Sweeney v National Disability Insurance Agency
[2021] FedCFamC2G 4
•3 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sweeney v National Disability Insurance Agency [2021] FedCFamC2G 4
File number(s): MLG 2611 of 2020 Judgment of: JUDGE BURCHARDT Date of judgment: 3 September 2021 Catchwords: INDUSTRIAL LAW – applicant accepting very significant financial inducement to retire early (“ITR”) – whether applicant exercised workplace rights – whether matters applicant raised amounted to workplace rights in any event – whether applicant’s public interest disclosures amount to exercise of workplace rights and if so whether they led to adverse action – whether ITR was validly made pursuant to applicant’s SES Determination – respondent denying all aspects of the applicant’s claim – court accepting evidence of CEO that no adverse action taken arising out of any of the applicant’s claims – application dismissed.
FAIR WORK REGULATIONS – whether respondent failed to comply with record – keeping regulations
– applicant sent erroneous letter after employment ceased but this was later corrected – no breach of regulations found.Legislation: Public Interest Disclosure Act 2013 (Cth)
Public Service Act 1999 (Cth)
Fair Work Act 2009 (Cth)
Fair Work Regulations 2009 (Cth)
Australian Public Service Commissions Directions 2016
Cases cited: State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 Division: Division 2 General Federal Law Number of paragraphs: 130 Date of last submission/s: 17 August 2021 Date of hearing: 16 and 17 August 2021 Place: Melbourne Applicant: The Applicant in person Counsel for the Respondent: Ms Campbell Solicitor for the Respondent: Mills Oakley ORDERS
MLG 2611 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MARK SWEENEY
Applicant
AND: NATIONAL DISABILITY INSURANCE SCHEME LAUNCH TRANSITION AGENCY (NATIONAL DISABILITY INSURANCE AGENCY)
Respondent
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
3 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTORY
The applicant, Mr Mark Sweeney, was employed successfully in the army and in the Australian Public Service from 17 September 1980 until 2 March 2020. He has two complaints against the respondent. The first is that his employment came to an end as a result of adverse action taken against him as a result of a number of complaints he had made. The second is a complaint relating to the inaccurate keeping of records by the respondent.
This is one of those disputes which could give rise to a judgment running to a very great length. The applicant, in particular, is well-versed in and extremely familiar with the Australian Public Service Act 1999 and other legislation applied to public service employees. He explored these in considerable detail during his case, in which he was self-represented. I propose to try and cut to the chase so far as practicable.
The gravamen of the primary claim, relating to adverse action, arises in circumstances where, on 28 January 2020, the Chief Executive Officer of the respondent, Mr Martin Hoffman, relevantly offered the applicant an incentive to retire early. The time given to Mr Sweeney
to consider this option was lamentably short but was eventually extended to an extent.
But, in any event, Mr Sweeney accepted it. Given that he received a net payment of in excess of $330,000, it is easy to see why.
The parties have raised numerous technical arguments arising from both of these claims. It is sufficient to say for present purposes that, while a number of points may be open to argument, I am completely satisfied, having heard the evidence, that no action was taken against
Mr Sweeney by the respondent as a result of any complaint he had made. He was the unfortunate victim of a restructure. The process of that restructure may be well open
to comment but it was not in any way influenced by anything Mr Sweeney had done by way of complaint.
Mr Sweeney’s complaint about records is completely misconceived for reasons which I shall come to.
AGREED OR UNCONTROVERSIAL MATTERS
As earlier indicated, Mr Sweeney was employed for very many years in what I would refer
to globally as the Australian Public Service (his prior army service was recognised
as continuous). In early 2015 Mr Sweeney commenced working at the National Disability Insurance Agency (“NDIA”) as a Senior Executive Service (“SES”) Band 1. It is quite apparent that restructures within the NDIA were relatively frequent as one took place, according to the applicant, in September to October 2015, another took place between June 2018 to July 2018, and a yet further restructure in late 2019/early 2020, which led to the end of Mr Sweeney’s employment.
Mr Sweeney he had the great misfortune to suffer a heart attack on 24 October 2018
which meant that he was on sick leave until 18 December 2018. On 21 December 2018
he met Mr Hamish Aikman, Chief People Officer of the respondent. The question of a two per cent pay rise for Mr Sweeney was clearly discussed and it seems common cause that
Mr Aikman was of the view that a new determination would be necessary for that pay rise
to be effective. It appears that officers at the level of Mr Sweeney are given determinations under the relevant legislation which are, in effect, a piece of subordinate legislation that provides a personal employment contract for the individual concerned. Mr Sweeney’s previous determination had been issued to take effect from 7 May 2015.
Mr Sweeney, it is clear, wrote to Mr Aikman on 17 January 2019. The gravamen of this was that he raised a dispute pursuant to clause 25 of his 2015 determination. He felt that it was not necessary for there to be a new determination at this time.
From 1 July 2019 until 2 March 2020 Mr Sweeney performed the Agency Safety Manager function as part of his SES Band 1 and it seems clear that he made an application to the former acting Chief Executive Officer of the organisation, Ms Vicki Rundle, that his remuneration under the first determination be increased as a result.
In November 2019 Martin Hoffman was appointed the Chief Executive Officer. Prior to this occurring, Mr Sweeney had made two public interest disclosures to Ms Rundle on 26 July 2019. The first related to an alleged misuse of NDIA resources by an SES labour/agency worker. Pursuant to what I understand is standard practice, this was investigated and the investigating officer recommended that the allegations did not indicate disclosable conduct.
The second PID (“Public Interest Disclosure”) was alleged improper use of public office
to gain advantage for a family member, and alleged bullying and aggressive behaviour
by an SES officer. The Investigation Officer’s recommendations found that it was open
to the principal officer (the Chief Executive Officer of NDIA) to find that disclosable conduct may have occurred. Once again, this matter was dealt with by Mr Hoffman, who decided that neither allegation indicated disclosable conduct.
On 22 November 2019 Mr Sweeney made a PID to Mr Hoffman alleging misuse of agency resources but, on investigation, it emerged that this was a repeat of the first one.
Mr Sweeney wrote to an NDIA PID authorised officer on 25 February 2020 to advise that
he was considering his options available for further review under the Public Interest Disclosure Act 2013 (Cth) (“the PID Act”).
On 20 December 2019 Mr Hoffman made a further determination in relation to Mr Sweeney’s employment. It will be necessary to return to the terms of that document in more detail.
On around 10 January 2020 the applicant provided a dispute notification letter to Mr Aikman with a copy to Mr Hoffman in relation to his concerns about the second determination.
On 28 January 2020 a meeting took place between Mr Sweeney and Mr Hoffman with
a note taker present. Mr Hoffman, as earlier indicated, offered the applicant an incentive
to retire early (“ITR”), the offer only being open for a short period. If it were not to be accepted, the second and third options were for Mr Sweeney to take his chances in the expressions
of interest process which would reallocate work within the agency or to seek redeployment, more generally, within the public service.
By 31 January 2020 Mr Aikman had spoken with Mr Sweeney on 29 January and wrote to him about two specific questions in relation to the ITR. It is sufficient to say that, following some further correspondence, it was agreed that the ITR would be amended to allow Mr Sweeney
to finish employment on 2 March 2020 and the offer of earlier retirement was accepted.
The ongoing dispute between Mr Sweeney and the agency, exemplified in the correspondence of 10 January 2020, to which I have referred, fell by the wayside by this point. It had previously been the subject of email exchanges between Mr Aikman and Mr Hoffman, dated 14 January 2020, the upshot of which was that Mr Hoffman was of the view that the purported notification of dispute was one that he was not wishing to take further.
To round out the matters that are not the subject of disagreement, I would refer simply to two pieces of correspondence dealing with the records issue. On 16 March 2020 Services Australia Payroll, who provide services to the respondent and its workforce, sent Mr Sweeney a letter
in which it was asserted inter alia that his employment had been terminated on 2 March 2020 in accordance with section 29(3)(a) of the Public Service Act 1999 (Cth) (“PS Act”)
on the grounds of being excess to the requirements of the National Disability Agency. It was also asserted that the redundancy benefit paid to him was 36 weeks.
On 22 June 2020 a further letter was sent to Mr Sweeney by Australian Government Services Australia, which said that the earlier letter, dated 16 March 2021:
was a standard form template letter sent to you by Payroll Services upon your employment ending and purported to set out your redundancy benefits. This was incorrectly sent to you and was an administrative error.
Attached is a copy of the correct letter dated as at 16 March 2020.
We apologise for this oversight and for any confusion this may have caused on your behalf.
Attached to that was a letter, To whom it may concern, confirming that Mr Sweeney’s employment ended on 2 March 2020 upon accepting an incentive to retire in accordance with subsection 37(1) of the PS Act and that, upon acceptance, Mr Sweeney was paid entitlements in accordance with the offer of incentive to retire.
THE PARTIES AFFIDAVITS
I do not propose to traverse the parties’ affidavit materials at any length. Mr Sweeney’s first affidavit was basically concerned with the complaints about record-keeping and his second affidavit was the narrative from his perspective of the way in which he was subjected to adverse action as a result of his complaints. Given his self-representation, a certain amount of his affidavit material would be properly the subject of objection on the basis that it constitutes submissions or conclusions but nothing turns on that for these purposes.
Mr Hoffman has filed one affidavit and Mr Aikman two. I have regard to what they have said but I will deal with the material in those affidavits when I come to deal with the specific matters the parties have raised.
At this point, it is, in my view, appropriate to move to a consideration of what the parties said at Court. What follows is taken from my notes.
THE OPENING AND EVIDENCE OF THE APPLICANT
Mr Sweeney indicated that his employment terminated on 2 March 2020. He was an ongoing employee of almost 40 years and had been in the army and the Australian Public Service (“APS”). He was employed under the APS Act. Adverse action had been taken to terminate his employment. He was offered redeployment in January 2021 and his records management claim was associated with this. The agency employs 3000 employees and has 1500 contractors. There had been no cohesive change process. Mr Hoffman had made clandestine decisions about the employment of Executive staff. There was no consultation. He met Mr Hoffman
on 28 January 2020. He had just obtained a quarterly award for good performance in 2019. The facts were straightforward. He was dismissed and not redeployed. His role was removed but others were treated differently. He was employed at a level, not a role. A different approach was taken to him than to others. He had raised complaints. He had made public interest disclosures including a case of bullying by a Senior Executive. The employer repudiated his employment by termination. He sought reinstatement and outstanding salary or compensation less his earnings. He also sought compensation for non-economic loss and that maximum penalties be imposed upon the respondent.
He was sworn and adopted his affidavits as true and correct.
Under cross-examination Mr Sweeney indicated that he was employed at SES Level 1 and that Mr Aikman was his supervisor. Mr Aikman was a member of the Executive Leadership team and answered to Mr Hoffman. Ms Vicki Rundle had been Chief Executive Officer for part
of the time. He was a Branch Manager. He was head of the HRBP team and the Agency Safety Manager. HRBP undertook some part of the human resources function. He has a good understanding of the PS Act. He has a good understanding of internal procedures and policies and a good understanding of HR policies. He has a broader understanding of the Fair Work Act 2009 (Cth) (“FW Act). He has not been trained in the PID Act. He understands its working. He said his two affidavits were his evidence but also his pleadings which attached particulars.
Mr Sweeney agreed he had taken sick leave in June and July of 2018. He had an undiagnosed medical condition. This was a different role that did not report to Mr Aikman. He had hoped Mr Aikman would have known that he had been ill. He was not on sick leave in December 2019 to 2020. When he came back to work on 21 December 2018, he had had a heart attack. Mr Aikman knew about that. He had approved sick leave for September to December. He met Mr Hoffman on 3 December 2019 who was aware he had taken leave.
His title of Agency Safety Manager first occurred on 1 July 2019 and went on until 2 March 2020. It was allocated to him. His responsibilities were to deal with risks in the work, health and safety space. He was responsible for safety across the organisation. This was given to him by Ms Vicki Rundle and Mr Aikman. It was put that the Chief Executive Officer and
Mr Aikman could reallocate any duties. Mr Sweeney agreed with this and said they took
all his duties. He agreed that he could be given additional duties within the role of his classification.
He confirmed that he had asked Mr Aikman for more pay in about mid-August 2019. He was never paid any extra money for the Safety Manager function. It was an addition that increased his responsibilities by 30 per cent. He was not subject to an Enterprise Agreement. Duties
are allocated by level. There must be a role evaluation before extra duties are awarded.
He placed a claim for extra pay in October 2019. He was entitled to ask for a review pursuant to clause 13.1 of his determination. The agency considers and decides. He was never advised the claim was not approved. Mr Aikman did not write back to him. He never got extra pay. Determinations are workplace instruments. The Chief Executive Officer and delegated officers can issue determinations. Both determinations were valid and applied to his employment.
He agreed that the determinations had a dispute resolution clause 25.
His first determination on 7 May 2015 was at Court Book (“CB”) 526. The second determination operated from 20 December 2019 until 2 March 2020 and was issued
by Mr Hoffman. There had been an amended determination in 2017 to include his car. When he got back from sick leave Mr Aikman said he would get a two per cent increase but it needed
a new determination. He wanted to preserve his 2015 benefits.
Counsel asked what the January 2019 dispute was about. He has said his pay rise could
be paid under the extant determination. This was the first part. The second part was consultation. There should be consultation before any variation. He referred to clause 23.3
of the December 2019 determination in this regard. This was an error as I think he meant
to refer to clause 24.1 of the 2015 Agreement (CB 531).
Mr Sweeney said he followed the matter up with Mr Aikman and got the money paid in March 2019. Mr Hoffman’s determination was in December 2019. He raised a dispute about its contents. This was his Agency Safety Manager claim. He had an entitlement to a second review. His other issue, after Mr Hoffman’s determination, was the lack of consultation.
He was unsatisfied that there had been no consultation before the determination. He also had included in his complaint other matters (which I may not have noted correctly) and indicated he did not want to sign the new agreement. He had already submitted a business case
to Mr Aikman.
His complaint of 10 January 2020 remained outstanding and had never been closed off. His claim for the Agency Safety Manager’s increase was still in his letter of 10 January 2020 and was joined with his January 2019 claim. He was raising a dispute because he was entitled
to seek a review of his salary at any time. There were 28 items in the complaint and only half were settled before the new determination by Mr Hoffman in December 2019. Not all the issues had been resolved.
Mr Sweeney was cross-examined about his public interest disclosures. He had made two
to Vicki Rundle who was then the relevant principal officer. When it was put that Ms Rundle had decided that the matters raised did not give rise to disclosable conduct
Mr Sweeney said that she had to go through procedures. She allocated an Investigation Officer. Ms Rundle left and the PIDs went to Mr Hoffman. The credit card fraud was found to give rise to no disclosable conduct. The second PID, about family preference and family favouritism and bullying, the Investigating Officer found might give rise to disclosable conduct but Mr Hoffman found there was not. There was a third disclosure raised with Mr Hoffman directly which was allocated under the Act. In January 2020 it was decided not to investigate as it was, in substance, the same as the first PID.
When asked if there had been a finding of fraud in relation to the second matter Mr Sweeney said there was definitely malfeasance in respect of the credit card but could not remember
if it was fraud. It had been open to Mr Hoffman to find disclosable conduct in respect
of bullying and aggressive behaviour.
It emerged that the bullying arose from circumstances when one employee said to another words to the effect of:
“call your dogs off. It is an all female team”.
Counsel put it that the government had decided to reduce the size of the APS but Mr Sweeney denied this. He said there had been an increase in numbers. The size of the agency increased in 2020. He did not recall Mr Hoffman’s mandate to reduce the agency. Mr Hoffman had said in an email that the restructure was not about reducing staff. When it was put that the restructure was designed to make the agency more frontline-facing, Mr Sweeney answered another question of his own. When it was put that the agency was top-heavy he neither agreed nor disagreed. There were only 44 SES positions with a cap of 52 per cent. The rest were labour hire.
When it was put that the whole agency was restructured, Mr Sweeney said it was about frontline-facing. They needed to be better at their job. When it was put that the number
of SES positions was reduced, both in terms of SES appointees and labour hire appointees,
Mr Sweeney said he was never advised. He knew from discovery that there was a necessity
to reduce from 98 to 78 positions. He denied that there were 20 people the same as him.
50 persons were labour hire appointees whose contracts ceased. The APS could redeploy.
24 out of 37 labour hire employees ceased.
Mr Sweeney did accept that there were a reduced number of roles in the SES and that the roles changed. There was no expressions of interest process before he decided to take the ITR. There was no EOI process before he took the decision on 28 January 2020. The restructure affected a number of people. There were a number of issues.
When it was put that Mr Hoffman had not undertaken clandestine reviews with a view
to removing him Mr Sweeney said he could not answer that. There had been a clandestine allocation of roles. His position had been amalgamated with a new role. He agreed that the frontline was NDIS recipients and that people in culture was not frontline. He never saw
a business case to reduce the number of SES employees. It was not necessary that there
be a reduction.
When asked if he was aware that Mr Hoffman had consolidated HRBP and workplace integrity Mr Sweeney said the two branches were consolidated to make a new role. He was never told this was a streamlining of function. He could not say what was in Mr Hoffman’s head. He did not accept that this was nothing to do with his complaints. He agreed that Brad Nash had been appointed head of the new branch. It was put that Mr Nash was leading the Enterprise Agreement negotiations. Mr Sweeney agreed with this. He said that Mr Hoffman says that
Mr Nash was a high performer. Mr Nash had reported to Mr Sweeney in February in 2017
to 2018 and he had not assessed Mr Nash as an outstanding leader.
It was put that the restructure and Mr Nash’s appointment was raised on 28 January 2020
but Mr Sweeney said this was not correct. This was never raised with him. He had a meeting and Mr Hoffman told him his role had ceased to exist but did not tell him why. Mr Hoffman told him it was a restructure. It was going to happen. There was a note taker at the meeting. There were three options. There was the incentive to retire. It was a “yes” or “no.”
EOI (“Expression of Interest”) was only offered if he said no to the ITR. Redeployment could be in tandem with the EOI. The offers were mutually exclusive. Mr Sweeney said he got conflicting advice and misrepresentation about his employment conditions, a matter he did not, however, expand on in re-examination.
When questioned whether he thought that the ITR offer was not possible because he was not in excess and his application was not completed Mr Sweeney agreed. He said it was
a repudiation of the determination Mr Hoffman signed. He confirmed that he asked Mr Aikman about the State Manager of Victoria position and one other position on 29 January 2020.
Mr Hoffman, however, had indicated there would be merits review for the EOI. Mr Sweeney agreed that EOI had an external merit process for fairness and that this was normally the case. He said the Chief Executive Officer made appointments before the EOI process. When asked about whether redeployment would have meant with another agency I took Mr Sweeney
to agree.
Mr Sweeney confirmed that he had accepted the ITR. EOI and redeployment fell away.
He knew his employment would end. He accepted it under duress. He was expected to decide within four business days. He did not know what the agency structure was. On 6 April 2020 20 new jobs were advertised. On 29 January 2020 he had asked about the State Manager
Victoria job. Duress was that he did not have trust in the agency. He did not want less money in the end. He looked at options and took the ITR.
Mr Sweeney confirmed the email chains that led up to his ceasing employment on 2 March 2020. There had been a list of roles available and he inquired for SES position descriptions but these were not available. As I understood it he had not taken that matter further.
On 18 February he asked for a final document. He expected a new letter but never received
it. He had reservations about the ITR but kept them to himself. He disclosed his acceptance of the ITR to a team huddle on 4 February and said, of course, he was positive
in the circumstances. He confirmed receiving the email from Mr Aikman at CB 423-424 about the restructure. He said there was not an appropriate time to raise his concerns. There
was a team afternoon tea at which he was thanked. He spoke. He did not raise his concerns about the ITR. There were 200 staff online.
When asked if he had raised his concerns about the ITR with Mr Aikman, Mr Sweeney said
he had told Mr Aikman that he was disappointed that the State Manager of Victoria’s job was not available. He did not say that he sought to withdraw from the ITR. He only spoke
to Mr Hoffman in December and January. He did not go through the EOI. If it had been fair he would have hoped to have got a job.
Cross-examination turned to the letter of 16 March 2020. He confirmed that Services Australia provides a full payroll and HR function for the agency. He had received the letter dated
16 March 2020. It should have referred to section 37 of the PS Act. He did not know at the time it should have been section 37. It took three months to have this changed. He had received a letter of apology in June 2020.
Counsel put it to Mr Sweeney that at the time he accepted the ITR he had intended to work
for one more year but he said this was not correct at all. He said he would not retire before that because of issues relating to superannuation. He told Mr Aikman normally there would be
48 weeks for non-SES and SES can be paid more. He said he was surprised he was not getting more given his 39 years’ worth of service. He denied telling others in the agency it was a good offer.
Mr Sweeney confirmed that he had set up his own consulting business. Its main focus is NDIS. He helps not-for-profit organisations with interfaces and other areas. He sits on an audit and compliance committee for an NDIA provider as a volunteer. He does some pro bono work, some voluntary, and some paid work, but there is not much under COVID.
When asked if he agreed that Mr Hoffman was the decision-maker Mr Sweeney said he did not know who the decision-maker was. He inferred Mr Aikman provided the basis for the decision to Mr Hoffman. When it was put that Mr Aikman says that none of Mr Sweeney’s issues influenced his behaviour Mr Sweeney said he did not know. He agreed that Mr Hoffman’s affidavit said that he relied upon Mr Aikman. He believed there was something
in Mr Hoffman’s mind. It was not bearing to skills but bears to character. He had been perceived as a whistle-blower and complainer.
Re-examination did not take the matter much further.
THE OPENING AND EVIDENCE OF THE RESPONDENT
Counsel opened by reference to the legislation. First, she raised the PID Act and queried whether the matters the applicant had raised were, in fact, disclosures. Everything is in issue. The complaints made were not complaints within the meaning of the Act. Adverse action had not been taken as Mr Sweeney accepted the ITR. There had been no jurisdictional objection taken at the Fair Work Commission but there had been no termination by the employer. There had been no adverse action where the applicant consented to the action. A further issue was whether the steps leading up to dismissal could constitute adverse action in any event and further, Mr Hoffman and Mr Aikman denied being influenced by any of the matters that
Mr Sweeney had raised.
Turning to the records claim. There was a question whether the letter was in breach of the
FW Act. It was an error but not a record within the meaning of the FW Act and Fair Work Regulations 2009 (“FW Regulations”). Finally, counsel turned to the question of relief and noted that there was no evidence of economic loss and pointed to the fact that the applicant was paid 48 weeks redundancy pay together with all other entitlements.
THE EVIDENCE OF MARTIN HOFFMAN
Mr Hoffman adopted his affidavit as true and correct.
Under cross-examination Mr Hoffman was asked whom he reported to in the period between December 2019 and March 2020. He said he reported to the board of the NDIA. He approves SES appointments. He consults with the remuneration committee of the board. He fills
SES roles with consultation with direct reports. He knew Mr Sweeney’s employment record. He had been briefed about the personal leave taken after the heart attack by Mr Aikman.
Mr Sweeney put it to him that, on 3 December 2019, when they first met, they had discussed the operation. Mr Hoffman was not sure. Mr Aikman may have told him about it.
Mr Hoffman confirmed he had a good knowledge of the PID Act. He agreed that the disclosures made to Ms Rundle were PID disclosures. They had been handled in that manner. He was aware of the bullying allegation and the use of the words:
Call your dogs off. It is an all female team.
Mr Hoffman said this had been said to Mr Aikman by a Level 3 Officer. Mr Sweeney put
it that the bullying behaviour could have led to a finding of disclosable conduct and
Mr Hoffman agreed. He confirmed that Mr Sweeney’s name was registered as the discloser and believed that Mr Sweeney asked to be anonymous.
He confirmed that the Level 3 Officer and Mr Aikman had been interviewed. When
Mr Sweeney asked if Mr Aikman or the Level 3 Officer would have access to his identity
as a disclosure in January 2020 Mr Hoffman said he did not think so. He had put a reprisal plan in place.
Mr Sweeney asked if there would have been a record of Mr Hoffman’s finding that the first and second PID did not indicate disclosable conduct. Mr Hoffman said the file would
be closely held in the legal department.
Mr Hoffman confirmed that SES determinations set conditions for SES officers. It was put that there was a right to complain under the determination. Mr Hoffman confirmed that
Mr Sweeney had been employed from January to May in 2015 by a separate determination. He had not made his own determination without hearing from Mr Sweeney. He confirmed that Mr Sweeney was employed at SES Band 1. He also agreed there was no specific role under the determination. He agreed that it was open to Mr Sweeney to raise a disagreement pursuant to clause 25 of the determination he had issued.
Cross-examination turned to clause 21 of the determination. It was put that an ITR could only be used in two circumstances set out in clause 21.2. Mr Hoffman disagreed and said that this had to be read in conjunction with clause 21.1. Mr Sweeney asked Mr Hoffman if he had advised him that he was excess and Mr Hoffman said this was the description in the letter.
He was taken to clause 20.3.3 of the determination and Mr Hoffman agreed that he would need to consult if he was going to change SES policies and guidelines. When asked if he had consulted before sending the letter of 28 January 2020 Mr Hoffman said he did not but it was not a policy guideline. Mr Hoffman agreed that he received a dispute notification in January 2020 from Mr Sweeney. He did not personally endeavour to settle it. He discussed the matter with Mr Aikman. He confirmed the email chain at CB 340 in this regard. He confirmed that he had discussed with Mr Aikman about not engaging with Mr Sweeney’s complaint.
Mr Sweeney put it that the letter of 28 January prevented him from participating in resolution of the dispute but Mr Hoffman said he did not believe so.
Mr Hoffman confirmed that the ELT (Elite Leadership Team) started discussing
the reorganisation in early December 2019. He confirmed an email sent to all staff, at CB 601, and that he had said that the focus was to change the organisation to better serve participants, not at all on reducing staff numbers. He said he was referring particularly to non-SES staff. There are about 10,000 staff of whom 80 to 90 are SES. Mr Sweeney put it that there was an increase in staff in 2020 that was allocated in the budget. Mr Hoffman agreed that this was the case in total. Primarily, this was not SES. There is an SES cap. It includes people filling SES roles engaged by other mechanisms. He agreed that 44 of 98 roles were filled by SES.
He agreed that 17 out of the 98 were in acting positions and that 37 were labour hire.
He denied having a full discretion as to how many labour hire people should be engaged.
He has to tell the APS Commission and needs approval of delegations. He had considered ceasing contractors earlier and did, in fact, do so. This happened to four staff out of the 37.
Mr Sweeney cross-examined about paragraph 26 of Mr Hoffman’s affidavit. Mr Hoffman said the ELT had no decision powers. It does not set budgets. It is just an advisory group to him. He said the ELT cannot override him. Taken to paragraph 28 of his affidavit he was asked the date on which he had determined a new organisational structure. Mr Hoffman could not recall precisely. He was on leave in early January and was thinking about it. This was a major change. He had a range of documents as to how it would be done. Information about
Mr Sweeney’s role and options were provided to him.
Mr Hoffman confirmed that he had not consulted Mr Sweeney before he determined
to consolidate the HRBP and workplace integrity functions. It was part of an overall decision made in early January. Two roles were combined to one. It was his decision that Mr Nash should hold that role. He did not remember receiving an expressions of interest for the new role from Mr Sweeney.
When asked about the assessment of Mr Nash, in paragraph 30 of his affidavit, Mr Hoffman agreed that there was a record. It was the structure that was set out. There was no record
of the assessment.
Mr Sweeney put it to Mr Hoffman with some emphasis that the phrase “excess to requirements” was, as he put it, fabricated and not in the SES policy documentation. Mr Hoffman was not sure if it was.
Cross-examination turned to a Schedule at CB 568. This was used in the ELT December meeting. Earlier versions were also used at that meeting. There was cross-examination
about a particular employee, Ms Gillian Paul, which was, doubtless, fully understandable
to Mr Sweeney and Mr Hoffman, but I confess I found the intricacies of Public Service detail impossible to follow. Mr Hoffman confirmed that it was correct that Ms Paul was not included in the 20 count. These were strategic advisor roles. They had no management responsibilities and were not SES.
When it was pointed out that Mr Nash was, as it were, allocated a role before it had been decided, Mr Hoffman, if I understand him, said he had already placed Mr Nash in the role.
Mr Hoffman confirmed that there was a change plan, which was at CB 591. The ELT discussed individuals.
Mr Hoffman confirmed that there had been consultation about the ITR. This was the
28 January 2020 letter. The 11 persons who got new roles got letters later. Mr Sweeney
cross-examined about CB 582. There were 11 new roles. Mr Hoffman said they got letters later. This dealt with displaced executives. They were not offered ITRs. Mr Servin’s role had not changed and Mr Nash was offered a new role. Mr Hoffman confirmed that Mr Sweeney had to accept the ITR before there was any considerations of other options.
Mr Sweeney then cross-examined about his termination letter. Mr Sweeney put it that the redundancy should have been 36 weeks but had been listed 48. Mr Hoffman was not sure about whether the five weeks was the national employment standard. It was put that he was seeking to avoid incentives available in Mr Sweeney’s determination clauses 20.1 and 20.2, but
Mr Hoffman said this was wrong. He can offer an ITR. The letter said how much time was available and Mr Sweeney asked for more and he agreed.
The meeting was the same day as the notification in the letter. He had had a number of meetings that day. No advanced context had been provided. Mr Sweeney cross-examined about the use of the phrase “excess to requirements” in the notes of the meeting at CB 598. Mr Hoffman said that he would be surplus after expressions of interest and redeployment had been explored unsuccessfully. When asked if the reference to clause 24.1 was a reference to workplace rights, at CB 599, Mr Hoffman said yes. He was aware of clause 24.1 and its relationship to the APS Act. He could redeploy Mr Sweeney subject to suitability. Mr Hoffman confirmed that paragraph 41 of his affidavit was incorrect. The letter from Mr Sweeney, at CB 609, was not an acceptance, but rather a request for a termination document. Mr Hoffman confirmed that his decision about preferring Mr Nash was not decided by character.
He also confirmed, in response to a question from the bench, that it was not common to have
a support person at such a meeting for an SES Officer. He said the time had been extended for Mr Sweeney to accept the offer. When asked by the Court why there was so much haste he said he had wanted to move quickly but repeated the time had been extended.
In re-examination Mr Hoffman reconfirmed that the prohibited reasons played no part in his decisions. Mr Aikman did not make the decision. He had simply provided advice as part of the ELT.
THE EVIDENCE OF MR AIKMAN
Mr Aikman is the Chief People Officer of the respondent and he adopted his affidavits as true and correct.
Under cross-examination Mr Aikman confirmed that between December 2019 and 2 March 2020, he had been Head of People and Culture and Training in the respondent. This was similar to now. He had two reports. He reported to Mr Hoffman and, prior to that, to Ms Rundle.
He had been the Manager responsible for Mr Sweeney from 2018 onwards. He provides advice to Mr Hoffman about SES employment. When asked if he was responsible for policies for SES employment terms and conditions Mr Aikman said he provides the Chief Executive Officer with advice. That included the 28 January 2020 letter.
Services Australia Payroll provides services to the agency. He still has responsibility.
He agreed that the amended letter was sent backdated to 16 March 2020. He was not sure when the agency became aware of the incorrect letter. He did not recall when this was found out. He was taken to CB 265 being the letter of 28 January. It was put that the phrase
“may be excess” was not in the redeployment guidelines and Mr Aikman agreed. He agreed that the phraseology would be displaced or potentially excess. He said this use of language was not indicative of any intention to prejudice Mr Sweeney.
Mr Aikman was taken to CB 473 and paragraph 16 of his affidavit. He conceded that he agreed to pay the two per cent pay rise in March 2019 without a new determination. He had agreed
to do this. The matter was raised in the January 2019 dispute letter. He had not used the date of return to work in 2018 as a leaver to get a new determination. He confirmed that the documents at CB 345 - 347 were a business case for an agency role. Ms Rundle was leaving
on 1 November 2019. He had been talking to Ms Rundle about Mr Sweeney’s request. The SES unit worked to him. When asked if he had ever told Mr Sweeney his claim was not agreed he said he could not recall if he had provided any feedback.
When asked about the PIDS Mr Aikman said he had been an authorised officer under the
PID Act for some time. Mr Sweeney put it that the use of the phrase “call your dogs off” had been mentioned in a coffee shop. He could not recall the location but did recall the conversation but could not say the date. It was prior to the interview and investigation. He had been asked about the incident. Mr Sweeney asked if he considered he was the discloser. Mr Aikman said the PID maker was not disclosed to him. He suspected it might be Mr Sweeney but it was not disclosed. When asked if he had ever discussed the matter with the Level 3 Officer Mr Aikman said he did not think he did discuss it with the Level 3 Officer. He said this did not colour his view of Mr Sweeney.
Mr Sweeney asked if Mr Aikman had been involved in the assessment of himself and Mr Nash as to whether he had influence. Mr Aikman said Mr Hoffman asked him for his opinion.
He is a member of the ELT. It was put that the ELT makes decisions but Mr Aikman said, ultimately, the Chief Executive Officer makes the decision. The ELT provides input
to Mr Hoffman. The ELT assessed various staff. Mr Sweeney was in the questions category. There were questions around placement. There was no consideration of placements at that time. The reduction meant some people might need placements. The meetings were mainly about structure. They were limited about people.
Mr Aikman was taken to paragraph 49 of his affidavit at CB 477. He conceded that the reference to 21 years of service, on Mr Sweeney’s part, was wrong. The employment dated back to 1980. An extra six weeks was paid. It was not an inducement. There would be
78 weeks’ pay if there was 39 years of service at two weeks per year.
In re-examination Mr Aikman confirmed that Mr Sweeney’s claim for additional salary for his extra management role was never accepted by the agency.
It should be noted that while I, of course, have had regard to the final submissions made,
I do not propose to traverse them in any detail. I will deal with them when I deal with the issues the parties raised.
SOME BRIEF OBSERVATIONS ABOUT THE CREDIT OF THE WITNESSES
Mr Sweeney was undoubtedly an honest witness. He clearly entirely and honestly believed everything he said. He struck me as having an astonishing grasp of the PS Act and of various other Acts and instruments but impressed me, overall, as being a person with a tendency
to concentrate on minutiae.
Mr Hoffman, perhaps unsurprisingly as the Head of an agency that employs thousands
of people, was an extremely impressive witness. He readily made concessions when they were there to be made but was not swayed in any way in his answers. In one particular respect,
I do not accept the force of his answer but that does not mean that I do not accept that he was truthful. This relates to the interpretation of the determination insofar as it relates to ITRs.
Mr Aikman, likewise, was an extremely impressive witness. Once again, he answered all questions put to him directly and straightforwardly. He was clearly telling the truth, as was
Mr Hoffman.
FINDINGS ABOUT WHAT OCCURRED
Having heard and seen the witnesses give their evidence there is no doubt in my mind as to the march of events. In 2018 Mr Sweeney had the great misfortune to be seriously ill.
He commenced to ask for an increase in pay. From the time he came back, if not earlier, until March 2019, there was plainly an ongoing area of dispute between him and Mr Aikman
as to whether a new determination was necessary for him to get his two per cent pay increase, which was, ultimately, awarded to him.
Mr Sweeney also raised the issues in his 10 January 2019 letter. As the year went on,
Mr Sweeney sought, from time-to-time, to agitate various claims to be included in a new determination but these were plainly never granted entirely as he would wish.
Mr Sweeney made two public interest disclosures to Ms Rundle in July 2019. When
Mr Hoffman joined the organisation, these were, as it were, left to him to resolve. He decided that neither involved disclosable behaviour. The third PID from Mr Sweeney was plainly dismissed as being a repetition of the first. It should be noted that Mr Sweeney did, in February 2020, indicate that he was considering his options in terms of taking the PID matters further.
Mr Hoffman was plainly a new broom. He has deposed to being under some external government pressure to reorganise the NDIA. There is no doubt that he decided to reorganise and get rid of a number of Senior positions. He decided, by December 2019,
to amalgamate the job held by Mr Sweeney with the Integrity Department and he decided that Mr Nash was the person to have the job. Mr Sweeney is correct to say, as he does, that
Mr Aikman, plainly had a significant influence in that decision. He is correct to say that the terms in which Mr Nash is described in the affidavits of both Mr Hoffman and Mr Aikman
are almost identical in their phraseology. Nonetheless, it is clear that it was Mr Hoffman and Mr Hoffman alone who made the decision. That is his evidence and it is also the statutory position. Clearly, it is correct.
Mr Hoffman had also given Mr Sweeney a new determination in December 2019. This was the subject of further ongoing disputation on Mr Sweeney’s part. It is clear that by January 2020 Mr Hoffman had decided that he did not propose to engage with the complaint purported to be made by Mr Sweeney.
That process was, itself, overtaken by the march of events. The 28 January 2020 letter was given to Mr Sweeney and it was a guillotine in its effect. Mr Sweeney was presented with,
in effect, three options but the first one involved excluding the last two. He was offered a very substantial amount of money to take the incentive to retire early. Contrary to Mr Hoffman’s position, I think Mr Sweeney’s interpretation of the determination is correct. I do not think you can read clause 21 of the determination in the fashion for which Mr Hoffman contends.
Clause 21.1 does not give some independent overarching capacity on the part of the
Chief Executive Officer to offer incentive-to-retire payments. Clause 21.2 provides:
an incentive to retire payment is not an entitlement and is to be used only where the employee is genuinely excess or, due to changing job requirements, is no longer considered to have the skill required to perform at this level.
This question of the meaning and precise wording of this aspect of the determination, obviously, looms very large in Mr Sweeney’s mind. But there are several things to be said. This Court is not concerned with whether or not the ITR was validly offered and accepted within the phraseology of the determination itself. The fact is it has been accepted and paid. Furthermore, to the extent that anything turns on it, in my view, in the circumstances where
Mr Sweeney’s job was being amalgamated with another job, and only one person was going
to occupy those two positions, his position (and him) was plainly genuinely in excess.
It should be noted that the Public Service guidelines, to which Mr Sweeney paid so much regard, are guidelines and not mandatory requirements.
It is plain from Mr Hoffman’s evidence that he was in a hurry to make this restructure occur. That is what he said and I believe him. This explains why Mr Sweeney was only given very short time to make what, for him, was a momentous decision. Looked at in the broader sense, the way in which Mr Sweeney was treated was grossly unfair. To give such a Senior employee so short a time to make his mind up was, in my view, unreasonable. Furthermore, Mr Sweeney had, effectively, been chosen for dismissal as being inferior to Mr Nash in circumstances where Mr Sweeney had no opportunity whatsoever to address any perceptions as to his inadequacies or lesser skills compared to those of Mr Nash.
One might have thought that with an employee of some 40 years or so of service, apparently successful and sustained (he was, after all, a very Senior Officer), some more considerate approach might have been adopted. As against that, however, one needs to see these things
in context. Mr Hoffman is plainly an extremely busy man with an enormous amount to do.
He wanted to get on with it.
THE ISSUES THE PARTIES HAVE RAISED – DID MR SWEENEY EXERCISE
A WORKPLACE RIGHT?Pursuant to section 340 of the FW Act:
(1)A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right;
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Pursuant to section 341 of the FW Act, it is provided:
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under,
a workplace law, workplace instrument or order made by an industrial body; or(b) is able to initiate, or participate in, a process or proceedings under
a workplace law or workplace instrument; or(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee – in relation to his or her employment.
Pursuant to section 342 of the FW Act, it is provided:
(1) The following table sets out circumstances in which a person takes adverse action against another person.
1 an employer against an employee
the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
Against this statutory background I turn to the matters that Mr Sweeney has asserted constitute the exercise of a workplace right. It should be noted that the claims put by Mr Sweeney, to an extent, seem to me to be somewhat ambulatory but I will endeavour to cover all of them as
I understand them.
The first matter raised, plainly, is the letter of 17 January 2019 (CB 104). Relevantly, this letter says:
My legal advice is to invoke Clause 25, Dispute Resolution, set out in my Determination (reference 2015/HR44). This is on the basis that, pursuant to clause 24.1 there is an active requirement by the CEO (you as the delegated representative) to consult me before issuing a new NDIA remuneration of employment conditions policy or varying an existing one that may affect my employment.
Clause 25 of the 2015 determination (CB 531), relevantly, says:
25.1: Where disagreements over matters covered by this Determination arise, work will continue while the dispute is settled.
25.2: In attempting to settle the dispute, the parties will meet and confer, and take all reasonable steps to resolve the matter.
Clause 24.1 reads:
The Chief Executive Officer will consult the employee before issuing a new NDIA remuneration or employment conditions policy or guideline or varying an existing one that may affect the employee’s employment.
It should be noted that clause 24.1 refers to guidelines and policies and not to determinations themselves. This was the purport, as I understood it, of one of Mr Hoffman’s answers and
I think that Mr Hoffman is correct. Nonetheless, the phraseology of clause 25 is broadly expressed and the determination plainly covers such matters as pay and, indeed, annual review.
DID MR SWEENEY HAVE A WORKPLACE RIGHT?
In my view, for these purposes, I think he did. There is no question that the determination
is a workplace instrument within the meaning of section 12 of the FW Act. He was entitled
to the benefit of the terms of his determination. He was further able to initiate or participate
in a process under that instrument because the dispute resolution clause was part of it. He was also quite clearly able to make a complaint or inquiry in relation to his employment. In sending the 17 January 2019 letter Mr Sweeney exercised that right.
THE PUBLIC INTEREST DISCLOSURES
There is no doubt that Mr Sweeney made public interest disclosures on 26 July 2019 and
22 November 2019.
There is no question that Mr Sweeney made the two disclosures to Ms Rundle on 26 July 2019 and a further one (effectively, as it turned out, a repeat of the first) directly to Mr Hoffman
on 22 November 2019. The question is whether these were matters capable of giving rise
to the exercise of a workplace right. As I understand the matter, both parties concentrate
on whether or not these were complaints in relation to Mr Sweeney’s employment that he was able to make in relation to his employment.
An examination of the text of the PID Act shows, pursuant to section 6, that the objects of the Act were, in broad terms, to promote the making of such disclosures by public officials and
to protect them, should they do so, and to ensure that the matters raised were properly investigated. Understandably, much of the Act is concerned with protecting people who make disclosures and ensuring that they are not the subject of reprisals.
Pursuant to section 22 of the PID Act, it is provided that:
Without limiting the operation of the Fair Work Act 2009, Part 3-1 of that Act applies in relation to the making of a public interest disclosure by a public official who is an employee (within the meaning of that part) as if, for the purposes of that Act:
(a) this Act were a workplace law; and
(b) making that disclosure were a process or proceeding under
a workplace law.There are a number of exemptions to that proposition in section 22(A) of the PID Act, with which I do not propose to deal for present purposes.
Looked at in substance, the public interest disclosures made by Mr Sweeney related to conduct by other persons and it requires a very broad reading of section 341(1)(c)(ii) to suggest that complaining about the conduct of other employees is a complaint about Mr Sweeney’s employment itself. Assuming in his favour that the public interest disclosures were a complaint in relation to Mr Sweeney’s employment, I note that it appears to be the case that he was entitled to, as he did, assert that he was considering his position pursuant to the decision
of Mr Hoffman to finalise these matters as non-disclosable conduct in February 2020.
THE ONGOING DETERMINATION DISPUTE
The next matter of which Mr Sweeney complains is the ongoing (from his point of view unfinished) aspects of his determination issues in 2019 and 2020. Mr Sweeney is probably correct to say, as he does, that the matters he sought to raise in his January letter in 2019 were never fully resolved. Mr Hoffman’s evidence is that, in effect, the matter had been going
on for some time when he started and he simply brought the matter to a head by issuing a new determination. There seems no issue that he had power properly to do so.
Once again, the matter can be rendered less clear than, perhaps, it needs to be by an over attention to detail in the parties’ competing assertions. I am prepared to assume
in Mr Sweeney’s favour that his correspondence in January 2020, about ongoing issues
in respect of his employment did involve the exercise of a workplace right. The new agreement had a dispute resolution clause in it and he would have been, in my view, entitled to proceed with it. I note the response from Mr Hoffman was, in essence, deflective.
THE FINAL ISSUE
The final question, of course, is the critical one from Mr Sweeney’s point of view. It relates
to the fact that he was given the 28 January 2020 letter in contravention of the terms of his determination. The workplace right that he would assert he has was a right not to be offered an incentive to retire if his position was not, in the terms of the determination, genuinely excess.
Once again, putting the matter shortly, and I repeat what I have already said, in circumstances where two jobs were turned into one and Mr Sweeney was not the successful preferred candidate, he was excess, according to my understanding of that phraseology. Mr Sweeney’s workplace right, to the extent that it existed, was not, in my view, infringed.
WAS ADVERSE ACTION TAKEN AGAINST MR SWEENEY?
The controversies that arose in late 2018 and 2019 were all fully resolved to Mr Sweeney’s satisfaction in the ultimate by the backdating of pay in March 2019. To the extent that there was any ongoing controversy before that time, it was resolved. On any reasonable interpretation of the march of events, this cannot be seen as adverse action.
So far as the PIDs were concerned they were fully investigated by an external authority.
Mr Hoffman had the proper power, as an authorised officer, to determine what the outcome should be and he did so. This was not adverse action taken against Mr Sweeney unless I find that this outcome, in some fashion, caused him any detriment. In my view, there is nothing
in the materials to suggest that the process of the PID complaints, even including Mr Sweeney’s arguable further exercise of a right when he sought to reserve his position, had any operation whatsoever on the outcome that, ultimately, obtained in Mr Sweeney’s employment. His name was kept secret. Mr Aikman did not know it (although he guessed). There is no meaningful suggestion that any adverse action was taken against Mr Sweeney in this regard. Mr Sweeney has sought to emphasise the temporal connection between the PIDs and the end of his employment but that is wholly a matter of coincidence.
So far as the ongoing pay issue in 2019 to 2020 was concerned, the ultimate outcome was simply that Mr Hoffman was not prepared to process Mr Sweeney’s matters as a dispute. This does not, in my view, constitute adverse action. It did not dismiss Mr Sweeney, it did not injure him in his employment, alter his position to his prejudice, or discriminate between him and any other employee. The matter simply went no further before the ITR. Even if this conclusion is incorrect, it does not matter, for the reasons in paragraphs 124 – 125 below.
This brings us to the question of the decision to offer the incentive for early retirement. It is Mr Sweeney’s position that, of course, this was not within Mr Hoffman’s power but I have already dealt with that. Mr Sweeney would also say that this had the effect of dismissing him or, at the very least, of preventing him from being able to consider EOI and redeployment.
In technical terms, of course, the ITR did not dismiss Mr Sweeney because he accepted it. Pursuant to the PS Act, he was deemed to be a person who had retired involuntarily.
Assuming, however in Mr Sweeney’s favour, as it were, that the action of offering the ITR
was the action that led to the termination of employment, and without getting bogged down with the extensive case law in this area, it is arguable perhaps that the ITR is a dismissal.
I do not, however, think it is. It was an offer which Mr Sweeney accepted. It is also difficult to see how a payment of almost $200,000 of extra pay constitutes some form of injury
in employment or prejudice. It is not necessary, however, to express a final view on this for the reasons to which I now come.
DID ANY OF THE MATTERS THAT MR SWEENEY RAISED CAUSE THE RESPONDENT TO TAKE ADVERSE ACTION AGAINST HIM BECAUSE HE HAD, OR HAD EXERCISED, A WORKPLACE RIGHT?
Mr Hoffman was the man who made the decision. He has given evidence, which I entirely accept, that none of the prohibited matters (if they can correctly so be described) played any part in his decision. It is clear that Mr Hoffman, no doubt influenced by Mr Aikman, decided that Mr Nash should have the combined job that otherwise Mr Sweeney would have been available for. Given that I accept that evidence that is the end of the matter (see State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32].
Although progressed on a number of fronts and, in some senses, in great detail, the gravamen of Mr Sweeney’s real complaint, as I discerned it from his submissions, was that it was fundamentally unfair that Mr Nash had been chosen over him. In many ways, I think the process by which this was done would be open to criticism. The decision was taken without any kind of notice to Mr Sweeney that his position would be at risk and that some form
of merits assessment was being made. Nonetheless, that is undoubtedly what occurred. It was plainly not in any way influenced by these peripheral pay disputes and by the PIDs that
Mr Sweeney had made. That is the evidence of Mr Hoffman and I repeat, yet again, I accept it. He was an excellent witness.
THE RECORDS ISSUE
As earlier recorded, Services Australia sent Mr Sweeney a letter which, it is conceded, was wrong. It was later corrected. My conclusions about this aspect of the matter can be stated shortly.
First of all, the first letter was not sent as some deliberate endeavour to defeat some claim
or otherwise to harm Mr Sweeney’s interests. The evidence of the respondent is that this was an error by an external service provider and I accept that evidence.
Leaving that aside, I accept the submissions of the respondent generally in this regard. The letter was not an employee record within the meaning of reg.3.40. First of all, there is
a question as to whether Mr Sweeney’s employment was, indeed, terminated, but assuming that it was, the employer must keep a record that sets out whether the employment was terminated by consent, by notice, summarily, or in some other manner and the name of the person who acted to terminate the employment. The letter sent to Mr Sweeney was not plainly of that character nor was it a record that the NDIA was required to keep within the meaning
of the PS Act. I accept that it was a letter issued in accordance with section 48 of the Australian Public Service Commissions Directions 2016. Accordingly, no infraction of the
FW Regulations took place.
Furthermore, the errors of which Mr Sweeney complains so vividly seem to be out of all proportion. This was a classic bureaucratic slip up of, in my view, a relatively minor nature. Even if I was to be satisfied that it did involve some technical infraction of section 535 via an infraction of the FW Regulations, I would not be minded to impose any penalty in any event.
CONCLUSION
Although I have dealt, perhaps in a slightly scattered and rounded off way with a number
of the matters that are in dispute between the parties, it is clear beyond doubt that what happened to Mr Sweeney did not happen because he had exercised a workplace right or, indeed, because of any of the other things that he did that were not involving the exercise of a workplace right, if they were not, indeed, such. Although I have no doubt he passionately and sincerely believes the force of his case, as he said indeed in his opening submissions, he is mistaken.
The application must be dismissed.
I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 3 September 2021
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