Victor Bebawi v Commonwealth of Australia (as represented by the Department of Defence)
[2016] FWCFB 1864
•19 January 2016
[2016] FWCFB 1864
The attached document replaces the document previously issued with the above code on 12 May 2016.
1. The paragraph after paragraph [46] was not numbered.
2. Paragraph [52] was not formatted correctly.
3. The paragraph after paragraph [58] was not numbered.
4. The paragraph after paragraph [61] was not numbered.
5. In paragraph [83], one of the dot points was not formatted as a dot point.
6. The paragraph after paragraph [91] was not numbered.
Bronwyn Corless
Associate to the Honourable Reg Hamilton
Dated: 13 May 2016
| [2016] FWCFB 1864 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Commonwealth of Australia (as represented by the Department of Defence)
(C2016/2418)
| DEPUTY PRESIDENT HAMILTON | MELBOURNE, 12 MAY 2016 |
Appeal against decision [2016] FWC 364 of Commissioner Johns at Sydney on 19 January 2016 in matter number C2015/4780
DECISION OF DEPUTY PRESIDENT HAMILTON AND
DEPUTY PRESIDENT LAWRENCE
Introduction
[1] This decision concerns an appeal by Mr. Victor Bebawi against a decision 1 and order2 of Commissioner Johns handed down on 19 January 2016. The decision of the Commissioner concerned a dispute notification application made by Mr. Bebawi on 15 July 2015 under s.739 of the Fair Work Act 2009 (the Act) in relation to excess travel time.
[2] Directions were issued on 10 February 2016 requiring the Appellant to file and serve by 5pm on Friday 26 February 2016; the respondent to file and serve by 5pm on Wednesday 16 March 2016 and the matter was listed for hearing on 23 March 2016. At the hearing the Bench granted permission for the respondent to appear by legal representative, pursuant to s.596 of the Act. We have had regard to the submissions put to us both orally and in writing.
Background
[3] The parties are covered by the Defence Enterprise Collective Agreement 2012-2014 3 (the Agreement). The dispute arises out of the operation of clause F2.124 and F2.13 of the Agreement which provides as follows:
- “F2.12 Excess travelling time (ETT). Employees performing duties classified as APS1-APS6 are eligible to claim ETT when they are:
a. temporarily relocated; and
b. not receiving an approved travel budget; and
c. incurring additional travelling time (as per paragraph F2.13).
F2.13 ETT is not to be paid unless the additional time spent in travelling exceeds one half hour in any day or a total of two and one half hours in any fortnight. ETT is paid at the rate of single time for travel on Monday to Saturday, and time and one half for travel on a Sunday or public holiday. Eligible employees may elect to receive a credit of flextime or use TOIL (Time off in lieu) as an alternative to payment of ETT.”
[4] The Commissioner determined that the applicant was not entitled to the excess travel time allowance provided for in the Agreement and dismissed the application.
Appeal Rights
[5] The agreement expressly provides for a right of appeal against a decision as the employer noted (clause I4.14) ‘in accordance with the provisions of the FW Act’, and no issue arises as to other aspects of the dispute settlement procedure. Section 604 of the Act is applicable which requires the Fair Work Commission (the Commission) to grant permission to appeal.
[6] In GlaxoSmithKline Australia Pty Ltd v Makin 5a Full Bench of the Commission said in relation to the public interest test:
“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210].
[27] Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case.”
[7] As the High Court said in House v The King 6:
“…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
Grounds of Appeal
[8] The grounds of appeal are wide ranging. The employer conveniently listed the appeal grounds under a number of headings, and we will deal with them broadly in that order, after giving the appellant the opportunity to object to this approach 7.
[9] The first issue which arises is the nature of the ‘dispute’ to be determined pursuant to the dispute settlement procedure. Clause I4 contains the ‘Dispute Prevention and Settlements Procedures’ and is set out in Attachment A to this decision. It provides for the Commission to determine individual grievances about the interpretation or application of the agreement and other disputes. There was no issue that the procedure had been followed and that the dispute was properly referred to the Commission to arbitrate the dispute.
[10] Mr.Bebawi’s application stated that the dispute ‘relates’ to ‘Chapter 16 Part 4 – Excess Travelling Time’. It states that the dispute was about:
“Defence’s refusal to compensate for excess travel time and pay for excess fares and costs associated with temporary assignment in accordance with clauses 16.4.0.7 (Excess Travel Time – eligibility) and 16.4.0.9 of the Workplace Relations Manual ... “
[11] The application refers to the clauses of the manual, and states that Mr. Bebawi was temporarily relocated for duties at Defence Plaza Sydney, his original ‘work relocation’ is Moorebank, and other matters.
[12] During proceedings Commissioner Johns sought to clarify the nature of the dispute. He was told by Mr. Bebawi that he was not here to determine whether or not the transfer was ‘fair’ but whether or not as a result of the transfer Mr. Bebawi would get some compensation 8. Mr. Bebawi submitted during proceedings that other references in the transcript made the dispute wider. He submitted that the Commissioner erred in reducing the application to one issue, whether or not the transfer was temporary, because he raised a number of other issues including conflicting statements in the decision which ‘tenders it void and invalid’, lack of procedural fairness, and the failure to provide relocation assistance denies equity and equal remuneration9. However, Mr. Bebawi framed the nature of the dispute in his application and in his responses to questions from Commissioner Johns. Commissioner Johns was entitled or required to act on the basis of the application and subsequent clarification, and describe the dispute as he did10. If Mr. Bebawi has other issues he should make a separate application and directly raise them.
[13] In relation to the identity of the decision maker, Mr. Bebawi asserts that Ms. Reddy was not the decision maker in relation to the relocation decision 11. Commissioner Johns found that Ms. Reddy was the decision maker and referred to a communication from her dated 23 September 201312. There was other evidence before the Commission which supported this view including a letter of 13 March 2014 from Ms. De Salis13, and a letter of 10 July 2014 from Ms. Labrum14, both of which referred to Ms. Reddy as the decision maker. There was no error in Commissioner Johns’ decision, which was open to him on the evidence.
[14] Mr. Bebawi submitted that the Commissioner erred in finding that his relocation was not of a temporary nature 15. The Commissioner found that the relocation was permanent for reasons including the need to resolve a dysfunctional working relationship, nothing suggested that Ms. Reddy considered a ‘temporary fix’ to this relationship, and the conduct of Mr. Bebawi in challenging the relocation which suggests that he ‘was under no illusion that the relocation was anything but permanent’. The Commissioner also had regard to the information system continuing to record his position as being at Moorebank but did not regard this as determinative16, and that the temporary nature of duties at the relocated position did not necessarily mean that the relocation was also of a temporary nature17. It was open to the Commissioner to come to these conclusions on the evidence before him and there is no error.
[15] Mr. Bebawi submitted that Ms. Cairns did not have the delegated authority to relocate him to perform work within the Estate and Facilities Services (EFS) team at Defence Plaza Sydney, and referred during proceedings before Commissioner Johns to the Defence Public Service Framework Delegations 2014 (No.11) which were not in force at the time that the relocation decision was made (2013) 18. However, the Commissioner found that Ms. Reddy made the decision to relocate Mr. Bebawi, not Ms. Cairns, and we have found no error in that finding. It is not necessary to deal further with this issue, but for completeness, we note that as the Commissioner noted the delegate of the Secretary of the Department (RoA Delegate) confirmed the relocation decision which would cure any defect19. Even if we have regard to the delegations in force at 2013, which were not before the Commission, there was sufficient material before the Commissioner to find that Mr. Bebawi was in Ms. Reddy’s reporting line at the time the decision was made20, and this was not contested by Mr. Bebawi. Finally, even if there was a defect this would not result in the transfer becoming temporary, a point made by the Commissioner.
[16] Mr. Bebawi claims that there was a breach of equal remuneration for work of equal value, or that he was not treated in the same manner as other employees despite the circumstances being the same 21. However, the other employees were relocated over a year after Mr. Bebawi’s relocation, so the circumstances were not the same22. In any event, as already discussed the Commissioner found that the transfer was permanent, and there was therefore no second transfer.
[17] Mr. Bebawi claims that the agreement was breached in various procedural requirements including natural justice. However, as already discussed, Commissioner Johns correctly characterised the dispute as one about entitlements to payment of excess travel time and additional fares. It is difficult to see how, in any event, a claim of breach of natural justice can be sustained given the procedure followed by the employer. Mr. Bebawi was told at a meeting on 10 September 2013 that a relocation was being considered. He responded at length by emails of 12 September 2013 and 19 September 2013 23. Mr. Bebawi then applied for a number of reviews of the decision24. We can find no basis for a claim on the limited material before us that Mr. Bebawi was not afforded procedural fairness.
[18] Mr. Bebawi also claims that the decision was in breach of the Administrative Decisions (Judicial Review) Act 1977, s.578 of the Act, and the general protections provisions of the Act, as well as in breach of the Model Litigant principles. We can see no merit in these appeal grounds. The last two issues were not raised before the Commissioner, and there is little or nothing before us relating to these four issues beyond the simple assertion of a breach in appeal grounds.
[19] Mr. Bebawi sought to admit fresh evidence. In Supreme Caravans Pty Ltd v. Pham 25a Full Bench of the Commission described the generally accepted tests for the admission of fresh evidence, which are that the evidence could not have been obtained with reasonable diligence at first instance, that the evidence is such that there is a high degree of probability of a different outcome, and the evidence is credible. In this case there is no reason why the 2014 delegations26 could not have been tendered at first instance. Even if they were as earlier discussed the result would not have altered, so it is not necessary for us to take the matter further. The document described as A28, is an internal report on a complaint made by Mr. Bebawi and does not assist the Commission, and Mr. Bebawi expressly conceded that it did not assist the Commission27. We see no reason to admit it. The final document was an email dated 28 January 2016 and again does not appear to assist the Commission. There is no probability of a different outcome, let alone a high probability. The employer described it as hearsay opinion given over two years after the event, by a person not involved in the decision making process. This appears to be a correct assessment. We will not admit any of the three documents.
Conclusion
[20] There is no basis in our view for granting permission to appeal. There is no error within House v.King and there are no issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters. We refuse permission to appeal and dismiss the appeal. An order is contained in PR579807.
DECISION OF COMMISSIONER MCKENNA
[21] While I have read the decision of the majority, I respectfully disagree with the conclusion that permission to appeal should be refused and that the appeal should be dismissed. For my own part, I consider permission to appeal should be granted with the admission of new evidence in the rehearing, and that the appeal be upheld.
Background
[22] Victor Bebawi has lodged an appeal, for which permission is required, against a decision and order of Commissioner Johns issued on 19 January 2016. The decision at first instance (“Decision”) concerned an application, made pursuant to s.739 of the Fair Work Act 2009 (“Act”), to deal with a dispute. The respondent to the application at first instance and the appeal is the Commonwealth of Australia acting through and represented by the Department of Defence (“Department”).
[23] The Decision was made by the Commissioner as a result of the conduct of an arbitration pursuant to the disputes settlement procedure in the Defence Enterprise Agreement 2012-2014 (“Defence Agreement”). The dispute concerned a claimed entitlement by Mr Bebawi to certain work travel-related benefits pursuant to provisions of the Department’s Workplace Relations Manual or the Defence Agreement, or both. The provisions in the Workplace Relations Manual largely reference or generally replicate the provisions in the Defence Agreement, albeit with elaboration as to the Department’s policy-type underpinnings and other matters. Mr Bebawi also claimed entitlement to benefits afforded to employees under Staff Transition Plan arrangements announced on 1 September 2014 that related to certain restructuring of the Department’s operations, including staff relocations.
[24] Thus, the dispute had two principal limbs concerning Mr Bebawi’s claimed entitlement to: (a) compensation, pursuant to provisions in the Workplace Relations Manual or the Defence Agreement, or both, for the additional time and expense incurred due to what he contends was a temporary relocation on 28 October 2013; and (b) the benefit, on an equal footing with other employees, to relocation assistance to employees affected by changes to the Defence Support Operations New Operating Model and the related Staff Transition Plan in connection with his subsequent appointment to the position of Administration Officer at the newly-established Directorate of Data and Information Governance at offices in Sydney’s CBD. The benefits under the Staff Transition Plan included additional travelling costs for six months and a reduction in daily working hours by an amount equal to total travelling time for three months (or half that travelling time for six months), coupled with greater flexibility concerning hours of work.
[25] The Commissioner dismissed the application as it concerned the first limb of the claimed entitlement, concluding that a directed workplace relocation from on and after 28 October 2013 of Mr Bebawi was permanent from the outset and not of a temporary nature – with the result Mr Bebawi did not have an entitlement to the benefit of the claimed excess travelling time provisions under the relevant clauses of the Defence Agreement/Workplace Relations Manual, because the entitlement arises only where there is an employee is temporarily relocated (or “temporary relocated”, to use the words in the Manual).
[26] The Commissioner does not appear to have considered the second limb of the dispute, other than as set out a part of the “Background” to the dispute set out at paragraph [10] (s)-(u), albeit both the initiating process and the parties’ materials filed below addressed the second limb (and Mr Bebawi’s appeal grounds address the second limb.) It appears this may have been because of the Commissioner’s finding concerning the first limb of the dispute that the relocation in October 2013 was a permanent relocation, although that is not clear - given the matter of the Staff Transition Plan required consideration of related, but nonetheless discrete, matters arising from Mr Bebawi’s submissions concerning the effect of the restructure on, for example, his substantive position within the Department’s operations and the issue of him being extended the same benefits as other employees affected by the restructure.
[27] Relevantly, as to the second principal limb of the dispute, after initially declining to afford Mr Bebawi any of the benefits of the Staff Transition Plan, the Department subsequently determined to extend to Mr Bebawi only some of the benefits afforded to all other employees. (Separately, the Department later made a settlement proposal in connection with the proceedings before the Commissioner which, for its own reasons, it disclosed by adducing the proposal in evidence in the proceedings below.)
[28] Mr Bebawi challenges the Commissioner’s Decision in the appeal concerning the first limb of the dispute. As earlier noted, the Decision does not appear to have addressed the second limb of the dispute concerning claim for Staff Transition Benefits, although part of the dispute before the Commissioner was whether Mr Bebawi should receive the same benefits as his colleagues, and not just some of those benefits. As Mr Bebawi noted in his appeal grounds, the Commissioner’s Decision deprives him from receiving any form of relocation assistance, whereas all other employees who were relocated from Moorebank to Defence Plaza have received some form of assistance, regardless of whether their relocation was temporary or permanent (e.g. see appeal grounds 3, 4 5, 6, 7). The majority decision similarly does not address those parts of Mr Bebawi’s appeal grounds which concern the second limb of the dispute – perhaps because of the majority’s reliance on the groupings of Mr Bebawi’s appeal grounds by the Department.
[29] The matters raised by Mr Bebawi in the appeal are broad-ranging (and some are misplaced, such as his reliance on gender equity-specific equal remuneration provisions and, absent a relevant application, adverse action provisions). Among other matters in contention, two key issues below and in the appeal involved the identity of the decision-maker concerning the Relocation Decision and the delegated authority of the decision-maker concerning the Relocation Decision. Another key issue was whether the applicant was entitled to the benefits of the Staff Transition Plan, being a matter which, among other matters, required consideration of Mr Bebawi’s job designation and job location, coupled with the question of the even-handed application of benefits in circumstances where the Department had determined to extend only partial benefits to Mr Bebawi, albeit in circumstances where his circumstances are not on all fours with the other employees the subject of the Staff Transition Plan, given he was already working at a particular workplace following his earlier relocation to work on a project in preparation for what was described as a “Base Services Retender”.
Permission to appeal
[30] The Defence Agreement provides as follows as to appeals:
“Appeal of decision or direction
I4.14 A party to a dispute may appeal a decision of FWA in determining the dispute, in accordance with the provisions of the FW Act.”
[31] The dispute resolution procedure in the Defence Agreement thereby provides that a party may appeal the Commissioner’s decision “in accordance with” the provisions of the Act. Consistently with the conclusion in DP World Brisbane Pty Ltd v The Maritime Union of Australia [2013] FWCFB 8557, from [46], the appeal provisions in s.604 of the Act apply, including the requirement for permission to appeal.
[32] Some examples of considerations which ordinarily have been adopted in granting permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused (see, for example, Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 (“Wan”), which considered a statutory predecessor to s.604 of the Act). Thus, subject to an appellant demonstrating an arguable case of appealable error, a Full Bench of the Commission has a broad discretion as to the circumstances in which it can grant permission to appeal, and s.604(2) of the Act provides the Commission must grant permission to appeal the decision if the Commission is satisfied that it is in the public interest to do so – albeit, as noted in Wan, it rarely will be appropriate to grant leave unless an arguable case of appealable error is demonstrated because an appeal cannot succeed in the absence of appealable error. In my view, permission to appeal should be granted because, among other matters, the matter involves an arguable case of appealable error - including error of a type which is not error arising from, for example, an exercise of discretion of the type described in House v The King (1936) 55 CLR 499 at 504-505.
[33] It is necessary, in this regard, to give some procedural background to the proceedings before the Commissioner. On 17 July 2015, Mr Bebawi lodged the application with the Commission to deal with a dispute essentially concerned with travel-related assistance, as in the two limbs of claimed entitlement described earlier. The Commissioner apparently conducted a conference, but settlement was not reached. The matter was listed for arbitration on 26 October 2015 and it appears that directions concerning the filing and service of materials were given in anticipation of that hearing, but any such directions were not before the Full Bench as part of the appeal book materials.
[34] On 26 October 2015, various documents were marked as exhibits and there was discussion concerning the matter/s for determination. When pressed by the Commissioner as to the nature of the dispute, Mr Bebawi submitted that the issue for determination did not turn on the question of fairness as such; rather, it was a question of entitlement – although, as to this, it may be observed that Mr Bebawi’s submissions and the materials upon which he relied or sought to rely squarely went not only to what might be characterised as technical issues concerning entitlements arising in connection with the Relocation Decision and the Staff Transition Plan but also the surrounding circumstances, which he considered unfair. Among the numerous documents tendered by the parties on 26 October 2015 was Mr Bebawi’s tender of extracts from the Defence Public Service Framework Delegations 2014 (No.11) (“2014 Delegations”). The 2014 Delegations were marked as Ex A24. Consequent upon discussion in the hearing, the Commissioner also later that day issued directions which read:
“ … Directions
Further to the hearing at the Fair Work Commission (Commission) today, the Commission directs that by:
“1. 4.00pm on Monday, 9 November 2015, the Applicant must file and serve a brief note indicating which of the documents filed in these proceedings are directly relevant to the matter to be determined before the Commission. Where the Applicant contends a document is relevant, he must include a brief explanation as to why he says the document is relevant;
2. 4.00pm on Monday, 16 November 2015, the Respondent must file and serve a note in reply indicating whether it agrees or disagrees with the Applicant’s characterisation of the documents; and
3. 4.00pm on Tuesday, 17 November 2015 both parties must advise the Chambers of Commissioner Johns whether they are still amendable [sic] to the matter being dealt with on the papers.” (bold and underlining in original)
[35] Under cover of correspondence dated 8 November 2015, Mr Bebawi filed and served a document titled “Applicant Notes Regarding Relevance of Documents” (“Applicant’s Notes on Relevance”). Mr Bebawi also attached a further document, namely, the Defence Public Service Framework Delegations 2013 (No. 3) (“2013 Delegations”). Mr Bebawi’s correspondence which attached the Applicant’s Notes on Relevance and the 2013 Delegations read:
“Good afternoon,
Based on the Fair Work Commission’s Directions on 26 October 2015, I would like to file and serve the attached notes in relation to documents which are directly relevant to the matter to be determined before the Commission.
Please find also attached copy of the Defence [Public Sector] Framework Delegations 2013 (Attachment 24 A) which was in force when the relocation decision was made. I now realise that the Defence PS Framework Delegations which was attached to my original submission was issued at a later date (in 2014).
Please accept my apology for the oversight.
Kind regards
Victor Bebawi
Applicant”
[36] Mr Bebawi’s Applicant’s Notes on Relevance described, at paragraph 3, what he considered to be the relevance of certain documents (which he referred to as “Attachment [number, letter]” as opposed to Exhibit [letter, number]) which had been marked as Exhibits on 26 October 2015. Nothing turns on Mr Bebawi’s stylistic naming of the exhibits; it is quite clear what was being referred to in the Applicant’s Notes on Relevance. In circumstances where the extract of the 2014 Delegations had been marked as Exhibit A24 in the proceedings on 26 October 2015, it cannot be doubted that Mr Bebawi sought - quite appropriately - to correct what he described as his “oversight” in a timely way in connection with the filing and service on 8 November 2015 of his Applicant’s Notes on Relevance.
[37] For reasons of comparison that I will come to, it is relevant to reproduce, in edited form, what Mr Bebawi set out in paragraph 3 of the Applicant’s Notes on Relevance:
“3. The purpose of the following relevant attachments is to provide evidence that the relocation to Defence Plaza Sydney was temporary:
• Attachment 3A (the relocation decision): …
• Part of Attachment 14 A (Chapter 16 Part 4 of the [Defence Workplace Relations Manual]): …
• Part of Attachment 14A (Employee Information): …
• Attachment 22A (list of Regional Information Officers, Directorate of Estate and Facilities Services (EFS)): …
• Attachment 23A (Performance Agreement): …
• Attachment B [to Exhibit A26] (to the Applicant Evidence in Reply) (EFS Distribution List): …” (bold in original)
[38] On or about 16 November 2015, the Department filed and served its own notes titled “Respondent notes regarding the relevance of the Applicant’s documents” (“Respondent’s Notes on Relevance”). In edited form, the Respondent’s Notes on Relevance read in part:
“1. In accordance with the Commission’s revised directions issued on 26 October 2015, the Respondent provides the following evaluation either agreeing or disagreeing with the characteristics of documents as outlined in the ‘Applicant Notes Regarding Relevance of Documents’.
2. The documents are referenced according to the exhibit numbers determined in the Fair Work Commission on 26 October 2015:
• Exhibit A3 – Agree as relevant.
• Exhibit A14 ([Department Workplace Relations Manual] policy, pages 8-11) – Agree as relevant.
• Exhibit A 14 (employee information, pages 15-16) … It is the Respondent’s view that this section is not relevant.
• Exhibit A22 – Disagree, not relevant. …
• Exhibit A23 – Disagree, not relevant. …
•Exhibit A24 – Agree as relevant.
• Attachment B to Exhibit A26 (Evidence in Reply) – Disagree, not relevant. …”
(my underlining of the sixth dot point in the Respondent’s Notes on Relevance)
[39] As may be seen from a reading of the two extracts above, each of the dot points in the parties’ respective Notes on Relevance addressed parallel exhibits, at least until the fifth dot point in the Respondent’s Notes on Relevance. Following my underlined text above, “Exhibit A24 – Agree as Relevant” as a sixth dot point in the Respondent’s Notes on Relevance, the final dot point in each party’s Notes on Relevance then each returned, in tandem, to Attachment B to Exhibit A26. There appears to be no other purpose or context for the inclusion of the underlined text save for indicating that the Department agreed with the relevance of Mr Bebawi’s “Attachment 24 A” in lieu of the 2014 Delegations. Indeed, it could not be other than so that the Department would agree as to relevance - because the 2014 Delegations had not commenced when the Relocation Decision was made. The relevant delegations at the time of the Relocation Decision were the 2013 Delegations; the 2014 Delegations were yet to come into operation at the time of the Relocation Decision and, thereby, were of no relevance to either party’s case.
[40] The matter was determined on the papers, which comprised the exhibits marked on 26 October 2015 and the parties’ subsequent Notes on Relevance.
Permission to appeal – the Delegations
[41] Mr Bebawi and the Department each referred in their written submissions which were tendered on 26 October 2015 to the 2014 Delegations and, as earlier noted, an extract from the 2014 Delegations that was before the Commissioner as part of a tender bundle and marked that day as Exhibit A24.
[42] It is pertinent to note, as to the question of whether permission to appeal should be granted and whether the 2013 Delegations should be received and considered by the Full Bench in circumstances where they were not marked as an exhibit in the proceedings below, that Mr Bebawi filed and served the 2013 Delegations:
• at the same time he filed and served, pursuant to the directions issued on 26 October 2015, his Applicant’s Notes on Relevance (namely, on 8 November 2016);
• prior to the date the Department filed and served, pursuant to the directions issued on 26 October 2015, its Respondent’s Notes on Relevance (namely, on or about 16 November 2015);
• in circumstances where the Department in its Respondent’s Notes on Relevance apparently indicated as to Mr Bebawi’s filing and service of his “Attachment 24 A” (namely the filing and service on 8 November 2013 of the 2013 Delegations), “Exhibit A24 – Agree as relevant”; and
• at a time prior to 19 January 2016 when the Commissioner published the Decision and order in which he dismissed Mr Bebawi’s application.
[43] Against the preceding timeline, it is apposite that in the Decision the Commissioner noted the submissions for the Department as including reliance on the 2014 Delegations:
“[15] In answer to the applicant’s submissions that Ms Cairns did not have the delegation to decide to relocate him the Department submitted the “Ms Reddy is classified as an Executive Level 2, and was the applicant’s reporting line at the time that the decision to reassign his duties was made. The decision to reassign duties was made by Ms Reddy in accordance with section 25 of the [Public Service Act 1999] and the Defence Public Service Framework Delegations 2014 (No. 11). The Department submitted that “this authority does not restrict a decision maker, in this situation, Ms Reddy from reassigning duties outside their line of supervision.” (my underlining)
[44] Moreover, paragraph [15] in the Decision, quoted immediately above, had a footnote which read:
“4 The Defence Public Service Framework Delegations 2014 (No. 11) were made on 1 October 2014. The decision to relocate the applicant was made by Ms Reddy on or about 23 September 2013.”
[45] It is reasonably plain from the footnote to paragraph [15] of the Decision that the Commissioner was aware the incorrect delegations were before him in a tender bundle marked in the proceedings on 26 October 2016 as Exhibit A24 and, presumptively (given that footnote 4 of the Decision referred to that part of the Department’s written submissions which concerned its specific reliance on the 2014 Delegations), that the Department was squarely, but erroneously, relying on the 2014 Delegations in advancing its case that the relevant employee of the Department made the Relocation Decision in accordance with authority deriving from sources including the 2014 Delegations.
[46] For his part, Mr Bebawi, an unrepresented party, made his own best endeavour to provide the correct delegations and in a timely way - in connection with the filing and service of his Applicant’s Notes on Relevance. As Mr Bebawi pointed out in the appeal, he had (effectively) asked in his correspondence of 8 November 2015 that the 2014 Delegations be replaced with the 2013 Delegations. For reasons which are unclear, more particularly given the centrality of the question of delegated authority concerning the Relocation Decision to the proper determination of the dispute, the Commissioner neither relisted the matter nor gave any further directions concerning the issue of the relevantly-applicable legal instrument conferring delegations. As the solicitor for the Department noted in the appeal (PN198-201), it is apparent that the Commissioner “did not admit those 2013 Delegations into evidence” and the Decision “refers repeatedly” to the Delegations. In the appeal, the Department now opposes the Full Bench receiving the 2013 Delegations on the basis they are new evidence and Mr Bebawi had the opportunity to put the legally-apposite delegations before, the Department submitted, his “case had already closed”. (The submissions in such respects were made by the solicitor for the Department before it emerged in the appeal proceedings that the Commissioner’s directions made on 26 October 2015 were not in his own version of the (respondent-prepared) appeal book, nor otherwise in the information that had been forwarded to him (PN351). The solicitor’s initial submissions for the Department may well have been different, I expect, had the Commissioner’s directions been in the appeal book he had before him, which had been prepared by or on behalf of the Department - more particularly given the Commonwealth’s Model Litigant obligations deriving from, for example, Appendix B of the Legal Services Directions 2005.
[47] Upon Mr Bebawi’s filing and service of the 2013 Delegations, both parties and the Commissioner may be accepted to have been seized of the knowledge that the incorrect delegations were before the Commission as an exhibit and, moreover, that both parties’ submissions were premised on incorrect delegations. The matter that should, with respect, have been addressed by, for example, relisting the matter or issuing further directions to allow the parties to make further submissions concerning the delegations and/or the tender of the correct 2013 Delegations instead of the incorrect 2014 Delegations. Mr Bebawi appeared on his own behalf and, as he pointed out, he was unfamiliar with Commission processes – but had nonetheless tried to submit the correct delegations. On one view of it, the Department responsibly should have itself, at first instance, sought before the Commissioner to correct matters or its own position once Mr Bebawi filed and served the legally-correct instrument, namely the 2013 Delegations, again particularly given Model Litigant obligations.
[48] It is, on any of the conventional considerations applied to such matters, an appealable error to proceed on the basis of incorrect statutory provisions or incorrect statute-derived provisions, regardless of whether that occurred through inadvertence or otherwise. That the 2013 Delegations were legislatively-sourced is plain, and they conditioned the powers of the Department’s decision-maker concerning the Relocation Decision. Here, one of the questions was whether the Relocation Decision - which was advised to Mr Bebawi on 10 September 2013 by his first-level supervisor and subsequently was formally the subject of direction to Mr Bebawi in correspondence from that same supervisor on 18 October 2013 - was validly effected under properly-based delegated authority such as, for example, to result in a permanent transfer. If the Relocation Decision was bad for lack of properly-based delegated authority then self-evidently, and putting aside any other issues, the Relocation Decision and associated relocation direction could not have resulted in a permanent relocation (and would likely to have been void or voidable, let alone resulting in, however described, a permanent transfer of his position, permanent relocation or permanent reassignment of duties; and it could not, for example, properly have been ratified in subsequent review processes). Most typically, appeals involving consideration of cases where there is a question about incorrect statutory provisions or the like have involved situations where a presiding member or judicial officer was led into error by the reliance by a party or parties on outdated provisions. Here, Mr Bebawi sought to correct matters in a timely way.
[49] If the Commissioner determined not to accept the relevant, legally-applicable delegations filed and served by Mr Bebawi when he provided his Applicant’s Notes on Relevance then that was, with respect, an error; and that error should not be perpetuated in the appeal by the Full Bench also declining to receive and consider the correct delegations.
[50] Mr Bebawi strongly pressed arguments about delegated authority in connection with the Relocation Decision and the Department equally strongly contended that the Relocation Decision was made within the delegations of the decision-maker but, even if that were not the case, the relocation was, for other reasons, permanent and not temporary. In response to questions and comments from the Bench in the appeal apparently suggesting it was unnecessary for the Full Bench to consider the matter of the correct delegations concerning the Relocation Decision, the solicitor representing the Department made the following submission (at PN211) about the necessity for dealing with the question of delegations: “I think it is necessary to deal with it because this is an issue which is pressed strongly by the appellant in his appeal”. I accept the submissions advanced by both Mr Bebawi and the Department that the question of delegations ought be considered by the Full Bench, and, I would add, obviously, ought be considered in the context of the 2013 Delegations through their receipt by the Full Bench in the appeal.
[51] A conclusion by the Full Bench other than to grant permission to appeal and quash the Decision on the basis of the question of the delegations alone may itself be open to further review, where, for example, a Full Bench fails to perform the task committed to it by the Act: see for example, Gregory v Qantas Airways Ltd [2016] FCAFC at 78 per Buchanan J. I do not consider it could be doubted that the Commissioner was required to decide the matter before him on the facts and law which existed at the date of the Relocation Decision – rather than apparently being premised, at least in part, on delegations which must be taken to have been known, consequent upon the filing and service of the correct delegations, to have not yet come into operation at the time the Relocation Decision was made: see, for example, Re Coldham; Ex parte Brideson (No 2) (1990) 170 CLR 267; Public Service Association of South Australia v Federated Clerks’ Union of Australia, South Australian Branch (1991) 173 CLR 132; R v His Honour Judge Rendit; Ex parte Health Commission of Victoria [1982] VR 279.
[52] It is necessary in the public interest to determine whether the arguments about the delegations could operate to alter the outcome of the matter as determined by the Commissioner, considering particularly the consequences that have followed for Mr Bebawi in relation to matters relevantly including the benefits to which he claims entitlement as to both the first and second limbs of the dispute. While the focus of the dispute at first instance was the question of entitlement to certain benefits based on whether the Relocation Decision was permanent or temporary, I am otherwise bound to observe there is much to support Mr Bebawi’s concerns about matters concerning lack of procedural fairness, and unfair and differentiated treatment. In this regard, I note the Defence Agreement describes as part of its Principles and Values-based employment framework as follows:
“A2.2 Procedural fairness is to be observed in all employment decisions, so that:
a. employees are to be given an opportunity to be heard in all employment decisions;
b. those hearing an employee are unbiased;
c. any decision regarding an employee is based on sufficient evidence to support the decision; and
d. confidentiality and privacy is observed except where it would be inappropriate to do so.”
[53] Regardless of how Mr Bebawi may be said to have “framed” his case (for at its core the dispute was about a claimed entitlement said to be due to him concerning travel benefits), there is an overarching obligation in clause A2.2 of the Defence Agreement specifying that procedural fairness “is to be observed” in all the Department’s employment decisions. That obligation arises regardless of how the case might be characterised as having been framed – and, here, the matter raises mixed questions of entitlement and fairness (for example as to extending the benefits of the Staff Transition Plan). In that regard, Mr Bebawi was, on my reading of the materials, treated in ways that have been not only unfair but, as to some matters, egregiously unfair - with the unfairness expanding and becoming increasingly entrenched with each layer of decision-making and review. My consideration of such matters further supports, in my view, permission to appeal being granted and reheard given considerations described in Wan concerning matters including substantial injustice.
The decision-maker
[54] Given the parties contend that irrespective of whether the 2013 Delegations or the 2014 Delegations applied that the positions for which they contended should prevail in the appeal, it is necessary to consider the question of who the decision-maker was and whether the Relocation Decision was temporary or permanent.
[55] To give some background and context to the Relocation Decision, it may be noted that Mr Bebawi has been an employee of the Commonwealth since 2007. Mr Bebawi was initially employed by the Australian Taxation Office and then commenced employment with the Department in 2011 as a Contract Governance Officer located at located at Moorebank, in New South Wales. Judging from the documentary record, Mr Bebawi was throughout his employment a well-regarded and highly-satisfactory employee. For example, following-on from favourable assessments from ATO employees, Mr Bebawi’s first-line supervisor at the Department wrote on 22 October 2012 that Mr Bebawi’s work performance was good; and that he was a productive member of the team who was conscientious, met deadlines, was up-to-date with his work, and able to provide current information when asked. The only evidence of suggestions to the contrary concerning Mr Bebawi’s work performance and personal interactions later arose in correspondence sent by that same first-level supervisor to Mr Bebawi’s second-level supervisor, and in some comments there were apparently made by that first-level supervisor to Mr Bebawi during a meeting when he first learned he was being relocated.
[56] While Mr Bebawi’s work was considered good, issues had unfortunately arisen between Mr Bebawi and a co-worker, with Mr Bebawi alleging he had been subjected to conduct in the nature of bullying, abusive or aggressive behaviour and the like – including having untoward comments made to him and paper thrown at him. Mr Bebawi unfortunately was also having to deal with the some of the physical and psychological consequences of chronic pain arising from an injury, for which workers’ compensation liability had been accepted – all of which were taking a physical and emotional toll on him.
[57] Louise Cairns (Contracts Manager – Defence Support – Northern NSW) was Mr Bebawi’s first-level supervisor; she was located at a different workplace from Mr Bebawi, namely Williamstown. In January 2012, Mr Bebawi advised Ms Cairns an incident had occurred involving Mr S. Ms Cairns apparently initially told Mr Bebawi to speak personally to Mr S about the matter. On 2 March 2012, Mr Bebawi sent correspondence to Ms Cairns seeking confidentially to discuss with Ms Cairns his request to move to a different workstation in the same building/base at Moorebank – so that he would not be immediately proximate to the alleged bullier. Despite his request, Ms Cairns did not organise for Mr Bebawi to relocate to another workstation, albeit there were vacant workstations in the building. Matters dragged-on without anything apparently being done until, around February 2013, Mr Bebawi and Ms Cairns attended a meeting with Mr Bebawi’s rehabilitation consultant. In connection with discussion about rehabilitation-related matters and workplace stressors, there was discussion about Mr S, including about the alleged paper-throwing. Mr Bebawi was later to write that he did not know what unfolded in discussions between the consultant and Ms Cairns but that, in his view, after that meeting there had been a “dramatic change” in Ms Cairns’ attitude towards him; he regretted having ever complained about Mr S because he was regarded as a “trouble maker” and it became necessary to move him from Moorebank to Defence Plaza. In May 2013, a “facilitated conversation” was undertaken by a Fairness and Resolution officer involving Mr Bebawi and Mr S, and about the alleged bullying. On 3 June 2013, the Fairness and Resolution officer advised in a report to Ms Cairns the work relationship was “very toxic and probably beyond repair”; and she also spoke privately to Ms Cairns advising that the relationship was irreparable.
[58] On 8 July 2013, Ms Cairns sent correspondence to Mr Bebawi’s second-level supervisor, Dana Reddy (Director Contracts, Defence Support Northern NSW, Defence Support Group), which read:
“Good afternoon Dana,
As discussed last week, there has been an ongoing issue between Victor Bebawi and [Mr S].
In the email below Diane [the Fairness and Resolution officer] states that the relationship is “probably beyond repair” In her conversations with me, she went further and said that in her opinion it is irreparable.
My preference is to move Victor out of Moorebank, possibly to Defence Plaza.
There are a number of reasons for this.
• I have had informal feedback from other DSRG members at Moorebank that Victor can be difficult to work with.
• In my experience Victor would benefit from regular mentoring, feedback, and supervision.
• Victor is actively seeking other roles away from Moorebank and in particular has previously expressed a desire to work in [Defence Plaza] (although when I recently suggested he could continue doing the role he is now doing in [Defence Plaza], he declined stating that the travel would be too stressful and would exacerbate his existing neck injury).
I suggest that we could seek a formal opinion about whether or not the travel would exacerbate his current [workers’ compensation-related] condition, noting that he already works four days a week (Has Wednesdays off).
There is a long history of doctors reports, rehab reports etc, which I would be happy to brief you on separately.
Regards
Louise”
[59] On 9 July 2013, Peter McLenaghan (then Acting Director Business Operations Defence Support and Reform; later Regional Planning and Business Improvement Manager, Defence Support and Reform - Northern NSW) was asked to conduct a Quick Assessment (“First Quick Assessment”) into Mr Bebawi’s allegation that Mr S had thrown paper at his chest. Mr McLenaghan apparently reported on 19 July 2013 that it was not possible to reach a conclusive finding regarding Mr Bebawi’s allegation. Mr McLenaghan apparently also advised Ms Reddy that the workplace relationship between Mr S and Mr Bebawi was untenable and a possible solution was relocating Mr Bebawi to Defence Plaza.
[60] On 23 July 2013, Ms Reddy provided a copy of the First Quick Assessment to Mr Bebawi, apparently with the advice that “No further action will be taken. However, there remains the need for management to address the longstanding breakdown of your professional relationship.” Ms Reddy apparently also advised that she intended to “further examine the options to resolve this impasse and will engage with you both in due course.”
[61] On 10 September 2013, at what Mr Bebawi expected was to be a routine Performance Feedback Assessment and Development Scheme (PFADS) meeting, Ms Cairns informed Mr Bebawi of the Relocation Decision. Mr Bebawi was given no prior notice that relocating him from Moorebank to Defence Force Plaza (“Defence Plaza”) was being considered or was to be discussed at the PFADS meeting – much less that the Relocation Decision already had been made. Mr McLenaghan was also in attendance at the meeting. Ms Cairns apparently raised, for the first time, some performance-related issues and the rating she may give Mr Bebawi in his periodic PFADS assessment. Despite matters raised by him in the meeting in opposition to the Relocation Decision, Mr Bebawi was informed he had no choice in the matter of the relocation. As the Office of the Merit Commissioner delegate was later to note, “it appears that the [Relocation Decision] was presented to Mr Bebawi as a final decision on 10 September 2013, as part of his annual PFADS review and without prior consultation” and that it would have been “better practice for the Department to have consulted Mr Bebawi prior to their decision of 10 September 2013 that he relocate” (but then, otherwise, concluded that the “communication and consultation processes that preceded Mr Bebawi’s move to [Defence Plaza] was not unreasonable in all the circumstances.”)
[62] Moorebank is about an hour or so travelling distance from Sydney’s central business district by public transport. Defence Plaza is in Sydney’s central business district. In circumstances where Mr Bebawi’s residence was about three minutes’ drive to Moorebank, the commuting time for Mr Bebawi to Defence Plaza would involve about two hours and 20 minutes each day.
[63] On 12 September 2013, two days after Ms Cairns had informed Mr Bebawi of the Relocation Decision, Mr Bebawi sent correspondence to Ms Reddy which raised complaints about matters including what he characterised as a “dramatic change in my manager’s attitude towards me” and a “targeted relocation from Moorebank to Sydney in a manner that lacks fairness and consultation.”
[64] Ms Reddy was the appropriate person within the Department’s ranks of supervision to whom Mr Bebawi should have addressed his complaints about Ms Cairns and the Relocation Decision. Among other matters, Mr Bebawi complained about what he perceived to be Ms Cairns’ reasons concerning the Relocation Decision - principally because he had complained about Mr S. After setting-out various matters, Mr Bebawi advised Ms Reddy that while he recognised the Department had a right to move employees “this should be done taking into account the principles of fairness and consultation”. Mr Bebawi also advised Ms Reddy that he was “more than happy to discuss options to change my job in a more consultative and accommodating manner that takes into account my medical condition and medical restrictions”. In this regard, as noted earlier, Mr Bebawi suffered from chronic pain from a work-related injury and other medical conditions; he was then working with the Department on a restricted basis of four days a week as part of his rehabilitation.
[65] Ms Reddy replied to Mr Bebawi’s correspondence of 12 September 2013 on that same day, advising that she would not be back in the office until 23 September 2013. Ms Reddy informed Mr Bebawi she had referred his complaint to Kathryn Shields (Acting Regional Director, Defence Support Operations, Northern NSW) for advice on the matter. Among other outcomes in response to Mr Bebawi’s complaint, Jayne Ashton - Regional Property Services Manager - was appointed by Ms Shields to conduct a Quick Assessment (“Second Quick Assessment”) concerning matters arising from Mr Bebawi’s complaint to Ms Reddy of 12 September 2013, including about Ms Cairns and the “targeted relocation”.
[66] Significantly (given what was later to be advanced in public sector review processes, before the Commissioner at first instance and before the Full Bench as to the identity of the decision-maker concerning the Relocation Decision), Ms Reddy did not give any indication whatsoever that she personally was the decision-maker concerning the Relocation Decision when Mr Bebawi made his complaint of 12 September 2013. One would think Ms Reddy would have disclosed to Mr Bebawi that the Relocation Decision was a decision of her own making, if that was indeed the case; certainly, Ms Reddy should not have any involvement in reviewing Mr Bebawi’s complaint (as subsequently she did in her correspondence of 23 September 2013) about the Relocation Decision if that decision was, in fact, her own decision.
[67] On 19 September 2013, Mr Bebawi also wrote to Ms Reddy about comments that had been made to him by Ms Cairns in the PFADS meeting on 10 September 2013 about his performance, in support of his view he should be given a more than fully effective PFADS assessment, and seeking to discuss matters in an “objective manner”. The Defence Agreement provides at clause D8.2 (Review Rights) that where an employee is dissatisfied with his or her performance rating or any other action or decision taken in relation to Part D (Performance) after discussing these concerns with the first level supervisor - which Mr Bebawi had done, in the PFADS meeting on 10 September 2013 – the employee should discuss his or her concerns with the second-level supervisor. Despite Mr Bebawi’s request on 19 September 2013, Ms Reddy was never, however, to accept Mr Bebawi’s request to hold discussions with her. As may be seen in the correspondence extracted below, Ms Reddy indicated, instead, that Mr Bebawi’s concerns about what Ms Cairns had said about his PFADS should be discussed with Ms Cairns and that she would arrange a meeting in that regard.
[68] In response to Mr Bebawi’s correspondence to Ms Reddy of 12 and 19 September 2013, Ms Reddy wrote:
“Good afternoon Victor,
I refer to your emails of 12 and 19 September 2013,
There appear to be 3 main issues raised:
a. ...
b. dissatisfaction with the PFADS process and your 2013 rating as fully effective and
c. the decision that you should be transferred to the Defence Plaza.
In regards to the PFADS issues I would draw your attention to Defgram 412/2013 and in particular paragraphs 23 and 24. In the first instance, your concerns should be discussed with your first level supervisor, Ms Cairns. I will arrange for Ms Cairns to organise a meeting with you to discuss your concerns.
As for the decision to transfer you to the Defence Plaza, Ms Cairns has explained to you why it is believed that this transfer is in your interests and those of Defence. The main reason advanced was the fact that your services can be more productively used by working in the Defence Plaza where there is a body of higher priority work to be undertaken and benefits for you from more effective supervision and mentoring from experienced team managers. I understand you had previously expressed an interest in working at Defence Plaza, Sydney with Ms Cairns earlier this year. I acknowledge the new body of work has only briefly been described but I will arrange for the detail to be provided. I understand Ms Cairns also explained to you that this move represented a very worthwhile development opportunity in terms of broadening your knowledge of the business and your skill set.
It is also the case that management needs to resolve the highly dysfunctional working relationship (or lack thereof) between you and [Mr S]. While Defence has not apportioned blame to either party, the situation needs to be resolved and earlier attempts to resolve it have not been successful. The advice that was received from the professional who was engaged to work with you and [Mr S] was that the relationship was irreparably broken down. The transfer is not a punishment but if you and [Mr S] cannot work together, it makes sense in my opinion for you to move to an environment where you will benefit from more structured supervision that is difficult to provide remotely.
You have alluded in your email to medical reasons why you are unable to travel to Defence Plaza. Defence holds no evidence to attest to this. If you believe there are medical reasons preventing your travel, you should provide appropriate medical evidence as a matter of priority. In the interim and pending any need to assess any evidence you might provide, planning for the transfer to the Defence Plaza will continue.
Kind regards
Dana”
[69] It may be seen that Ms Reddy’s correspondence to Mr Bebawi of 24 September 2013, sent the day immediately following her return to the office, neither effected the Relocation Decision nor indicated that she personally was the decision-maker. Rather, Ms Reddy’s response to the complaint which Mr Bebawi’s referred to her relevantly served only to reaffirm the Relocation Decision, based on her understanding of the reasons that Ms Cairns had described to Mr Bebawi in the PFADS meeting on 10 September 2013.
[70] Ms Reddy also advised Mr Bebawi that in as much as he had alluded to medical reasons why he would be unable to travel to Defence Plaza that the Department held no evidence to attest to this. Ms Reddy added that if Mr Bebawi believed there were medical reasons preventing travel, he should provide appropriate medical evidence as a matter of priority. She concluded with advice that, in the interim and pending any need to assess any evidence Mr Bebawi might provide, planning for the transfer to the Defence Plaza “will continue”. It is apposite to note the Department’s written submissions below put the following:
“33. The Applicant raised concerns by email with his second-level supervisor, Ms Reddy, in respect of the relocation and what he alluded to as medical restrictions that prevented him from travelling to Defence Plaza Sydney.
34. Ms Reddy made enquiries with the Defence Rehabilitation Case Management section, which referred to a medical report dated 13 November 2013 that states “from a medical point of view, Mr Bebawi is fit to undertake travel including train travel from Holsworthy to Town Hall.” ... Ms Reddy advised the applicant that Defence had no medical evidence to support he was unable to travel to the Defence Plaza, and he was to provide medical evidence as a matter of priority if he believed there were medical reasons preventing him from travelling to the Plaza. The Applicant did not provide medical evidence to support his claim.” (italics in original)
[71] The submission that Ms Reddy made these enquiries about a medical report held by the Department in connection with the Relocation Decision and then, as the submissions otherwise suggest, advised Mr Bebawi to provide any medical evidence as a matter of priority if he believed there were medical reasons preventing him from travelling to Defence Plaza is without any evidentiary basis. As noted earlier, the Department was aware Mr Bebawi suffered from, among other conditions, chronic pain for which workers’ compensation liability had been accepted; he was working on a restricted basis of four days a week as part of his rehabilitation. For her part, Ms Reddy was aware, at least from Ms Cairns’ correspondence of 8 July 2013, that Mr Bebawi had a workers’ compensation related condition, was working on a restricted basis of four days a week and that there was a long history of doctors’ reports, rehabilitation reports and the like. Putting aside all other issues, it is difficult indeed to understand why either Ms Cairns or Ms Reddy would consider it appropriate to require an employee with the chronic pain and other medical conditions to travel for more than two hours a day rather than having a few minutes’ commuting distance (when all Mr Bebawi had ever requested of Ms Cairns, it may be recalled, was to change the location of his workstations at Moorebank). Moreover, and self-evidently, Ms Reddy could not have considered the report to which the Department’s submissions referred at paragraph 34 in any consideration of the Relocation Decision. The medical report was not commissioned by the Department’s Civilian Rehabilitation and Medical Section (for an assessment for the purposes of s.36 of the Safety, Rehabilitation and Compensation Act 1988) until 30 October 2013, two days after Mr Bebawi’s relocation at Defence Plaza had actually commenced. The medical examination in question to which the Department’s submissions referred did not occur until 12 November 2013.
[72] In any event, on 10 October 2013, Ms Ashton - who had conducted the Second Quick Assessment of the matters addressed in Mr Bebawi’s complaint to Ms Reddy of 12 September 2013 - issued her Quick Assessment Brief (“Brief”) for Ms Shields. Although there was no objection in the proceedings below from the Department to the tender of the Brief and/or the findings in Ms Shields’ minute (“Minute”), the Commissioner determined not to accept the tender on the basis that the material went to fairness issues that Mr Bebawi wished to highlight. Mr Bebawi sought to adduce the Brief and the Minute before the Full Bench (with his own proposed numbering of Exhibit A28). Notwithstanding that the Commissioner declined to accept the tender of the material, I consider the Brief and Minute should be received in the appeal for what appears to be a relevantly far more significant reason than the fairness-related issues that Mr Bebawi sought to raise. That is, the Brief constitutes contemporaneously-prepared documentary material strongly indicating that Ms Cairns was the decision-maker concerning the Relocation Decision, and was treated by the Department at that time as having been the decision-maker. Among other matters, the Brief noted certain action that had been taken to that date, including that Ms Cairns had approached Mr Bebawi’s co-worker, Mr S, about his alleged attitude, advised it was not acceptable and it was to be taken seriously; and that Ms Cairns suggested to Mr Bebawi that he might like to move to Defence Plaza into a different role with a less stressful environment, but Mr Bebawi had not accepted.
[73] In the Brief (albeit in a way which is, with respect, contradictory in its findings and recommendations given the description of the action that had been taken to date - including noting that Mr Bebawi had not accepted Ms Cairns’ “suggestion” that he might like to move to Defence Plaza), Ms Ashton otherwise wrote that Mr Bebawi indicated he would like to move into Defence Plaza and do something in procurement; and that Ms Cairns has tried to be supportive of Mr Bebawi, including with his work injuries and return to work rehabilitation program, and tried to assist him by finding a different role in Defence Plaza - whereas Mr Bebawi saw the Relocation Decision as a targeted move and punishment for raising his concerns. Significantly, however, the Brief recommended:
“2. I recommend the [Regional Director] note the relationship between Mr V Bebawi and [Mr S] is beyond repair and they should not be working in the same areas.
3. I recommend the [Regional Director] note Ms Cairns’ actions were legitimate and aimed at helping Mr Bebawi to move into a less stressful with more supervision to make it easier for Mr Bebawi to perform his work duties and assist with his Return to Work.” (my underlining)
[74] Thus, there is nothing arising from the contemporaneous Second Quick Assessment to suggest that Ms Reddy was the decision-maker concerning the Relocation Decision that was communicated to Mr Bebawi by Ms Cairns in the PFADS meeting on 10 September 2013, and which was the subject of his complaint to Ms Reddy on 12 September 2013. Rather, the Brief’s recommendation can be read only to allow the view that Ms Cairns, not Ms Reddy, was the decision-maker the subject of an assessment concerning the Relocation Decision. Ms Reddy was not even mentioned in the Brief. Indeed, I might add that one would hardly expect that Ms Reddy would have countenanced Ms Cairns being the subject of the Second Quick Assessment (which potentially, at least, may have resulted in adverse findings against Ms Cairns concerning the Relocation Decision), if the Relocation Decision was in fact Ms Reddy’s own decision.
[75] If the Commissioner had accepted the tender of the Brief and Minute (but which he declined to accept on the basis that Mr Bebawi had referred only to fairness issues in seeking to tender the material, albeit there was no opposition raised by the Department), he would otherwise have had the benefit of the contemporaneously-prepared assessment which proceeded on the basis that it was Ms Cairns who was the decision-maker concerning the Relocation Decision. Given the actual significance of the material which the Commissioner declined to receive, I consider that it should now be received by the Full Bench. Within the principles summarised in Supreme Caravans Pty Ltd v H Pham [2013] FWCFB 3016, the applicant had endeavoured to tender the material; there was no objection from the Department to the tender; a consideration of the material means there is a high probability there would have been a different outcome concerning the Commissioner’s identification of the decision-maker; and the material is credible for consideration, at least in as much as it comprised the Department’s own investigations concerning the actions of Ms Cairns with respect to the Relocation Decision she had advised to Mr Bebawi in the PFADS meeting on 10 September 2013; and the Brief informed Ms Shields’ own conclusions concerning Mr Bebawi’s complaint of 12 September 2013 about the Relocation Decision.
[76] There was no evidence of any meeting to discuss the PFADS issues, albeit Ms Reddy had advised Mr Bebawi in her correspondence of 24 September 2013 that she would “arrange for Ms Cairns to organise a meeting with you to discuss your concerns.”
[77] While there was no meeting to discuss the PFADS issues there was, however, a meeting on 14 October 2013 attended by Mr Bebawi and Ms Cairns (and two others), in which there was discussion about the transfer of Mr Bebawi’s “position” to Defence Plaza.
[78] On 17 October 2013, Ms Shields wrote to Mr Bebawi concerning his complaint of 12 September 2013 to Ms Reddy about the Relocation Decision. Among other matters, Ms Shields wrote:
“6. Your complaint against Ms Cairns is summarized by you as a “dramatic change” in her attitude towards you and a “targeted” relocation to Defence Plaza Sydney. I accept the [Second Quick Assessment] officer’s findings that “Cairns actions were legitimate and aimed at helping Bebawi to move into a less stressful environment with more supervision to make it easier for Bebawi to perform his work duties and assist with his Return to Work”.”
…
9. While I accept the [Second Quick Assessment] officer’s finding that there is no conclusive evidence of unacceptable behaviour on the part of [Mr S] or Ms Cairns, there remains the need to resolve the dysfunctional relationship in the workplace between two APS 6 staff members who are expected to work cooperatively. Ms Reddy will work with you towards that end.” (bold and italics in original; my underlining)
[79] Hence, Ms Shields proceeded on the basis of acceptance that it was Ms Cairns who was the decision-maker given she accepted Ms Ashton’s conclusions in relation to Ms Cairns’ actions concerning the Relocation Decision, that is: (a) they were legitimate and aimed at helping Mr Bebawi to move into a less stressful environment with more supervision, to make it easier for Mr Bebawi to perform his work duties and to assist with his return to work; and (b) that there was no conclusive evidence of unacceptable behaviour on the part of Ms Cairns.
[80] In that same correspondence of 17 October 2013, Ms Shields also advised Mr Bebawi that Ms Reddy would work with him towards the end of addressing the need to resolve the dysfunctional relationship in the workplace between Mr Bebawi and Mr S – both of whom, Ms Shields noted, were expected to work cooperatively. With respect, it seems to me that Ms Shields’ approach was a managerially-correct approach on the basis of what was before her. There was a relationship issue between two employees at the workplace, and that matter needed to be resolved; it was appropriate and reasonable that Ms Shields should expect Mr Bebawi and Mr S to work cooperatively, and that Ms Reddy, as the second-level supervisor, would work with Mr Bebawi towards that end.
[81] However, the very day after Ms Shields advised Mr Bebawi that Ms Reddy would be working with him to achieve the end Ms Shields had said she expected, Ms Cairns directed Mr Bebawi to relocate to Defence Plaza. Ms Cairns’ correspondence of 18 October 2013 containing the direction read:
“Good morning Victor
I refer to the email from Dana Reddy which was sent to you on 24th September 2013, which was in response to emails [of 12 and 19 September 2013] you had sent to her.
In that email Dana advised you of the appointment of a [Second Quick Assessment] officer to consider your claims of unacceptable behaviour. The Regional Director has now advised you of the outcome of that [Second Quick Assessment].
I also refer to the meeting between yourself, myself, Grant Watson, and Sue Fogarty on Monday 14th October [2013], in which we discussed the transfer of your position to Defence Plaza. At that meeting it was agreed that you would transfer to Defence Plaza.
In all the circumstances it has been decided that your transfer to the Defence Plaza Sydney should not only proceed but that it should happen without further delay.
Your duties in the Defence Plaza are set out below:
• Training for National Spatial Information Management System (NSIMS)
• Training for DEMS
• Work with Estate Support Managers (ESMs) to analyse drawing data and loading onto NSIMS
• Catalogue Service Manuals and place in NSIMS or Objective
• Match floor plans with DEMS and NSIMS data
• Work with ESM’s to correct DEMS data.
This work is data collection/spatial data correction in preparation for the [Base Services Retender]. It is straight forward, non complex process oriented work, which would suit you as you have previously expressed concern about the complexity of your current APS 6 role and the subsequent stress it causes.
You will be supervised by John Moss, who is managing the project.
You are directed to report to him at Level 19 in the Defence Plaza Sydney on Monday 28th October 2013. Your hours will be the same as in your current Return to Work Plan. That is, 7.5 hours per day, four days per week (Monday, Tuesday, Thursday, Friday). The time taken to travel to Defence Plaza will not form part of your work day.
On a separate note, I understand you expressed some concern to Dana about your assessment rating at our recent PFADS exchange. If you still wish to have a discussion about that rating, please let me know and we can organise a time to meet. Your new PFADS for the period September 2013 to August 2014 will be prepared when you commence your new position, in consultation with DC NNSW.
Regards
Louise”
[82] On 21 October 2013, Mr Bebawi responded to Ms Cairns’ correspondence in the following terms:
“Good morning Louise
Since a decision has been made to transfer me to Sydney, I will commence work in the Defence Plaza Sydney from Monday 28th October [2013] as directed.
However I would like to add that I have never agreed to transfer to Sydney (including during the meeting that took place on 14th October [2013]). I have not even been asked to choose and I have expressed my objection to the transfer on many occasions.
Regards,
Victor Bebawi”
[83] There was nothing whatsoever to support Ms Cairns’ assertion in her correspondence of 18 October 2013 that Mr Bebawi ever agreed to transfer to Defence Plaza (and I note Ms Cairns’ assertion in this regard was also to be later uncritically repeated in the first three administrative review processes). The only available conclusion, given all that transpired, was, as Mr Bebawi pointed out, that he was not asked to choose and had expressed his objection on many occasions. Moreover, there was no evidence of any PFADS having been issued by Ms Cairns so as to document what little is known of matters such as the scuttlebutt she had touched upon in her correspondence to Ms Reddy of 8 July 2013 or whatever performance-type issues were alluded to in the PFADS meeting of 10 September 2013. If it is the case that there were performance-type issues, the procedures that were required to be followed by Ms Cairns were as specified in clause D7-D8 of the Defence Agreement.
[84] On 28 October 2013, in accordance with Ms Cairns’ direction of 18 October 2013, Mr Bebawi relocated to Defence Plaza. Mr Moss became his first-level supervisor (who, like Mr Bebawi, was an APS 6) albeit he works for Estate and Facilities Services. (Mr Moss was, incidentally, later to rate Mr Bebawi as “fully effective” in his subsequent PFADS assessment, which was also approved by Anthony Hingley, Mr Bebawi’s new second-level supervisor).
[85] Mr Bebawi subsequently made an Application for Review of Actions concerning the Relocation Decision. An application for a review of actions derives from the provisions of s.33 of the Public Service Act 1999 concerning an APS employee’s entitlement to review, in accordance with the regulations, of actions that relate to his or her employment. The Review of Actions delegate, Amanda de Salis (the Department’s Director - Complaint Resolution) did not recommend any change concerning the Relocation Decision; she confirmed it (“First de Salis Review”). As he was dissatisfied with the outcome of the Review of Actions concerning the Relocation Decision, Mr Bebawi made an application for a secondary review of action to the Merit Protection Commissioner. On 10 July 2014, Karen Labrum, delegate of the Merit Protection Commissioner, recommended that the decision under review be confirmed (“First Labrum Review”).
[86] In summary, up to the date preceding relocation on 23 October 2013 the evidence was the following had occurred:
• The Fairness and Resolution officer and the First Quick Assessment officer had identified there were significant relationship issues between Mr Bebawi and Mr S.
• On 8 July 2013, Ms Cairns sent correspondence to Ms Reddy concerning the relationship issues, advising it was her preference to move Mr Bebawi out of Moorebank, possibly to Defence Plaza. The reasons she gave for her preference were “informal feedback” that Mr Bebawi can be difficult to work with; that he would benefit for regular mentoring, feedback and supervision (which Ms Cairns, presumably, considered she personally could not provide); and that although Mr Bebawi had recently declined Ms Cairns’ suggestion to perform his existing role at Defence Plaza on the basis the travel would be too stressful and would exacerbate his existing neck injury, he had previously expressed a desire to work there.
• On 10 September 2013, Ms Cairns informed Ms Bebawi of the Relocation Decision during the PFADS meeting, in which she also alluded to some performance-type issues and the rating she would give.
• On 12 September 2013, Mr Bebawi sought from his second-level supervisor, Ms Reddy, a review of the Relocation Decision that had been advised to him on 10 September 2013.
• On 19 September 2013, Mr Bebawi sought from Ms Reddy a review of matters concerning the PFADS assessment that Ms Cairns had at least foreshadowed on 10 September 2013.
• On 23 September 2013, in response to Mr Bebawi’s correspondence of 12 and 19 September 2013, Ms Reddy’s wrote that her understanding was that the “main reason” advanced by Ms Cairns at the PFADS meeting on 10 September 2013 for the Relocation Decision “was the fact that your services can be more productively used by working in the Defence Plaza where there is a body of higher priority work to be undertaken and benefits for you from more effective supervision and mentoring from experienced team managers.” Ms Reddy advised that apart from the “main reason” for the Relocation Decision, it was “also the case” that management needed to resolve the “highly dysfunctional working relationship” between Mr Bebawi and Mr S. Ms Reddy otherwise informed Ms Bebawi, that pending any need to assess any medical evidence he might provide, “planning for the transfer to the Defence Plaza will continue”.
• On 10 October 2013, the Second Quick Assessment officer produced her Brief which, as to the Relocation Decision, concluded that Ms Cairns’ actions were legitimate and aimed at helping Mr Bebawi to move into a less stressful environment to make it easier for him to perform his work duties and assist with his return to work (albeit Mr Bebawi saw the Relocation Decision as a targeted move and punishment for raising his concerns).
• On 14 October 2013, there was a meeting involving Mr Bebawi, Ms Cairns and two others involving discussion about the transfer of Mr Bebawi’s position to Defence Plaza.
• On 17 October 2013, following her consideration of the Brief, Ms Shields wrote to Mr Bebawi concerning his complaint of 12 September 2013 to Ms Reddy concerning the Relocation Decision. Ms Shields informed Mr Bebawi that she accepted the findings that Ms Cairns’ actions were legitimate and aimed at helping him to move into a less stressful environment to make it easier for him to perform his work duties and assist with his return to work. Ms Shields also informed Mr Bebawi that while that she accepted the finding in the Brief that there was no conclusive evidence of unacceptable behaviour on the part of Mr S or Ms Cairns, there remained the need to resolve the dysfunctional relationship in the workplace. In this respect, Ms Shields advised Mr Bebawi that Ms Reddy would work with him towards the end of resolving the dysfunctional relationship in the workplace between staff who were expected to work cooperatively.
• On 18 October 2013, the very day after Ms Shields advised Mr Bebawi that Ms Reddy would be working with him towards resolving the dysfunctional relationship in the workplace, Ms Cairns directed Mr Bebawi to relocate to Defence Plaza. Ms Cairns cited the background of Ms Shields’ advice to Mr Bebawi of the outcome of the Second Quick Assessment and Ms Cairns’ assertion it had been “agreed” at the meeting on 14 October 2013 that Mr Bebawi should transfer to Defence Plaza – with the result, Ms Cairns wrote, the transfer should not only proceed but that it should happen without further delay. Nowhere, it may be noted, in the Department’s case in the proceedings below or on the appeal was it contended that Mr Bebawi agreed to the transfer to Defence Plaza, or that for that reason the transfer should not only have happened but happened without further delay.
• In the correspondence of 18 October 2013 containing its direction to Mr Bebawi to report for duty at Defence Plaza from 28 October 2013, Ms Cairns also set out Mr Bebawi’s duties in Defence Plaza in six dot points, which she compendiously described as “collection/spatial data correction in preparation for the [Base Services Retender]” and advised that he would be supervised by Mr Moss, who was managing the “project”.
• On 21 October 2013, Mr Bebawi advised Ms Cairns he would commence work at Defence Plaza from 28 October 2013 as she had directed, but added he had never agreed to the transfer to Defence Plaza, including in a meeting on 14 October 2013. Mr Bebawi noted he had “not even been asked to choose” and that he had expressed his “objection to the transfer on many occasions”.
• On 28 October 2013, Mr Bebawi relocated from Moorebank to Defence Plaza pursuant to the direction given to him by Ms Cairns.
[87] Ms Cairns did not inform Mr Bebawi at the PFADS meeting on 10 September 2013 that the relocation was permanent. Ms Reddy did not deal in her correspondence of 23 September 2013 with whether the relocation was permanent. Ms Cairns did not advise that the relocation was permanent in her correspondence of 18 October 2013.
[88] Project work in preparation for a re-tender could only be considered to be temporary in nature. Moreover, if the Relocation Decision was other than a temporary relocation, Ms Reddy would not have been able to discharge the responsibility that was committed to her by the Acting Regional Director Defence Support Northern NSW - namely, that Ms Reddy would be “working with” Mr Bebawi towards resolving the dysfunctional relationship in the workplace.
The Excess Travel Time/Staff Transition Plan
[89] Further to a request to staff for Expressions of Interest concerning appointment to Contract Governance and Contract Administration Support, Ms Reddy informed Mr Bebawi on 16 July 2014 that his expression of interest in joining the Contract Administration Support team had been successful. Both the Directorate of Contract Governance and the Contract Administration Support Centre were, apparently, to be centrally co-located at Defence Plaza.
[90] On 17 July 2014, at a meeting attended by Ms Reddy and Mr McLenaghan, Mr Bebawi was advised he would be moving to the Contract Administration Support team. Mr Bebawi asked a question about whether his reassignment as part of the new Defence Support Operations Operating model should be subject to the Staff Transition Plan that would likely be applied in the case of staff relocated from Defence Plaza from other locations or, alternatively, if he was not to be covered by the Staff Transition Plan whether he had entitlement to assistance from the time of the transfer to Defence Plaza on 28 October 2013.
[91] For reasons which are not clear, Mr Bebawi’s move to the Contract Administration Support team pursuant to what he had been advised was his successful expression of interest was cancelled. Moreover, in correspondence of 13 August 2014, Mr McLenaghan declined to accede to any claim for entitlements for travel assistance of the type Mr Bebawi had broached in the meeting on 17 July 2014. Mr McLenaghan indicated his reasons were:
• the finding in the First Labrum Review the travel involved in the relocation from Moorebank to Defence Plaza was within acceptable limits for travel to work;
• that Ms Cairns had (in her correspondence of 18 October 2013 directing Mr Bebawi to commence work at Defence Plaza from 28 October 2013) advised Mr Bebawi that the time taken to travel to work would “not form part of your work day”;
• certain wording in the provisions of clause 16.4.0.6 of the Defence Agreement [sic; Workplace Relations Manual];
• that as there was “no suggestion” Mr Bebawi’s transfer to Defence Plaza “was of a temporary nature, there is no entitlement to assistance”.
[92] On 23 September 2014, Mr Bebawi sent correspondence to James McLachlan (Director of Business Operation – Defence Support – Northern New South Wales) in which he sought a review of Mr McLenaghan’s decision of 13 August 2014 on two bases, namely:
• to receive equal treatment to other employees the subject to transfer to Defence Plaza; and
• Ms Cairns’ correspondence of 18 October 2013 contained no indication the transfer was permanent and, on the contrary, Ms Cairns’ correspondence described work as being data collection/spatial correction “in preparation for the [Base Services Retender]”, which implied the work was temporary in nature.
[93] On 24 October 2014, Mr Bebawi sent further correspondence to Mr McLachlan concerning his request for a review of Mr McLenaghan’s decision. In that correspondence to Mr McLachlan, Mr Bebawi set out detailed information in support of his view he had been transferred on a temporary basis to Defence Plaza to act in a Regional Information Officer position and to perform different duties, namely:
• Mr Bebawi had been asked to perform new duties that were not related to his original Contract Management position’s duty statement;
• the tasks Mr Bebawi was performing were tasks performed by Regional Information Officers, such as two named employees;
• Mr Bebawi had been reporting to the same manager as the two named Regional Information Officers;
• Mr Bebawi’s 2013/2014 PFADS showed he was working for Estate and Facilities Services, not for Contracts;
• Ms Cairns’ statement (in the correspondence of 18 October 2013) that the work was in preparation for the Base Services Retender indicated that the work is temporary in nature;
• Mr Bebawi’s name had been listed in DEM’s Regional Information Officer’s list (with this list not being a list of Contract Governance Officers).
[94] Mr Bebawi attached supporting information concerning some of the above matters.
[95] In November 2014, Mr Bebawi was affected by the Defence Support Operations changes and was appointed to the position of Administration Officer at the then-newly established Directorate of Data and Information Governance.
[96] On 7 November 2014, Mr McLachlan sent correspondence to Mr Bebawi setting out the reasons why he considered the initial Relocation Decision “was made with the informed intent of a permanent relocation and not of a temporary nature” and as “a direct result of providing a solution to the dysfunctional relationship”. That is, in response to Mr Bebawi’s claimed entitlement to benefits, Mr McLachlan advised as follows:
“Victor,
Thank you for your further email of 24 October 2014 in respect of your subject application. I have given this matter careful consideration.
Based on the sequence of events leading up to your relocation, the determinations made at the point in time which resulted in your relocation, I consider those factors to be outside the parallel context of the Defence Support Operations business re-engineering activity. As such I consider the decision made at the time to transfer you to Defence Plaza Sydney in October 2013, was made with the informed intent of a permanent relocation and not of a temporary nature.
Further, I consider the decision taken in respect of your relocation was as a direct result of providing a solution to the dysfunctional working relationship between you and a colleague. I also note that the work you have been given over the past year, while related to the new operating model and new contracting arrangements, again within the context of parallel activities, does not translate to mean that your relocation was temporary. And as such your circumstances should not be automatically treated in the same manner as staff relocating to Defence Plaza Sydney now, some 12 months after you, as part of the implementation of the new operating model.
Notwithstanding, I appreciate that broadly and on some peripheral level your transfer could be construed as simply occurring at an earlier timeframe than others. In order to ensure full equitability, I have therefore approved the payment to you of additional costs incurred in travelling to Defence Plaza Sydney for a period of six months from the date of transfer, under the same framework as applies to your peers now currently relating to Defence Plaza Sydney.
James McLachlan”
[97] The effect of Mr McLachlan’s decision was that Mr Bebawi would receive lesser entitlements than other employees who were subject to the benefits of the Staff Transition Plan, not “full equitability” concerning the travelling time-type benefits and flexible hours-type arrangements.
[98] On or about 1 December 2014, Mr Bebawi’s request to allow him to try to work from home for two days a week on WorkCover certificate-based medical grounds was declined by, or on the recommendation of, Mr McLenaghan. Although this stands separate from the matters of the claims the subject of the proceedings below or on the appeal, Mr Bebawi also considered this unfair as he had a history in his employment with the Commonwealth of working effectively with remote supervision and other employees had been allowed to work from home. Mr Bebawi’s request for reasons for declining the request for reasons apparently went unanswered.
[99] On 4 December 2014, Mr Bebawi made an application for a Review of Actions concerning the Travel Claim Decision. The Review of Actions delegate was, again, Ms de Salis. In her correspondence of 23 March 2015, Ms de Salis did not make any conclusion having the effect of reversing the Travel Claim Decision (“Second de Salis Review”); she confirmed it. Mr Bebawi made an application for a secondary review of action to the Merit Protection Commissioner and Ms Labrum was, again, the delegate. Ms Labrum recommended that the Department confirm the Travel Claim Decision in her Report of Review of Action of 9 July 2015 (“Second Labrum Review”). On 15 July 2015, Mr Bebawi lodged his application before the Fair Work Commission seeking the outcomes earlier described concerning the first and second limbs of the s.739 application.
The identity of the decision-maker/whether the Relocation Decision effected a permanent transfer
[100] Mr Bebawi submitted below, and before the Full Bench, that Ms Cairns was the decision-maker concerning the Relocation Decision, not Ms Reddy; and that the decision made by Ms Cairns was not open or available as a basis of delegation. Mr Bebawi further submitted that, regardless of whether the decision-maker was Ms Cairns or Ms Reddy, neither had proper authority to make the Relocation Decision as a matter of delegated authority. The Department submitted below, and it did before the Full Bench, that the decision-maker concerning the Relocation Decision was Ms Reddy, rather than Ms Cairns. The parties’ submissions were advanced against matters including scope of delegated authority, “line of supervision” and s.25 of the Public Service Act. For example, Mr Bebawi contended that positions within Estate and Facilities Services were not within the line of supervision of either Ms Cairns or Ms Reddy; whereas the Department relies on, for example, the provisions of s.25 of the Public Service Act, which provides that an agency head may from time to time determine the duties of an APS employee in the agency, and the place or places at which the duties are to be performed, in contending that the Relocation Decision was properly-based and within line of supervision. Mr Bebawi further submits that if there was a defect of the nature for which he contended, it could not be cured by the findings of the Review of Actions and that, in any event, matters that occurred after the Relocation Decision do not relevantly arise for consideration.
[101] Ms Reddy did not give evidence before the Commission by way of a statement of evidence, filed as part of the papers or otherwise, that she was the decision-maker concerning the Relocation Decision (in circumstances where, it may be inferred, it would have been an unremarkable expectation she could have done so, given the Department’s available resources). Ms Cairns similarly did not give evidence as to the identity of the decision-maker. Despite the submissions for the Department, what was in the papers does not allow any higher findings than, for example:
• that upon her own consideration and review of the Relocation Decision after Mr Bebawi’s complaint on 12 September 2013, Ms Reddy had decided not to disturb the Relocation Decision and advised Mr Bebawi on 23 September 2013 that, absent further consideration of medical matters, planning for the transfer “will continue”;
• that Ms de Salis had written in the First de Salis Review that she had received an email communication from Ms Reddy, who explained to Ms de Salis she was responding in her role as Director Contracts and as the delegate who made the decision to change Mr Bebawi’s place of employment; and that Ms Labrum had, in turn, written that Ms Reddy had confirmed to Ms de Salis that she was the delegate who made the decision to change Mr Bebawi’s place of employment.
[102] I am cognisant it is recorded in the evidence that Ms Reddy advised the First de Salis Review that she was the decision-maker concerning the Relocation Decision. One can only assume that Ms Reddy’s advice thereto to Ms de Salis was intended to refer to Ms Reddy’s reviewing conclusions set out in her correspondence of 23 September 2013 concerning the Relocation Decision - for it could not be the case, one would trust, that Ms Reddy would have purported to review, and then confirm, the Relocation Decision if it was Ms Reddy’s own decision before her when she responded to Mr Bebawi’s complaint of 12 September 2013. It would be unthinkable, in terms of process, if Ms Reddy did not disclose to Mr Bebawi that the Relocation Decision he was seeking that she review and respond to was, in fact, her own decision. It would be equally unthinkable that Ms Reddy might then respond to Mr Bebawi’s complaint without disclosing that the Relocation Decision was her own, personal decision that she had reviewed in responding to Mr Bebawi on 23 September 2013 in some of the terms she did. Apart from general principle concerning such matters, clause A2.2 of the Defence Agreement specifies that procedural fairness is to be observed in all employment decisions, so that, among other matters, those hearing an employee are unbiased. In any event, the evidence concerning the Brief and Minute (which the Commissioner declined to receive) proceeded on the basis Ms Cairns was the decision-maker – and the other evidence that was before the Commissioner separately also allows only that conclusion.
[103] In response to Mr Bebawi seeking Ms Reddy’s review of the Relocation Decision, advice of which had been given to Mr Bebawi by Ms Cairns at the PFADS meeting on 10 September 2013, Ms Reddy referred to matters including her understanding of the explanation that Ms Cairns had given to Mr Bebawi for the decision to transfer him. Ms Reddy understood that the “main reason” given was that his services could be more productively used at Defence Plaza where there was a body of higher priority work to be undertaken. Ms Reddy also set out in her understanding that Mr Bebawi had expressed an interest to Ms Cairns in working at Defence Plaza (although, in writing as she did, Ms Reddy nonetheless would also have been aware from Ms Cairns’ correspondence of 8 July 2013 that Mr Bebawi had recently declined a suggestion from Ms Cairns to relocate to Defence Plaza because of his view that the travelling involved would be too stressful and may exacerbate his existing neck injury).
[104] Ms Reddy acknowledged that the new body of work to be given to Mr Bebawi had been only described briefly, but added she would arrange for the detail to be provided. Ms Reddy recounted her understanding that Ms Cairns also explained that this move represented “a very worthwhile development opportunity” in terms of broadening Mr Bebawi’s knowledge of the business and his skill set. Apart from Ms Reddy’s understanding of the “main reason” explained to Mr Bebawi by Ms Cairns for the Relocation Decision she wrote that “it is also the case” that because of the relationship issues between Mr Bebawi and the co-worker, it made sense in Ms Reddy’s opinion to transfer Mr Bebawi to an environment where he would benefit from more structured supervision that was difficult (for Ms Cairns) to provide remotely.
[105] It may be seen, as noted earlier, that Ms Reddy’s correspondence to Mr Bebawi did not identify that she personally was the decision-maker concerning the Relocation Decision. It is plain that Ms Reddy in her correspondence to Mr Bebawi of 23 September 2013 was reciting her understanding of what had been said by Ms Cairns as to the reasons given for the Relocation Decision. Ms Reddy was reviewing a decision that had already been made, and she largely referred to the reasons for the Relocation Decision that she understood Ms Cairns already to have provided to Mr Bebawi. Ms Reddy could not having been acting as a reviewer of a decision of her own – for, if she did so, that would be contrary to all principle. But if Ms Reddy reviewed a decision for which she actually was the decision-maker that would raise significant issues of their own separately from the other process-related and fairness-related concerns variously raised by Mr Bebawi. In any event, the effect of the correspondence does not convey that Ms Reddy was the decision-maker. Rather it conveys that, upon her review of matters in response to the complaint made by Mr Bebawi, she had determined not to disturb the Relocation Decision. Ms Reddy relevantly advised that, absent consideration of any evidence of a medical nature, planning for Mr Bebawi’s transfer to Defence Plaza would “continue”.
[106] The evidence does not allow a conclusion that Ms Reddy was the decision-maker. At best, the evidence allows the conclusion she had reviewed Ms Cairns’ decision and, on 23 September 2013, determined the Relocation Decision would proceed absent any medical reasons.
[107] The question of the proper identity of the decision-maker then necessarily returns to consideration of whether the decision-maker (or either or both of them) had relevant delegated power to make the Relocation Decision and, for reasons I have addressed earlier in this decision, under the 2013 Delegations.
The Department’s employment and business records
[108] Apart from the fact that project work in preparation for the Base Services Retender could only be characterised as temporary in nature, and that Ms Shields had otherwise determined that Ms Reddy was to work with Mr Bebawi towards resolving the dysfunctional workplace relationship with Mr S, documentary records indicate that Mr Bebawi’s substantive role remained unchanged and located at Moorebank. For example:
• Mr Bebawi’s substantive position (namely “Contract Governance Officer” located at Moorebank) remained unchanged;
• Mr Bebawi’s pay advices and records for PMKeys (Personnel Management Key Solution) continued to show Moorebank as his work location;
• Mr Bebawi’s position number remained the same after 28 October 2018 (to January 2015), whereas if the transfer had been permanent he would have been given a new position number.
[109] As Mr Bebawi methodically demonstrated through documentary material, all the Department’s relevant employment records, business records and the like continued to record his substantive position as Contract Governance Officer and his work location as Moorebank - at least until such time as he was (formally) reassigned to the position of Administration Officer with the Directorate of Data and Information Governance in connection with the Defence Support Operations changes – thereby militating against a conclusion that the relocation on 28 October 2013 was a permanent transfer. (The Department in its written submissions in the appeal noted that by at least 24 October 2014, Mr Bebawi’s name had been included in a list of Estate and Facilities Services regional information officers. This observation in the submissions does not actually assist the Department; rather the evidence of this list assists Mr Bebawi’s contention that at the time his PMKeys information and other records such as pay advices continued to record his position as being in the contracts team at Moorebank, the then state of temporal affairs was that he was undertaking work as an Estate and Facilities Services regional information officer rather than his own substantive role.)
[110] The Department’s own records ought reasonably be considered to correctly reflect Mr Bebawi’s formal position within its structure and operations - and that was unchanged and based at Moorebank. There was ample material relied upon by Mr Bebawi as to matters which, considered in the context of business records and employment records, provided objective documentary evidence showing the manner in which the Department itself recorded relevant matters concerning Mr Bebawi’s employment - in the bureaucracy of a large Department which may be expected to be well-equipped to contemporaneously effect changes to employment records and business records as and when they occur so as to reflect a change of significance - and which otherwise, of course, would be expected as a basic incident of the Department’s lawful obligations concerning correct record-keeping in relation to employment records. It is no answer to Mr Bebawi’s methodical documentary demonstration concerning such matters for the Department to say, in effect, the records were not changed because of tardiness, because it was not a priority, or the like; and, as Mr Bebawi pointed out, the Department, in any event, otherwise contemporaneously adjusted other employment-related records in connection with the relocation to Defence Plaza, such as the name of his supervisor.
[111] Mr Bebawi sought also to introduce into evidence certain correspondence dated 26 January 2016, from David Haddock (Assistant Director, Fraud Control and Investigation Branch) in which Mr Haddock wrote in his “Investigation Outcome”:
“As you are aware, Defence Support – NSW underwent a restructure and a number of staff were affected by this restructure. You were one of those affected in this restructure. … All staff that were change affected were advised they had jobs and it was originally assumed that most ‘Contracts’ staff would move into the new national Directorate of Contract Governance. However a number of old ‘Contracts’ staff were moved into the Data and Information Governance structure, including yourself.”
[112] As to this, Mr Bebawi submitted that Mr Haddock’s description serves to confirm he had been transferred directly from Contracts to Data Information Governance (in 2015) as part of the DSO restructure – and this further supported his claimed entitlement to receive relocation assistance equal to that of others affected by the DSO restructure as he had never been transferred permanently to Estate and Facilities Services. Mr Bebawi submitted that the relocation to Estate and Facilities Services on 28 October 2013 was temporary as his substantive position remained as Contracts Officer until he was transferred to Data and Information Governance in January 2015. The Department opposed the admission of the new evidence of the Investigation Outcome, describing it as hearsay. However, I consider that it ought be admitted as it was not available at the time of the hearing, and it provides an objective description by a senior investigating officer of the Department, in a matter-of-fact way, of precisely the structural matters for which Mr Bebawi could only otherwise contend in the proceedings. This material was generated after the Commissioner had dismissed the application, and so was not earlier available. It may be expected that Mr Haddock, an investigator, examined documentary materials in consideration of the matter before him (as opposed to being reliant, for example, on personal opinions by earlier reviewers as to what had occurred). I would admit that additional evidence.
[113] Not only did the Department’s own records objectively militate against concluding that the Relocation Decision and its associated duties were permanent, the advice to Mr Bebawi described matters, it is to be emphasised, as being “a very worthwhile development opportunity in terms of broadening your knowledge of the business and your skill set”, with work described as being “data collection/spatial data correction in preparation for the [Base Services Retender]” with supervision by Mr Moss who was“managing the project”. These matters indicate a temporary relocation and temporary reassignment of duties, not a permanent relocation and/or permanent reassignment of duties. Work on a project in preparation for the Base Services Retender could only ever be temporary in nature.
[114] Despite all the commentary that was later to follow in correspondence, review processes and the like about the purpose of the relocation being to permanently relocate Mr Bebawi away from Mr S for the purpose of resolving a “dysfunctional relationship”, the actual stated “main reason” for the Relocation Decision was “the fact that [Mr Bebawi’s] services can be more productively used by working in the Defence Plaza where there was a body of higher priority work to be undertaken and benefits for [Mr Bebawi] from more effective supervision and mentoring from experienced team managers.” Ms Reddy put matters no higher than that it was “also the case” (that is, as a secondary or adjunct reason apart from the “main reason”) that management needed to resolve the dysfunctional working relationship. On a final note it may be noted, in passing, that Mr Bebawi and Mr S are now co-located in the same building in Defence Plaza.
Conclusion
[115] Among other matters, the majority has determined the various findings by the Commissioner were either correct or reasonably open. The majority has also determined not to consider the 2013 Delegations, not to consider the Minute and Brief, and not to consider documentation which had not been created at the time of the proceedings below. By the decision of the majority, permission to appeal has been refused and the appeal itself has otherwise been dismissed. For my own part, however, I would propose orders having the effect of granting permission to appeal, admitting the additional material in the rehearing, and quashing the Decision. Further, I would propose orders or outcomes to the effect that: (1) the relocation can properly be characterised only as a temporary relocation, with the result Mr Bebawi has an entitlement under the excess travelling time provisions in the Defence Agreement/Workplace Relations Manual; and (2) as Mr Bebawi was an employee who was subject to the restructuring, that he should be extended the benefits of the Staff Transition Plan on the same basis all his other colleagues. To do otherwise would be for the Department to treat Mr Bebawi - alone among all his colleagues also affected by the restructure - on an unfairly-differentiated basis because of the happenstance that he was temporarily relocated at Defence Plaza performing project work in preparation for Base Services Retender at a time when his substantive position remained at Moorebank and he was affected by the restructure.
[116] As my view does not accord with the majority conclusion that permission to appeal should be refused and that the appeal itself should also be dismissed, it is unnecessary and probably inappropriate to further develop other findings that are apparently available, such as to the circumstances concerning the apparently frank breaches of, or disregard of, the rights and obligations in the Defence Agreement concerning matters arising in the employment relationship between Mr Bebawi and the Department.
DEPUTY PRESIDENT
Appearances:
Mr V Bebawi, the appellant
Mr S Jauncey for the respondent.
Hearing details:
2016.
Sydney:
March 23.
Printed by authority of the Commonwealth Government Printer
<Price code G, PR578332>
1 [2016] FWC 364.
2 PR576239.
3 AE893129.
4 Note: in his initial F10 application the applicant cited the ‘entitlement’ in the respondent’s Workplace Relations Manual (the Manual) rather than the Agreement. Clause F2.12 of the Agreement is the same as paragraph 16.4.0.7 in the Manual. In this decision, the Full Bench has used the citation from the Agreement.
5 [2010] FWAFB 5343
6 (1936) 55 CLR 499 at [504] – [505] per Starke, Dixon, Evatt and McTiernan JJ.
7 Transcript of proceedings, 23 March 2016, PN131-140.
8 Transcript of proceedings, 26 October 2015, PN57-64.
9 Appellant’s submission paragraphs 47-49 (Attachment A00 of Appeal book presented at the Hearing).
10 [2016] FWC 364 at paragraph 5.
11 Form F7 Notice of Appeal, Appeal Grounds 24-26.
12 [2016] FWC 364 at 17-19.
13 Attachment A06 of Appeal Book.
14 Attachment A08 of Appeal Book.
15 Form F7, Appeal grounds 9-13; Exhibit B2 (Appellant’s submission) paragraphs 10-14.
16 [2016] FWC 364 at 10 (i).
17 [2016] FWC 364 at 10 (t).
18 Appellant’s submission at paragraphs 43-46 (Attachment A00 of Appeal book).
19 [2016] FWC 364 at paragraph 20.
20 Attachment R01 at paragraph 47 of Appeal Book.
21 Exhibit B2 (Appellant’s submission), paragraphs 5, 9, 10, 15(c).
22 Attachment R01 paragraphs 14-18, 59 and 61, and Attachment R06 of Appeal Book.
23 Attachment A02 and Attachment A26G of Appeal Book.
24 Attachments A05, A07, A14, and A16 of Appeal Book.
25 [2013] FWCFB 3016.
26 Included in the appeal book as A24 for the purposes of submissions only, not as admitted evidence.
27 Transcript of proceedings, 23 March 2016 PN 64-66.
[2016] FWCFB 1864
Attachment A
I4 Dispute Prevention and Settlement Procedures
Principle
I4.1 The objectives of these procedures are:
a. the prevention and resolution of disputes about matters arising in the workplace, including disputes about the interpretation or implementation of this Agreement and the National Employment Standards (NES), by measures based on the provision of information, explanation, consultation, negotiation and cooperation;
b. the speedy and just resolution of disputes; and
c. the resolution of disputes at the lowest practicable level by management, employees and their representatives.
I4.2 It is not generally the objective of these procedures to cover individual grievances and related employment matters which are not about the interpretation or application of this Agreement. Defence encourages the use of the internal Alternative Dispute Resolution processes to address grievances and resolve disputes at the workplace level.
I4.3 Disputes about matters arising in the workplace, including disputes about the interpretation or implementation of this Agreement and the NES should be dealt with in accordance with the following process.
a. in the first instance, an employee or their representative is to discuss the dispute with their supervisor;
b. if discussions at the workplace level do not resolve the dispute, it should be referred to more senior levels of management for resolution; and
c. subject to paragraphs I4.4 and I4.7, where a dispute remains unresolved:
(i) the parties to the dispute may agree to refer the dispute to FWA; or
(ii) a party to the dispute may apply to FWA to conduct a dispute resolution process in accordance with the terms of this dispute prevention and settlement procedure.
I4.4 FWA may only deal with a dispute which has not already been dealt with and is not being dealt with, by any other jurisdiction with respect to the individuals involved in the dispute.
I4.5 FWA may exercise any powers it has under Chapter 5 Part 5-1, Division 3 of the FW Act as are necessary for the just resolution or determination of the dispute.
I4.6 An employee may choose to be represented at any stage, or at all stages, of this process. Either party to a dispute may be assisted and represented at any stage in the dispute process in FWA on the same basis as applies under section 596 of the FW Act.
I4.7 All parties to a dispute under this section must participate in good faith.
I4.8 Nothing contained in this process will prevent Defence, employees or their representatives, from entering into negotiations at any level if it seems likely to help resolve the problem. Where Defence, an employee or their representative does this, they must advise the other party to the dispute.
I4.9 Without prejudice to either party to the dispute, except where a bona fide safety issue is involved, each party to a dispute must, at all times, continue to perform its obligations under this Agreement, and in accordance with established custom and practice at the workplace. Where a bona fide safety issue exists, an employee shall not work in an unsafe environment but, where appropriate, will accept reassignment to alternative suitable work in the meantime.
I4.10 Decisions of the Secretary about the approval, non-approval or quantum of BDCP, including decisions about non-financial conditions, in accordance with section G5, are discretionary and are not subject to these dispute prevention and settlement procedures.
I4.11 Rights, liabilities and obligations accrued under the previous collective agreement are not affected by the making of this Agreement. Where, at the time this Agreement is made, there is any dispute about the rights, liabilities or obligations applicable under the terms of that previous agreement that dispute may be pursued in the appropriate jurisdiction.
Referral of Dispute to Fair Work Australia
I4.12 Subject to paragraph I4.5, FWA may deal with the dispute in two stages:
a. FWA will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
b. If FWA is unable to resolve the dispute at the first stage, FWA may then arbitrate the dispute and make a determination that is binding on the parties.
I4.13 Any decision or direction FWA makes in relation to a dispute will be accepted by all affected persons, and the parties to a dispute agree to comply with any decision or direction, including procedural directions. Subject to paragraph I4.14, a decision of FWA determining the dispute will be accepted as settlement of the dispute by all parties to that dispute.
Appeal of decision or direction
I4.14 A party to a dispute may appeal a decision of FWA in determining the dispute, in accordance with the provisions of the FW Act.
Costs
I4.15 Unless otherwise agreed, each party to a dispute will bear its own costs in relation to the dispute settlement process, except in the circumstances where the FWA may order a party to bear costs in accordance with section 611 of the FW Act.
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