Samuel Singh v Australian Taxation Office

[2014] FWC 5992

[2014] FWC 5992

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Samuel Singh
v
Australian Taxation Office
(U2011/1489)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 3 SEPTEMBER 2014

Application for relief from unfair dismissal.

[1] Mr Singh’s employment was terminated in 2011 on the grounds of non-performance of duties in accordance with sub-section 29(3)(c) of the Public Service Act 1999 (Public Service Act).

[2] Mr Singh had been absent from work since September 2006 except for a brief period of time in October 2009 when he returned to work as part of a settlement of an earlier unfair dismissal claim.

[3] Mr Singh returned to work on a return to work plan (RTWP) but he advised the Australian Taxation Office (ATO) that he would appeal the RTWP because he considered the role would worsen his condition and was not suitable to rehabilitate him.

[4] Mr Singh’s doctor determined that he was unfit for work by reason of a work injury.

[5] The ATO received medical reports from Dr Howe Synnott that Mr Singh was fit to perform work in accordance with the RTWP.

[6] In May 2011, the ATO gave Mr Singh, a direction to return to work on 19 May 2011 and advised him that if he failed to comply with the direction, his employment could be terminated for non performance of duties.

[7] Mr Singh’s lawyers advised the ATO on 18 May 2011 that he was unfit for work by reason of a work injury and that he would not be returning to work. That letter noted that there was an outstanding workers’ compensation claim being considered by the Administrative Appeals Tribunal (AAT). A letter from Mr Singh’s medical practitioner supported the statement that Mr Singh was unfit for work.

[8] Those letters were provided to Dr Synnott, who provided a further assessment, and Dr Synnott advised that Mr Singh could participate in the RTWP.

[9] Given there was disputed medical evidence, the ATO relied upon its policy at the time which provided that if there was disputed medical evidence it was entitled to follow the recommendations of Dr Synnott.

[10] On 14 June 2011, Mr Singh was directed to report for work on 21 June 2011 and advised that if he failed to comply with the direction his employment may be terminated.

[11] On 20 June 2011, Mr Singh advised that he considered the direction to be improper and invalid and that he would not be attending work. He advised the ATO that his claim was to be heard by the AAT on 11 and 12 July 2011 and that any decision should await the outcome of that matter.

[12] On 28 June 2011, the ATO advised Mr Singh that it was considering the termination of his employment and he was given until 5 July 2011 to show cause why his employment should not be terminated.

[13] On 4 July 2011, Mr Singh made submissions in response and disputed the ATO’s assessment that he was fit for duties.

[14] On 7 July 2011, the ATO terminated Mr Singh’s employment.

[15] On 1 August 2011, the AAT handed down a decision which concluded that “we cannot find that the Applicant did not have a reasonable excuse for not continuing with his RTWP, even though that excuse was manufactured by him.” 1

[16] The ATO appealed the decision and a subsequent AAT decision found that Mr Singh “had a reasonable excuse for failing to undertake the rehabilitation program provided by the ATO.” 2

Should Mr Singh’s application be dismissed because his application has no reasonable prospects of success because he is unable to prosecute his claim in a timely fashion?

[17] On 1 May 2014, I issued a decision 3 refusing Mr Singh’s application for a further adjournment of his application and, in response to the ATO’s proposal that I dismiss the application on my own motion, I issued directions for the parties to file submissions.

[18] The ATO submitted that Mr Singh’s application should be dismissed because Mr Singh had taken no substantive steps since 30 September 2011 to prosecute his claim.

[19] It submitted that Mr Singh, in support of his claim, relied on allegations of bullying that occurred in 2006. It submitted that the ATO is prejudiced by the delay in hearing this matter as many of the witnesses, including the person who made the decision to dismiss Mr Singh, no longer work for the ATO and in any event their memory of events would have faded.

[20] Further, it was submitted that because there was no indication of when Mr Singh would be able to prosecute his claim there is a real prospect that it might never proceed to hearing.

[21] The ATO submitted that Mr Singh, though unrepresented, has been able to obtain legal representation to pursue his workers’ compensation claim and he has had the capacity to engage in lengthy correspondence with the Commission.

[22] The ATO acknowledged that the Commission must balance these matters with the fact that Mr Singh remains ill with depression and has generally been responsive to and complied with the Commission’s directions and has advised that he will prosecute his claim when he has the capacity to do so.

[23] Mr Singh submitted that the Commission, on its own motion, adjourned his application until he provided a medical certificate that advised that he had the physical and mental capacity to proceed with his application. He had not sought an indefinite adjournment.

[24] He further submitted that he provided the Commission with medical certificates and advised that if the Commission required additional information he would provide it.

[25] Mr Singh also pointed to difficulties in his personal life that he submitted were a direct consequence of the failure of Comcare and the ATO to pay him his proper entitlements. This has added to his suffering.

[26] Mr Singh acknowledged the delay in the proceedings but submitted that he was not to blame for the delay. He further submitted that the departure from employment of witnesses is no barrier to the matter proceeding because the nature of a public sector body is such that it is able to access records that document all the decisions made in his case.

[27] Mr Singh disputed that his participation in other legal proceedings meant he had been able to prosecute this claim. Mr Singh described his involvement in the Federal Court and AAT as passive with his lawyers handling all activities associated with these proceedings.

[28] Mr Singh acknowledged that he has been able to engage in lengthy correspondence with the Commission about his case but says that has not been through choice.

[29] Mr Singh submitted that because there is no indication of when he will be medically able to pursue his claim is not a relevant consideration.

[30] Both the ATO and Mr Singh relied on my decision in Esposito 4 where I dismissed an application where the applicant had failed to prosecute his claim but both the ATO and Mr Singh acknowledged that there were significant differences between that case and this.

[31] Given his medical condition, Mr Singh submitted that regard should be had to the difficulties he faced in representing himself and that he cannot afford to pay for legal representation.

[32] He also relied on the delays in the ATO and Comcare paying him his compensation payments and submitted that this has had an impact on his health.

[33] In assessing the obligation to provide a fair go all round, Mr Singh submitted that regard should be had to the resource imbalance between himself and the ATO.

Conclusion

[34] In Trudu v CSIRO, 5I considered the power of the Commission to dismiss an application in circumstances where an applicant had, over a lengthy period of time, failed to prosecute his claim. I will adopt that approach here.

The delay

[35] I accept that the delay in this matter, in part, arose because of a decision of the Commission to indefinitely adjourn Mr Singh’s application. Since that decision, Mr Singh has advised the Commission of his ongoing health issues and his inability to proceed with his application. This is not a case where Mr Singh has ignored his obligations to the Commission.

[36] I accept that unlike the situation in Trudu, 6 this is not a case where Mr Singh has represented himself in other proceedings whilst at the same time stating he was unfit to represent himself in these proceedings. While Mr Singh has been able to instruct lawyers to respond to the appeal lodged by the ATO in the Federal Court, and to appear on his behalf before the AAT in the subsequent rehearing of his claim, I accept that instructing lawyers to represent him is less onerous than representing himself.

Mr Singh’s health

[37] Dr Stanley provided a letter in support for Mr Singh. The letter in part outlined Mr Singh’s health issues and in part made submissions as an advocate. I accept that Mr Singh has a medical condition. However Mr Singh is not legally incompetent and his submissions in this matter are themselves evidence of the fact that Mr Singh is able to prepare detailed submissions in support of his position. I do not accept that Mr Singh’s health prevents him from preparing material in support of his unfair dismissal application.

Prejudice to the ATO

[38] The ATO submitted that because Mr Singh’s complaints about bullying go back to 2006 it would need to call evidence about those matters. Many of the people involved in those matters have retired and even if they were available to give evidence they would have diminished memories of the events. It submits therefore that the delay prejudices its ability to defend the claim.

[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.

[41] For those reasons I do not consider that the absence of those, who it is alleged were involved in the bullying of Mr Singh, will prejudice the ATO. I also do not consider the retirement of the decision maker will prejudice the ATO. There is no evidence that he is not available to give evidence. Further, in issuing the direction to return to work, the ATO relied on its right to rely on the medical assessment and the Public Service Act and I accept Mr Singh’s submission that others would be able to give the necessary evidence.

Further delay

[42] Mr Singh accepts that his medical practitioner is unable to predict when or if he will be fit to proceed with his claim. Despite his doctor’s assessment of his health, he has been able to prepare material for this application and I see no reason why he could not prepare material for his unfair dismissal application. As I have indicated, this case is not about whether Mr Singh was bullied at work. Nor is it a case about his entitlements under the Safety, Rehabilitation and Compensation Act 1988.

[43] While post employment conduct may be relevant to remedy, the first issue to be determined is whether the dismissal was harsh, unjust or unreasonable. Given there is no significant dispute about the facts leading up to the dismissal, it is possible that the matter could be dealt with on the papers.

The merits

[44] The AAT found that Mr Singh was not unreasonable when he accepted his doctor’s advice that he would aggravate his injury if he participated in the RTWP. I find that Mr Singh has an arguable case that, a decision to terminate his employment because he would not return to work in circumstances where his medical advice was that he was unfit to work, was unfair.

[45] I have taken into account that this is an application for an unfair dismissal remedy. I have had regard to the fact that Mr Singh has been unfit to work since 2006 apart from a brief period in 2009. I accept that a finding that his termination was unfair may have a real but non-tangible benefit to Mr Singh. Whether any other remedy would be granted is an open question.

Conclusion

[46] In all the circumstances I am not prepared to dismiss Mr Singh’s application. However, as stated in my earlier decision, I am not prepared to adjourn this matter further. I will issue directions for the filing of evidence and submissions. I will then confer with the parties as to the future conduct of the matter.

DEPUTY PRESIDENT

 1 [2011] AATA 533 at [57].

 2 [2012] AATA 652 at [56].

 3   [2014] FWC 2848.

 4   [2014] FWC 1525.

 5   [2014] FWC 4306.

 6   Ibid.

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