Samuel Singh v Australian Taxation Office

[2015] FWC 1579

[2015] FWC 1579 [Note: An appeal pursuant to s.604 (C2015/2321) was lodged against this decision - refer to Full Bench decision dated 15 September 2015 [[2015] FWCFB 5258] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Samuel Singh
v
Australian Taxation Office
(U2011/1489)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 10 MARCH 2015

Application for unfair dismissal remedy.

[1] Mr Samuel Singh’s employment with the Australian Taxation Office (the ATO) was terminated with effect from 8 July 2011.

[2] On 3 September 2014, I dismissed an application lodged by the ATO to dismiss Mr Singh’s application. 1

[3] As a result, directions were issued to the parties and final documentation was provided on 19 December 2014.

[4] Much of the background to this matter was set out in my earlier decision and I do not repeat that information here.

[5] In his submissions Mr Singh outlined the events that lead to him becoming medically unfit for work. As I stated in my earlier decision:

[39] However, Mr Singh's complaints about bullying are not relevant to his unfair dismissal claim. Mr Singh's employment was not terminated because he made bullying claims. Mr Singh's employment was terminated because he did not comply with the direction to attend work. The question to be determined in Mr Singh's unfair dismissal claim is whether the ATO had a valid reason for terminating his employment. It will not be concerned whether Mr Singh was or was not bullied at work. The question of whether an employer has a valid reason for terminating an employee, who has been off work for a long period of time in circumstances where it is not clear if the employee will return to work, is not determined by deciding who caused the employee's injury.

[40] I acknowledge that those matters are raised in Mr Singh's application, which sets out the circumstances of Mr Singh's workers compensation claim as part of its chronology of events, however, that does not make them relevant to the unfair dismissal claim. They are not relevant to the issue of whether there was a valid reason for the termination of his employment and whether he was provided with procedural fairness. The Commission will not be required to make any findings about whether Mr Singh was or was not bullied at work.

[6] Mr Singh submitted that these matters are relevant to my determination. He submitted that the conclusions set out above were made in the context of an application to dismiss.

[7] I do not agree. Whatever brought Mr Singh to the position he was in July 2011 is not relevant to the matters that I have to determine. Even if I accepted that Mr Singh had been bullied at work prior to 17 July 2006, and as a result, became ill that does not impact on my consideration of whether his dismissal in 2011 was unfair.

[8] Mr Singh’s employment was terminated by notice on 8 July 2011. In the termination letter, Mr Rob James of the ATO set out the reasons for the termination. 2 Mr James advised Mr Singh that he had been directed to return to work on 21 June 2011 and that his absence after that date was unauthorised. Consequently his employment was terminated on the grounds of non-performance of duty.

[9] Mr Singh’s employment was not terminated in 2011 because he made complaints about bullying and harassment in 2006. I am therefore not required to make any findings about what occurred prior to the settlement of his unfair dismissal claim in 2009. I do note that in the deed of release, signed by Mr Singh, released the ATO from all claims and liability arising directly or indirectly out the unfair dismissal proceeding, the employment and the termination.

[10] At the time of his dismissal the dispute between Mr Singh and the ATO was about the nature of the return to work program proposed by the ATO.

[11] Mr Singh was employed as a Senior Internal Auditor. In the terms of settlement between Mr Singh and the ATO reached in June 2009, as a result of the termination of his employment in 2008, the ATO agreed to return Mr Singh to an APS 6 position. It was agreed that he was not to be returned to the Internal Audit position at Parramatta. In addition he was not to have contact with particular ATO employees.

[12] In October 2009, the ATO proposed a return to work plan. The ATO initially proposed that Mr Singh return to work in a position titled learning and development co-ordinator. Mr Singh immediately raised concerns about his suitability for this position. While Mr Singh continued to express concerns he did return to work on 9 October 2009. He then was absent from work due to illness from 19 October 2009.

[13] On 20 November 2009, Dr Inglis Howe Synnott, a consultant psychiatrist advised the ATO that “any attempt to return to work with the current GRTWP would not be successful.” He further noted that “an appropriate GRTWP is the key to all of this.”

[14] On 18 January 2010, Dr O. Thomas Stanley, Mr Singh’s treating psychiatrist, advised that Mr Singh was “totally unfit for work because when he returned to work on 17.10.2009 he was not given suitable and appropriate work consistent with his skills.” 3

[15] On 24 February 2010, Dr Synnott advised that he stood by his comments of 20 November 2009 and advised that Mr Singh could return to work in accordance with the GRTWP. 4

[16] On 26 February 2010, Dr Stanley provided a more detailed report on Mr Singh’s condition. That report advised that a failure to provide Mr Singh with suitable appropriate work had severely aggravated his illness. 5

[17] In 27 May 2010, Dr Synnott 6 advised that there was no psychiatric reason Mr Singh could not return to a generic APS 6 position but he made it clear to the ATO that Mr Singh said “he was not prepared to go into any generic APS 6 position, only to a specific position that covers his area of expertise (accounting).” Dr Synnott advised that a successful rehabilitation may occur if he were to return to work in the accounting area.

[18] The RTWP, involving the learning and development co-ordinator position, was subsequently withdrawn and on 6 September 2010 a new APS6 position was identified at Hurstville. That was the position Mr Singh was directed to perform when his employment was terminated.

[19] Dr Synnott assessed this new position in September 2010 and made no further recommendations.

[20] In October 2010, Dr Synnott reviewed the position and advised that there were no psychiatric reasons Mr Singh could not undertake the duties. 7

[21] On 11 November 2010, Mr Singh was advised of Dr Synnott’s recommendations and advised that he could provide his opinion and feedback. 8

[22] On 12 November 2010, Dr Stanley advised that “nothing had changed in terms of Mr Singh’s difficulties in returning to work as [he had] outlined in the past.” 9

[23] On 23 December 2010, Dr Stanley advised that Mr Singh was not fit for full time work at the ATO. He further said “provided he is placed in a position suitable for his skills and managed positively without harassment.... it might be possible for him to be able eventually to work full time.” He further advised that the graduated return to work might take 6-12 months. Dr Stanley further noted that his prognosis was uncertain “and much depends on his ability to ultimately be work rehabilitated.” 10

[24] On 25 March 2011, Dr Synnott provided a report to the ATO about Mr Singh’s fitness to return to work. In that report Dr Synnott assessed Mr Singh as fit to return to work. 11

[25] Dr Synnott advised that Mr Singh was unwilling to return to a generic APS 6 position. Dr Synnott assessed Mr Singh as psychiatrically fit to return to duty. In that report Dr Synnott advised that he could be returned to the APS 6 position (ideally to his preferred position - otherwise a generic position is reasonable).

[26] On 15 April 2011, Mr Singh was advised that a copy of the report had been provided to his treating doctor and if [he] disagree[d] with the report or recommendations he needed to respond with any new medical information within 14 days. 12

[27] On 3 May 2011, Mr Singh advised that he had met with his treating doctor and advised that he disagreed with the report and the finding that he should be required to perform a job which did not match his qualifications. He advised that “Dr Stanley is of the opinion that [he] should not be undertaking any work at the ATO that [he] disagree[d] with.” 13

[28] At that time Mr Singh had ongoing legal proceedings against the ATO in relation to his workers compensation claim.

[29] Mr Singh advised that he was undertaking university studies at the time.

[30] Mr Singh advised the ATO that Dr Stanley would provide a report to them.

[31] On 12 May 2011, Mr Bruce Turner of the ATO issued a direction to Mr Singh to return to work on 19 May 2011. Mr Singh was advised that he would be performing administrative duties at an APS6 level “commencing with basic administrative tasks and upgrading skills following suitable training.” Attached was a 12 week program which saw Mr Singh’s hours of work gradually increase.

[32] On 13 May 2011, Dr Stanley advised the ATO that Mr Singh’s clinical condition remained unchanged and his “in regard to a return to work, [his] opinion is unchanged from previous correspondence.” 14

[33] On 18 May 2011, Mr Singh’s lawyers wrote to the ATO advising that Mr Singh was unfit for work. It further advised that Mr Singh’s workers compensation claim was due to be heard by the Administrative Appeals Tribunal (the AAT) in July 2011 and advised that Mr Singh would not be presenting for work as it was “against his doctor’s advice on 19 May 2011.” 15

[34] On 24 May 2011, the ATO sought further advice from Dr Synnott and provided him with Dr Stanley’s report and Mr Singh’s response. 16 He replied that his opinion and recommendations remained unchanged.

[35] On 14 June 2011, Mr Peter Jenkins of the ATO issued a new direction to Mr Singh to attend work on 21 June 2011. He was advised that the return to work program remained unchanged and he was provided with a copy of the plan.

[36] He was further given a formal warning that if he failed to comply with the direction it might lead to the termination of his employment. 17

[37] On 20 June 2011, Mr Singh advised that he would not be attending work. He advised that he was “in the middle of exams”. He further advised that the direction was improper and invalid and issued for an improper purpose. He stated that his return to work should wait until the AAT had heard his claim. Mr Singh also objected to receiving a letter from Mr Peter Jenkins as “he is not supposed to be involved in the management of his case.” 18

[38] On 28 June 2011, Mr Singh was advised by Mr James of the ATO that the AAT proceedings were a separate issue to whether he was fit for duties. He was advised that he was now on unauthorised absence from work and that consideration would be give to the termination of his employment. He was given until 5 July 2011 to show cause why his employment should not be terminated.

[39] On 4 July 2011, Mr Singh provided a detailed response to that correspondence. In that response he advised that his absence was due to his illness.

[40] The ATO then terminated Mr Singh’s employment.

[41] In 13 December 2010, Mr Jonathan Phillips, a Consultant Psychiatrist, provided a medical report to Mr Singh’s solicitors. 19 There is no evidence that this report was provided to the ATO prior to its decision to terminate Mr Singh’s employment.

[42] In that report Mr Phillips stated:

“I can firmly state that Mr Singh will never be able to return to work at the ATO in any capacity.” 20

“There is no further possibility of rehabilitation of Mr Singh within ATO. As such his rehabilitation has concluded, and has failed.” 21

“Mr Singh’s impairment, particularly with regard to a future with ATO, is permanent and will not change.” 22

[43] In August 2011, the AAT found that Mr Singh’s rehabilitation program was suitable but he had a reasonable excuse for not continuing with the return to work program. 23

[44] That decision was set aside by the Federal Court 24 but on remittance to the AAT25 it found on 26 September 2012 that Mr Singh had a reasonable excuse for failing to undertake the rehabilitation program provided by the ATO.

[45] The AAT found that Mr Singh was presented with conflicting medical evidence from Dr Synnott and Dr Stanley. It concluded that “Had Dr Stanley been of the opinion that Mr Singh was fit for work and Mr Singh rejected this, he could reasonably have been criticised. If, however, his own doctor confirmed his opinion that he was unfit to work and his doctor, to Mr Singh’s belief, was acting honestly and reasonably in coming to that assessment, it is difficult to see why Mr Singh’s should be criticised for relying on it. On balance we are satisfied that when he was first certified unfit for work, Mr Singh did not act “without reasonable excuse.”

[46] The issue to be determined by the Commission is whether the termination of Mr Singh’s employment was harsh, unjust or unreasonable. In making that decision the Commission must consider the following criteria:

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

[47] The ATO submitted that it had a valid reason for the termination of Mr Singh’s employment because he failed to comply with a reasonable direction to attend work. The ATO relied upon the steps it had taken to provide Mr Singh with a return to work program and what it submitted were Mr Singh’s unreasonable and unjustified refusal to work in the alternative position offered to him.

[48] I do not agree. Mr Singh’s refusal to participate was based on his doctor’s advice that his condition would be aggravated if he returned to work to a position which was not commensurate with his skills. While Dr Synnott had a different assessment, it was not unreasonable for Mr Singh to rely upon his treating doctor’s advice. I find that Mr Singh did not fail to comply with a reasonable direction because the direction was not reasonable.

[49] The ATO further submitted that even if it had been reasonable for Mr Singh to refuse to comply with the direction until the ATO provided Mr Singh with a position that he deemed suitable, this would have imposed an unreasonable burden on the ATO. It submitted that given Mr Singh’s restrictions no such positions existed and alternatively it would have been required to permit Mr Singh to continue to be absent from work. It submitted that the ATO could have validly terminated Mr Singh on that basis.

[50] I agree with this submission. At the time of his dismissal Mr Singh was not capable of attending work unless certain conditions were met. Without determining who was to blame for the situation Mr Singh found himself in, Mr Phillips assessed in December 2010 that Mr Singh would never be able to return to work for the ATO. Dr Stanley said he required 6-12 months rehabilitation and then he could only be placed in a position Mr Singh agreed with. Only Dr Synnott considered Mr Singh fit to participate in a graduated return to work program and Mr Singh rejected that. Dr Synnott recognised that if Mr Singh were returned to a non accounting position this would be unsuccessful.

[51] By the time these event occurred Mr Singh had, apart for a two week period, not worked since 2006. There had already been one unsuccessful attempt to return Mr Singh to work. The ATO could have formed the view that it had no position which met Mr Singh’s restrictions and hence had a valid reason for terminating Mr Singh’s employment. However, the ATO did not reach this view at the time. It cannot now rely on this to justify the termination of Mr Singh’s employment.

[52] I therefore do not consider that the ATO had a valid reason for the termination of Mr Singh’s employment.

(b) whether Mr Singh was notified of that reason;

[53] Mr Singh was notified of the reason relied upon for the termination of his employment before the decision was taken to terminate his employment.

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

[54] Mr Singh was given an opportunity to respond and he did so.

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

[55] Mr Singh did not request a support person so this criterion is neutral.

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

[56] Mr Singh’s dismissal did not relate to unsatisfactory performance. This criterion is neutral.

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

[57] The ATO is a large organisation. This criteria is neutral as I have found that Mr Singh was not denied procedural fairness in the matter of his dismissal.

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

[58] The ATO has dedicated human resources management specialists and as I have found that Mr Singh was not denied procedural fairness in the manner of his dismissal, this criterion is neutral.

(h) any other matters that the Fair Work Commission considers relevant.

[59] I have some sympathy for Mr Singh’s view that the ATO did not handle his return to work well. It knew that Mr Singh was in a fragile state and it knew that to return him to work in a non accountancy position in 2011 was bound to fail. It knew this because it had failed in 2009 and it knew this because both Dr Synnott and Dr Stanley had been telling them this. Despite this advice it proposed to return Mr Singh to a generic APS 6 position.

[60] Ms Natasha Damar provided a witness statement in which she gave evidence of her search for suitable return to work positions for Mr Singh prior to his first return to work in October 2009. Ms Damar said that there were no roles within the internal audit line which met Mr Singh’s restrictions. She also said that as the GST area was restructuring and losing positions there were no jobs there. Similarly she said that other business lines were canvassed and no APS 6 positions were located.

[61] After making further inquiries the position of learning and development coordinator was identified. Ms Damar said that the ATO was undergoing major restructuring at the time and this impacted on the availability of positions.

[62] Mr Singh submitted that Ms Damar’s evidence should not be relied upon unless it was supported by documentary evidence. I do not accept this submission.

[63] It is clear from the material that the position of learning and development co-ordinator was not one that matched Mr Singh’s skills. However, this was accepted by the ATO at time. Mr Sandy Nadazdy in his email of 8 October 2009 26 said that the “purpose of the rehabilitation program is to reintroduce [him] to a supportive work environment in which [he] can function, not to develop you into an L& D co-ordinator.” He went on further to say that his expertise and qualifications would enable him to “identify the quality and accuracy of accounting training currently on offer.” He said it was their intention to “gradually expose [him] to the technical work [he] desire[s] to be doing.” Mr Singh did not accept this explanation and subsequently went off sick.

[64] Mr Singh never took up the generic position at Hurstville. There was no evidence on which I could find that there were no other more suitable positions at this time. Ms Damar does not give any evidence about any subsequent search.

[65] It is not clear that Mr Singh was told at the time that there were no other positions available for him to fill or if he was given the opportunity to propose any alterative position that he thought was more appropriate. Given his vulnerable state, greater consultation about the rehabilitation options may have avoided what followed.

[66] Given that it was clear that unless a position could be agreed, rehabilitation would fail, it is surprising that the ATO did not arrange the meeting proposed by Dr Stanley so that the relevant persons could meet to discuss what, if anything could be done to return Mr Singh to work. Had the ATO made clear to Mr Singh and Dr Stanley that there were no alternative positions the outcome may have been different.

[67] In making these comments, I do not deny the difficult position the ATO was in. Mr Singh had not worked in his substantive position since 2006. Further, Dr Synnott’s reports gave it reason to conclude that Mr Singh was not behaving reasonably. However, when it agreed to settle Mr Singh’s earlier dismissal claim, it agreed to reinstate Mr Singh. It could not have been unaware of the difficulties that would cause.

[68] At the time of his dismissal Mr Singh was challenging Comcare’s decision to deny him benefits because of his refusal to participate in the return to work program. The ATO in its correspondence to Mr Singh had advised that it considered this to be a separate issue. I do not see how it reached this conclusion. Given Mr Singh’s medical advice from his treating practitioner was the same in relation to both the first and the second positions offered to him, it is difficult to conceive that a finding by the AAT that he had a reasonable excuse for not participating in the return to work program was not relevant to whether he unreasonably refused to return to work. Had that finding been made prior to the dismissal, the ATO would have been required to consider other options. If no rehabilitation position existed which met Mr Singh’s medical practitioner’s approval, then the ATO would have been able to terminate Mr Singh on other grounds.

Conclusion

[69] I find that the termination of Mr Singh’s employment was harsh, unjust and unreasonable. While Mr Singh was provided with procedural fairness, that does not out weight the lack of a valid reason for the termination of his employment.

Remedy

[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. 27 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. 28

[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.

[77] In assessing any amount in lieu of reinstatement, the Fair Work Commission is required to have regard to the following:

(a) the effect of the order on the viability of the employer’s enterprise;

[78] No submissions were made that any order would affect the viability of the ATO’s business.

(b) the length of the person’s service with the employer;

[79] Mr Singh commenced employment with the ATO in March 2005 and his employment was terminated in July 2011. I do not consider the length of his service impacts on any compensation payable to Mr Singh.

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed;

[80] Had Mr Singh not been dismissed, he would have remained unfit for work. It is likely that had he not been terminated when he was, the ATO would have reached the conclusion that Mr Singh would not be able to perform his substantive position within a reasonable period of time. Given that in July 2011 the ATO became aware of Mr Phillips’ assessment that Mr Singh would never be able to return to work, it is likely that the ATO would have terminated Mr Singh’s employment on medical grounds within a very short period of time. As Mr Singh was medically unfit for work and had exhausted his personal leave, he would not have earned any remuneration in this time.

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal;

[81] As Mr Singh was medically unfit for work that he did not seek other work is understandable.

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation;

[82] Mr Singh did not earn any monies.

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation;

[83] As he is still unfit for work he is not likely to have earned any monies.

(g) any other matter that FWA considers relevant.

[84] Mr Singh is grievously injured as a result of what he perceived as his mistreatment by the ATO. This has been exacerbated by the lack of resolution of this dispute and his dispute about his entitlement to workers compensation benefits. These matters have had a significant impact on the quality of Mr Singh’s life. I accept that my decision is likely to contribute to Mr Singh’s sense of grievance. However I am unable to resolve Mr Singh’s grievance with Comcare over its non payment of benefits. Mr Singh is able to pursue those matters in another place.

[85] I am also not able to resolve Mr Singh’s sense of injustice at what he saw as bullying and harassment by ATO employees prior to 2006.

Conclusion

[86] I am not able to award Mr Singh any compensation for shock, distress or humiliation or other analogous hurt caused by the manner of the dismissal.

[87] I have found that Mr Singh was unfairly dismissed. I have concluded that it is not appropriate to make an order for reinstatement. I am unable taking into account the matters set out in s.392 of the Fair Work Act 2009 to make any orders for compensation.

DEPUTY PRESIDENT

 1   [2014] FWC 5992

 2   Respondent’s bundle of documents at tab [41]

 3   Ibid at tab [9]

 4   Ibid at tab [13]

 5   Ibid at tab [14]

 6   Ibid at tab [17]

 7   Ibid at tab [26]

 8   Ibid at tab [27]

 9   Ibid at tab [28]

 10   Applicant’s rebuttal to Respondent’s submissions

 11   Respondent’s bundle of documents at tab [29]

 12   Ibid at tab [30]

 13   Ibid at tab [32]

 14   Ibid at tab [33]

 15   Ibid at tab [34]

 16   Ibid at tab [35]

 17   Ibid at tab [37]

 18   Ibid at tab [38]

 19   Submissions of Mr Singh at Appendix A11

 20   Ibid at 84.4

 21   Ibid at 85(b)

 22   Ibid at 85(c)

 23 [2011] AATA 533

 24 [2012] FCA 136

 25 [2012] AATA 652

 26   Applicants submissions at appendix E

 27   Applicant’s submissions in reply at [49]

 28   Applicant’s submissions page 46-50

Printed by authority of the Commonwealth Government Printer

<Price code C, PR561734>