. Singh on his own behalf.
Y. Shariff of counsel for the Australian Taxation Office.
Hearing details:
2015.
Melbourne:
25 August.
1 [2015] FWC 1579
2 Decision at [12]
3 Decision at [8]
4 [2014] FWC 2848
5 [2014] FWC 5992
6 [2014] FWCFB 7198
7 See Australia Postal Corporation v Gorman [2011] FCA 975 at [37]
8 (2011) 192 FCR 78 at [43]
9 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
10 [2010] FWAFB 5343 at [27], 197 IR 266
11 Wan v AIRC (2001) 116 FCR 481 at [30]
12 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
13 PR942856, (2004) 130 IR 446
14 [2005] HCA 22; (2005) 221 CLR 539
15 Ibid at [44]
16 Ibid at [75]
17 [2015] FWCFB 1523
18 Ibid at [46]
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