FEDERAL COURT OF AUSTRALIA
Serpanos v Commonwealth of Australia [2022] FCA 1226
File number: VID 224 of 2020 Judgment of: SNADEN J Date of judgment: 18 October 2022 Catchwords: INDUSTRIAL LAW – employment – adverse action –whether the applicant was subjected to adverse action in contravention of s 340 of the Fair Work Act 2009 (Cth) (FW Act) – applicant dismissed from his employment, purportedly for having contravened standards expected of him – whether applicant made complaints or inquiries amounting to the exercise of “workplace rights” pursuant to s 341 of the FW Act – whether adverse action was taken because the applicant had exercised workplace rights – operation of statutory presumption in s 361 of the FW Act – identification of the person or people who decided to take adverse action – whether corporate state of mind resided (or partly resided) in a person who did not make the relevant decision – relevant actors were not actuated by the applicant’s exercise of workplace rights – application dismissed Legislation: Defamation Act 2005 (Vic) s 14(2)
Fair Work Act 2009 (Cth) pt 3-1 - ss 340, 341, 342, 346, 347, 360, 361, 539, 570, 793
Public Service Act 1999 (Cth) ss 10, 13, 29
Australian Public Service Commissioner’s Directions 2016 (Cth)
Cases cited: Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347
Australian Red Cross Society v Queensland Nurses’ Union of Employees (2019) 273 FCR 332
Australian Workers’ Union v John Holland Pty Ltd (2001) 103 IR 205
Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2010) 193 IR 251
Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 2) (2012) 248 CLR 549
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243
Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd (2015) 253 IR 166
Construction, Forestry, Mining and Energy Union v Endeavour Coal (2015) 231 FCR 150
Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251
Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17
Fountain v Alexander (1982) 150 CLR 615
General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605
Khiani v Australian Bureau of Statistics [2011] FCAFC 109
Maritime Union of Australia v CSLAustralia Pty Ltd (2002) 113 IR 326
Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34
Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677
National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139
O’Grady v The Northern Queensland Co Ltd (1990) 169 CLR 356
Pascoe v Federal Commissioner of Taxation (1956) 30 ALJR 402
PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225
Qantas Airways Ltd v Transport Workers’ Union of Australia (2022) 402 ALR 1
Smith v Federal Commissioner of Taxation (1987) 164 CLR 513
Tattsbet Ltd v Morrow (2015) 233 FCR 46
The Environment Group Ltd v Bowd (2019) 137 ACSR 352
Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602
Voigtsberger v Council of the Shire of Pine Rivers(No 2) (1981) 58 FLR 239
Wong v National Australia Bank Limited [2021] FCA 671
Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 311 Date of last submissions: 17 August 2021 (applicant) Date of hearing: 17-22 June 2021 Counsel for the Applicant: Mr J Fetter Solicitor for the Applicant: Jewell Hancock Employment Lawyers Counsel for the Respondent: Mr J Tracey Solicitor for the Respondent: Minter Ellison ORDERS
VID 224 of 2020 BETWEEN: HARILAOS SERPANOS
Applicant
AND: COMMONWEALTH OF AUSTRALIA
Respondent
ORDER MADE BY:
SNADEN J
DATE OF ORDER:
18 OCTOBER 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PART 1. INTRODUCTION
[1]
PART 2. THE PROCEEDING AND TRIAL
[6]
PART 3. THE FACTUAL BACKGROUND
[12]
PART 4. SUMMARY OF MR SERPANOS’S ADVERSE ACTION CASE
[64]
PART 5. THE LEGISLATIVE FRAMEWORK
[70]
PART 6. APPLICABLE LEGAL PRINCIPLES
[81]
6.1 Employment-related complaints
[84]
6.2 What does it mean to be “able to” complain or inquire?
[90]
6.3 Proof of proscribed purpose
[92]
PART 7. DID MR SERPANOS POSSESS AND EXERCISE WORKPLACE RIGHTS?
[128]
7.1 Were the communications made?
[134]
7.2 Did each assume the form of a complaint?
[138]
7.3 The 18 July Email
[151]
7.3.1 Was the complaint related to Mr Serpanos’s employment?
[152]
7.3.2 Was the complaint one that Mr Serpanos was “able to” make?
[157]
7.3.3 Did the 18 July Email amount to the exercise of a workplace right?
[161]
7.4 The 22 July Email
[162]
7.4.1 Was the complaint related to Mr Serpanos’s employment?
[163]
7.4.2 Was the complaint one that Mr Serpanos was “able to” make?
[164]
7.4.3 Did the 22 July Email amount to the exercise of a workplace right?
[165]
7.5 The First Concerns Notices
[166]
7.5.1 Was the complaint related to Mr Serpanos’s employment?
[167]
7.5.2 Was the complaint one that Mr Serpanos was “able to” make?
[174]
7.5.3 Did the First Concerns Notices amount to the exercise of a workplace right?
[175]
7.6 The 8 August Email
[176]
7.6.1 Was the complaint related to Mr Serpanos’s employment?
[177]
7.6.2 Was the complaint one that Mr Serpanos was “able to” make?
[178]
7.6.3 Did the 8 August Email amount to the exercise of a workplace right?
[182]
7.7 The Second Concerns Notices
[183]
7.8 The 20 August Letter
[185]
7.8.1 Was the complaint related to Mr Serpanos’s employment?
[188]
7.8.2 Was the complaint one that Mr Serpanos was “able to” make?
[189]
7.8.3 Did the 20 August Letter amount to the exercise of a workplace right?
[190]
7.9 The remaining communications
[191]
7.9.1 Were the remaining complaints related to Mr Serpanos’s employment?
[193]
7.9.2 Were the remaining complaints ones that Mr Serpanos was “able to” make?
[195]
7.9.3 Did the remaining complaints amount to the exercise of a workplace right?
[197]
7.10 The Defamation Filings
[198]
7.11 Conclusions
[201]
PART 8. WHY WAS MR SERPANOS DISMISSED?
[203]
8.1 Whose reasons were the ATO’s reasons?
[206]
8.1.1 Mr Sheil
[214]
8.1.2 Ms McLoughlin
[222]
8.1.3 Ms Morris
[235]
8.1.4 Mr Riley
[237]
8.1.5 Conclusions
[242]
8.2 Was Mr Serpanos dismissed because he exercised workplace rights?
[244]
8.2.1 Ms Kotronakis
[248]
8.2.2 Ms Boyd
[286]
8.2.3 Conclusions—dismissal not because of complaints
[304]
8.3 Conclusion—no unlawful adverse action
[309]
PART 9. CONCLUSIONS
[310]
SNADEN J:
PART 1. INTRODUCTION
The applicant, Mr Serpanos, is a former employee of the respondent’s—more particularly, of the Australian Taxation Office (the “ATO”). For reasons that will become apparent, it is convenient to refer to the ATO as though it were the respondent; and references to it throughout these reasons should be understood as references to the respondent.
By notice dated 16 December 2019, Mr Serpanos’s employment was terminated on the basis of misconduct that was said to have placed him in breach of section 13 of the Public Service Act 1999 (Cth) (the “Public Service Act”). That section contains what is commonly and hereafter referred to as the “APS Code of Conduct”.
That, at least, was the justification that the ATO gave for Mr Serpanos’s dismissal. By this proceeding, Mr Serpanos maintains that he was in fact dismissed because of a complaint that he had made and maintained over a series of communications. He submits that his dismissal amounted to “adverse action” that the ATO took against him in contravention of s 340(1) of the Fair Work Act 2009 (Cth) (hereafter, the “FW Act”). He seeks relief in the nature of compensation and the imposition of pecuniary penalties (as well as other, ancillary relief).
The ATO denies that it dismissed Mr Serpanos from his employment because, or for reasons that included that, he had made or maintained any complaint. It submits that the reason for his dismissal was legitimate or, at any event, that the dismissal did not contravene s 340(1) of the FW Act. It denies that Mr Serpanos is entitled to any relief as claimed.
For the reasons that follow, Mr Serpanos was not dismissed in contravention of s 340(1) of the FW Act. No relief will be granted. The application will be dismissed and there will be no order as to costs.
PART 2. THE PROCEEDING AND TRIAL
The proceeding was commenced by originating application lodged on 1 April 2020. It was supported by a statement of claim bearing that same date.
In its initial incarnation, the matter that Mr Serpanos hoped to prosecute was much greater in its scope. It is unnecessary to particularise the respects in which that scope was subsequently reduced—it suffices to say that, a few days prior to the scheduled trial of the matter (and with the ATO’s consent), Mr Serpanos filed an amended statement of claim that brought the matter within the confines of the very brief summary offered above. A further amendment was made (also with the ATO’s consent) after the commencement of the trial, which addressed minor matters that needn’t here be rehearsed.
The condensing of the matter brought two welcome consequences: first, the volume of matters requiring evidence and resolution by the court was moderated; and, second, much of the material that had been compiled into the form of a very substantial court book ceased to be relevant.
Nonetheless, even in its condensed state, the trial occupied four hearing days. It was allocated to a different docket judge and was scheduled for hearing before him in March 2022. It was reallocated to me in February 2021, following an interlocutory application that Mr Serpanos made for a more prompt trial date.
At the trial, Mr Serpanos gave oral evidence on his own behalf and tendered a selection of documents from (or predominantly from) the aforementioned court book. The ATO called oral evidence from two of its officers, Ms Theofani Kotronakis and Ms Megan Boyd. It, too, tendered various documents from the court book. Happily, the trial coincided with a brief period of respite from Victoria’s lockdown-focused response to the covid-19 pandemic.
Unlike most that are advanced under pt 3-1 of the FW Act, the present matter proceeded without any bifurcation as to liability and remedy. Evidence was led and submissions were advanced on all questions, including damages and the imposition of a pecuniary penalty.
PART 3. THE FACTUAL BACKGROUND
The relevant factual background is dense and cannot briefly be stated. Although there are elements of evidential conflict throughout, much of the relevant factual matrix emerges without material controversy from the documents that were tendered at trial.
Immediately prior to his dismissal in December 2019 (and at all of the times presently relevant), Mr Serpanos was employed in the role of Audit Leader (Integrated Compliance). He commanded remuneration of $133,766.06, inclusive of superannuation. In his role as an Audit Leader, Mr Serpanos reported to a team leader, Mr Peter Keily, and, ultimately to Ms Wendy Cavanagh, who occupied the role of “Director” in the ATO’s “Integrated Compliance” division.
In April 2019, Mr Serpanos found himself on the wrong end of a disciplinary process overseen by Ms Cavanagh. He was alleged to have made some “inappropriate comments on social media”, the full particulars of which needn’t here be stated. He was directed to refrain from making such comments in the future and was warned that, were he to do so again, he might find himself facing sanction up to and including dismissal from his employment.
Three-and-a-half weeks later, a colleague of Mr Serpanos’s made a complaint against Ms Cavanagh. The nature of that complaint is not presently relevant, save to acknowledge what follows. The complaint in question was made by email sent to, amongst others, Mr Ian Read, who was then employed in the role of Assistant Commissioner, Complex Assurance & Evasion and was the ATO officer to whom Ms Cavanagh reported. It was also copied to Mr Serpanos, from whom various of the factual matters to which it referred were said to have been sourced.
The following day—Saturday, 11 May 2019—Mr Serpanos sent an email in response to his colleague’s complaint. By that correspondence, he sought broadly to corroborate what had been said by way of complaint against Ms Cavanagh. He also indicated that he, too, had been a recent victim of mistreatment at Ms Cavanagh’s hands, including in the form of the warning referred to above.
There then followed an internal investigation into Ms Cavanagh’s conduct. On 29 May 2019, Mr Serpanos had a discussion with Mr Read and Ms Alenka Lawrence, from the ATO’s “People Support Team”. During that meeting, Mr Serpanos aired an array of grievances concerning his interactions with Ms Cavanagh. One such grievance related to events that transpired in October 2017, when he had apparently made an approach to another ATO officer about some mentoring. Mr Serpanos told Mr Read and Ms Lawrence that he had raised the possible mentoring arrangement with Ms Cavanagh by email, to which she had never responded. That failure to respond was, it seems, advanced as an example of Ms Cavanagh having “bullied” Mr Serpanos.
Mr Serpanos’s grievances were put to Ms Cavanagh for her response. That response was provided at least partly on Thursday, 13 June 2019. Specifically in respect of the mentoring email referred to above, Ms Cavanagh responded as follows:
…
This email followed an incident a few days earlier involving a number of males in the team. This matter was escalating to the point where some female staff members were considering a formal complaint in relation to comments made, however a complaint was not forthcoming.
At the same time, I became aware of a comment made by Hari [Serpanos] about me at a happy hour some months earlier. Olivia Kim advised me that she had received a text message from Samantha Peeters, a former graduate in the team, advising that Hari had said publicly words to the effect ‘…he would even f#!k Wendy if that’s what it takes to get an EL2..’. I understand this comment was made to a group, including males in the team, at a happy hour on site. I have seen the text and have a screenshot that can be provided if required. This comment was allegedly made in front of other males in the team.
I was pretty angry and frustrated with Hari’s behaviour/conduct and rightly or wrongly I acknowledge that his email went without response…
It is from that response (hereafter, the “Cavanagh Complaint Response”)—and, in particular, from Ms Cavanagh’s reference to Mr Serpanos having said that “he would even f#!k Wendy if that’s what it takes to get an EL2” (hereafter, the “Even Wendy Comment”)—that the matters relevant to this proceeding arise. It was not controversial that the reference to “an EL2” was a reference to a promotion; in other words, that Mr Serpanos was alleged to have said that, in order to gain promotion within the ATO, he would be willing to have sex with Ms Cavanagh.
At around lunchtime on Thursday, 18 July 2019, Mr Read sent an email to Mr Serpanos, informing him of the outcome of his investigations into Ms Cavanagh. That outcome is of little moment presently; it suffices to note that Ms Cavanagh was exonerated and that Mr Read took the view that Mr Serpanos should be relocated to a new role that did not report to her. Importantly, Mr Serpanos was provided with a copy of a “Complaint Report” pertaining to the grievances that he had aired. That report incorporated the Cavanagh Complaint Response, including the extract reproduced above (at [18]).
At or about 8:58 pm that evening, Mr Serpanos sent an email to Mr Read in the following terms (errors original):
Dear Ian,
At the outset I am extremely disappointed with your decision on this matter as I respectfully do not think you made your decision based upon a fair and unbiased consideration of my complaint against Ms Cavanagh.
I have noted that Ms Cavenagh alleges in response 4 of your document where she stated inter alia that an incident occurred several days earlier where in the presence of a number of males in the team, I allegedly said publicly that ……”he would even f#!k Wendy if that’s what it takes to get an EL2”. I find this disgusting and quite frankly I did not say those words to anyone. I would never make such a statement in a public office knowing that this is in breach of the code of conduct. This is a serious allegation against my character and reputation and I am surprised that Ms Cavenagh has never raised this matter with me both personally or as a Director as soon as she became aware of this. This matter was only raised after I filed my complaint against her. It is clear that she has failed in her duties as a manager in being open and transparent.
Additionally the fact is that no one has made any complaints against me for such disgusting comments, I believe that Ms Cavanagh allegation is untrue and unsubstantiated. I note that a former team member Samantha Peeters had texted a current member of the team Olivia Kim about the above made comments and Wendy acknowledged that she had seen this text and indeed has a screenshot of same. I would like to get a copy of this text and will discuss the contents of the text with my lawyer for legal action against Samantha, Wendy and Olivia for defamation.
I have cc’d my lawyer Bold Lawyers Mr Stuart Wright to this as I am of the opinion that this statement is seriously defamatory and I will be seeking advice to recover damages for loss to my reputation caused by actions by Wendy , Olivia and Samantha. I note that Olivia Kim has just been rewarded with higher duties in my team.
I will be seeking a review of your decision as advised.
Stuart enclosed FYI
As its text indicated, that email (hereafter, the “18 July Email”) was sent not only to Mr Read but also to Ms Lawrence, Mr William Day (an ATO Deputy Commissioner, to whom Mr Read then reported) and “Bold Lawyers”.
It is convenient to pause at this juncture to make some observations about the “Code of Conduct” to which the 18 July Email referred. Section 13 of the Public Service Act is headed, “The APS Code of Conduct”. Its terms are explored in more detail below. For now, it suffices to note that it enumerates a number of behaviours that “APS employee[s]” are expected to demonstrate. In part, it calls up (and requires compliance with) a set of values known as the “APS Values”, for which separate provision is made by s 10 of that enactment (the relevant terms of which are also explored below).
On Monday, 22 July 2019, Mr Serpanos sent an email to an internal ATO complaints email address, known simply as “Review of Employment Actions”. That email (hereafter, the “22 July Email”) contained the text of Mr Read’s email of 18 July 2019. Attached to it was a copy of the Complaint Report that Mr Read had attached to his email. The text of the 22 July Email read as follows (errors original):
I would like to seek a review of action made by AC Ian Reid concerning my complaint against Ms Wendy Cavanagh.
I enclose copy of the decision made by Ian Reid which contains all relevant documentation for your perusal.
The decision contains a chronology of events as well as attachments of correspondence in support of my action by lodging complaint against Ms Wendy Cavanagh for Bullying.
I appeal against Ian Reid’s finding that Ms Wendy Cavanagh’s actions are reasonable management actions and that I cannot substantiate my allegations of bullying. I am not interested in establishing harassment or discrimination. I accept those aspects. My only review is that my complaint of bullying should be upheld.
Example where Ms Cavanagh bullies me is where she criticised the clothes that I wear and yet does nothing to a person that walks around the office in bare feet. I disagree with Ms Cavanagh’s statement that I wear broad shorts, but I wear proper professional shorts by bands such as Polo, and Tommy Hillfinger. I do not think wearing runners is contrary to the dress code policy and is better than wearing no shoes at all which is what the officer who is a friend of Ms Cavanagh does.
The matters identified in finding 2 are not correct, the people that Ms Cavanagh relied upon were her favourites. Ms Cavanagh formed her conclusions about me without bothering to contact me and consider what I said before forming her decision. She did not act reasonably, but in a manner designed to intimidate , embarrass and humiliate me.
In relation to finding 3 I have no problem with Ms Cavanagh checking my attendance record. However it must be done fairly and reasonable across the whole team, I believe that Ms Cavanagh singled me out on this occasion. Of particular note Ms Cavanagh has not explained her actions on this, by not providing a response.
The most relevant response by Ms Cavanagh is contained in her response 4: where she states that some female members were considering in 2017 making a complaint against me in relation to some comments I made at happy hour. Ms Cavanagh states that at around the same time she became aware of comments made by me, that she had received a text message from a former staff member Ms Peeters which was sent to Olivia Kim (another team member), advising that I said words to the effect … he would even f#!k Wendy if that’s what it take to get an EL2..” Ms Cavanagh claims to have a screen shot of the text. Ms Cavanagh acknowledges that she did not raise this matter with me and that she was angry with me and she acknowledges that my email for her support was ignored by her. This is bullying behaviour and unreasonable managerial action. I am considering defamation action for this as the comments are untrue and were never made by me. If the parties to the comments were concerned they should have raised their issue with me way back then or in the alternative issued a complaint against me. This was never done.
The concern of bullying also is based upon response 7 where she states that the coffee cup was mine. She also apologised to me for her mistake before issuing her response, she is clearly lying here. The coffee cup does not have my name on it. I have a photo of the cup and can tender it if required.
Ms Cavanagh in her response 9 has not responded to my comments about my work load and revenue achieved. She just glossed over this saying that it a team effort. However in my individual performance plan this is a fundamental record of ones performance in audit. My team leader has been influenced by Ms Cavanagh and it bullying me by placing me on an informal performance plan etc. It is interesting that before 2017 when Ms Cavanagh became aware of my alleged comments she has a good relationship with me.
Ms Cavanaugh in her response to the employee census contained in my concern 10 and her response 10 states that 3 out of 12 team members who all stated that she failed in her managerial duties was insufficient to support my concern, as the 3 members claim that they were co oerced to agree with the majority of the team . I note that the majority in the team were not supportive of Ms Cavanagh’s managerial style which was identified as being bullish, favouritism, and that if you disagreed with her you could be out of a job.
Overall I believe that AC Ian Reid has made his decision with bias and in support of Ms Cavanagh.
I also note and you will see in the enclosed documents that Ms Cavanagh had no issues with me before 2017, and I can only assume it is because of the text she received from the staff members about my comments that have triggered Ms Cavanagh to act in a bullish manner to me.
Please review this matter and let me know if you require any further information.
Regards
Hari
It is necessary to recall some detail relating to the Even Wendy Comment. According to Ms Cavanagh, the comment was made in the presence of Ms Samantha Peeters, who, at the time, was said to be a graduate in the same team as Mr Serpanos. Ms Peeters was understood to have sent a text message to another ATO employee, Ms Olivia Kim, within which reference to the comment was made. That text message was said to be the subject of a “screenshot”, which Ms Cavanagh indicated that she had seen.
Over the course of the week of 22 July 2019, Mr Serpanos consulted his lawyers. By letters dated Friday, 26 July 2019, Bold Lawyers sent to each of Ms Cavanagh, Ms Kim and Ms Peeters a concerns notice pursuant to s 14(2) of the Defamation Act 2005 (Vic) (hereafter, the “Defamation Act”). It is unnecessary to replicate each of those notices (hereafter, the “First Concerns Notices”) here. It suffices to note that each referred to the Even Wendy Comment. In the case of the letter that was sent to Ms Cavanagh, reference was made to her having recounted the comment (and attributing it to Mr Serpanos) in the Cavanagh Complaint Response. In the case of the correspondence sent to Ms Kim, reference was made to her having provided to Ms Cavanagh a copy (or “screenshot”) of the text message that she had received from Ms Peeters (within which the comment had been recalled). In the case of the correspondence sent to Ms Peeters, reference was made to her having sent that text message. In each case, the First Concerns Notices complained that Mr Serpanos had been defamed by means of the Even Wendy Comment (or, more accurately, by the various ways in which Ms Cavanagh, Ms Kim and Ms Peeters were said to have alleged that he had made it).
On Friday, 2 August 2019, Mr Jeff Lapidos—a representative of the Australian Services Union—sent an email to Mr Day, requesting that Mr Serpanos be transferred to a role outside of Ms Cavanagh’s remit. That, it might be recalled, was a course that Mr Read had recommended in his email of 18 July 2019 (see above, [20]). Mr Serpanos was copied to Mr Lapidos’s email. At the time, he was on a period of what was described as “stress leave”.
On Tuesday, 6 August 2019, Mr Serpanos sent an email in reply to Mr Lapidos’s email from the previous Friday, enquiring as to whether there might be “…any update on when [his] transfer into a new position will occur”. Two days later, he sent a further email in that chain, the text of which it is convenient here to replicate (errors original):
Hi all
I refer to Ian Reid’s recommendation to transfer me into a new role.
I am becoming concerned that I have heard no response yet given that I will be returning to work on the 16th August 2019 .
I note that my employer has a duty to ensure that all reasonable steps are taken to protect the health and safety of its employees of which I am one of. This includes the mental wellbeing of its employees in the workplace and mitigating any further risks of injuries being aggravated due to any steps that are not taken.
I am putting it on the record that I am pursing civil action for defamation against 3 current employees of the ATO , 2 of which are in my team. This is a private matter.
Notices have been issued to the affected parties.
As an employee of the ATO I assume that I would have rights to protect my character and reputation within the organisation. As a result I request that the ATO treat me fairly and equally with the other parties on this matter.
Once this matter proceeds to court ultimately a Jury will make a decision on the defamatory imputation as well as any defences available to the parties.
However I do appreciate that there is a conflict of interest if the ATO takes the side of one party over another before any decisions are made by the Court accordingly I will not request that the ATO indemnify my legal costs and the legal action will be funded privately. I expect that the other parties will also fund their defence.
Regards
Hari
That email correspondence (the “8 August Email”) was copied to Mr Mark Stan, a solicitor of the law firm Boutique Defamation Lawyers. Mr Serpanos had, by then, retained Mr Stan in connection with his then-proposed defamation action against Ms Cavanagh, Ms Kim and Ms Peeters. The 8 August Email was also copied to various ATO representatives, including Mr Day, Ms Cavanagh and Mr Dominic Sheil, Assistant Commissioner, ATO People.
On Friday, 9 August 2019, Mr Nathan McFarlane, a member of the ATO’s “People Support Team”, sent an email to Mr Sheil (amongst others). By it, Mr McFarlane offered a “high level update” concerning Mr Serpanos’s position. Amongst other things, he noted that moves were afoot to find Mr Serpanos a role outside of Ms Cavanagh’s field of management and that he (Mr Serpanos) had “…sent 3 ladies defamation claims” which had been described as a “private matter”. That email also noted that “…a potential sexual harassment matter has come to light [and that] 3 ladies have lodged allegations against [Mr Serpanos]”. In relation to those claims, the email recorded that “Nardine McLoughlin…has been undertaking the fact finding relating to those allegations including conducting interviews onsite all day yesterday (with the 3 ladies plus other ‘witnesses’)”.
By letters dated Wednesday, 14 August 2019, Mr Stan sent to each of Ms Cavanagh, Ms Kim and Ms Peeters new notices pursuant to s 14(2) of the Defamation Act. Again, it is unnecessary to replicate the full text of those letters (hereafter, the “Second Concerns Notices”). It suffices to note that they maintained against the three recipients allegations equivalent to those outlined in the First Concerns Notices. Additionally, each concluded in the following terms (errors original):
We have instructions to commence legal action against you claiming substantial damages and legal costs. Our instructions may change, in the event that you make amends by within twenty-eight (28) days:
l. Issuing a written public apology to our client, one that our client is entitled to publish, the apology is also to be published to the workplace
2. A written undertaking to immediately retract any defamatory publications made against our client;
3. A written undertaking that no further defamatory publications will be made against our client in the future;
4. That you pay our client [a nominated sum, outlined below] being for the legal costs that our client has reasonably incurred to date and for damages.
If you do not stop defaming our client and continue engaging in activities injurious to his reputation, our client may seek to obtain injunctive relief against you, not limited to a civil defamation suit and may further obtain damages against you via the courts.
Please take notice that we are writing under section 14 (2) of the Defamation Act 2005 (Vic) and put you on notice as to our client's distress as to the allegations and imputations you have made and that this letter is to be considered as a "concerns notice" for the purposes of the Act.
If our client does not receive a satisfactory response within 28 days, we will seek our client's instructions to issue legal proceedings against you. Our client may commence court proceedings seeking damages and injunctive relief restraining you from publishing further defamatory content, without further notice to you.
Furthermore, we put you on notice that if the matter proceeds to trial and our clients obtains a result no less favourable than the offer in this letter, our client will produce this letter to the court on the question of costs. In that event, our client will seek an order that you pay their costs from the date of this letter, in accordance with the principals set out in Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (N02) 2005 13 VR 435, Calderbank v Calderbank [1976] Fam 93; [1975] 3 WLR 586 and lpex ITG Pty Ltd v Melbourne Water Corporation (NO 6) [2009] VSC 571.
Our client reserves all their rights.
In the case of Ms Kim and Ms Cavanagh, the notices invited payment of $350,000.00 for damages and costs. In Ms Peeters’s case, the equivalent invitation was for payment of a sum of $400,000.00.
Also on Wednesday, 14 August 2019, Mr Serpanos was issued with a “Notice of Suspension From Duty”, by which he was suspended from work without loss of pay with effect from that date. It is plain that that notice was sent in consequence of the allegations against Mr Serpanos, to which Mr McFarlane had referred five days earlier (above, [30]). It is convenient to replicate the terms of that notice (the “Suspension Notice”):
1. It has come to my attention that there is evidence that you may have breached the APS Code of Conduct (the Code).
2. I have received information that you:
• May have made inappropriate and offensive comments of a sexual nature towards a number of colleagues over an extended period of time.
• Are threatening legal proceedings to harass and bully staff, in circumstances where you know that the proceedings have no reasonable grounds.
3. Under Regulation 3.10 of the Public Service Regulations1999, an employee may be suspended from duty where it is reasonable to believe that:
a) the employee has, or may have, breached the Code of Conduct (the Code); and
b) the employee’s suspension would be in the public, or the ATO’s interest.
4. In accordance with Regulation 3.10, I have decided to suspend you from duty with remuneration. However, I am considering changing your suspension to suspension without remuneration and I invite your submissions in that respect.
5. This decision, which has effect immediately, is based on the serious nature of the suspected breach of the Code. It also takes account of the interests of both the public, the APS and the ATO, having regard to likely public perceptions of the integrity of the ATO if decisive action were not taken.
6. Regulation 3.10(4) requires that a decision to suspend with remuneration be reviewed at reasonable intervals.
7. In deciding to suspend you, I am not prejudging that it will be determined that you have breached the Code.
8. I will end the suspension if I no longer believe on reasonable grounds:
a) that you have, or may have, breached the Code; or
b) that your suspension is in the public, or the ATO’s, interest.
9. I confirm that you may put forward any information you want me to consider in relation to my decision to suspend you within 7 days. Upon receipt of any submission from you, I will review my decision. If you wish to provide comments, please provide these by COB on 21 August 2019 via email to While the suspension remains in force, you are directed not to enter any ATO premises without express permission from me.
11. You should read the important information about Suspensions attached to this letter.
12. My decisions about suspension are reviewable under s33 of the Public Service Act 1999.
Employee Assistance Program
13. You are reminded of the availability of the Employee Assistance Program (EAP) on 1300 361 008, should you require support in dealing with this matter.
The Suspension Notice was provided to Mr Serpanos under cover of an email from Ms Jade Hamilton, of the “Working Well Branch” of “ATO People”. In that email, Mr Serpanos was invited (if he wished) to “…put forward any information…you want me to consider in relation to my decision to suspend you or my consideration to change the suspension from suspension with remuneration to suspension without remuneration [and to do so] within 7 days”.
Mr Serpanos accepted that invitation. On Tuesday, 20 August 2019, Mr Serpanos sent an email to Ms Hamilton attaching two documents. The first was a letter written in response to the Suspension Notice. Although lengthy, it is again convenient to replicate the terms of that correspondence (the “20 August Letter”) in full:
I refer to the Notice of Suspension from Duty issued on 14 August 2019 ("the suspension notice").
I am providing the following information for you to consider in making your decision, which include the staff names, as they are relevant for your consideration.
I deny the un-particularised allegation that I "may have made inappropriate and offensive comments of a sexual nature towards a number of colleagues over an extended period of time" (the first allegation).
The suspension notice invites me to make submissions to you (paragraphs 3 and 9) but omits crucial information, which will enable me to do so.
The information as to the complainants may possibly be protected information in relation to the first allegation.
Full particulars of the first allegation are not protected information and must be provided to enable me to make submissions to you.
I require the following information to properly respond:
a)Full particulars of the first allegation, that include the comments that were allegedly made, and the times, dates and places they were made;
b)Full particulars of the reasons why the first allegation was not made at the time that the alleged inappropriate and offensive comments were made; and
c)Discovery of all documents in your possession, custody or control, in relation to the evidence of the first allegation, that is being relied upon in your decision making capacity (the requested information)
I am entitled to a fair hearing in your decision making process, as my employment rights will be impacted. In re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 McHugh J said at p 121 "One of the fundamental rules of the fair hearing doctrine is that a decision maker should not make an adverse finding relevant to a person' s rights, interests or legitimate expectations ... " The Federal Court has held that a public servant employee is entitled to a fair hearing in relation to their promotion and advancement and similarly, I should be entitled to the same protection in relation to a decision impacting upon my employment. In Finch v Goldstein and Others (1981) 36 ALR 287 Ellicott J said at p 299 "Because the decision of the Promotions Appeal Committee under the Act affect the promotion and advancement of individual public servants in the Public Service. I think the proper protection of their rights at least demands that those involved in the appeal proceedings have the right to know the case put against them as well as the opportunity to state their case either orally or in writing ... "
I am entitled to the requested information to enable me to respond. In Kanda v Government of Malaya (1962) AC 322 Lord Denning for the Privy Council stated at p 337 "If the right to be heard is to be a real right which is worth anything, it must carry with it a right to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him and then he must be given a fair opportunity to correct or contradict them." In Commissioner for Australian Capital Territory Revenue v Alphaone Pty. Ltd. (1994) 127 ALR 699 Northrop, Miles and French JJ said at p 715 " ... That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision maker." I cannot rebut or qualify or provide further information unless I am provided with the requested information, as I cannot rebut, or qualify information which I have no knowledge.
I deny the allegation that I am "threatening legal proceedings to harass and bully staff in circumstances where you (meaning I) know that the proceedings have no reasonable grounds."
I instructed my solicitors to send a concerns notice, which constitutes a genuine attempt to resolve a civil dispute without legal proceedings (see Part 3 of the Defamation Act (Victoria) 2005.
Your characterisation of the concerns notice as a threat to issue legal proceedings is erroneous.
I have reasonable grounds for sending the concerns notice. The defamatory act complained about in the concerns notice is in response to a statement "he would even fuck Wendy if that's what it takes to get an EL2." The serious nature of the defamatory act is that it is an inappropriate and offensive comments of a sexual nature that would justify a suspension, and thus I needed to protect my reputation.
2. In relation to your statement where you state that I have been threatening legal proceedings to harass and bully staff, in circumstances where I know that the proceedings have no reasonable grounds. I draw your attention to the following facts:
a.On the 11 May 2019 I raised a complaint with DC Will Day regarding my Directors Wendy Cavanagh's bullying behaviour towards me.
b.Ian Read AC was appointed to investigate my complaint against Wendy Cavanagh.
c.On the 13th June 2019 Wendy Cavanagh responded to my complaint.
d.In Wendy Cavanagh's response 4: to my complaint she stated that she became aware of a comment made by me to a group of males in the team at a happy hour in 2017 stating the following words
"he would even f#l!k Wendy if that's what it takes to get an EL2."
e.In Wendy's response she clearly identified that this message was sent by Samantha Peeters, to Olivia Kim who then showed the message to Wendy Cavanagh this all occurred in 2017.
f. Wendy states that she has seen the message and has kept a screen shot that can be provided upon request.
3. I became aware of the alleged comment in July 2019 after receiving Ian Read's report in relation to my bullying complaint against Wendy. I was shocked by her statement and immediately felt that my reputation and character has been damaged at the workplace.
4. Wendy states further in her response that she became angry and frustrated with this comment by not responding to my request at the time for my career development.
5. In 2017 my work relationship with Wendy broke down, this is evident by the bullying complaints that I made against her. I believe that this false statement might have contributed towards my unpleasant working relationship with Wendy during the past 2 years. This has caused me constant anxiety and depression at work, which finally led to my diagnosis for manic depression in January 2019.
6. Wendy as my Director and Senior Officer in the ATO should have investigated the substance of my comment allegedly made at the time when she became aware of it, which would have mitigated any damage to my reputation and character and also has curbed my career development at the workplace. However, she failed to investigate and clear the matter at the time.
7. Wendy instead of investigating the matter in 2017 held onto the information and published it maliciously in her response to my bullying claim to Ian Read and Alenka Lawrence that has further damaged my reputation and character at the work place and placed a blocker on my career development in the future at the ATO.
8. I believe that Wendy kept the screen shot for an improper purpose to be used to discredit, and defame my character and reputation at the workplace in the future.
9. I sought advice from my Legal representatives and they advised me that the publication of the statements by Samantha, Olivia and Wendy formed the basis of an action in tort known as Defamation under the Victorian Defamation Act 2005.
10. Accordingly I instructed my lawyers to issue a concerns notice under section 14 of the Defamation Act 2005 (Vic) to the parties that defamed me.
11. I enclose a copy of a letter dated 20 August 2019 from my lawyer confirming his advice provided to me when he issued the concerns notices.
12. I have checked the APS Code of Conduct and submit that I have complied with the following:
§ I have behaved honestly openly and with integrity in dealing with this matter.
§ I have complied with all Australian laws in following the correct legal avenue to defend my character and reputation at the workplace refer to Tassone v Kirkham (2014) SADC 134 where the Plaintiff and Defendant both worked as Commonwealth Correctional Officers at the Department for Correctional services in Adelaide and were entitled to sue for defamation without risk that adverse action would be taken against them by their employer.
§ I have the same rights to commence legal action against other staff members for defamation and this case is a precedent for initiating private legal action between staff.
13. In fact, recently the ATO's own Commissioner Chris Jordan when defending his own private defamation action has taken legal action against the first Commissioner Andrew Mills for not releasing evidence to support his case. Hence, I believe that I have the same rights to take legal action in order to protect my workplace rights against other ATO employees and should not be considered as threatening, harassing or indeed bullying staff.
14. Under the Fair Work Act 2009 an employee has protected rights without adverse action from an employer. Part 6 Division 3 section, 340 in particular affirms those rights. In fact it is unlawful for an employer to take adverse action when an employee is acting to protect their workplace rights.
15. A workplace right includes the ability to make a complaint or inquiry in relation to his or her employment.
16. By denying me the right to seek legal action to protect my character and reputation in the workplace is considered a fundamental breach of my human rights and in fact is unlawful under the FW A 2009.
17. I take issue in particular to the statement you received where you state "in circumstances where I know that the proceedings have no reasonable grounds"
18. I am not a defamation expert however I consulted lawyers who are experts in defamation and was advised by them that I had a reasonable case to pursue an action for defamation against all 3 parties. Accordingly my action is not frivolous and vexatious or indeed threatening bullish or harassing. I remind you that I have already incurred legal costs in seeking that advice.
19. Your notice clearly states in paragraph 2 dot point 2 that my legal action proceedings is threatening, and is harassing, and bullying ATO staff, however I have now provided you with particulars of my claim and reasons why I acted to protect my character and reputation. This is not threatening harassing or indeed bullying behaviour. With respect if you act on that information you received it is contrary towards the protection of my workplace rights and I submit is in fact unlawful under the FWA Act 2009 that affirms my rights as an employee at the workplace.
20. I note that the alleged inappropriate and offensive comments of a sexual nature towards a number of colleagues has only just come to light after I issued a concerns notice to the parties recently. I believe that these allegations have an ulterior purpose, as I have never been investigated for comments made by me of a sexual related nature towards any colleagues within the ATO before I issued the concerns notice to the related parties.
21. For the record the action for defamation is a private matter accordingly I have funded the matter at my own cost as I am aware of the obligations of the ATO under the Financial Management and Accountability Act 1997 and I refer in particular to section 44 which promotes the efficient, effective and ethical use of Commonwealth resources. This includes a responsibility to properly manage the spending of public money on legal services in particular. On the issue of legal costs I would appreciate the ATO to remain impartial until the matter is determined.
Why you should not change my suspension to suspension without remuneration
1. Natural Justice
Under the principles of natural justice and or procedural fairness at common law there are three key requirements:
§ The hearing rule: that the person who has allegedly breached the Code has the right to be heard or present their case.
- This means that during an investigation the accused is advised of the allegations and given the opportunity to reply.
§ The bias rule: that no one ought to judge his or her own case i.e. there is a requirement that the decision maker is unbiased.
- This means that investigators and decision makers:
• must act without bias in relation to all procedures
• must be impartial
• must make decisions based on a balanced and considered assessment of the information and evidence without favour
• should be careful to avoid the appearance of bias and,
• should ensure there is no conflict of interest.
§ the evidence rule: that an administrative decision must be based on logical proof or evidence material. This means that investigators and decision makers should not base their decisions on mere speculation or suspicion, and should be able to clearly point to the evidence on which the inference or determination is based.
I am an employee of the ATO as well and would expect the ATO to treat me fairly, ethically and remain impartial towards my resolution of my private action for defamation against the other parties.
2. APSC HR Managers guide to Handling Misconduct
1. Part 2.2.1 of the APSC Managers Guide (the guide) on handling misconduct states that the misconduct action is not seeking to punish the employee; accordingly I should not have my pay suspended until the evidence proves that I have breached the APS Code of Conduct. (the code)
2. Part 5.8 of the guide provides the framework that an agency should follow when deciding whether to reassign duties temporary or to suspend from duty when investigating whether a breach of the code has occurred. Bearing all the matters raised above I submit that I have acted properly, according to the law and the APS Code of Conduct. Hence, I should not be suspended or punished for simply acting to protect my human rights and workplace rights under the FWA 2009.
3. I submit that it would not be procedurally fair to suspend me without pay additionally I should be suspended with pay until the investigation is completed. Also under s 15 of the Public Governance, Performance and Accountability Act 2013 it is submitted that it would be appropriate for a suspended employee to be remunerated if they are not working in another job as is the case with me.
Due to the serious nature of the allegations and the fact that there is an intractable dispute in relation to the factual issues relation to the allegations, I am entitled to a formal hearing, in which I am able to present evidence, cross examine the complainants and make submissions. Without a formal hearing, it will be impossible for you, as the decision maker to make a decision as to whom should be believed. In Commissioner of Police v Tanos (1958) 98 CLR 383 at 395 Dixon CJ and Webb J said that "it is a deep rooted principle of the law that before anyone can be punished or prejudiced in his person or property by any judicial or quasi judicial proceeding he must be afforded an adequate opportunity of being heard." In Grimshaw v Dunbar (1953) 1 QB 408 at 416 Jenkins LJ said at p 416 "Be that as it may a party to an action is prima facie entitled to dispute his opponent's case and cross examine his opponents witnesses and he is entitled to call his own witnesses and give his own evidence before the court.
I await your reply.
The other document that Mr Serpanos sent to Ms Hamilton on Tuesday, 20 August 2019 was a letter of that same date from his lawyer, Mr Stan. That letter referred to a conference that Mr Serpanos had recently attended with a barrister and confirmed that “…based on the instructions facts [sic] you have provided us that you had legal [sic] basis for sending the Concerns Notice [sic] to address the defamation imputations published against you by three parties.”
On Wednesday, 21 August 2019, Mr Serpanos sent a further document by email to Ms Hamilton, namely a letter of that date addressed to him from his former solicitor, Mr Wright of Bold Lawyers. In that letter, Mr Wright noted that “[s]ubject to positive verification that the publications were made and that those statements [not identified but presumably including the Even Wendy Comment, or comments as to its having been made] are untrue, the publications and the imputations that the publications convey are clearly defamatory [and that b]ased on [Mr Serpanos’s] instructions there was clearly a reasonable basis to issue the concerns notices.”
Notwithstanding his supply of that information, the basis upon which Mr Serpanos was suspended changed with effect from Friday, 23 August 2019. From that point, his suspension from work was accompanied by a suspension of his remuneration.
On Monday, 26 August 2019, Ms Kotronakis, acting Assistant Director of the ATO’s “Working Well—ATO People” group issued to Mr Serpanos a “Notice of Suspected Breach”, by which it was alleged that Mr Serpanos had conducted himself contrary to the requirements of the APS Code of Conduct. Ms Kotronakis had, by that point in time, been made responsible for making a “breach determination”—in other words, a determination as to whether or not Mr Serpanos had contravened the APS Code of Conduct—under an internal ATO policy known as its “Procedures for determining whether an employee has breached the APS Code of Conduct and imposition of sanction” (to which I shall hereafter refer as the “APS Code of Conduct Procedures”).
It is convenient to set out in full the terms of the notice that Ms Kotronakis sent to Mr Serpanos on Monday, 26 August 2019 (hereafter, the “NOSB”):
1.I have received information that you may have breached the APS Code of Conduct (the Code).
2.In accordance with the Australian Taxation Office (ATO) Procedures for determining breaches of the APS Code of Conduct and the Imposition of Sanction (the ATO Procedures), I am authorised to determine whether you have breached the Code. A copy of the ATO Procedures is at Attachment A.
3.The purpose of this letter is to inform you of the details of the suspected breaches and provide you with the material to be relied upon in determining the suspected breaches. I have set out details of the suspected breaches below and I have attached to this Notice at Attachments B - H the relevant information I will rely on when considering this matter.
Relevant Background
4.You commenced employment with the ATO on 12 May 2000 and are currently employed as an ongoing EL1 Client Engagement Officer in the Integrated Compliance (IC) business line at the ATO’s Dandenong office.
5. Attached are two complaints lodged by:
a.Ms Olivia Kim, acting APS5, Client Engagement Officer IC (refer to Attachment B); and
b.Ms Samantha Peeters, APS4, Client Engagement Officer IC (refer to Attachment C).
6.I have also been provided with relevant information from three other employees (refer to Attachments D – F).
7.The complaints and statements at Attachments B -F contain several allegations and associated information about your behaviour from circa March 2016 to February 2019. Specifically it is alleged that:
a.You engaged in sexually harassing behaviour that included inappropriate discussions and/or made inappropriate comments of a sexual nature, to ATO colleagues including:
i.a conversation with Ms Peeters and Ms Kim in 2016 in which you looked Ms Peeters up down and stated that you don’t like white women, but preferred Asian women,
ii.a conversation with ATO colleagues, including Ms Peeters, on 14 October 2016 in which you stated that you were horny and your wife was not “putting out”. You made comments about “just snapping and grabbing someone”,
iii.repeated references to “the yogurt maker”, referring to your penis and/or your use of an automated masturbation machine in the workplace,
iv.advising ATO colleagues and repeatedly referring to your use of an automated masturbation machine, which you referred to as AB and/or AB2,
v.stating in front of several ATO employees, including Ms Peeters, at happy hour in Dandenong on 7 April 2017, that you would “fuck Wendy for a promotion” and then referenced that she was disabled,
vi.stating to several ATO colleagues, on 16 October 2017, that you had a sexual dream about Ms Peeters which involved bestiality, specifically comments that [Ms Peeters] “enjoyed a chicken in her ass” (sic) and
vii.stating that you cheat on your wife with prostitutes and meet with prostitutes during breaks from work and have sex with them in your car. The comments included a conversation with Ms Peeters where you stated how “you would sleep with them [prostitutes] in your car behind buildings, and how they were all Asian, younger than [Ms Peeters] and were not in it for the money”.
b.You engaged in sexually harassing behaviour by sending Ms Peeters a link to an automated masturbation machine over Facebook.
c.You engaged in harassing behaviour towards several employees. This behaviour included:
i.threatening defamation action against Ms Kim, Ms Peeters and Ms Cavanagh in circumstances where you knew the proceedings were vexatious because:
·they were grounded on an assertion that you did not make the statement “I would even fuck Wendy for a promotion” when you knew that you did make this statement, and
·seeking damages against these three individuals collectively of $1.1 in full knowledge that this quantum has no reasonable basis.
ii. exclusionary behaviour against Ms Prosch and Ms Kim. For example, ignoring and ostracising Ms Prosch and Ms Kim and talking about them in a negative manner when they raised concerns about your behaviour.
Suspected Breach 1
8. By engaging in the behaviour outlined in paragraph 7, specifically:
•Sexually harassing behaviour (paragraphs 7a and 7b) and/or
•harassing behaviour (paragraph 7c),
it is suspected that you have failed to act with honesty and integrity. It is therefore suspected that you have breached subsection 13(1) of the Code:
13(1) An APS employee must behave honestly and with integrity in connection with APS employment.
Suspected Breach 2
9. By engaging in the behaviour outlined in paragraph 7, specifically:
•Sexually harassing behaviour (paragraph 7a and 7b) and/or
•harassing behaviour (paragraph 7c),
it is suspected that you have failed to treat employees with respect and courtesy, and without harassment. It is therefore suspected that you have breached subsection 13(3) of the Code:
13(3) An APS employee, when acting in connection with APS employment, must treat everyone with respect and courtesy, and without harassment.
Suspected Breach 3
10. By engaging in the behaviour outlined in paragraph 7, specifically:
•sexually harassing (paragraph 7a and 7b) and/or
•harassing behaviour (paragraph 7c),
it is also suspected that you have failed to behave in a way that upholds the APS values and good reputation of the ATO and the APS. It is therefore suspected that you have breached subsection 13(11) of the Code:
13 (11) An APS employee must at all time behave in a way that upholds:
(a) the APS Values and APS Employment Principles; and
(b) the integrity and good reputation of the employee’s Agency and the APS.
Specifically, with respect to subsection 13(11)(a):
APS Values: Respectful
10(3) The APS respects all people, including their rights and their heritage.
Suspected Breach 4
11. It is alleged that:
•the behaviour outlined in paragraphs 7a and 7b could reasonably be expected to offend, humiliate and/or intimidate Ms Peeters, Ms Kim and Ms Cavanagh and constitutes sexual harassment, and
•the behaviour outlined in paragraph 7c could reasonably be expected to offend, humiliate, intimidate, threaten or demean Ms Peeters, Ms Kim, Ms Cavanagh and Ms Prosch.
12.It is therefore suspected that you have failed to comply with the directions contained in Chief Executive Instruction (CEI) 2015/02/05 – Workplace Bullying, Harassment and Discrimination (refer to Attachment G).
13.Specifically, the CEI directs employees to demonstrate behaviour in accordance with the APS Values, Employment Principles and Code, including treating everyone with respect and courtesy and not engaging in, aiding or permitting behaviours that constitute bullying, harassment or discrimination.
14.The Workplace Bullying, Harassment and Discrimination – Questions and answers provide context to the CEI (refer to Attachment H).
15.By failing to comply with the directions contained in (CEI) 2015/02/05 it is suspected that you have breached subsection 13(5) of the Code:
13 (5) An APS employee must comply with any lawful and reasonable direction given by someone in the employee's Agency who has authority to give the direction.
Your opportunity to respond
16.Under the ATO Procedures, you are entitled to an opportunity to make a statement in relation to the suspected breaches.
17.If you wish to make a statement or provide additional information in relation to the suspected breaches, you have until close of business on Monday, 2 September 2019 to do so. Your response should be forwarded to me via email, at [email protected].
Employee Assistance Program
18.You are reminded of the availability of the ATO Employee Assistance Program on 1300 361 008 should you require support in dealing with this matter.
(references omitted)
Attached to the NOSB were the various attachments to which it refers. The “CEI” was an instrument made pursuant to s 13(5) of the Public Service Act. It is unnecessary to trace its content here. That instrument appears to have been supported by some guidelines published at least within the ATO (if not the broader public service), headed “Workplace Bullying, Harassment and Discrimination – Questions and answers”. Again, the content of that instrument needn’t here be rehearsed.
On Monday, 2 September 2019—and by way of acceptance of the invitation extended to him by the NOSB—Mr Serpanos sent to Ms Kotronakis an array of documents responding to the matters that she had identified. Amongst them was a 41-page document headed, “Response to Notice of Suspected breach of APS Code of Conduct”, a slightly revised version of which was sent to Ms Kotronakis the following day. That document (the “2 September Response”) needn’t here be replicated (either in its original or revised form). It suffices to note that, by it, Mr Serpanos:
(1)denied that he had acted in contravention of the APS Code of Conduct;
(2)alleged that the complaints raised against him were, at least in some cases, historical and were designed to “destroy [his] credibility in proceeding with [his] defamation action”;
(3)demanded that all of the people who were present at the time that the Even Wendy Comment was alleged to have been made be interviewed and asked to sign statements recording what they observed or heard;
(4)suggested that Ms Peeters and Ms Kim had gone about obtaining information about him and his movements in the workplace in order that they might provide it to Ms Cavanagh in exchange for “preferential treatment”;
(5)accused Ms Cavanagh of showing “reckless disregard as to the truth” regarding his having allegedly made the Even Wendy Comment, and of having “…published this untrue statement…for an improper purpose and maliciously to further damage [his] name and reputation within the ATO”;
(6)suggested that the “conflicting, hearsay and uncorroborated information” with which he had been provided “[did] not support [the] complaints….[which were] malicious and vexatious”;
(7)accused Ms Peeters of “…deliberately making up gossip and spreading nasty rumours about [him] without any basis” and of having “…a reputation for making sexual allegations against male co-workers”;
(8)denied partaking in sexualised conversations with co-workers;
(9)accepted that he had been present during a discussion or discussions about “yoghurt makers” and a sex toy known as “AB” or “AB2”—but maintained that he did not himself partake in them;
(10)maintained that the defamation action threatened against Ms Cavanagh, Ms Kim and Ms Peeters was not vexatious, was being pursued because what they had said of him was untrue, and sought payment of an amount by way of damages and costs that had been the subject of advice (written facsimiles of which were attached);
(11)observed that another ATO employee, to whom he was alleged to have spoken about a dream that he had had regarding Ms Peeters (and who was alleged to have later recounted the sexually graphic content thereof to her), in fact had admitted that what he had recounted to Ms Peeters was not what Mr Serpanos had told him; and
(12)otherwise denied having engaged in the other conduct of which he stood accused.
Two days later (on Wednesday, 4 September 2019), Mr Lapidos sent an email to Mr Sheil regarding Mr Serpanos’s state of mental health. Mr Serpanos was copied to that email and, later that afternoon, replied to it. In that reply (the “4 September Email”), Mr Serpanos made the following observations (errors original):
As I said to [Mr Lapidos] today I have spent most of the last week putting together my response to the NOSB and I confident I did not say what was alleged.
The statements and evidence tendered clearly support my case. As most of the information provided clearly points the finger to Ms Peeters creating and spreading the gossip and lies in 5 out of the 7 allegations in the first place against me.
The other evidence is hearsay and based upon what Ms Peeters has stated. Ms Peeters is the culprit in raising these allegations.
It is crazy that I am not allowed to return to work. These allegations are cleared created some 2 to 3 years after they allegedly occurred . Yet none were reported back then .. they have only come up after I lodged my notices of concern ..
…
The evidence in Ms Peeters complaint strengthens my defamation case as well
The following day, Mr Serpanos sent a follow-up email to Mr Sheil and Mr Lapidos. That email (the “5 September Email”) read as follows (emphasis original):
Hi Dom and Jeff,
Further to my email sent yesterday I would like to add the following comments:
My Memory
•I was cleared to return to work by Doctors from the Eastern Health Adult Mental Health Service in Box Hill after undertaking treatment in Upton House in 2015.
•I was also cleared by the Psych from the same centre in 2016 to return to work.
•I have no memory issues at work with respect to my job as this has never been an issue with my manager.
•Given the allegations made against me occurred around 2 to 3 years ago, the nature of the allegations are extremely bizarre and if true no one made any complaints to their Manager at the time. This is unbelievable
•I deny making the sexual comments and I believe that this can be confirmed from the other team members by requesting signed statements from them or other parties mentioned in the complaints.
•The only conclusion I can reach is that Ms Peeters is making fun of me due to my mental health issues of which all my team were aware.
•Unfortunately Ms Kim listened to and was influenced by Ms Ms Peeters in respect to the untrue gossip generated and spread by Ms Peeters.
•I am now alerted to the fact that since 2016 I have been subjected to workplace discrimination and harassment due to my illness. For example Ms Kim in the text conversation with Ms Peeters said the following "He can't even be an acting team leader this guy doesn't even know how to start an audit''.
Legal Action
•Dom as I have stated previously to you my outcome that I am seeking for the defamation action is very simple.
1 An Apology from the 3 parties;
2 Legal costs paid;
3 Damages can be negotiated•Instead of being pro active to resolve the matter with me, the parties have lodged untrue sexual harassment claims against me as a counter attack to my legal matter against them. Due to the grapevine effect my wife who is completely innocent is suffering as she has to go to work everyday. Because everyone at the office is talking about this matter.
•Some people have even approached my wife and told her that your husband is on unpaid leave.
•I spoke to my barrister…who is preparing my writ who confirmed that the writ will be issued by the end of this week or next early.
•The evidence provided by the other parties which has further strengthened my defamation case.
ATO
•As I have stated previously I have no issues with the ATO and respect the organisation as a whole, although I am disappointed with some ATO peoples decisions.
•However I have found the ATO’s position in dealing with this case bizarre because the evidence is very clear that Ms Peeters has fabricated, generated and spread rumours about me.
•Instead of investigating Ms Peeters behaviour which is misconduct, I am placed in a position of being forced to admit that I did something which I did not do.
•By doing that my Mental Health issues have also now being brought into my case by the ATO.
•My good performance has been ignored ever since I returned to work from hospital.
•If the ATO finds against me based upon unjust and untrue allegations, I will be forced to take legal action in the Federal Court. This will be a sad day for me as I do not want to go down this path.
•I still have hope that the ATO as an organisation maintains its values which integrity is fundamental to maintaining community trust and confidence, and its employees act ethically and with integrity in according to the APS values and Code of Conduct.
•I trust that the ATO will make a decision in accordance to the facts and evidence and not be swayed by any bias or pre conceived judgment already made including my mental illness.
Kind regards
Hari Serpanos
On 13 September 2019, Mr Serpanos commenced a defamation action in the County Court of Victoria against Ms Cavanagh, Ms Peeters and Ms Kim. By it—and, perhaps more particularly, by the statement of claim that he filed therein (hereafter, the “Defamation Filings”)—he charged those defendants with having defamed him insofar as they had published allegations that he had made the Even Wendy Comment. Mr Serpanos sought damages, aggravated damages, interest and costs as against each defendant.
At some point not long thereafter, Mr Serpanos learned of measures that the ATO had agreed to adopt to indemnify (or at least partially indemnify) Ms Cavanagh, Ms Peeters and Ms Kim in respect of costs incurred in the defence of his defamation action. On Saturday, 21 September 2019, Mr Serpanos sought clarification from Mr Sheil as to “…whether the ATO are [sic] funding or indemnifying the legal costs of Ms Cavanagh, Ms Peeters and Ms Kim…”
On 8 October 2019, a lawyer in the ATO’s office of General Counsel confirmed that “…legal assistance under the Legal Services Directions 2017 ha[d] been granted to Ms Cavanagh, Ms Peeters and Ms Kim with respect to [Mr Serpanos’s] defamation proceedings.”
Meanwhile, Ms Kotronakis set about determining whether or not (or to what extent) Mr Serpanos was guilty of having conducted himself in the ways outlined in the NOSB. The efforts to which she went in that regard are explored in more detail below. For now, it suffices to summarise her conclusions.
On Monday, 2 December 2019, Ms Kotronakis sent an email to Mr Serpanos, attaching a “Determination Report”. Several aspects of that document (the “Determination Report”) warrant noting. The first concerns the factual findings to which Ms Kotronakis was drawn. They were recorded as follows:
FINDINGS OF FACT
51.I am satisfied that between 2016 and 2019, Mr Serpanos engaged in sexually harassing behaviour in the workplace, including behaviour directed at some of his female colleagues, as set out in the [NOSB].
52.I am satisfied that between 2016 and 2019, Mr Serpanos engaged in harassing behaviour towards Ms Kim and Ms Prosch, as set out in the [NOSB].
53.I am satisfied that Mr Serpanos engaged in harassing behaviour towards Ms Peeters, Ms Kim and Ms Cavanagh by threatening and then commencing defamation proceedings against them.
In reaching those conclusions, Ms Kotronakis confronted the apparent conflict in the evidence with which she had been provided. She addressed that conflict as follows:
DISCUSSION OF THE EVIDENCE
21.There are differing accounts of critical events grounding the suspected breaches. Several general observations may be made in advance about the state of the evidence.
22.First, all the allegations (with the exception of the email correspondence with Ms Chang, which is discussed further below) are made by women in the team, or women who had dealings with women in the team: Ms Peeters, Ms Cavanagh, Ms Kim, Ms Prosch and Ms Dickman. Mr Serpanos alleges these women are all friends and says the allegations have been concocted to destroy his character ‘making up untrue allegations’ and naming him in these allegations when he was clearly not involved. He says this has now caused damage to his reputation with the ATO and in the future by portraying him as a ‘sexual offender and a monster’. There are no specific complaints about others in the team apart from Mr Serpanos, although Mr Vydelingum and Mr Bartholomeusz appear to have had a role in transmitting some of the relevant information to the complainants. I am not persuaded that the fact the complainants are allegedly friends, or that they have not complained about others, affects the credibility of their evidence.
23.Second, most of the allegations date from 2016 to 2018. The age of the allegations also does not concern me for several reasons. Some of the allegations were reported or discussed by the complainants contemporaneously, so this is not a case where allegations are being made for the very first time in 2019. Also, and more importantly, I find it entirely plausible that these employees, particularly Ms Kim and Ms Peeters, who had recently been employed as graduates under the ATO’s graduate program, would have been reluctant to report the behaviour of a more senior colleague.
24.Third, what is alleged here appears to be a prolonged pattern over several years of sexualised comments and harassment in the workplace. In that context, exact dates and times of events are less important than establishing the existence of the pattern. I have taken a holistic approach to the evidence, rather than considering the details of each allegation in paragraph 7(a) of the Notice in isolation.
25.I have given serious consideration to making enquiries with other potential witnesses, particularly Mr Vydelingum and Mr Bartholomeusz. In the end, I have not done so, partly because some of what they are likely to have to say is already recorded and partly because they appear to have been acquiescent in some of the conduct that has been reported. In addition, I note Mr Bartholomeusz has since left the ATO.
26.I am reluctant at this stage to draw current team members into this investigation. In deciding against drawing more team members into this investigation, I have also considered Mr Serpanos’s submission that the allegations have been made up to cause damage to his reputation and whether I should therefore discount the probative value of the complainants’ evidence. As will become clear from the discussion below, I reject the proposition that the complainants are engaged in some kind of collusion against Mr Serpanos. A more plausible explanation for the similarity of their evidence is that they witnessed the same conduct by Mr Serpanos and others, or were aware of the conduct because they discussed it contemporaneously. I am prepared to accept that the complainants are fundamentally witnesses of the truth. That reinforces my decision not to draw in other members of the team to take sides in dispute as to the facts.
On the issue of greatest significance presently—namely, the nature and significance of Mr Serpanos’s threatened-and-then-actual defamation proceeding—Ms Kotronakis made the following observations in the Determination Report:
Threatening defamation proceedings
45.At the time of the [NOSB], Mr Serpanos had threatened defamation proceedings against Ms Kim, Ms Peeters and Ms Cavanagh in relation to the allegation that he had said at a happy hour on 7 April 2017 that he ‘would fuck Wendy for a promotion’. He threatened to sue them collectively for $1.1 million, which appears to be a disproportionate sum in the circumstances. Mr Serpanos has since commenced defamation proceedings against Ms Peeters, Ms Kim and Ms Cavanagh in relation to that alleged incident.
46.I have already concluded that I prefer the evidence of Ms Peeters and Ms Kim to that of Mr Serpanos on the allegation that Mr Serpanos said he would ‘fuck Wendy for a promotion’ because Ms Peeters sent a text message about it to Ms Kim contemporaneously on 7 April 2017. I consider it most unlikely she would have done so if she had not heard Mr Serpanos say what is alleged. Given that I accept her evidence over Mr Serpanos’s evidence, it naturally follows that I disbelieve Mr Serpanos’s evidence.
47.Given that I disbelieve Mr Serpanos’s evidence, I am satisfied that threatening and then commencing defamation proceedings seeking substantial damages against Ms Peeters, Ms Kim and Ms Cavanagh is harassment.
Ultimately, Ms Kotronakis determined that Mr Serpanos was guilty of four contraventions of the APS Code of Conduct. Those conclusions were recorded in the Determination Report as follows (errors original):
55.I am satisfied that Mr Serpanos breached section 13(1) of the Code by not behaving with honesty and integrity. His lack of integrity is evidenced by his sexually harassing behaviour, and his exclusionary behaviour of Ms Kim and Ms Prosch, and his harassment of Ms Peeters, Ms Kim and Ms Cavanagh by threatening and then commencing defamation proceedings against them.
56.I am satisfied that Mr Serpanos breached section 13(3) of the Code by failing to treat other employees, particularly Ms Peeters, Ms Kim and Ms Cavanagh, with respect and courtesy, and without harassment. This is evidenced by his sexually harassing behaviour, his exclusionary behaviour of Ms Kim and Ms Prosch, and his harassment of Ms Peeters, Ms Kim and Ms Cavanagh by threatening and then commencing defamation proceedings against them.
57.I am satisfied that Mr Serpanos breached section 13(11) of the Code by failing to behave in a way that upholds the APS Values and good reputation of the ATO and the APS. This is evidenced by his sexually harassing behaviour, his exclusionary behaviour of Ms Kim and Ms Prosch, and his harassment of Ms Peeters, Ms Kim and Ms Cavanagh by threatening and then commencing defamation proceedings against them.
58.I am satisfied that Mr Serpanos breached section 13(5) of the Code by failing to comply with a lawful and reasonable direction, specifically contained in CEI 2015/02/05, which required him to deal with his colleagues without bullying, harassment and discrimination. This is evidenced by his sexually harassing behaviour, his exclusionary behaviour of Ms Kim and Ms Prosch, and his harassment of Ms Peeters, Ms Kim and Ms Cavanagh by threatening and then commencing defamation proceedings against them.
In her email of 2 December 2019, Ms Kotronakis explained to Mr Serpanos that her conclusions would be the subject of separate consideration by a “Sanction Delegate” appointed under the APS Code of Conduct Procedures, whose role would be to consider what ought to happen in light of them. That role fell to Ms Boyd, the ATO’s Assistant Commissioner, ATO People.
Although adopted and signed by Ms Kotronakis, the Determination Report was prepared (or at least substantially prepared) by Mr Anthony Riley (whom Ms Kotronakis described as a “ghost writer” that she had engaged for that purpose). Its content was the subject of a first draft, which Mr Riley provided to Ms Kotronakis and Mr Sheil, both of whom gave some feedback on its content. Mr Riley’s second draft was then provided to Ms Kotronakis, who made some further changes to it. Once satisfied with its content, Ms Kotronakis provided a copy of it (still in draft form) to the two directors of her “Working Well” team, Ms Nardine McLoughlin and Ms Kirsty Morris, for what she described as “quality control” purposes. Once satisfied about its content, she sent a final copy of the report to Mr Serpanos. That occurred on Monday, 2 December 2019.
On Friday, 6 December 2019, Ms Kotronakis sent a copy of her Determination Report to Ms Boyd, together with what she described as a “draft sanction consideration letter”. That draft correspondence was apparently offered as an example of what Ms Boyd might choose to send to Mr Serpanos after considering the findings that were contained within the Determination Report. The evidence that was given as to the preparation of that letter is explored in more detail below; but, for now, it suffices to note that it contained a paragraph that stated that the appropriate “sanction” to impose upon Mr Serpanos in light of the Determination Report was the termination of his employment.
On Monday, 9 December 2019, Mr Sheil emailed Mr Serpanos about the steps that would ensue in connection with the Determination Report. Mr Sheil explained that it would normally fall to him to determine what, if any, sanction should result from the conclusions stated within that report; but that, in light of his “involvement to date and the potential for that to give rise to questions about [his] impartiality”, he had delegated that responsibility instead to Ms Boyd.
Approximately half an hour later, Ms Boyd sent to Mr Serpanos a letter headed “Sanction Consideration”. With very minor edits, it assumed the form of the draft sanction consideration letter that Ms Kotronakis had sent to her on the previous Friday. It is convenient to set out its terms in full:
1.Ms Ani Kotronakis determined on 2 December 2019 that you breached the APS Code of Conduct (the Code), specifically subsections 13(1), 13(3), 13(5) and 13(11) of the Public Service Act 1999 (the PS Act).
2.I am the delegate to consider what, if any, sanction should be imposed. I have received a copy of the determination report and associated documents related to this matter.
Proposed sanction
3.I have been considering what sanction to impose under section 15 of the PS Act following this determination. My view is that termination of employment is appropriate. I set out below my reasons for reaching this view.
Reasons for proposed sanction
4.Sanctions for breaches of the Code are primarily aimed at protecting the agency and the APS and thereby maintaining community confidence in public administration. Rather than seeking to punish an employee, an objective of misconduct action is to maintain proper standards of conduct by APS employees and to protect the reputation of the APS.
5.My preliminary view on the appropriate sanction in this matter recognises the serious nature of the breaches of the Code.
6.I consider your sexually harassing and exclusionary behaviour to be exceptionally offensive. Your behaviour demonstrates a fundamental lack of respect and courtesy towards other ATO employees.
7.Moreover, your behaviour in threatening and then commencing defamation proceedings in circumstances where you know the proceedings are vexatious demonstrates a lack of integrity.
8.You have not accepted any responsibility for your actions. Rather, you have responded to the allegations in a manner described by Ms Kotronakis to be “at times self-serving and tailored to deal with the facts that he [you] cannot deny”. This suggests a complete lack of awareness or otherwise disregard of the standards of ethical behaviour required of you as an APS employee.
9.You have not considered the impact of your actions on other ATO employees or the potential significant consequences of your actions on the reputation of the ATO. I consider this attitude incompatible with your ongoing employment.
10.In considering the circumstances of this matter and forming a view on an appropriate sanction I have taken into account your length of service and the likely impact of a sanction (particularly termination of employment) on your future employment prospects.
Opportunity to respond
11.I am inviting you to make written submissions regarding the proposed sanction. Any submissions are due by close of business on Friday, 13 December 2019. My email address is [email protected].
12.I will consider any information you provide and will advise you of my decision as soon as possible.
Access to support
13.You are reminded of the availability of the Employee Assistance Program (EAP) on 1300 361 008, should you require support in dealing with this matter.
Later that day (Monday, 9 December 2019), Mr Serpanos sent an email to an internal “ReviewOfEmploymentActions” email address, by which he requested “…a review of the determination issued by the ATO finding breaches of the ATO Code of Conduct against me”. He identified some grounds upon which such a review should occur, namely (errors original):
The investigation was done simply to confirm a pre existing view by the ATO that i had breached the code.
The investigator has failed to interview anyone in making her decision but simply believed the complainants without interviewing Team Leader, and other members of the team.
The investigator failed to take into account my absence from the team during the time the allegations were made.
The investigator failed to take into account my return to work program in 2016 where i suffered severe depression and ECT treatment at a mental hospital that rendered me incapable of making sexual comments during 2016. The investigator said the dates were irrelevant.
The investigator failed to take into account my length of service since 2000 without incident.
The investigator failed to consider that the allegations against me for forwarded to the defendants solicitors before any findings were made.
The investigator failed to consider that the allegations were made immediately after i commenced legal action for defamation.
On Thursday, 12 December 2019, Mr Serpanos’s then lawyers, McDonald Murholme Barristers & Solicitors, wrote to Ms Boyd regarding her letter of three days prior. That correspondence offered the following by way of response:
Our client refers to and repeats the material he has provided in response to the allegations and maintains his denial.
Further, we are instructed to respond as follows:
1.Since the 23 August 2019 our client has been suspended without pay which has caused significant financial hardship;
2.The allegations are clearly retaliation for our client issuing genuine defamation proceedings;
3.The investigation was flawed as it was conducted in a manner to achieve a desired outcome, which is evidenced by a failure to interview relevant witnesses;
4.The allegations were provided to the defendants in the defamation proceedings (and their lawyers) before the determination was made, which indicates a clear conflict of interest;
5.The investigator did not apply the Briginshaw standard when considering the allegations;
6.Our client has a long and unblemished career at the ATO prior to the allegations;
7.The investigator failed to consider our client's mental illness from 2015 to 2017 and the related absences, which correlate to the period in which the alleged comments were made.
8.By reason of our client's mental illness he underwent ECT treatment which had the effect of slowing his thinking resulting him being placed on alternate duties.
9.Our client was discriminated against during the period of his mental illness, and the allegations regarding sexual comments are an extension of this discriminatory treatment.
10.The alleged sexual comments were only alleged to have been made while Ms Peeters was in our client's team, and not before or after. This supports a conclusion that Ms Peeters fabricated the allegation.
11.The investigator made conclusions notwithstanding that there was no first hand evidence which supported Ms Peeters allegations. The only evidence in support was hearsay evidence based on what Ms Peeters alleged was said.
12.The allegations were made after our client commenced defamations proceedings, notwithstanding that the alleged conduct was said to have occurred years before.
13.The alleged comments were said to have been in front of 16 ATO employees, however not one made a complaint until 2019, which supports the assertion that the allegations are fabricated.
14.Our client's reputation has been ruined.
Accordingly, our client opposes the proposed sanction on the basis that he did not engage in the alleged conduct and the investigation was flawed.
Early in the morning of Monday, 16 December 2019, Ms Boyd resolved to terminate Mr Serpanos’s employment. She prepared a note that recorded her decision as follows (errors original):
Mr Hari Serpanos – code of conduct matter
I have reviewed the information contained in the letter from Mr Andrew Jewell [of McDonald Murholme Barristers & Solicitors] dated 12 December 2019.
Mr Jewell notes that Mr Serpanos refers to the material he has provided previously in relation to the notice of suspected breaches and determination report.
I note that these comments are not about the sanction per say but rather made about the validity of the determination itself.
I note that Mr Serpanos opposes the proposed sanction of termination and that he also asserts that he did not engage in the alleged conduct and that the investigation is flawed.
As noted by Mr Jewell these comments have been previously made to the determining officer and these is nothing additional in the letter from him that relates to the sanction.
As the delegate I am satisfied that termination of employment is appropriate.
Shortly afterward, Ms Boyd sent a copy of that note to Ms Kotronakis and asked her (Ms Kotronakis) to prepare a “…covering letter and termination notice for issue today”. Unbeknownst to Ms Boyd, Ms Kotronakis had commenced a period of leave and did not receive the email.
Nonetheless, a “notice of termination of employment” dated 16 December 2019 was prepared (most likely by somebody in Ms Kotronakis’s team, although the evidence about that was not conclusive) and signed by Ms Boyd, as was a covering letter addressed to Mr Serpanos. The notice was issued (or purportedly issued) pursuant to s 29(3)(g) of the Public Service Act. It noted that Mr Serpanos’s employment was terminated without notice and that, in the event that he wished to challenge his dismissal, he could seek advice from the Fair Work Commission (a telephone number for which was provided). The covering letter was in the following terms (errors original):
Termination of Employment – section 29(3)(g) Public Service Act 1999
1.On 9 December 2019 I wrote to you about your breach of the APS Code of Conduct (the Code), and in particular the sanction I was considering. I proposed that termination of your employment was an appropriate sanction in the circumstances. I offered you an opportunity to provide me with a statement in response.
2.On 12 December 2019 I received a response from your legal representative. I have given consideration to the matters raised in that submission. The purpose of this letter is to advise you of my final decision.
Decision
3.In light of all the circumstances, I regret to advise that I am terminating your employment pursuant to s 29(3)(g) of the Public Service Act 1999. My reasons are set out below.
Background
4.You have worked for the ATO for 19 years. Currently you are employed as an ongoing EL1 Client Engagement Officer in the Integrated Compliance business line at the Dandenong office of the ATO.
5.On 2 December 2019 Ms Ani Kotronakis determined that you engaged in sexually harassing behaviour and/or other harassing behaviour. Ms Kotronakis determined that by engaging in such behaviour you:
•failed to behave with honesty and integrity. Consequently you breached 13(1) of the Code
•failed to treat employees with respect and courtesy and without harassment. Consequently you breached 13(3) of the Code 448
•failed to behave in a way that upholds the APS values and good reputation of the ATO and the APS. Consequently you breached 13 (11) of the Code
•failed to comply with directions contained in Chief Executive Instruction (CEI) 2015/02/05: Workplace Bullying, Harassment and Discrimination. Consequently you breached 13 (5) of the Code
Your submission
6. In the submission I received from your representative, you state (in summary):
•you have experienced financial hardship as a result of being suspended without pay
•the allegations made against you are in retaliation for issuing defamation proceedings
•you did not engage in the alleged conduct
•the investigation was flawed
•you have had a long and unblemished career at the ATO
•you have been discriminated against because of your mental illness
•your reputation has been ruined
•you oppose the proposed sanction of termination
Reason for the decision
7.Sanctions for breaches of the Code are primarily aimed at protecting the agency and the APS and thereby maintaining community confidence in public administration. Rather than seeking to punish an employee, an objective of misconduct action is to maintain proper standards of conduct by APS employees and protect the reputation of the APS.
8.While you have provided a submission in response to my invitation, you have used the majority of that submission to challenge Ms Kotronakis’ determination and its validity rather than directly addressing the issue of what sanction could be imposed. Ordinarily it is not the role of the sanction delegate to review the misconduct determination. There is however nothing in your submission that would cause me to consider that the determination is not valid. Other than simply stating that the determination was flawed, you provided no information to support those assertions.
9.Your behaviour demonstrates a fundamental lack of respect and courtesy towards other ATO employees and contravenes not only the Code but the ATO’s workplace policies as set out in ATO Chief Executive Instruction 2015/02/05: Workplace Bullying, Harassment and Discrimination
10.Moreover, your behaviour in threatening and then commencing defamation proceedings in circumstances where you knew the proceedings were vexatious demonstrates a lack of integrity.
11.ATO employees are entitled to attend the workplace to fulfil their duties without feeling that they are being bullied or sexually harassed in the way that you have found to have acted in this matter.
12. You have shown no contrition or remorse for your actions. You have offered no concessions or anything else to accept any responsibility for your actions in this matter.
13.A number of employees have been adversely affected by your behaviour; this has included the need for them to take personal leave. The long term effects on the health of people who are bullied and harassed in the workplace are well documented. Employers like the ATO are duty bound to take incidents like those that were found to have occurred in this case very seriously. Because of the nature and extent of your misconduct and your lack of contrition and remorse there does not appear to be any prospect of you changing your behaviour to meet those that are required in a modern workplace.
14.I am also cognisant that your behaviours have taken place over a minimum of a two to three year period and appear to be entrenched and stemming from inimical attitudes towards other employees especially women. These attitudes and behaviours have no place in the ATO or any other modern workplace.
15.In addition, your actions have repudiated the basic element of trust in the employment relationship.
16.In these circumstances I regret to advise you that I’ve decided to terminate your employment for misconduct pursuant to section 29(3)(g) of the Public Service Act 1999.
17.Attached is a formal Notice of Termination. This sets out the grounds for the termination of your employment, the date of effect and your right of review.
It is not necessary to explore in detail the procedural and substantive flaws by which Mr Serpanos maintains that Ms Kotronakis’s investigation was tainted. It suffices to note the following.
First, it is said that the investigation was flawed by reason of the fact that it was conducted solely on the strength of the written material with which Ms Kotronakis was provided. Mr Serpanos suggests that, had Ms Kotronakis been concerned fairly to determine whether he had done the things of which he stood accused, she ought to (and would) have put his responses to the complainants before making any findings. Key amongst those responses (which are set out in summary form above, at [42]) was that the allegations pressed against him were a product (or partly a product) of collusion and that others could have (and should have been asked to) provide responsive accounts, which would have exonerated him.
Second, it is said that, in reaching her conclusions, Ms Kotronakis failed to take account of the so-called Briginshaw standard of proof—in other words, that she was more readily minded to find against Mr Serpanos than the evidence before her warranted.
Third, it is said that Ms Kotronakis’s conclusion that the amount that Mr Serpanos sought to recover from Ms Cavanagh, Ms Peeters and Ms Kim was “a disproportionate sum” was beyond her professional competence, was improperly based on an opinion that Mr Sheil had expressed (again, despite a want of professional competence that might warrant his holding it), ought to have been the subject of legal advice and was contrary to the evidence that Mr Serpanos had provided to her.
Fourth, it was suggested (at least during her cross-examination) that Ms Kotronakis was improperly concerned to search for material—most notably in the form of “Jabber” conversations such as the one to which reference is made above—that would (or might) have implicated Mr Serpanos in the wrongdoing of which he stood accused.
Fifth, it was said that the investigation concerned a “stale” complaint (or complaints) that, according to ATO policy, ought not to have been investigated.
Sixth, it was said that Ms Kotronakis’s conclusion that Mr Serpanos had, in fact, made the Even Wendy Comment concerned an issue that, by that stage, was the subject of court proceedings, and so ought not to have been drawn until they were resolved.
All of those matters (and others) were explored in great detail during Ms Kotronakis’s lengthy cross-examination. They accumulate in the service of Mr Serpanos’s central submission that “the job that [Ms Kotronakis] did was woefully inept and…she appreciated that it was unfair as she was doing it”. That, in turn, is said to warrant the court’s concluding that the reasons that Ms Kotronakis said were the reasons that animated her conclusions were, in fact, not the real reasons that animated her conclusions; in other words, that Ms Kotronakis’s evidence about why she formed the views that she communicated in her Determination Report ought not to be accepted.
Although not impossible, it is difficult to see how Ms Kotronakis’s evidence about why she did what she did might be rejected otherwise than as deliberate falsity. If it is to be rejected, it must be rejected either on that basis or because it was the product of faulty recall. Rejection on the latter basis would require that the court have some reason to think that, when she gave her evidence, Ms Kotronakis’s recollection of why she drew the conclusions that she drew—in other words, what it was that animated her at the time to find and communicate as she did—was lacking in some way. Rejection on the former basis would require that the court be satisfied that her evidence was not truthful. If the court were to reject her evidence at all, it would seem more likely than not that it would do so on grounds of deliberate falsity.
Regardless, I am not drawn to either conclusion. As has been said, Ms Kotronakis impressed throughout her time giving evidence as confident and conscientious. When she had reason to doubt the accuracy of her memory, she said so. In the face of persistent and skilful cross‑examination, she maintained that she did what she did for the reasons that she set out in her Determination Report. At times, it was apparent that she did so with some discomfort; but that struck more as recognition, on her part, that her investigation was open to legitimate criticism than that her true motive had been deftly exposed. I accept that her “true motive” in concluding as she did in her Determination Report was that she was genuinely of the view that Mr Serpanos had conducted himself in contravention of the APS Code of Conduct.
Whether she should have been is not here dispositive. Nonetheless, the failings that attended Ms Kotronakis’s investigation should be remarked upon. Although there might be some varnish to it, Mr Serpanos’s contention that Ms Kotronakis did a “terrible” and “unfair” and “woeful” job investigating the complaints that were levelled against him is not without foundation. The ATO made no attempt to defend what was done (or, more accurately, not done) as any kind of model process. It was accepted, for example, that Ms Kotronakis ought to have put elements of Mr Serpanos’s 2 September Response to the relevant complainants and ought to have canvassed evidence from a wider field of witnesses than she did. The court needn’t make findings consistent with those concessions. It suffices to say that they appear to be well-founded: Mr Serpanos appears to have good reason to complain, as he does, about the integrity of the investigation that was conducted and the findings that were made at the end of it.
Nonetheless, I do not accept that any of that affords the court reason to find that, when she gave evidence as to why she did as she did, Ms Kotronakis was either not telling the truth or was otherwise afflicted by poor recollection. Clumsiness—a descriptor to which I am drawn in preference to less polite alternatives—is a far more likely and plausible explanation for the failings that attended Ms Kotronakis’s investigation. But regardless, I accept Ms Kotronakis’s evidence that the conclusions to which she was drawn (and which found expression in her Determination Report) were conclusions that she drew genuinely believing that they were true. They were not conclusions that she drew because (or for reasons that included that) Mr Serpanos had complained about having been defamed.
Attention should return to the legal processes through which Mr Serpanos agitated his defamation complaint (specifically, the First Concerns Notices, the Second Concerns Notices and the Defamation Filings). On any view, there is at least some connection between those processes and Ms Kotronakis’s finding that Mr Serpanos harassed Ms Cavanagh, Ms Peeters and Ms Kim (and, thereby, breached the APS Code of Conduct).
I have already concluded that, insofar as concerns s 340(1)(a) of the FW Act, Mr Serpanos did not exercise a “workplace right” by prosecuting any of those processes. Even if it were the case that Ms Kotronakis’s findings were actuated or partly actuated by his having done so, the adverse action subsequently visited upon him by the ATO (through Ms Boyd) could not be said thereby to have contravened s 340(1)(a).
But let it be supposed, contrary to my conclusion, that the making or maintaining of the complaint by means of each of the First Concerns Notices, the Second Concerns Notices and the Defamation Filings did, in each case, amount to the exercise of a workplace right. Ms Kotronakis’s evidence was that she was not drawn to the conclusions that she drew because of those complaints. She accepted that it was Mr Serpanos’s right to threaten and prosecute court proceedings if he felt it appropriate or necessary to do so. Her conclusion that his doing so contravened the APS Code of Conduct was not a function of the fact that he had complained; but, rather, of the facts (as she had determined them) that he had done so knowing that he had, in truth, made the Even Wendy Comment and that he had sought, by way of damages, amounts for which there was no reasonable foundation. Those circumstances, she said, led her to conclude that Mr Serpanos’s conduct in threatening and then commencing legal action was dishonest, lacking in integrity, disrespectful, discourteous, tantamount to bullying and harassing, inconsistent with “APS Values and the good reputation of the ATO and the APS,” and otherwise contrary to the requirements of the APS Code of Conduct (see above, [52]).
Ms Kotronakis was cross-examined at length about how it was that she came to consider that Mr Serpanos’s threatened and then actual legal action was vexatious; and how it was that she came to consider that the damages thereby sought were excessive or lacked a reasonable foundation. What was put to her was that neither conclusion was open to her to draw. Although she disagreed, the court is nonetheless invited to reject her evidence and to conclude that she was, in fact, relevantly motivated by other considerations (that is to say, not because she thought that the legal action was vexatious and not because she thought that the sum that Mr Serpanos demanded lacked a reasonable foundation). At the least, the court is invited to conclude that the ATO has failed to rebut the statutory presumption established by s 361(1) of the FW Act.
Two observations are warranted.
First, there might well be something to the substantive propositions that Mr Serpanos advanced. It is not necessary that the court should conclude, either way, that Mr Serpanos did or did not threaten or commence his action vexatiously, or that he had or did not have a reasonable basis upon which to seek the amount that he sought in damages. It suffices to observe that such objective evidence as there is could well warrant conclusions on those fronts contrary to those that Ms Kotronakis identified as the reasons for which she relevantly acted.
Nonetheless, the court’s task presently is not to assess whether Ms Kotronakis’s reasons were well-founded or justified or even fair; the court’s task presently is to assess whether they were, in fact, the reasons that actuated her to make and communicate the findings that she made. If there were simply no basis upon which Ms Kotronakis could credibly have formed the views that she said that she formed, then I would be more inclined to accept that she was not actuated by the reasons that she identified. But it could not be said that her conclusions were wholly beyond what might reasonably have formed in her mind (or that of anybody in her situation). Having accepted, as plainly she did (and as I accept that she did), that Mr Serpanos did, in fact, make the Even Wendy Comment, it is hardly difficult to see why she might then have formed the view that his defamation action (threatened and then commenced) was vexatious. Furthermore, the $1.1 million that he sought from Ms Cavanagh, Ms Peeters and Ms Kim was, on any view, a very significant sum of money. In the absence of some fairly extraordinary circumstances, one might very easily be led to the view that that amount was well in excess of anything that Mr Serpanos could seriously expect his co-workers to pay. Ms Kotronakis’s conclusions on those matters, whether justified or fair, were not so improbable as might give the court reason to doubt the truth of her evidence.
That leads conveniently to the second observation. Rejection of Ms Kotronakis’s evidence about the reasons that led her to conclude that Mr Serpanos had contravened the APS Code of Conduct “…by threatening and then commencing defamation proceedings” would require that the court should regard it either as deliberately false or as the product of reconstruction based upon impaired memory. For the reasons already explored, I do not accept that Ms Kotronakis lied to the court about anything, nor that any part of her evidence was unreliable for want of proper recall.
Ms Kotronakis told the court (and, indeed, recorded in her Determination Report) that she formed the view that Mr Serpanos’s defamation action (threatened and then commenced) was vexatious because Mr Serpanos had, in fact, made the Even Wendy Comment. She told the court (and, again, recorded in her Determination Report) that she considered the amount he sought thereby to recover was excessive or beyond what was reasonable. She told the court that it was those considerations that led her to conclude that Mr Serpanos had contravened the APS Code of Conduct by threatening and then commencing his defamation action. I accept that evidence.
Although relevant contextually, Mr Serpanos’s defamation action (at first threatened, then commenced) was not what led Ms Kotronakis to conclude that he was guilty of having contravened the APS Code of Conduct. His misconduct lay not in the making (or maintaining) of his complaint; but in what Ms Kotronakis perceived was his nefarious objective in doing so.
The distinction is not always easy to recognise; but the authorities acknowledge it nonetheless. In BHP Coal, for example, it was not Mr Doevendans’ advancement of union views, claims or interests that got him into trouble; what got him into trouble was that the way that he advanced them was offensive. In Endeavour Coal, Mr McDermott was not moved from his weekend roster because he took sick leave; he was moved because of his unreliable attendance record. That was so even though the latter was very clearly a product of the former.
There are many other like authorities in which context was similarly distinguished from the reasons for which adverse action (or its statutory predecessors) was taken. In Maritime Union of Australia v CSLAustralia Pty Ltd (2002) 113 IR 326 (Branson J), an employer was charged with having dismissed the crew members of a vessel that it sold to a related company; and having done so because they were entitled to the benefit of an award. The purpose of the sale was to permit the vessel to be re-flagged and integrated into the group’s international fleet. Doing so meant that the group would be freed from award burdens imposed in respect of Australian crew members; and that it would, thereby, be able to realise additional profits. Branson J found that the employer was motivated by its desire to reduce costs; and not, as the applicant union had alleged, by the crew’s entitlement to the benefit of the award. That was so notwithstanding the impact that the application of the award had on the cost-effectiveness of the Australian crew.
Similar reasoning was adopted in Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34, 83 [295] (R D Nicholson J). In Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union (2001) 112 FCR 232, Finkelstein J (dissenting in the result but with whom, on this point, Merkel J agreed) noted (at 286 [199]) that:
…to decide whether an employee has been unlawfully dismissed, it is necessary to ascertain the true motive for, or purpose of, the dismissal. If there is some legitimate reason for the dismissal, such as the desire to avoid bankruptcy or the need to maintain a profitable operation, the dismissal will be lawful. It matters not that the cause of the impending bankruptcy or the unprofitable trading is the high rate of wages payable under an award or certified agreement. That is to say, although the benefits produced by an award or certified agreement have caused the problem which the employer seeks to address, that does not necessarily make those benefits the “reason” or motive for his act.
Likewise in Australian Workers’ Union v John Holland Pty Ltd (2001) 103 IR 205 (Goldberg J), an employer that dismissed a union member in order to facilitate the end of industrial action that a rival union had organised to protest his employment was, nonetheless, held not to have done so because of his union membership. That was so despite the fact that the industrial action had been organised because the employee was a member of the applicant union. Equivalent reasoning was employed more than two decades earlier in Wood v City of Melbourne Corporation (1979) 26 ALR 430 (Smithers J).
A similar distinction applies here. Mr Serpanos’s threatened and then actual defamation proceeding was relevant insofar as Ms Kotronakis considered that it was a vehicle through which he had wrongly harassed Ms Cavanagh, Ms Peeters and Ms Kim; but it was that harassing character, rather than his conduct in threatening and commencing his action, that led Ms Kotronakis to make the findings that she relevantly made. She did not make (and then communicate) those findings because Mr Serpanos had threatened or commenced his defamation action.
It follows that I am satisfied that nothing that Ms Kotronakis did in the course of her investigation into the allegations that were levelled against Mr Serpanos, or in the course of her preparing and sending of the Determination Report, was done because Mr Serpanos made or maintained the complaint articulated and particularised in his pleading.
8.2.2 Ms Boyd
Ms Boyd told the court that she was appointed as the “sanction delegate” in or around early December 2019. It was Mr Sheil who made that appointment. Ms Boyd explained that he contacted her and told her that, because he had had “some involvement” in discussing Mr Serpanos’s fate, he considered that there might be a perceived conflict of interest were he to fulfil the role. Until her appointment as “sanction delegate”, Ms Boyd and Mr Serpanos had never before crossed paths.
The first correspondence that Ms Boyd received in relation to Mr Serpanos was the Determination Report and draft consideration letter that Ms Kotronakis emailed to her on 6 December 2019. Ms Boyd told the court that it was “usual practice” for the author of a determination report to provide a draft consideration (or sanction) letter. It is, she explained, provided “…for the sanctioning delegate to amend, change and review as required or as appropriate”. Upon receipt of Ms Kotronakis’s email, Ms Boyd proceeded to review various internal ATO guides or policies concerning the investigation of alleged breaches of the APS Code of Conduct.
History records that, on 9 December 2019, Ms Boyd sent to Mr Serpanos her “Sanction Consideration” letter (above, [57]). She did so, so she told the court, because she had considered that what Mr Serpanos had done was “serious in nature” and warranted “a sanction at the higher end”.
Mr Serpanos responded to that through his lawyers, then McDonald Murholme Barristers & Solicitors. After considering that response, Ms Boyd resolved to dismiss Mr Serpanos and did so in writing on 16 December 2019 (above, [62]). She outlined in her letter of that day her reasons for proceeding with his dismissal and she told the court that that outline was an accurate account of the reasons for which she so proceeded.
As with Ms Kotronakis, Ms Boyd’s evidence was that, when she made her decision to dismiss Mr Serpanos, she was not aware that several—indeed, most—of the ten relevant communications had been made. In that category were the 18 July Email, the 22 July Email, the 8 August Email, the 20 August Letter, the 2 September Response, the 4 September Email and the 5 September Email. That evidence was not challenged and I accept it. Given that she was not aware of those communications at the time that she terminated Mr Serpanos’s employment, it could not be said that any of them operated upon her state of mind when she did so.
Of the ten communications upon which Mr Serpanos relies, the ones that are listed in the preceding paragraph were the only ones by the making of which he exercised workplace rights. It necessarily follows—and I find—that Ms Boyd did not resolve to terminate Mr Serpanos’s employment because, or for reasons that included that, he had exercised the workplace rights that I accept that he exercised.
Tempting though it may be to leave the analysis there, I should nonetheless consider Mr Serpanos’s wider contention: namely, that Ms Boyd was actuated to dismiss him because, or for reasons that included that, he had threatened to and then did commence defamation proceedings against Ms Cavanagh, Ms Peeters and Ms Kim. Ms Boyd accepted that she understood, from the point that she reviewed the Determination Report, that “the issue of defamation was in play”. Mr Serpanos posits that her decision to dismiss him was, at least in part, occasioned by that reality; or, at the very least, that the ATO has failed to prove that it wasn’t.
Ms Boyd’s evidence was that she agreed with the findings that Ms Kotronakis had recorded in her Determination Report. She told the court that it was her view that Mr Serpanos had contravened the APS Code of Conduct in the ways that were alleged against him (and that Ms Kotronakis identified); and that she resolved to terminate his employment because of those contraventions.
Just as Ms Kotronakis did, Ms Boyd distinguished the defamation action that Mr Serpanos had threatened and commenced from the objective that she attributed to his pursuit of it. She told the court that she considered that the action (at first threatened and then commenced) was vexatious because Mr Serpanos had, in fact, made the Even Wendy Comment that Ms Cavanagh, Ms Peeters and Ms Kim had attributed to him; and also that the amount that he sought to recover from them was excessive.
As with Ms Kotronakis, Mr Serpanos invites the court not to accept that evidence. As with Ms Kotronakis, that attack fixes squarely upon the investigation processes that led to the conclusions contained in the Determination Report (namely, that Mr Serpanos had acted contrary to the requirements of the APS Code of Conduct). As has already been considered in the context of Ms Kotronakis’s evidence, those processes were said to have been so obviously and comprehensively flawed (in ways already summarised) that one could only reasonably conclude that Ms Boyd was motivated by something else when she decided to dismiss Mr Serpanos. It was suggested that Ms Boyd simply “waved…through” the findings that Ms Kotronakis had made because she (Ms Boyd) wanted Mr Serpanos gone; and that the reason that she wanted him gone was because he had “dared to complain about defamation”.
Ms Boyd denied all of those suggestions. She denied that the flaws in the investigation process to which she was persistently taken during cross-examination were matters that were obvious or significant to her at the time that she made her decision. She consistently defended (or did not agree with the criticisms levelled at) the processes that had culminated in the Determination Report (and the findings that it contained)—or, at the least, insisted that the procedural (and perhaps substantive) flaws that had attended it had neither operated upon nor entered into her state of mind. As with Ms Kotronakis, it was plain that there was a degree of discomfort associated with some of that evidence; but, again, that very much appeared to reflect an acknowledgment that what had been done had not been done as well as it could (and probably should) have been, rather than that Ms Boyd’s sinister motives had been skilfully prised from her.
Ms Boyd agreed that, despite the matter escalating to the point that Mr Serpanos had brought in his lawyers (from whom she received correspondence on 12 December 2019), she had not seen fit to get advice of her own before proceeding to terminate his employment, nor to discuss Mr Serpanos’s predicament with any of her senior colleagues. It was put to her that her haste was reflective of her desire to see Mr Serpanos gone and to avoid subjecting her motives to scrutiny. She denied that that was so. It was put to her that, at least from that point (when she received the letter from McDonald Murholme Barristers & Solicitors), it was clear to her that the Determination Report (and/or the processes that had culminated in it) were flawed to a point that she could not reasonably proceed to dismiss Mr Serpanos; but that she did so, again, for reasons related to his defamation complaint. Again, she denied that that was so.
It was also put to Ms Boyd that Mr Serpanos’s dismissal was a sanction that was disproportionately harsh in all of the circumstances. It was suggested that Ms Boyd ought to have given consideration (or greater consideration) to:
(1)Mr Serpanos’s lengthy career as an ATO employee—a career that had involved successive promotion and high performance;
(2)the fact that Mr Serpanos had already been suspended without pay;
(3)the unlikely prospect that Mr Serpanos, having been subjected to a process of investigation that culminated in the Determination Report, would repeat his transgressions; and
(4)moving Mr Serpanos into a role that didn’t interact with any of those who had made complaints against him.
It was put to Ms Boyd that the circumstances warranted a lesser sanction than dismissal, and that she had resolved to proceed with dismissal nonetheless because she was displeased about his having complained about being defamed. Again, those suggestions were denied.
On all fronts, the court was invited to reject Ms Boyd’s denials. It was not put to her that, in making them (or any of them), her evidence to the court was untruthful; rather, it was put simply that it ought not to be accepted.
As with Ms Kotronakis, I am not persuaded that I should reject any of Ms Boyd’s evidence (whether as the product of deliberate mistruth or impaired recall). I accept that she was, as she said, moved to dismiss Mr Serpanos because she was satisfied that he had contravened the APS Code of Conduct in the ways that the Determination Report and her letter of termination recorded, and because she took the view that those contraventions were sufficiently serious to warrant his dismissal. I accept that she was not moved to dismiss Mr Serpanos because, or for reasons that included that, he had exercised workplace rights (or had otherwise made complaints about having been defamed).
As with Ms Kotronakis, rejection of Ms Boyd’s evidence about why it was that she was minded to dismiss Mr Serpanos would require that I regard it as more likely untrue than true. Such a finding would require that I have some basis to think that what she told the court was either deliberately false, or was affected by impaired or degraded memory. True it is that evidence of that kind might be rejected more readily than others: Pascoe v Federal Commissioner of Taxation (1956) 30 ALJR 402, 403 (Fullagar J). But Ms Boyd, like Ms Kotronakis, presented as an obliging and frank witness, whose evidence held together logically and substantively throughout. I see no reason to reject what she said.
Plainly, Mr Serpanos’s defamation action was not wholly irrelevant to Ms Boyd. As with the findings to which Ms Kotronakis was drawn, the threatening and commencement of his defamation action was relevant contextually to the reasons that formed in Ms Boyd’s mind (and upon which she acted), in that it was the means by which Ms Boyd considered that he had harassed Ms Cavanagh, Ms Peeters and Ms Kim (and, thereby, contravened the standards expected of him). But Ms Boyd was not moved to dismiss Mr Serpanos by reason of his having threatened and then commenced that action.
Ms Boyd did not dismiss Mr Serpanos because he had made or maintained the complaint articulated in his pleading. She dismissed him because she considered that he had contravened the APS Code of Conduct in ways that warranted his dismissal.
8.2.3 Conclusions—dismissal not because of complaints
It can readily be accepted—indeed, the ATO did not dispute—that the investigation that Ms Kotronakis conducted and that Ms Boyd followed was open to legitimate criticism. The decision to proceed without interviewing potentially relevant witnesses was unorthodox. Ms Kotronakis’s conclusion that what Mr Serpanos had demanded in the Second Concerns Notices was unreasonable (and the reliance that she placed to that end upon what Mr Sheil had said to her) was similarly unorthodox. Ms Boyd’s unquestioned acceptance of Ms Kotronakis’s findings—and her failure to inquire about or query what perhaps ought to have been the shortcomings apparent in the investigation process that led to them—was regrettable.
In inviting the court to reject the evidence that Ms Kotronakis and Ms Boyd gave about why they each did (and did not) do what they relevantly did, Mr Serpanos’s submission reduces to this: that the investigation that led to the findings that were made against him was defective to a point so obvious that Ms Boyd and Ms Kotronakis simply must have been conscious of it. From their collective failure to address the defects of which each should be presumed to have been aware, it is said that the court should infer that what Ms Kotronakis and Ms Boyd told the court about the reasons that animated their conduct at the time was wrong (whether because it was deliberately untrue or otherwise). That submission requires successive inferences, each of which lacks a proper foundation.
First, the court is invited to infer from the nature of the defects that attended the investigation, and from Ms Kotronakis’s and Ms Boyd’s seniority and experience, an awareness on the part of Ms Kotronakis and Ms Boyd that the findings that Mr Serpanos had contravened the APS Code of Conduct were unsound or ought not to be acted upon. Second, the court is invited to infer, from the fact that Ms Kotronakis and Ms Boyd proceeded, despite that presumed awareness, to do as they did, that the reasons that each gave for their conduct were in fact not the reasons for which that conduct was engaged in.
There is a healthy degree of speculation in what Mr Serpanos posits. I mean no disrespect in saying so—it must, of course, be borne in mind that Mr Serpanos was hardly in a position to lead evidence of his own about why others did things. Nonetheless, the ultimate inference that the court is asked to draw—namely, that the reasons that Ms Kotronakis and Ms Boyd identified for the conduct in which they relevantly engaged were, in fact, not the reasons for which they engaged in it—cannot safely be drawn. It cannot safely be drawn because the inference that underpins it—namely, that Ms Kotronakis and Ms Boyd were both aware that the findings made against Mr Serpanos were unsound or unreliable—also cannot safely be drawn. The decisions to make and then act upon those findings in the circumstances that prevailed were just as likely products of carelessness, inattention, misjudgment or oversight as of calculated impropriety.
I accept the evidence that both witnesses gave as to what did—and, more importantly, did not—factor as reasons for their relevant conduct. I find that:
(1)Ms Kotronakis did not make the findings recorded in her Determination Report (namely, that Mr Serpanos had conducted himself contrary to the requirements of the APS Code of Conduct) because, or for reasons that included that, Mr Serpanos had made or maintained the complaint inherent in any of the ten communications upon which he relies; and
(2)Ms Boyd was not moved to terminate Mr Serpanos’s employment because, or for reasons that included that, he had made or maintained the complaint inherent in any of the ten communications upon which he relies.
8.3 Conclusion—no unlawful adverse action
The evidence suffices to displace the presumption established by s 361(1) of the FW Act. The ATO has established—and I find—that it did not terminate Mr Serpanos’s employment because, or for reasons that included that, he had made the complaint inherent in any of the ten communications upon which he relies (including those by which he must be understood to have exercised a “workplace right”). He was dismissed because he was adjudged to be guilty of having conducted himself contrary to the requirements of the APS Code of Conduct and because those contraventions were considered sufficiently serious as to warrant his dismissal.
PART 9. CONCLUSIONS
It follows from what is stated above that the ATO’s termination of Mr Serpanos’s employment was not effected in contravention of s 340(1)(a) of the FW Act. Mr Serpanos is, therefore, not entitled to any compensation as claimed, and there is no occasion to consider the imposition of any pecuniary penalty (or, indeed, any remedy) in connection with his dismissal.
In light of those conclusions, the application must and will be dismissed. Section 570(1) of the FW Act serves generally to preclude the making of any order as to costs and, in any event, the respondent does not seek one.
I certify that the preceding three hundred and eleven (311) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. Associate:
Dated: 18 October 2022
- AGLC
- Serpanos v Commonwealth of Australia [2022] FCA 1226
- Case
- [2022] FCA 1226
- Decision Date
CaseChat Overview and Summary
The court examined the evidence provided and addressed the conflicting accounts of events presented by the parties. The judge found that the evidence of the complainants was credible, despite the applicant's claims of collusion and fabrication. The court considered the nature of the allegations, the timing of events, and the reluctance of some employees to report the behaviour of a more senior colleague. After weighing the evidence, the court concluded that the applicant was dismissed due to his contravention of the Australian Public Service Code of Conduct, not because of his exercise of workplace rights. The court found that the investigation leading to the dismissal was flawed, but this did not necessarily imply improper conduct on the part of the decision-makers. The court was not persuaded that the reasons provided by Ms Kotronakis and Ms Boyd for their actions were incorrect.
The court dismissed the application, holding that the applicant's dismissal was not due to his exercise of workplace rights but rather due to his breach of the APS Code of Conduct. The court found that the statutory presumption did not apply as the decision-makers were not actuated by the applicant's exercise of workplace rights. The application was dismissed, and no orders were made in favour of the applicant.
Orders
Orders of the court
1. The application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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