Sibert v Tiwi Islands Shire Council
[2013] FCCA 745
•11 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SIBERT v TIWI ISLANDS SHIRE COUNCIL | [2013] FCCA 745 |
| Catchwords: INDUSTRIAL LAW – Dismissal from employment – whether dismissal was for a prohibited reason considered – absence from the workplace – whether the absence was due to illness and covered by a medical certificate considered. |
| Legislation: Conciliation and Arbitration Act 1904 (Cth), s.5 |
| Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463 Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784 Sibert v Tiwi Islands Shire Council (No.2) [2012] FMCA 1100 |
| Applicant: | ADRIAN SIBERT |
| Respondent: | TIWI ISLANDS SHIRE COUNCIL |
| File Number: | DNG 40 of 2012 |
| Judgment of: | Judge Driver |
| Hearing dates: | 21-23 May, 12 June 2013 |
| Date of Last Submission: | 24 July 2013 |
| Delivered at: | Sydney, via videolink to Darwin |
| Delivered on: | 11 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Baldry |
| Counsel for the Respondent: | Mr B Taylor |
| Solicitors for the Respondent: | De Silva Hebron |
ORDERS
The application filed on 28 September 2012 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNG 40 of 2012
| ADRIAN SIBERT |
Applicant
And
| TIWI ISLANDS SHIRE COUNCIL |
Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant (Mr Sibert) is a former employee of the respondent (Council). He was employed as a farm manager. The Council is a local government authority in the Northern Territory and a national system employer whose employment contract actions are governed by the Fair Work Act 2009 (Cth) (Fair Work Act). Mr Sibert complains that the Council breached s.352 of the Fair Work Act because the Council summarily dismissed him (by letter dated 5 March 2012 and delivered it to him by hand on 13 March 2012) because he was temporarily absent from work because of an illness or injury. The Council denies that the dismissal decision had any connection with the asserted illness or injury suffered by Mr Sibert and contends that he was dismissed because of unauthorised absences from work.
Mr Sibert originally brought proceedings on 30 May 2012[1]. That application was brought purportedly under ss.359 and 772 of the Fair Work Act. I dismissed that application on 19 September 2012[2], pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) (as they then were) on the basis that Mr Sibert’s proceeding had no reasonable prospect of success. However, I left open the possibility of Mr Sibert commencing a fresh proceeding under different provisions of the Fair Work Act.
[1] Matter number DNG30 of 2012
[2] Sibert v Tiwi Islands Shire Council [2012] FMCA 1099
Mr Sibert commenced the present proceedings by application filed on 28 September 2012. That application required an extension of time. On 22 November 2012 I gave judgment granting that extension of time for the application[3].
[3] Sibert v Tiwi Islands Shire Council (No 2) [2012] FMCA 1100
Mr Sibert commenced employment with the Council on 7 June 2010. He made a number of leave applications over the course of his employment. He applied for leave on 28 October 2011 for the period between 3 January 2012 and 6 March 2012. Mr Sibert has a wife who hails from West Timor in Indonesia and she has family there. Mr Sibert sought leave in order to support his wife and visit West Timor. There was an issue about the leave request as Mr Alan Hudson, a manager with the Council, took the view that Mr Sibert was applying for leave in advance (namely leave that had not yet accrued) and on 23 November 2011, by email, he asked Mr Sibert to resubmit the leave application. Mr Sibert made that second application on 28 November 2011.
On 6 December 2011, Mr Sibert’s second application for leave was approved for the period 3 January 2012 to 15 February 2012.
On 9 December 2011, Mr Sibert obtained (and says that he provided to the Council) a medical certificate for the period from 13 December 2011 to 29 February 2012. The Council denies knowledge of that certificate prior to Mr Sibert’s dismissal. He proceeded on leave on 13 December 2011 but did not return to work on 29 February 2012. Mr Sibert visited the Council office on 5 March 2012 with two further medical certificates. These covered the period 1 to 6 March 2012. He provided yet another medical certificate on 7 March 2012 for the period 7 to 9 March 2012. His employment was terminated with effect from 9 March 2012 and the letter of dismissal dated 5 March 2012 was handed to Mr Sibert on 13 March 2012.
The evidence and submissions
Mr Sibert relies upon the following affidavits:
a)54 page affidavit made by Mr Sibert and filed on 28 September 2012;
b)affidavit made by Mr Sibert and filed on 20 November 2012;
c)affidavit made by Mr Sibert on 8 February 2013 and filed on 1 March 2013;
d)affidavit made by Mr Sibert and filed in Court on 21 May 2013;
e)affidavit made by Mr Sibert and filed on 24 May 2013; and
f)affidavit made by Dr Jessie Johnston on 11 October 2013 and filed on 18 October 2012.
The Council relies upon the following affidavits:
a)affidavit made by the Council’s CEO, Alan Hudson, and filed on 2 November 2012;
b)affidavit made by the Council’s Human Resources Manager, Marilyn Harris, on 2 November 2012 and filed on 19 December 2012;
c)affidavit made by Catherine Ullungura on 14 November 2012 and filed on 19 December 2012;
d)affidavit made by Michelle Tipiloura on 26 November 2012 and filed on 19 December 2012;
e)affidavit made by Kathleen Portaminni on 12 November 2012 and filed on 19 December 2012;
f)affidavit made by Rosanna Angela De Santis on 1 November 2012 and filed on 19 December 2012; and
g)affidavit made by William Toy and filed on 1 February 2013.
All of the deponents (except Rosanna Angela De Santis) were cross-examined on their affidavits.
I also received the following exhibits:
· A1 Map of office
· A2 Position statement
· A3 "Other Employment" policy
· A4 undated email - annexure to affidavit
· A5 Payroll
· A6 Letter of Dismissal
· A7 List of Employees
· R1 Leave applications x3; Medical certificates x4; Leave forms x4; Payment Advice
· R2 Fax from Applicant to Council; Email; Clinical notes; Page from applicant's passport; Council Nomination; Email; Mudmap; Note
· R3 page 6 from affidavit in DNG30/2012
· R4 photocopy of passport
· R5 Section 7 - Employee leave
· R6 Email 02.09.2011
· R7 Colour office Plan
· R8 Medical certificate bearing facsimile transmission line
Both parties made oral and written submissions.
The final document tendered was the medical certificate critical to the dispute between the parties with a facsimile transmission line at the top. Mr Sibert sought following the trial of this matter to change his evidence in consequence of the transmission time shown on that document. I refused that application and invited his counsel to deal with the issue in submissions. That was done.
Consideration
The legislation
Counsel for Mr Sibert made helpful submissions on the operation of the relevant provisions of the Fair Work Act. Section 352 of the Fair Work Act states:
352 Temporary absence—illness or injury
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
Note: This section is a civil remedy provision (see Part 4-1).
The claim is not a claim that Mr Sibert was unfairly dismissed, but rather revolves around the question of whether Mr Sibert’s employment was terminated for a proscribed (or prohibited) reason.
Section 352 of the Fair Work Act states that the temporary illness or injury must be of a kind prescribed by the Fair Work Regulations 2009 (Cth) (Regulations), the relevant regulation being regulation 3.01.
Regulation 3.01 states:
3.01 Temporary absence—illness or injury
(1)For section 352 of the Act, this regulation prescribes kinds of illness or injury.
Note: Under section 352 of the Act, an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
(2)A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:
(a) 24 hours after the commencement of the absence; or
(b) such longer period as is reasonable in the circumstances.
Note: The Act defines medical certificate in section 12.
(3) A prescribed kind of illness or injury exists if the employee:
(a) is required by the terms of a workplace instrument:
(i) to notify the employer of an absence from work; and
(ii) to substantiate the reason for the absence; and
(b) complies with those terms.
(4)A prescribed kind of illness or injury exists if the employee has provided the employer with evidence, in accordance with paragraph 107(3) (a) of the Act, for taking paid personal/carer’s leave for a personal illness or personal injury, as mentioned in paragraph 97(a) of the Act.
Note: Paragraph 97(a) of the Act provides that an employee may take paid personal/carer’s leave if the leave is taken because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee.
(5)An illness or injury is not a prescribed kind of illness or injury if:
(a) either:
(i) the employee’s absence extends for more than 3 months; or
(ii) the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and
(b)the employee is not on paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act for the duration of the absence.
(6)In this regulation, a period of paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act does not include a period when the employee is absent from work while receiving compensation under a law of the Commonwealth, a State or a Territory that is about workers’ compensation.”
“medical certificate” is defined in s.12 of the Fair Work Act as meaning “a certificate signed by a medical practitioner”.
“medical practitioner” is defined in s.12 of the Fair Work Act as meaning “a person registered, or licensed, as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners.”
“workplace instrument” is defined in s.12 of the Fair Work Act as meaning:
….an instrument that:
(a) is made under, or recognised by, a workplace law; and
(b)concerns the relationships between employers and employees.
“workplace law” is defined in s.12 of the Fair Work Act as meaning:
(a) this Act; or
(b) the Registered Organisations Act; or
(c) the Independent Contractors Act 2006; or
(d)any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).
Claims made under s.352 of the Fair Work Act are brought under Part 3-1 which is the General Protections part of the Fair Work Act.
The claim was made as a General Protections claim because s.723 of the Fair Work Act prohibits employees from making unlawful termination applications if able to make a general protections application. Indeed, Mr Sibert commenced an earlier Court proceeding in this Court, arising from the same factual scenario as in these proceedings, as an unlawful termination application, and the Council was able to successfully apply for those proceedings to be struck out by relying on s.723.
Further, it was necessary for Mr Sibert to seek leave to commence these proceedings later than the required 14 day period and that leave was granted.
Somewhat confusingly, s.772 of the Fair Work Act (which is found in the termination application provisions of the Fair Work Act) provides a similar prohibition to that set out in s.352 of the Fair Work Act (see s.772(a) of the Fair Work Act), excepting that that section contains a number of circumstances prohibiting employer dismissal of employees in addition to being due to temporary absence from work because of illness or injury.
Section 772 is in somewhat similar terms (but on occasion on somewhat dissimilar terms) to other sections found in Commonwealth industrial legislation predating the Fair Work Act and was placed in such legislation to give effect to the conventions listed in s.771 of the Fair Work Act.
Earlier versions of s.772 of the Fair Work Act were found in earlier forms of Commonwealth government industrial relations legislation, namely:
a)the Workplace Relations Act 1996 (Cth) (Workplace Relations Act) (viz s.170CK(2)(a), s.298K and s.809)
b)the Industrial Relations Act 1988 (Cth); and
c)the Conciliation and Arbitration Act 1904 (Cth) (Conciliation and Arbitration Act) (viz s.5).
It has been accepted practice that for all of these versions of this legislation the employee has the burden of proving:
a)that the employee was dismissed at the instance of the employer;
b)that at the time of dismissal the employee was temporarily absent from the workplace due to an illness or injury; and
c)the illness or injury is a prescribed kind of illness or injury of the kind detailed in relevant regulation.
The prescriptive illnesses and injuries set out in regulation 3.01 are intended to be an exhaustive statement of what constitutes a temporary absence from work for the purposes of s.365 of the Fair Work Act.
Mr Sibert contends that, in compliance with the requirements of regulations 3.01(2)(a) and (b) of the Regulations, he provided four medical certificates to the Council, either before, or within 24 hours of commencement of his absences from the workplace or within a reasonable period of time after commencement of such absences.
Mr Sibert contends that the illness to which the first medical certificate related was a combination of work stress and family stress.
Mr Sibert contends that the injury to which the second, third and fourth medical certificates related was an infected right ankle and dysentery.
The Council contends that Mr Sibert did not deliver the first medical certificate to the Council within the times required by regulations 3.01(2)(a) and (b) because the first time it was provided to the Council was after the date of dismissal (the date of dismissal being on 13 March 2012).
The Council also contends that the first document which Mr Sibert classifies as being a medical certificate (prepared by Dr Johnston on 9 December 2011) was not a medical certificate, but rather a statement that Mr Sibert was requesting to take leave from 13 December 2011 to 29 February 2012 and a recommendation that he be permitted to do so.
How to calculate the three month periods in subregulations 3.01(5)(a)(i) and (ii) of the Regulations, in the then equivalent to that part of regulation 3.01, was considered by Wilcox J in Nikolich v Goldman Sachs J B Were Services Pty Ltd[4]. In that case an investment advisor went on a lengthy period of leave after becoming work stressed and was dismissed. Section 170CK(2)(a) of the Workplace Relations Act and regulation 30C of the Workplace Relations Regulations 1996 (Workplace Regulations) were being considered.
[4] [2006] FCA 784 (23 June 2006) [159]-[177]
Mr Nikolich failed in relation to that cause of his action, but succeeded on another count for breach of contract. He failed in relation to the s.170CK(2)(a) count, even though he provided certificates covering most of his periods of absence from work, because it was found that his periods of absence from work exceeded three months, on both the continuous basis and the 12 month period basis, and the parts of the period of his leave of absence, taken as annual leave and as leave without pay, should be included in the calculation of the period of absence for the purposes of regulations 30C of the Workplace Relations Regulations.
Nikolich v Goldman Sachs J B Were Services Pty Ltd went on appeal to the Full Federal Court, but the count under s.170CK(2)(a) was not again considered because it did not form part of the points of appeal.
A further question that at least potentially needs to be decided in this case is what was the employer’s reason for dismissing the employee?
Once the employee has discharged his or her burden of proof, there is a presumption that the employer dismissed the employee for the prohibited reason unless the employer proves to the contrary. In other words a reverse onus of proof is attributed to the employer requiring the employer prove a rebuttable presumption.
That presumption has been applied in cases where other proscribed reasons for dismissal were in issue. For example in relation to the operation of what was previously s.298V of the Workplace Relations Act, Wilcox and Cooper JJ made the following observations in Davids Distribution Pty Ltd v National Union of Workers[5]:
Under s 298V in proceedings under Div 6 of Pt XA of the Act for a contravention of a section in Pt XA, an allegation in those proceedings of conduct for a prohibited reason is sufficient for it to be presumed that the conduct was engaged in for that reason unless the employer proves to the contrary.[6]
[5] [1999] FCA 1108; (1999) 91 FCR 463, at 500 – 501 [109]
[6]Heidt v Chrysler Australia Ltd at 267
It has also been applied in temporary illness cases[7].
[7] Rojas v Esselte Australia Pty Limited (No 2) [2008] FCA 1585 (24 October 2008)
The reason for the reverse onus being imposed was explained by Nicholson J in Maritime Union of Australia v Geraldton Port Authority[8] where he said:
If the applicant proves the conduct and alleges that the conduct was carried out for a prohibited reason, it is for the respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible reason ... The reversal of the onus in respect of proof of the reasons for the conduct is a recognition that "the circumstances by reason of which an employer may take action against an employee are, of necessity, peculiarly with the knowledge of the employer. (References omitted)
[8] [1999] FCA 899; (1999) 93 FCR 34 at 68
That reverse onus of proof is confirmed in s.361 of the Fair Work Act which states:
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
Subsection (1) does not apply in relation to orders for an interim injunction.
In Maritime Union of Australia v Geraldton Port Authority[9] Nicholson J also made reference to the High Court decision of General Motors-Holden Pty Ltd v Bowling[10] where the Court was considering the alleged dismissal of a shop steward because he was a member of a Union and the prohibition for doing so in s.5(1) of the Conciliation and Arbitration Act. That section apparently referred to the prohibition applying if the prohibited reason was a substantial cause for the dismissal and the High Court then set down criteria for making a finding as to whether the prohibited reason was substantial or not. The equivalent provision in Maritime Union of Australia v Geraldton Port Authority (being s.298L of the Workplace Relations Act) needed to be construed. That section no longer included the words “substantial cause” and merely included the word “because” as does s.352 of the Fair Work Act. Nicholson J found at 224:
In my view the words "or for reasons that include a prohibited reason" in s 298K(1) effect a change to the law and permit a reason to be an operative reason provided it is one of the reasons for the conduct. It would not therefore have to be the "substantial" reason. It would have, of course, to be "operative" - that is it would have to be a reason. Section 298L is to be understood subject to that requirement.
[9] Ibid [222]-[224]
[10](1976) 12 ALR 605
Whilst caution needs to be exercised when applying cases dealing with somewhat similar sections in earlier legislation, Mr Sibert submits that it would be appropriate when applying s.352 of the Fair Work Act for the Court to adopt a similar approach, ie that it is only necessary for the Court to find that there has been a breach of the section by the Council if one of the operative reasons that the Council dismissed Mr Sibert was because he was temporarily absent from the workplace due to an illness or injury and it does not matter whether there were other operative reasons which may have been more substantial reasons in the mind of the Council for deciding to dismiss Mr Sibert.
Date of commencement of employment and period of employment
Mr Sibert commenced his employment with the Council on or about 9 June 2010[11] and the Council summarily dismissed Mr Sibert when an employee of the Council named Alice Williams delivered a letter of dismissal dated 5 March 2013 to Mr Sibert at about 2.00pm on 13 March 2012[12].
[11] Affidavit of M Harris 02/11/2012, [4]
[12] Affidavit of A Sibert 28/09/2012, [74]
The period of Mr Sibert’s employment was accordingly approximately 20 calendar months.
I find that Mr Sibert’s period of employment surpassed the minimum employment period of six months for non-small business employers under s.383 of the Fair Work Act.
Council’s leave application policy and procedure
The Council tendered Section 7 of its Human Resources Manual (Manual) headed “Employee Leave”[13]. The footer of that Manual indicates that it was the version of same applicable as at July 2011.
[13] Exhibit R5
Pages 12 and 13 state that the procedure employees are required to follow when applying for leave due to illness or injury are to:
a)as soon as practicable advise their supervisor/manager of their inability to attend work, the nature of their illness/injury and the estimated duration of their absence, or if their immediate supervisor is not available, their Divisional Manager or if neither of them are available the Human Resources Officer;
b)on return to work fill out a leave of absence form and give it to their immediate supervisor/manager and, if a sick leave certificate has been obtained, attach it to the leave of absence form.
There was no discovery by the Council of a human resources manual used by it from 9 June 2010 to the end of June 2011 and no evidence regarding such a manual.
Mr Hudson and Ms Harris[14] gave evidence that the Council’s employees were expected to refer to the Manual when the employees thought they needed guidance on aspects of office procedure. There was no other evidence concerning how the Council’s employees were informed about the existence or contents of the Council’s Manual.
[14] Transcript 135.45 to 136.15
Ms Harris[15] gave evidence the Council did not inform its employees about the contents of its Manual or require them to read it. I nevertheless find that the Manual was a reference resource available to employees which set out the Council’s leave application procedure.
[15] Transcript 215.13 to 215.44
Mr Sibert gave evidence[16] that he was never informed about the Manual, except when provided with one page of it by Ms Harris[17] when he wanted to find out his obligations concerning performing other employment, after Mr Hudson asserted that he should have sought the Council’s consent to him working as a barman at the Milikapiti Club before commencing such employment.
[16] Affidavit of A Sibert 08/02/2013, [5] and [6]
[17] Affidavit of A Sibert 28/09/2012, [39] and Annexure “AS-5” and Exhibit A3
I do not accept Mr Sibert’s submission that:
a)he was not contractually bound to follow the personal/carer’s leave notice and leave application requirements set out on pages 12 and 13 of section 7 of the Manual; and
b)the tendered portion of the Manual should not be treated as a workplace instrument and therefore, the provisions of regulation 3.01(3) of the Regulations was of no relevance in this case.
I accept that it is unclear whether the Council had a human resources manual prior to June 2011 and, if so, what its terms were. I make no finding whether the procedures required to be followed in the June 2011 Manual were also required to be followed in the first year of Mr Sibert’s employment, that period being of relevance because that was when the evidence indicates Mr Sibert first had experience dealing with taking different types of leave and received ad hoc information about how to apply for annual leave.
I also accept that there is inconsistent evidence regarding whether Ms Harris performed Mr Sibert’s induction or whether someone else did so. Mr Sibert[18] gave evidence that Ms Harris did so and Ms Harris[19] gave evidence that she did not do so even though her name was at the foot of the form, as having been the person who performed the induction, and that she believed that Mr Sibert’s then supervisor Sean Phillips would have done so.
[18]Affidavit of A Sibert 08/02/2013, [2]
[19] Affidavit of M Harris, [5] and annexure “MH1” Transcript 195.25 to 195.35
Mr Sibert[20] gave evidence that during his induction Ms Harris told him about his annual entitlements to annual leave/carer’s leave and did not tell him how to apply for any kind of leave. Mr Sibert also gave evidence that the first time he was informed about how to apply for leave was on the first occasion he applied for annual leave and was provided with the Council’s leave application form by Ms Williams and she did not tell him then he also had to lodge a leave application requesting sick leave.
[20] Affidavit of A Sibert 08/02/2013, [5]-[7]
Mr Hudson[21] gave evidence that employees are told how to apply for leave during the induction process but agreed they are not told how to fill out the leave application at that time or told they have to use it for every type of leave. Ms Harris[22] gave evidence that when she performs inductions she provides employees with copies of the Council’s timesheet and leave application forms but does not tell them when to use them and expected employees to use them when applying for leave because they indicate on their face what they are for.
[21] Transcript 136.20 and 137.9 to 137.13
[22] Transcript 206.5 to 206.20
Counsel for Mr Sibert submitted that merely providing a leave application form to an employee during an induction does not sufficiently explain when it is to be used and certainly does not go into anything like the detail contained in the relevant personal/carer’s leave section of the Manual. However, there is no doubt that Mr Sibert was made aware of the leave form used by the Council and knew that it was to be used when applying for at least certain types of leave.
Other evidence by the Council concerning requiring employees to submit applications for leave was given by Mr Hudson[23] where he stated that the Council often published directives to its employees requiring them to submit applications for leave well in advance. I accept that evidence although the weight of it is limited by its generality.
[23] Transcript 136.16 to 136.39
Mr Sibert[24] also gave evidence that he was never told at any time during his employment with the Council what procedure the Council required its employees to follow when applying for sick leave.
[24] Affidavit of A Sibert 08/02/2013, [6]
According to that evidence, Mr Sibert was under the impression throughout the period of his employment with the Council that:
a)he thought he was required to apply for carer’s leave in advance by providing a leave application and a medical certificate to the human resources section of the Council; and
b)all he was required to provide to the Council when applying for personal or sick leave was a medical certificate if the leave extended for more than two days
because that is what he did whenever he applied for those types of leave.
It is surprising that Mr Sibert should have been labouring under the misapprehension that leave forms were required for apparently all leave other than sick leave. I accept, however, that the need for a leave form may not always have been enforced and Mr Sibert may occasionally have been permitted to establish an entitlement to seek leave simply on presentation of a medical certificate.
I also accept that even though, from an accrual entitlements sense, carer’s leave is considered as being part of personal leave, it should not be taken to be the case that for that reason Mr Sibert should have realised that he should follow the same procedure when applying for sick leave as applying for carer’s leave. Carer’s leave can often be applied for in advance whereas sickness sometimes debilitates an employee so as to make them unable to follow leave application approval procedures strictly.
Mr Sibert’s applications for annual leave, parental leave, carer’s leave and leave without pay
I accept from the evidence that on each occasion Mr Sibert applied for these kinds of leave he:
a)lodged an application for leave when applying for annual leave or leave without pay;
b)lodged an application for leave when applying for carer’s leave and also lodged a medical certificate with the application; and
c)waited to be advised that the leave had been approved before going on such leave.
Annual leave from 02/11/2010 to 09/11/2010 and leave without pay from 10/11/2010 to 30/11/2010
The first leave applications lodged by Mr Sibert were two applications both of which were dated 26 October 2010 and approved by Mr Sibert’s then supervisor Lawrence Costa on an uncertain date[25].
[25] Exhibit R1 and affidavit of M Harris, [8] and [9] and annexure “MH2”
The first of such applications sought six days of annual leave from 2 November 2010 to 9 November 2010.
The second of such applications sought 14 days of leave without pay from 10 November 2010 to 30 November 2010.
Mr Sibert and his wife travelled to a small remote island called Ndoa in West Timor to visit his wife’s family. He gave evidence that, due to severe storms, which occurred there towards the end of Mr Sibert’s leave period, he was delayed in his return to the Tiwi Islands and returned to work on 20 December 2010.
Mr Sibert’s detailed explanations of the normal manner in which he had to travel from Ndoa to the Tiwi Islands and his delayed return[26] are credible in the sense of being plausible but may have been used to justify an extended holiday. Mr Hudson gave evidence that he did not believe Mr Sibert could have been delayed for such a lengthy period[27]. That disbelief was not contrived.
[26] Affidavit of A Sibert 28/09/2012, [21] and [22] and transcript
[27] Transcript 96.20 to 98.29
Mr Sibert [28] said he sent a facsimile to the Council on about 10 or 11 December 2010 to explain the reason for his delayed return and the difficulties he had before sending it trying to communicate with the Council to explain the situation before then. However, it appears that it must have been sent on 13 or 14 December 2010 because the facsimile is annexed to Ms Harris’ affidavit[29] and it is dated 14 December 2010 and has a facsimile receipt record at the top of it, which indicates it was sent on 13 December 2010 at 10.24pm.
[28] Affidavit of A Sibert 28/09/2012, [23]
[29] Exhibit R2 and Affidavit of M Harris, [12] and annexure “MH3”
It is understandable that Mr Sibert was uncertain of the exact date he sent that facsimile because he did not have a copy of it when his affidavit affirmed on 28 September 2012 was prepared. Nothing turns on the uncertainty of the exact date of dispatch of the facsimile, apart from the reliability of Mr Sibert’s memory.
In her affidavit Ms Harris[30] stated that due to Mr Sibert’s late return from work on that occasion it meant that he had been absent for a period of 47 days. Mr Sibert [31] asserted that that calculation was incorrect and that the correct number of working days he was absent was 34 working days. Ms Harris[32] agreed that her earlier calculation had been made in error because she had included weekends and public holidays in her calculations.
[30] Affidavit of M Harris, [15]
[31] Affidavit of A Sibert 08/02/2013, [10]-[12] and annexure “AS-17”
[32] Transcript 207.9 to 207.35
Mr Sibert [33] says he was not counselled about his late return to work when or soon after he returned to work and that the first time anyone made an issue of the matter was when Mr Hudson said (at a manager’s meeting in February or March 2011 during a discussion about Mr Sibert’s concern that he was being required to perform higher duties than those required by his Position Statement and was attempting to negotiate a salary increase) “And I remind you that we have been lenient towards your untimely return previously.”
[33] Affidavit of A Sibert 28/09/2012, [24] and [33]
Mr Hudson[34] gave evidence to the contrary to the effect that he believes he did counsel Mr Sibert about his late return to work on that occasion.
[34] Affidavit of A Hudson, [19] and transcript 98.16 to 99.26
It was put to Mr Hudson[35] in cross-examination, that he did not do so, but he maintained that he did so.
[35] Transcript 98.16 to 99.26
I accept that nothing much turns on whether Mr Sibert was counselled about that matter on his return or Mr Hudson only raised the matter at a later time, as stated by Mr Sibert, because it is clear that the issue of this previous late return from leave, coupled with the fact that Mr Sibert did not return from a later period of annual leave (when, as expected by the Council, Mr Sibert was due to return on 16 February 2012), became one of the reasons Mr Hudson decided to summarily dismiss Mr Sibert on or about 3 March 2012.
I find that Mr Sibert’s late return from leave in 2010 was a source of tension between Mr Sibert and Mr Hudson. In Mr Sibert’s mind it was a source of hostility towards him by Mr Hudson. In Mr Hudson’s mind it was indicative of an attitude of resistance to authority on the part of Mr Sibert.
Parental leave period from 28/02/2011 to 03/03/2011
On 21 February 2011 Mr Sibert applied for four days parental leave for the period from 28 February 2011 to 3 March 2011 to enable him to be present at the birth of his son.[36]
[36]Affidavit of M Harris, [16]-[17] and annexure “MH5”, exhibit R1 and affidavit of A Sibert 08/02/2013, [13]
Nothing turns on that period of leave save to confirm that:
a)Mr Sibert applied for that period of leave before going on leave and his then supervisor Mr Costa recommended it be approved on the same day (ie on 21 February 2011); and
b)a medical certificate by the Milikapiti Health Centre Manager Bernadette Tira was lodged with that application to support the period of leave sought for that reason.
Career’s leave and leave without pay from 15/07/2011 to 2/08/2011
An application[37] for the period from 15 July 2011 to 2 August 2011 was signed by Mr Sibert on 5 July 2011 and, presumably, lodged with the Council on or about that date.
[37] Exhibit R1
The carer’s leave component of the leave applied for (i.e. from 15 July 2011 to 22 July 2011) was supported by a medical certificate by Dr Frances Squires dated 5 July 2011[38] and that medical certificate was presumably provided to the Council with the application for leave.
[38] Exhibit R1
Mr Hudson approved it on an unknown date.
Mr Sibert [39] originally stated that he applied for about three days of carer’s leave because his wife was unwell and he needed to care for her and for their son Zaca at home.
[39] Affidavit of A Sibert, [29]-[30]
Mr Sibert [40] later corrected that evidence by stating that after he saw the relevant leave application form annexed to Ms Harris’ affidavit he realised that the period of carer’s leave taken at that time was for a longer period, ie for six working days from 15 July 2011 to 22 July 2011.
[40] Affidavit of A Sibert 08/02/2013, [17]
Mr Sibert [41] also gave evidence to the effect that the period of leave without pay applied for was to enable him, his wife and son to spend time with Mr Sibert’s family in Newcastle on the occasion of his 50th birthday.
[41] Transcript 27.9
The other documentary evidence pertaining to these two periods of leave is:
a)an email[42] from Mr Sibert to Mr Hudson sent on 5 July 2011; and
b)Dr Squires’ clinical notes[43] for Mr Sibert’s consultation with him on 5 July 2011.
[42] Exhibit R2
[43] Exhibit R2
When counsel for the Council cross-examined Mr Sibert [44] about this period of leave he asserted (as an attack on Mr Sibert’s creditworthiness) that Mr Sibert had misled the Council when applying for this leave (including the carer’s period of leave) because he only really applied for the leave in order to take a holiday and not because he needed to care for his wife.
[44] Transcript 27.13 to 34.30
The email sent by Mr Sibert to Mr Hudson stated:
Can you please approve leave request in Lawrence absence. I need to take care of our son and mum needing a break, certificate for carers leave the remaining prefer to take leave without pay, thanks.
Mr Hudson replied by email[45] to Mr Sibert dated 6 July 2011 that he approved the leave.
[45] Exhibit R2
The clinical notes by Dr Squires state:
Presented requesting carer’s leave.
Has new baby at home, says that wife Deci has been managing well, but is getting very homesick (from the Philippines) and feeling lonely.
Is not concerned about postnatal depression.
Would like to take leave to go away for 5 days so that Deci can meet his family etc, have a break from caring for the baby (15th – 22 July.)
Has discussed with work and they’re happy for him to have carer’s leave as long as he has a certificate to say it’s legitimate.
Plan –
Medical certificate issued
Encouraged to bring Deci to clinic for review if any concerns about mood.
The cross-examination of Mr Sibert focused on the reference in the clinical notes to the words “Is not concerned about postnatal depression.” Counsel asserted that those words indicated (coupled with the holiday reference) that there was no proper basis for the carer’s leave component of the leave application because his wife was not in need of care by him.
Mr Sibert denied that that was the case and said he had had discussions with his then immediate supervisor Mr Costa before lodging the leave application about the concerns he had about his wife and maintained that it was definitely the case that his wife was not well at the time.
I find that Mr Sibert had multiple purposes in seeking this period of leave. He was aware of relationship difficulties with his wife and was aware that he should provide support to her and their child. He also wanted to celebrate his birthday with his own family. He chose to emphasise the former reason to support his leave application.
I nevertheless accept that problems with Mr Sibert’s wife’s feelings of loneliness and isolation from her family were real and are likely to have been in part precursors to the family disharmony leading to a family crisis by the end of 2011.
Annual leave from 03/01/2012 to 06/03/2012 (initial leave application)
On 28 October 2011 Mr Sibert signed an initial leave application[46] for annual leave for the period from 3 January 2012 to 3 March 2012 and, on 28 October 2011 it was signed by Mr Costa, to indicate he had recommended that the application be approved.
[46] Exhibit R1
The number of working days in that period of leave was 40.
On 23 November 2011 Mr Hudson[47] sent an email to Mr Sibert calling on him to submit a new leave application because he considered that part of the leave sought in the initial application was leave in advance and Mr Hudson was unwilling to allow Mr Sibert to anticipate leave in that manner.
[47] Affidavit of A Hudson, [37]-[41] and annexure “AH3”
On 28 November 2011 Mr Sibert submitted a revised leave application (revised leave application) applying for annual leave for the period from 3 January 2012 to 15 February 2012.
On 6 December 2012 it was signed by Martin Waddington on the basis that he was recommending that the application be approved.
Mr Sibert [48] has stated he first learned that the revised leave application had been approved on 9 December 2011. I accept that evidence.
Periods of personal or sick leave applied for by Mr Sibert
[48] Affidavit of A Sibert 28/09/2012, [55]
Personal or sick leave on 11/07/2011 and 12/07/2011
Mr Sibert first absented himself from work due to an injury on 11 July 2011 and 12 July 2011.
Mr Sibert [49] has stated that the need for that period of sick leave arose because he cut deeply into his left hand index finger with a knife while spending the prior weekend with his wife in Darwin.
[49] Affidavit of A Sibert 08/02/2013, [14]
Mr Sibert has also stated he notified the Council about the injury by himself delivering a medical certificate prepared by Dr Ajay Naidu to the Council’s Parap office on 11 July 2011[50].
[50] Affidavit of A Sibert 08/02/2013, [14]
It appears that Ms Harris[51] inadvertently included that medical certificate in the annexure corresponding to the part of her affidavit dealing with approved carer’s leave and leave without pay taken by Mr Sibert from 15 July 2011 to 2 August 2011.
[51] Affidavit of M Harris, [20]-[21] and annexure “MH6” and exhibit R1 and transcript 207.37 to 210.14
I accept Mr Sibert’s evidence regarding the time of delivery of that medical certificate to the Council’s Parap office should be accepted because there is no other evidence before the Court as to the time of its delivery and, in particular, there is no date of receipt stamp on the medical certificate. It appears that the Council had no internal practice which could establish the date of provision of medical certificates to it by its employees.[52]
[52] Transcript 208.27
During the course of Ms Harris’ cross-examination[53] it became evident that, for some unknown reason, the Council did not require anything further from Mr Sibert after receiving this medical certificate. It also became evident that the Council did not process Mr Sibert’s pay for 11 July 2011 and 12 July 2011 as paid personal leave, but Mr Sibert was nevertheless paid for those two days on an ordinary pay basis. The medical certificate did not state what was the nature of the illness or injury suffered by Mr Sibert at that time. However, Ms Harris[54] agreed in cross-examination that that practice is commonplace for practitioner/patient confidentiality reasons. Even so, it is evident that the leave referred to in Dr Naidu’s medical certificate was in the nature of sick leave because the medical certificate states Mr Sibert “will be unfit to continue his occupation.”
[53] Transcript 209.32 to 212.34 and Exhibit A5
[54] Transcript from 208.31 to 208.41
Mr Sibert [55] believed that that personal sick leave had been approved and he was paid for the two days he did not attend work.
[55] Affidavit of A Sibert 08/02/2013, [14]
I do not accept the submission of counsel for Mr Sibert that, as this was the way Mr Sibert’s first sick leave period was dealt with by the Council, coupled with Mr Sibert’s evidence that he was never told by any of the Council’s personnel how he was expected to apply for personal or sick leave, it is understandable that Mr Sibert understood that all he needed to do when applying for personal or sick leave was to deliver a medical certificate to the Council as soon as reasonably practicable if the leave extended for two days or more and there was no need to also lodge a leave application with the Council applying for such leave. In my view, this instance was an instance of administrative oversight. Mr Sibert’s failure to complete a leave form was the probable cause of the oversight and his presence in Darwin, rather than at his workplace, is the most logical explanation for his failure to complete a leave form.
Personal leave or sick leave from 13/12/2011 to 29/02/2012
Mr Sibert gave evidence that:
a)he, his wife and his son went to see Dr Johnston at the Milikapiti Community Medical Centre on 6 December 2012[56];
b)during that consultation Dr Johnston stated that, after reading Mr Sibert’s earlier clinical notes and discussing aspects of Mr Sibert’s work stress and family problems, she was willing to prepare a medical certificate recommending that Mr Sibert’s employer allow him to take a lengthy period of sick leave, but she may have been unable to prepare it on that day because she was having problems with the clinic’s computer system;[57]
c)on 7 December 2011 Mr Sibert had the following discussion with Mr Hudson at the Council football oval on Bathurst Island (where Mr Sibert had been supervising the re-turfing of the oval):
Hudson: [After the Applicant walked over to Alan Hudson’s car as he was getting out of it] “Are you over this bullshit yet?”
Applicant: “My wife and I are stressed. You have taken away our holidays that I have accrued fairly and am entitled to. We do not know at this point if we will be with her family for Xmas day. She had only seen her family for that short period of three week last year. They have not seen our new baby son yet and we were really looking forward to spending that time that was previously approved in my first leave application. What I and my family are feeling is real.
I will be leaving next week as per a medical certificate until March. I have not received the medical certificate yet. I will deliver it to Marilyn when I get it.”
The Applicant then stated that he walked away.[58]
[56] Affidavit of A Sibert 28/09/2012, [56]
[57] Affidavit of Dr J Johnston, [4]-[10] and annexure “JJ-1” (Exhibit R2) and Transcript 187.39
[58] Affidavit of A Sibert 28/09/2012, [59]
d)on the morning of 9 December 2011 Mr Sibert collected a single copy of a medical certificate, prepared by Dr Johnston that day, from the Milikapiti Community Medical Centre[59];
e)at about 10.00am or 11.00am that morning Mr Sibert delivered it to the Council by leaving it on what he understood to be Ms Harris’ desk in the Council’s Nguiu office, after talking to two indigenous females (the names of whom Mr Sibert cannot recall) in what he understood to be Ms Harris’ office, being told by one of those persons that Ms Harris was not in the Nguiu office on that day, and he could leave the medical certificate on Ms Harris’ desk, to which the person speaking to him pointed at the same time;[60] and
f)at about 11.30am on 9 December 2011 Mr Sibert had the following discussion with Mr Toy the Council’s Community Development Education Manager in the Council’s Milikapiti office:
[59] Affidavit of A Sibert 28/09/2012, [63]
[60] Affidavit of A Sibert 28/09/2012, [62]
Toy: “Are you going to the men’s workshop on the weekend [meaning the weekend of 9, 10 and 11 December 2011]?”
Applicant: “I was not invited by Alan.”
Toy: “I will get you an invitation and you should come.”
Applicant: “I will be packing as I am leaving on 13 December for medical reasons and I will be back on 1 March 2012. Anyway, if Alan does not want me there I would be uncomfortable being there.”[61]
[61] Affidavit of A Sibert 28/09/2012, [64]
Mr Hudson[62] and Mr Toy[63] denied having those conversations with Mr Sibert.
[62] Affidavit of A Hudson, [45]-[46] and Transcript 141.3 and 142.23
[63] Affidavit of W Toy, [13]-[17] and Transcript 158.7 to 158.25
The medical certificate[64] prepared by Dr Johnston recommended that Mr Sibert and his family take leave for the period from 13 December 2011 to 29 February 2012 for family reasons and on medical grounds.
[64] Affidavit of A Sibert 28/09/2012, annexure “AS-10”
It became evident for the first time during the cross-examination of Ms Harris[65] that in about August or September 2011 the Human Resources Office in the Council’s Nguiu office was moved from the room Mr Sibert said he went into and left the medical certificate (labelled “CDEP” on exhibit R7) to another room (labelled “HR and Payroll” on exhibit R7).
[65] Transcript 199.36 and Exhibits R6 and R7
When Dr Johnston was cross-examined she gave the following evidence (which I accept) that:
a)she considered the document she prepared was a medical certificate even though it was not stated to be a medical certificate[66];
b)she provided the medical certificate because she believed Mr Sibert was suffering from an illness which she described as being “social dysfunction and stress” and having come about because he was suffering from work stress and family relationship stress which was serious in nature because there had been incidents of domestic violence in the family home[67];
c)it was appropriate for Mr Sibert to take a lengthy period of sick leave to try to resolve that illness[68];
d)she had asked Mr Sibert to indicate the period of leave;[69]
e)when preparing clinical notes she did so using an online computer software system and she probably prepared the medical certificate on 9 December 2011 while she was working in an office operated by the Department of Health at Casuarina in Darwin at about the same time as she prepared the clinical notes some time after 13.08pm on 9 December 2011, that being the time shown in the heading for such clinical notes which is automatically inserted by the computer software program used by her when preparing clinical notes[70]; and
f)while she could not remember exactly what she did with that particular medical certificate after she prepared it, it was her usual practice to send copies of medical certificates she prepared in Darwin, for patients of the Milikapiti Community Health Centre, by facsimile transmission from the Casuarina Office to the Milikapiti Community Health Centre soon after she prepared them and to personally deliver the originals of such medical certificates to the Milikapiti Community Health Centre the next time she went there.[71]
[66] Transcript 172.35 to 173.30 and 174.5
[67] Transcript 173.5 to 173.40 and 186.40 to 187.5
[68] Affidavit of Dr J Johnston, [10] and Transcript 173.34
[69] Transcript 173.34
[70] Transcript 175.30 to 182.15
[71] Transcript 176.5 to 177.5
On 23 May 2013, that being the last day of the trial of this matter, at the conclusion of oral evidence, a discussion took place between me and Mr Sibert’s counsel concerning the possibility of trying to establish when the facsimile transmission occurred by, perhaps obtaining printout reports from the facsimile machine at the Casuarina Department of Health listing facsimiles despatched on 9 December 2011 and from the facsimile machine at the Milikapiti Community Health Centre listing facsimile transmissions received on 9 December 2011 and, if it proved possible to do so, to arrange for an affidavit to be filed to evidence what resulted from those investigations. This was in the circumstances that:
a)the Court did not then have in evidence a copy of the medical certificate dated 9 December 2011 received by facsimile transmission at the Milikapiti Community Health Centre (which one would assume would have a printout of the sending facsimile number, date and time of day of receipt by the receiving facsimile printed on the top of it); and
b)during Dr Johnston’s cross-examination and re-examination it was uncertain whether her medical certificate dated 9 December 2011 was sent by facsimile transmission from the Remote Health office of the Department of Health in Casuarina to the Milikapiti Community Health Centre before or after 1.08pm on 9 December 2011.
After that discussion I directed that any further evidence upon which Mr Sibert relied limited to the question of the transmission of Dr Johnston’s certificate dated 9 December 2011 be filed and served within 14 days.
On 24 May 2013 Mr Sibert filed an Application in a Case seeking leave to file further affidavit evidence by him and by an employee of Milikapiti Community Health Clinic dealing with the following occurrences on 9 December 2011:
a)where Mr Sibert was on the morning of that day;
b)what Mr Sibert’s movements between Melville Island and Bathurst Island were on that day;
c)when Mr Sibert went to the Milikapiti Community Health Centre on that day to pick up the faxed copy of the medical certificate prepared by Dr Johnston on 9 December 2011;
d)the number of copies of that copy of the certificate obtained by Mr Sibert on 9 December 2011;
e)when Mr Sibert went to the Tiwi Islands Shire Council’s Nguiu office to attempt to deliver a copy of the faxed certificate to Ms Harris;
f)when Mr Sibert was working at the Bathurst Island football ground on that day; and
g)when Mr Sibert had a discussion with Mr Toy on 9 December 2011.
That Application in a Case was supported by an affidavit made by Mr Sibert and filed on 24 May 2013 and I heard it on 12 June 2013.
I refused to grant the leave sought, but received Mr Sibert’s affidavit made and filed on 24 May 2013 into evidence for the purpose of introducing the faxed document annexed to it into evidence.
The annexure to that affidavit was a copy of the medical certificate dated 9 December 2011 with the following information printed on the top of it:
09/12/2011 13:20 0889227799 REMOTE HEALTH PAGE 01/01
I find from that information that:
a)that document is a copy the facsimile transmission of the Medical Certificate dated 9 December 2011 received at the Milikapiti Community Health Centre after it was sent to it from the Remote Health Casuarina Office of the Department of Health; and
b)it was received at the Milikapiti Community Health Centre on 9 December 2011 at 1.20pm.
That document was located by Mr Sibert amongst papers in his possession on the night of 23 May 2013. Mr Sibert had not previously discovered it.
I accept that it is understandable that Mr Sibert did not discover the document previously because another copy of the medical certificate dated 9 December 2011, without such information shown on it, was annexed to his affidavit affirmed and filed on 28 September 2012 and he would only have been likely to have understood the additional relevance and significance of the above information on the copy of the certificate annexed to his affidavit made and filed on 24 May 2013 after hearing the evidence of Dr Johnston on 24 May 2013.
I make no adverse finding against Mr Sibert due to the late discovery of that copy of the medical certificate. He was not attempting to conceal it. However, the document is a problem for Mr Sibert, which he recognised by attempting to obtain leave to change his evidence about his movements on 9 December 2011.
In the light of the introduction of this evidence I make the following findings:
a)Mr Sibert could not have collected a copy of the medical certificate dated 9 December 2011 in the morning of 9 December 2011 as he claimed;
b)Mr Sibert could not have delivered it to the Council’s Nguiu office at about 10.00am or 11.00am on 9 December 2011 as he claimed; and
c)Mr Sibert probably did not have a conversation with Mr Toy either in the terms asserted or at the time claimed on 9 December 2011.
Personal leave or sick leave for Thursday 01/03/2012 to Friday 02/03/2012; from Monday 05/03/2012 to Tuesday 06/03/2012; and from Wednesday 07/03/2012 to Friday 09/03/2012
Mr Sibert [72] gave evidence that:
[72] Affidavit of A Sibert 28/09/2012, [68]-[70] and annexures “AS-12”, “AS-13” and “AS-14”
a)when he arrived in Darwin on Thursday 1 March 2012 he was suffering from an infected right ankle and dysentery;
b)on 1 March 2012, Monday 5 March 2012 and Wednesday 7 March 2012 he consulted Dr Albert Tonga to obtain treatment for that illness and injury;
c)he collected three medical certificates prepared by Dr Tonga respectively dated:
i)1 March 2012 certifying that Mr Sibert would be unfit for work from Thursday 1 March 2012 to Friday 2 March 2012;
ii)5 March 2012 certifying that Mr Sibert would be unfit for work from Monday 5 March 2012 to Tuesday 6 March 2012; and
iii)7 March 2012 certifying that Mr Sibert would be unfit for work from Wednesday 7 March 2012 to Friday 9 March 2012; and
d)Mr Sibert delivered each of those medical certificates to the Council’s Parap office respectively on the dates each of the certificates were prepared.
Ms Harris[73] gave evidence that:
a)the first two of those medical certificates were delivered to the Council’s Parap office on the afternoon of Monday 5 March 2012, (both of them having been emailed to her on Tuesday 6 March 2012 by the Parap office);
b)the third medical certificate was delivered by Mr Sibert to the Council’s Parap office on Wednesday 7 March 2013; and
c)she onforwarded the first two of such medical certificates by email to Mr Hudson on 6 March 2012 and the third to him on 7 March 2013.
[73] Affidavit of M Harris, [47]-[51] and annexures “MH10” and “MH11”
I prefer the evidence of Ms Harris, which differs from Mr Sibert’s evidence regarding when Mr Sibert delivered the first of such medical certificates to the Parap office.
In any event, Mr Sibert does not contend that one of the operative reasons for Mr Hudson deciding to dismiss him was that Mr Sibert was absent from the workplace due to the illness and injury the subject of Dr Tonga’s three medical certificates, because the letter of dismissal was drafted before the first of those medical certificates was provided to Mr Hudson.
Did Mr Sibert deliver Dr Johnston’s medical certificate to the Council on 9 December 2011?
In my view this case turns on this question.
Mr Sibert claims that he collected the medical certificate at the Milikapiti clinic on the morning of 9 December 2011[74], and after attending work at the Nguiu oval, he went to the Nguiu office of the Council mid-morning[75]. He said he entered the side door into the foyer area, turned left into the human resources office, and after claiming he spoke with two office girls, was adamant that he placed the medical certificate on Ms Harris’ desk[76] and then left the building.
[74] Affidavit 29 September 2012, page 13 at [60]
[75] Transcript 41.1 to 41.40 and Exhibit A1
[76] Transcript 42.29
Mr Sibert’s evidence regarding notice is not correct for two reasons: the first being that if he did place a medical certificate on a desk in the room he indicated, then it was not Ms Harris’ desk as the evidence shows the human resources office had moved[77] to a different office in another area of the building at an earlier date. Secondly, as is now evident[78], the medical certificate was only received at the Milikapiti Community Health Centre at 1.20pm on 9 December 2011. Mr Sibert therefore could not have provided the medical certificate to the Nguiu human resources office in the morning as he claimed in cross-examination[79]. Furthermore, none of the Council’s witnesses remember seeing Mr Sibert in the human resources office that morning, or at all that day.
[77] Transcript 198.11 to 199.40 and Exhibit A1
[78] Affidavit of A Sibert, 24/05/2013 annexure
[79] Transcript 41.1 to 41.40
It is possible, but unlikely, that Mr Sibert was confused about the time of his delivery of the certificate and that it might have happened in the afternoon, but that would suggest he travelled to Nguiu in the morning to work, returned to Milikapiti where he says he met Mr Toy[80] at 11.30am, then after 1.20pm drove directly back to Nguiu with the certificate in the early afternoon, then to return back to Milikapiti. When questioned about events on the morning of 9 December 2011 under cross-examination[81], Mr Sibert claimed he was at work at the Nguiu oval and returned to work at the oval after leaving the certificate on the desk, and stated “my version of events are very correct and true”. It would be odd that Mr Sibert didn’t recollect picking up the certificate in the afternoon and returning with it to Nguiu. It is more likely that Mr Sibert’s version of events did not take place.
[80] Affidavit of A Sibert, 28/09/2012, [64]
[81] Transcript 42.33 to 42.44
There is a further reason for rejecting Mr Sibert’s evidence on this question. Mr Hudson gave evidence that it was the normal practice of the Council to permit non essential employees to take leave over the Christmas holiday period[82]. Staff were permitted to take special leave in the week before Christmas. In 2011 that period of permitted absence began in the week commencing 19 December[83]. Mr Sibert was undoubtedly aware of that practice and wanted to take advantage of it. Probably because of his difficult relationship with Mr Hudson, he did not seek his permission to absent himself in the week before Christmas but sought support from Dr Johnston to nominate 13 December as the commencement of his absence recommended in her certificate. Mr Sibert had arranged travel from the Tiwi Islands to West Timor commencing on 13 December and planned to slip away quietly on that day. Mr Sibert became aware on 9 December 2011 that his annual leave application for the more confined period had been approved and the certificate from Dr Johnston, faxed to him on the afternoon on that day, only remained necessary as an “insurance policy” should any question be raised about his early departure or late return (for whatever reason).
[82] Transcript 102.5
[83] Or at least from 21 December. Transcript 139.16
I find, on the balance of probabilities, that Mr Sibert did not deliver Dr Johnston’s medical certificate to the Council offices at any time on 9 December 2011. The first time the Council became aware of the medical certificate was after Mr Sibert had been terminated in 2012 when he attached it to an email dated 14 March 2012[84] in which he stated “the attachment to this email is clear… I was on medical leave until 6 March. I fail to see why you do not consider this explanation clearly”. Nowhere in the email does Mr Sibert mention that he had already provided a copy. Not only did Mr Sibert fail to provide a copy of the document within 24 hours of his leave on 13 December 2011, he did not provide it within a reasonable time thereafter[85].
[84] Transcript 43.1 to 46.29
[85] Regulation 3.01(2)(a) and (b)
Further, I reject Mr Sibert’s evidence about his purported conversations with Mr Hudson and Mr Toy on 7 and 9 December about the medical certificate. Mr Sibert did not want to draw attention to his planned early departure. Similarly, the assertions by Mr Sibert that he told Mr Hudson in a conversation on 7 December, and later Mr Toy on 9 December, that he had a medical certificate, were also untrue. It is improbable that Mr Hudson would simply receive the alleged information without question or verification, particularly as he had already refused Mr Sibert his initial leave application because Mr Sibert wasn’t entitled to the time he sought. As Mr Hudson stated, “there may possibly be a claim for workers compensation…it would be very, very unusual for us to approve leave for three months without seeking some clarification”[86]. Similarly, if Mr Hudson knew of Mr Sibert’s absence, why would he try to telephone Mr Sibert upon becoming aware he was absent?[87] I prefer Mr Hudson’s evidence to Mr Sibert’s version.
[86] Transcript 142.10 to 142.20
[87] Transcript 138.19 to 138.39
On receiving approval of his revised leave on Friday 9 December 2011, Mr Sibert at no time before he left Bathurst Island on 13 December sought to discuss with the Council that he had a medical certificate[88]. To do so would have meant clarification of leave[89] and the possibility of not being paid for the period before or after his approved leave ended, that is, before 3 January 2012 and after 15 February 2012. Mr Sibert sought to take advantage of the medical certificate for the period after 15 February 2012 as evidenced by his hand written document Exhibit R3 and testimony[90]. He thought he was on annual leave and sick leave.
[88] Transcript 55.20
[89] Transcript 142.10 to 142.20
[90] Transcript 47.24 to 48.10
Of course, Mr Sibert may not have sought to clarify his leave status because (as he asserted) “money was irrelevant to me”[91]. However, I accept the Council’s submission that money was very important to Mr Sibert. In his affidavit of 28 September 2012, he says he complained to Mr Hudson that he did not receive enough money[92], and wasn’t prepared to do more work if not paid. I accept that money was one reason why Mr Sibert chose to remain silent about the certificate and why he slipped away quietly on 13 December 2011 one week before the Christmas break. Mr Sibert did not have sufficient annual leave available to cover the time he wanted to take off. He knew by saying nothing, and given his isolated work environment, he would likely be paid his wages for the last days before and including the Christmas break from (at least) 23 December 2011 until 3 January 2012[93], his annual leave of 3 January 2012 to 15 February 2012, and perhaps wages again from when his annual leave ended to when he returned in early March 2012. And that is what eventuated. Ms Harris gave evidence that pays would be made if no notice[94] was provided, but if sick leave notice was provided, annual leave wouldn’t have been processed.
[91] Transcript 46.24
[92] Affidavit of 29/09/2012, [33(d)]
[93] Affidavit of A Hudson, 02/11/2012, [42]
[94] Transcript 226.26
It is also no coincidence that the medical certificate covers the same 40 day (work days) period of Mr Sibert’s initial leave application which was rejected by Mr Hudson. I conclude that Mr Sibert wanted the longer leave period the medical certificate provided for, but he wasn’t going to jeopardise being paid wages and annual leave for the period he was away when he only had 25 hours or three days sick leave left. If he had sought to clarify his position, he might have found he would only be entitled to leave without pay.
It is also important that the period noted in Dr Johnston’s document was the period suggested to her by Mr Sibert[95]. In response to the question in cross-examination “And you thought it would be a good idea to get three months off didn’t you?”[96], Mr Sibert’s answer was “Yes, that’s like my original annual leave application for 40 days”. I find that the reason why the initial leave application period and the certificate period are the same is because these are the dates Mr Sibert had originally booked for his flights to Indonesia. When questioned in cross-examination whether in making his visa application to the Indonesian consulate on 25 November 2011 he had to supply details of flights, he answered “yes”[97]. I infer that Mr Sibert’s flights were booked before he visited the consulate in Darwin, and before he visited the doctor.
[95] Transcript 171.20
[96] Transcript 54.16
[97] Transcript 64.17 to 32
I find that Mr Sibert did not deliver the certificate to Ms Harris’ desk, and embellished the conversations with Mr Hudson and Mr Toy by adding that he told them of his medical certificate. Mr Sibert did this to set up the fact that the Council had notice of the sick leave when none existed. In light of this, I find the Council had no notice of a medical certificate before Mr Sibert left Bathurst Island on 13 December 2011.
I conclude, on the evidence, that Mr Sibert did not provide a medical certificate to the Council until 13 March 2012, which was not within 24 hours of the commencement of his absence on 13 December 2011 or such longer period as may be reasonable in the circumstances. Accordingly, Mr Sibert has failed to establish that he falls within the definition of a prescribed kind of illness or injury set out in regulation 3.01(2).
In the circumstances, it is not necessary to consider whether Dr Johnston’s medical certificate was in fact a medical certificate. I am inclined, however, to accept the submissions of Mr Sibert’s counsel that it was. Further, it is not necessary to decide whether Mr Sibert was not fit for work because of a personal illness, or personal injury, affecting him as required by s.107(3)(a) of the Fair Work Act. Neither is it necessary to decide whether Mr Sibert was suffering an illness or injury of a prescribed kind pursuant to regulation 3.01(5)(ii) of the regulation because of total absences within a 12 month period of over three months.
Conclusion
I will order that Mr Sibert’s application filed on 28 September 2012 be dismissed.
I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of Driver
Associate:
Date: 11 September 2013
Key Legal Topics
Areas of Law
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Employment Law
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Statutory Interpretation
Legal Concepts
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Breach
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Procedural Fairness
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Statutory Construction
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Appeal
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