Wildman v Imcd Australia Limited - [2021] FCCA 1161

FEDERAL CIRCUIT COURT OF AUSTRALIA
Wildman v IMCD Australia Limited [2021] FCCA 1161

File number(s): SYG 1844 of 2018

Judgment of: JUDGE BAIRD

Date of judgment: 23 June 2021

Catchwords:

INDUSTRIAL LAW – adverse action – coercion – workplace right to take paid personal leave under s 97 of the Fair Work Act 2009 (Cth) – applicant employee on paid personal leave for more than 3 months – where applicant submitted medical certificates – respondent asserted applicant did not provide evidence of requisite character that would satisfy a reasonable employer as to applicant’s unfitness for work under s 107 of the Act – where did not enliven right to take personal leave under s 97 of the Act – applicant on paid personal leave – applicant dismissed from employment whilst on paid personal leave – termination without notice or payment in lieu – legitimate exercise of employer’s power to direct respondent – employer issued directions to attend independent medical assessment, meetings with employer, and workplace whilst on paid personal leave – applicant refused – respondent asserted directions lawful and reasonable – whether applicant dismissed for a reason or reasons including his exercise of a workplace right – respondent alleged applicant engaged in serious misconduct – duty to co-operate at common law – held applicant dismissed for reasons including exercise of workplace right to paid personal leave, or to exercise leave in a particular way – held respondent’s conduct unlawful – held respondent’s conduct coercion – held medical certificates and evidence satisfied s 107 of the Act – held respondent’s directions not lawful – held respondent’s directions not reasonable – held duty to co-operate not breached – held respondent’s directions and conduct unlawful coercions – held adverse actions – held contraventions of Act established – application allowed – cross-claim for repayment of payments whilst on sick leave – cross-claim dismissed.

Legislation:
Fair Work Act 2009 (Cth), ss 12, 13, 14, 43, 44, 96 97, 107, 117, 123, 340, 341, 342, 343, 352, 360, 361

Fair Work Regulations 2009 (Cth) rr 1.07, 3.01

Cases cited:
Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32; (2014) 240 IR 342

Australian Building and Construction Commissioner v Ravbar [2018] FCA 1196

Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347

Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603; (2002) 118 FCR 395

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500

Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243

David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48

Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34; 94 IR 244

Mendonca v Chan & Naylor (Parramatta) Pty Ltd [2014] FCCA 1042

RailPro Services Pty Ltd v Flavel [2015] FCA 504; (2015) 242 FCR 424

Seymour v Saint-Gobain Abrasives Pty Ltd [2006] FCA 1452; (2006) 161 IR 9

State of Victoria (Office of Public Prosecution) v Grant [2014] FCAFC 184; (2014) 246 IR 441

Swanson v Monash Health [2018] FCCA 538

Number of paragraphs: 263

Date of last submission/s: 24 July 2019

Date of hearing: 22, 23, 24 July 2019

Place: Sydney

REPRESENTATION

Counsel for the Applicant: Mr B Miles

Solicitor for the Applicant: Haywards Solicitors

Counsel for the Respondent: Mr M G Rinaldi

Solicitor for the Respondent: Fitz Gibbon Law
ORDERS

SYG 1844 of 2018

BETWEEN:
KEVIN WILDMAN

Applicant

AND:
IMCD AUSTRALIA LIMITED

Respondent

ORDER MADE BY:

JUDGE BAIRD

DATE OF ORDER:

23 JUNE 2021

THE COURT:
1.DIRECTS the parties to confer, and within 14 days, provide to my Chambers proposed short minutes of orders giving effect to the reasons for decision delivered today, with any areas of disagreement between the parties identified in mark-up.
2.STANDS OVER the remainder of the proceeding to 10:15am on a date to be fixed after consultation with the parties, to program the further conduct of the proceeding in relation to the penalty, if any, to be imposed on the respondent for the breaches of the Act referred to in the accompanying reasons.

REASONS FOR JUDGMENT
JUDGE BAIRD
INTRODUCTION

This is an application pursuant to the general protection and other provisions of the Fair Work Act 2009 (Cth), brought by the applicant, Mr Kevin Wildman, for orders in relation to his former employment by the respondent, IMCD Australia Limited, since 26 July 2019 named IMCD Australia Pty Ltd (ABN 44 000 005 578). Mr Wildman claims that IMCD contravened the Act by (i) taking adverse action against him for exercising his workplace right to take personal leave pursuant to s 97 of the Act, contrary to s 340(1) of the Act, (ii) coercing him to not exercise a workplace right to take personal leave, or to take it in a particular way, contrary to s 343, (iii) dismissing him for reasons that included his temporary absence because of illness of a kind prescribed, contrary to s 352, and his workplace right to take personal leave, and (iv) IMCD’s failure to provide notice of termination or payment in lieu, in contravention of s 117 of the Act. Mr Wildman claims compensation, penalties and interest.
Mr Wildman's employment with IMCD was terminated by letter dated and effective 4 May 2018, after he had been absent from work on paid personal leave since 19 January 2018. During the hearing before me, Mr Miles, counsel for Mr Wildman, and Mr Rinaldi, counsel for IMCD, ultimately agreed that Mr Wildman was on leave and was sick on and from 19 January 2018, and that the cause of his illness is not relevant to the proceeding.
At the date of termination, Mr Wildman had more than 5 years of continuous service with IMCD, and was over 45 years old.
BACKGROUND FACTS
Mr Wildman was employed by Capitol Ingredients Australia Pty Ltd from 22 February 1995 until 31 July 2013. Capitol Ingredients was an importer and distributor of raw materials for use in manufacturing various complementary medicines, healthcare, veterinary products personal care and household products. The final position he held with Capitol Ingredients was as General Manager. As General Manager, Mr Wildman oversaw the day to day operations of Capitol Ingredients, including sales costs analysis, and management of IT infrastructure, procurement, logistics, warehousing and inventory. Mr Wildman accumulated some 1,342.50 hours (approximately 149 days) of unused sick leave as at 15 August 2013.
IMCD purchased the business of Capitol Ingredients in 2013, and IMCD offered Mr Wildman employment with IMCD. He accepted that offer on 11 July 2013, commenced on 1 August 2013, and facilitated the transition of the business to IMCD. He was employed in the position of ‘Commercial Manager - Capitol Ingredients’, involved in day to day management and office functions, with technical and regulatory personnel, and office receptionist reporting to him. Mr Wildman had a focus on regulatory affairs, and was to introduce the ISO quality system into the operations at the business’ Bella Vista site (previously the location of Capitol Ingredients’ business). He reported to the General Manager.
In 2015, Mr Wildman was provided with a position description for his role as Commercial Manager – Bella Vista. His position description incorporated the role of Product Technical Specialist (although there is some dispute when he received a copy of the position description for this latter role, nothing turns on it). He was required to fulfil commercial business and site requirements of the Bella Vista office as directed by the site General Manager, or commercial managers of IMCD. His responsibilities encompassed commercial, product/technical, and management systems responsibilities. The position description reported to the General Manager, as before. Mr Wildman says his position description remained unchanged until late January 2018.
Discussions took place from early 2017 over concerns with the state of sample storage and available resources for the processing of samples. The Capitol Ingredients samples were located at the Bella Vista office, and the process had remained separate to the IMCD system. Mr Wildman attests to the inadequate staffing, resources and housekeeping functions to keep the system organised. In July 2017, Mr Steven John Egan, at the time of the hearing the Joint Managing Director and Country Manager of IMCD and located at the Bella Vista site, instructed Mr Wildman to seek additional staff for a sample processing role, and additional staff were sought (although it appears IMCD head office did not approve their engagement).
Mr Rodney Lambert, since May 2017, and at the time of the hearing Joint Managing Director of IMCD, attests that IMCD planned to relocate its operations at its Bella Vista site and its Rosehill site to one location in Western Sydney from about 2019.
On 13 December 2017, Mr Wildman attended a meeting with Mr Egan and IMCD's Human Resources manager, Ms Karen Mary dela Fuente, at their request. Ms dela Fuente was based in IMCD’s head office in Melbourne. At this meeting, Mr Egan and Ms dela Fuente told Mr Wildman that Mr Wildman was to facilitate and coordinate the transition of Capitol Ingredients’ samples from the Bella Vista site to the Rosehill site where IMCD’s samples were to be held, and that he would relocate to the Rosehill site as well, effective 8 January 2018. Mr Wildman was to project manage the relocation of samples, including preparing records so the samples could be transitioned or uploaded into the IMCD system, review aged samples for segregation and disposal, and all associated functions to ensure an accurate listing was established. It appears this transition was preparatory to IMCD’s planned 2019 Sydney relocation.
The same day, and following the above meeting, Mr Egan sent Mr Wildman an email (copied to Ms dela Fuente) outlining his role. Mr Egan said “In addition to you [sic] current Regulatory & Technical functions we require you to facilitate/ coordinate/ lead the transition of [CI samples] …”. He said Mr Wildman’s “Bella Vista site functions” would be redistributed. Mr Egan suggested “If there are other functions which you could release to ensure the above occurs in a balanced work environment please advise”. Further to Mr Egan’s request as to timing, Mr Wildman orally accepted the role on 14 December 2017.
During his employment with Capitol Ingredients, and then IMCD up to Christmas 2017, Mr Wildman’s place of employment was at the business’ Bella Vista office in the Hills District in Sydney’s northwest. He lived approximately 24 kilometres away, with a daily commute of around 30 minutes each way. Mr Wildman’s oral evidence is that his commute to Rosehill took him past his previous workplace, and took a bit longer. Whilst initially he was not happy with the prospect of moving workplaces, he agreed to it on 14 December 2017, and he accepted that move.
Mr Wildman took paid annual leave (approved a considerable time beforehand) over the Christmas New Year period, and commenced work at the Rosehill site on Monday 8 January 2018. Ms dela Fuente emailed him about work at the Rosehill site whilst he was on leave. The week commencing 8 January 2018, he attended meetings and telephone discussions each day to clarify his role.
On 10 January 2018, Ms dela Fuente emailed Mr Wildman with a “summary and clarification for your re‑location to Rosehill” and enclosed a position description. It differed from Mr Egan’s email, and from Mr Wildman’s understanding from the meeting of 13 December 2017. She specified that he report to Mr Egan for regulatory or technical, and otherwise to the warehouse manager. She advised he would be located in the Rosehill warehouse. She proposed a notice to be sent out to staff regarding his relocation, and provided draft wording.
On 11 January 2018, Mr Wildman emailed Ms dela Fuente, advising that in general the summary was okay, with the clarification that direct or functional reporting was to Mr Egan, inclusive for the additional samples project, and that the current additional role had both logistical requisites [and] also commercial requisites. He confirmed the operational or day to day report to the warehouse manager, and that it was Mr Wildman’s responsibility to ensure [the warehouse manager] is appropriately respected and informed so that he can satisfy this role. Mr Wildman requested additional/ changed wording be included in the notice to staff, that “Kevin continues to perform the Technical and Regulatory functions and additionally [will] be assisting the business in other areas”. He advised he would need a few days to review the amended position description, as he was flat out, and had staff going on leave the following week. Mr Egan went on leave 11 to 16 January 2018.
Late on 12 January 2018, Ms dela Fuente replied by email stating it was necessary that staff know he was “actioning CI sample requests and they should be directing them to you”. Mr Wildman responded promptly that evening, reminding her of Mr Egan’s email of 13 December 2017, that his role was to project manage the transition of samples, and not to action sample requests. He reminded Ms dela Fuente that actioning sample requests was a different role, currently performed by another staff member, and that Mr Wildman’s role was not to process samples once the integration and move is complete.
Mr Wildman states that it was not until Ms dela Fuente’s email of 12 January 2018 that he was advised he would have to “pick and pack” samples himself.
THE EVIDENCE BEFORE THE COURT
Mr Wildman relies on the following affidavits, exhibits and medical reports:
(a)affidavit of Mr Kevin Wildman sworn 4 February 2019, and exhibit KW 1;
(b)affidavit of Mr Kevin Wildman sworn 17 April 2019;
(c)affidavit of Ms Lianne Wildman sworn 4 February 2019;
(d)affidavit of Dr Jaspreet Singh affirmed 14 April 2019, and exhibits JS-1 and JS‑2, including expert report of Dr Singh dated 20 February 2019; and
(e)affidavit of Dr Kim Pinnock, undated but handed up in Court on 23 July 2019; including expert report of Dr Pinnock dated 26 February 2019.
At the hearing, I deferred formally ruling on a relevance objection to the medical evidence, and provisionally admitted the doctors’ evidence subject to relevance. Both doctors were cross‑examined. For the reasons I set out below, I consider their evidence relevant, and I formally admit that evidence.
IMCD relies on the following affidavits and exhibits:
(a)affidavit of Mr Lambert sworn 13 March 2019; and exhibit RL-1;
(b)affidavit of Ms dela Fuente sworn 13 March 2019; and exhibit KF‑1; and
(c)affidavit of Mr Egan sworn 13 March 2019.
Much of the factual foundation of Mr Wildman’s claim is admitted on the pleadings. The correspondence, and medical certificates are in evidence. The background facts, Mr Wildman’s health, and the correspondence between the parties (and Mr Wildman’s solicitors) was not, ultimately, in contention.
At the hearing before me all deponents were cross-examined. Both parties provided written outlines of opening submissions, and made oral submissions. IMCD also provided a short written outline of closing submissions. Transcript of the hearing was obtained.
Regrettably, this judgment has been delayed well beyond any indicative time that may have been assumed by the parties at hearing. Necessarily, my capacity to draw credibility conclusions from the presentation of oral evidence alone is reduced by the passage of time, notwithstanding my contemporaneous note taking. Accordingly, my conclusions on the witnesses arise from my rereading of their written evidence, augmented by the transcript, and having regard to the disclosures in correspondence, and the evidence of other witnesses, particularly as among the IMCD witnesses. Further, the passage of time has enabled me to undertake a detailed review of the written evidence and its relationship with the transcript, obtain a clearer understanding of the chronology of events, and pay closer regard to the interplay between the correspondence, and the witnesses’ conduct and actions in chronological order. In addition, I have had the benefit of the principal authorities to which counsel drew my attention.
MR WILDMAN’S HEALTH
During his employment Mr Wildman had, at various times, taken short periods – usually no more than a few days - of sick leave.
Mr Wildman was diagnosed with rheumatoid arthritis in or around August 2014. He informed IMCD of his treatment for rheumatoid arthritis in October 2015. That is, for approximately 14 months, Mr Wildman did not disclose his health issues to IMCD. He regularly experienced physical inconvenience due to his condition, and on occasions worked from home. In about the fourth quarter of 2015, Mr Wildman and IMCD agreed that Friday was the best day for him to be away from the office, as it had the least impact on the business, and both Mr Wildman and co-worker, Ms Morgan, who reported to him, would be at the workplace on Mondays. Despite his rheumatoid arthritis, he still worked in the office more than half of the Fridays during 2016 and 2017. He attests to taking some 48 days of sick leave between October 2015 and December 2017. The evidence of Mr Lambert and Ms dela Fuente under cross-examination, and that of IMCD’s leave records in evidence, is that in the calendar year 2017, IMCD recorded that Mr Wildman took 17 days sick leave, mostly, single day absences.
Mr Wildman states that in December 2016, he became concerned about his continuing position with IMCD upon viewing a job advertisement with the same job description as his. He learnt that one of his direct reports would be reporting to someone else, and that some of his other functions were being reassigned. He raised his concerns with Mr Egan who advised the agency had put out the advertisement by mistake. In his written evidence Mr Wildman says he found Mr Egan’s response to be disingenuous. Mr Wildman “found I was not coping well, was becoming short tempered and irrational with my family, experiencing mood swings and complete uneasiness about my employment”.
Mr Wildman consulted his general practitioner, Dr Pinnock, in relation to depression in around March 2017. In follow‑up consultations Dr Pinnock advised Mr Wildman take a week off. On 15 May 2017, Mr Wildman provided IMCD with a medical certificate from Dr Pinnock. The medical certificate stated:
This is to certify that:
Mr Kevin Wildman is receiving medical treatment.
He will be unfit to continue his usual occupation for the period:
15/5/2017 to 19/5/2017 inclusive.
This certificate was completed on 15 May 2017.
Signed
…
There is no evidence that IMCD queried this medical certificate, or sought to contact the doctor.
In mid-2017 Mr Wildman’s father became ill, and died in early June 2017 (this bereavement was disclosed by Mr Egan in his affidavit evidence). Mr Wildman began taking medication for depression in June 2017, attended regular appointments with Dr Pinnock, and signed up to an online program “My Compass”, run by the Black Dog Institute. Dr Pinnock’s clinical notes confirm these matters.
Mr Wildman attests to feeling stressed and under a lot of pressure following discussions and meetings with Mr Egan and Ms dela Fuente over the 2017‑2018 Christmas and New Year period (see [9]‑[16] above). Ms Wildman, his wife, attests that also at this time a close friend was diagnosed with a brain tumour and with a very short time to live.

On Friday 19 January 2018, Mr Wildman consulted Dr Pinnock. She advised Mr Wildman that he needed a break from work because of his health, and provided a doctor’s certificate for the period 19 January 2018 to 16 February 2018 (first medical certificate). Mr Wildman emailed the medical certificate to Mr Egan, to whom he reported, on Sunday evening, 21 January 2018.
IMCD emailed and communicated with Mr Wildman while he was on sick leave. I set out below the sequence of emails and communications from IMCD and responses, which commenced on 23 January 2018 with an email from Ms dela Fuente, and continued until IMCD terminated Mr Wildman’s employment on 4 May 2018.
On 13 February 2018, Mr Wildman saw Dr Pinnock for a follow up consultation after his appointment on 19 January 2018. She advised he take further time off, and issued a further medical certificate for the period 13 February 2018 to 2 March 2018 (second medical certificate). He emailed this medical certificate to Ms dela Fuente on 16 February 2018.
Mr Wildman consulted Dr Pinnock again on 26 February 2018, and she advised him he needed further time off work. She provided him with a third medical certificate for the period 3 March 2018 to 9 March 2018 (third medical certificate). He emailed it to Ms dela Fuente on 1 March 2018.
On Monday, 5 March 2018, Mr Wildman was referred to and attended St John of God Hospital, Richmond, for consultation and tests with Dr Singh, psychiatrist. Dr Singh maintained Mr Wildman’s existing medication, prescribed medication to assist Mr Wildman’s sleeping issues, and provided a report to Dr Pinnock.
On 8 March 2018, Dr Pinnock provided a fourth medical certificate to Mr Wildman for the period 10 March 2018 to 18 May 2018 (fourth medical certificate), which Mr Wildman sent to Ms dela Fuente on 9 March 2018.
Mr Wildman attests that earlier, in mid‑2017 (which I note was around the time of his father’s death), he and his wife had planned a caravan trip for March 2018 travelling with friends to visit Ms Wildman’s brother in Western Australia. Mr Wildman states that in March 2018 his doctors encouraged him to go on the trip, and not to cancel it. He and his wife travelled from 30 March and returned on 3 May 2018. Mr Wildman attests that he did not enjoy the trip; he would have a few good days and then feel wiped out and struggled to interact with people.
On 21 May 2018, Mr Wildman attended a second appointment with Dr Singh who informed him his recovery was being limited by issues with IMCD, and made no change to his medication.
Each of Mr Wildman’s four medical certificates completed by Dr Pinnock in the period January to May 2018 was in substantially the same terms, save as to dates, as the medical certificate she had previously completed in May 2017 (see above, at [25]).
CORRESPONDENCE BETWEEN MR WILDMAN/ HIS SOLICITORS AND IMCD
In the period from late January 2018, whilst Mr Wildman was experiencing the above health issues, IMCD and he were in correspondence and other communication as I set out in chronological order in the following paragraphs.
On 23 January 2018, upon her receipt of the first medical certificate, Ms dela Fuente emailed Mr Wildman seeking his approval for Ms dela Fuente to contact Mr Wildman’s treating doctor, Dr Pinnock. She wrote (emphasis added):
I am sorry to hear of you being unwell. With reference to the medical certificate you sent me on 21^st January, it is important the Company understands the reason for your unfitness for work and what the Company needs to consider for your return to work. This wasn’t stated in your medical certificate. I am seeking your approval for me to contact your doctor to ask for this general information.
Could you please respond with your consent or if you would like to discuss first, when is a convenient time for me to call.
Mr Wildman did not reply.
The parties then entered into further correspondence and communications, as I set out in the following chronology, together with references to the medical certificates I have referred to above, and the pleaded 3 adverse actions, 8 coercions and 4 contraventions, as defined in the claim (emphasis added):
(a)on 31 January 2018, Ms dela Fuente sent a second email requesting permission to contact Dr Pinnock, in substantially similar terms, save that she explained “The Company is concerned about your wellbeing and would like to know the reason you are unfit for work and whether there are any requirements for us to consider for your return to work”, and attaching a copy of her first email. (emphasis added)
(Together, the above emphasis in emails of 23 and 31 January 2018 is referred to in the claim as the Health Information, and the emails and emphasised text are pleaded to be the 1stCoercion);
(b)on 1 February 2018, Mr Wildman’s solicitors, Haywards Solicitors, responded to Ms dela Fuente, by letter to IMCD, advising that:
My client has instructed me to respond to your emails on his behalf. Firstly, my client does not consent to you contacting his treating Doctor.” Haywards drew attention to ss 97 and 107 of the Act, stating that “My Client is entitled to take such leave when he is ill. He has provided evidence of his illness, which is a medical certificate from his treating doctor, in accordance with section 107 of the Act. There is no lawful reason for you to require my client to provide the reasons or an explanation concerning his ill-health. He will not provide such an explanation. Please direct any enquiries concerning this matter to this firm;
(c)by letter dated 5 February 2018 and sent by post, IMCD (Mr Lambert) replied to Haywards, explaining the company’s concern about the impact Mr Wildman’s absence was having on the business, the need to understand the reason for his unfitness to facilitate a successful return, and if there is anything IMCD can do to assist, and in case the cause impacts other employees.
IMCD wrote that Mr Wildman had not provided “evidence that would satisfy a reasonable person (s 107)”, referred to legal authority, and said it was entitled to insist on better evidence of the nature of the illness. Mr Lambert said Mr Wildman had made the company aware of reasons for previous sick absences, it was suspicious he was abusing his sick leave entitlements. The letter concluded as follows:
Subject to the receipt of any advice from you as to the nature of Kevin’s claimed illness, IMCD intends to contact Kevin’s doctor to request details of the reason for him being unfit for work, to enable us to take whatever steps are necessary to assist his return to work.
(pleaded 2nd Coercion);
(d)Ms dela Fuente attests that on 12 February 2018 she directly emailed Dr Pinnock’s clinic. Ms dela Fuente followed her email with a telephone call to the clinic on 16 February 2018, explaining she had previously called and left a message for Dr Pinnock, confirmed that her email was printed and in doctor’s in-tray, for her attention, and requesting that Dr Pinnock return her call. It does not appear that this direct contact was brought to Mr Wildman’s attention at this time;
second medical certificate dated 13 February 2018 for period 13 February to 2 March 2018 sent 16 February 2018; first medical certificate dated 19 January 2018 expires 16 February 2018;
(e)on 16 February 2018, Haywards emailed a further letter to IMCD, referring to authority, reiterating that Mr Wildman “is not pressing to return to work”, rather he is saying he is ill and taking personal leave in order that he can recover his good health, that IMCD had no legitimate right to request to contact Dr Pinnock, or insist upon its satisfaction by Mr Wildman, and he “does not consent to [IMCD] communicating directly with his medical advisors”;
third medical certificate dated 26 February 2018 for period 3 March to 9 March 2018, sent 1 March 2018; second medical certificate expires 2 March 2018;
(f)Mr Lambert then emailed Mr Wildman directly on the evening of Friday 2 March 2018, saying he would like to meet “to better understand your current illness and unfitness (if any) and how the Company may be able to assist you return to work”. He said “I am concerned about the circumstances surrounding the timing and length of your absence without having any supporting detail”. He wrote he would travel to Sydney to meet, and asked Mr Wildman to nominate a day, time and location, the next week (5 March). He advised: “Whilst this meeting is not a disciplinary meeting, you are welcome to have a support person attend on the understanding you give advance notice to me of who this person will be”. (pleaded 3rd Coercion);
(g)Mr Wildman responded by email on Sunday 4 March 2018, stating he was going to hospital on 5 March and depending on the outcomes, would get back to him then;
(h)on 8 March 2018, Haywards sent a letter by email to IMCD (Mr Lambert), stating that the proposed meeting was beyond IMCD’s legal rights, was drafted to intimidate, and malicious, observing that “the clear insensitivity that you seem to be approaching my client’s ill‑health risks prolonging rather than assisting his recovery”, advising Mr Wildman was not well enough to participate in any meeting, or otherwise communicate directly on these matters. Haywards reiterated that further communications IMCD wished to have with Mr Wildman should be directed to the author at the firm;
fourth medical certificate dated 8 March 2018 for period 10 March to 18 May 2018, sent 9 March 2018; third medical certificate expires 9 March 2018;
(i)on Saturday morning 10 March 2018, Mr Lambert emailed Mr Wildman directly, following up his meeting request;
(j)also on 10 March 2018, Mr Lambert emailed a response to Haywards letter of 8 March 2018, stating Mr Wildman is a required employee, he is attempting to understand the cause of Mr Wildman’s illness, and how IMCD can assist him in returning to work, and that he had again requested Mr Wildman meet him, and disputed that IMCD was not entitled to communicate with its employees. (I observe that Haywards letter had not stated IMCD could not communicate with Mr Wildman, but rather that communications to Mr Wildman should be directed to – and thus via - his instructing solicitors). (Together with the preceding email to Mr Wildman, pleaded 4th Coercion);
(k)on 16 March 2018, Haywards wrote to IMCD again requesting Mr Lambert/IMCD refrain from directly communicating with Mr Wildman while he is absent from work as a consequence of ill‑health;
(l)on 3 April 2018, Mr Lambert emailed Mr Wildman directly, and directed him to attend an appointment with Dr Rose Wang at a medical centre proximate to his home on Friday 6 April 2018 at 9:30am, at IMCD’s cost – “the purpose of this consultation is to review your unfitness for work”, and requesting that he confirm with Mr Lambert, and if the time was not suitable, advise why and nominate an alternative time. Mr Lambert followed up with a text message;
(m)Mr Lambert then emailed Haywards on Thursday 5 April 2018, attaching his email of 3 April, and having received no response, requesting Haywards request Mr Wildman contact Mr Lambert directly with his response (the 3 April 2018 email to Mr Wildman, text message and 5 April 2018 email to Haywards pleaded 5th Coercion);
(n)Haywards emailed a response to Mr Lambert the same day, stating that Mr Wildman would not attend the medical appointment, reiterating the request that communications be via the firm, and advising that the solicitor with carriage of the matter was overseas, returning Monday 9 April 2018 (the email was sent by his personal assistant);
(o)on Friday 6 April 2018, at 8am, Mr Lambert emailed Haywards (personal assistant) and Mr Wildman requesting an explanation from Mr Wildman why he would not be attending the appointment, and that he confirm by close of business he will be able to attend a rescheduled medical appointment on 10 April 2018 (pleaded 6th Coercion);
(p)on 10 April 2018, Haywards sent a letter by email to IMCD, noting the persistent direct email communications, and asking that IMCD please respect Mr Wildman’s wishes. Haywards stated subject to precisely what [IMCD] might wish to ask [Dr Pinnock], Mr Wildman would be willing to consider further whether or not to consent to Mr Lambert writing to his doctor concerning his ill‑health. Haywards invited IMCD to provide them with the precise questions it wished to put to the doctor;
(q)in response, on 11 April 2018, Mr Lambert emailed Haywards a draft email he proposed sending to Dr Pinnock, and requiring consent and advice that Dr Pinnock had been informed of the consent by close of business, 12 April 2018. The draft email attached a copy of Mr Wildman’s position description (that proposed in January 2018), and posed the following questions:
1.What is the cause of Kevin being unfit for work?
2.How long has Kevin been suffering from this condition?
3.Does his condition expose other IMCD employees to a risk to their health or safety?
4.How does Kevin's condition make him unfit for work?
5.In your opinion, can he perform the inherent requirements of his job?
6.How has his condition changed for his current certificate to be issued for such a long period?
7.How long do you expect his incapacity to continue, if at all, after the current certificate expires?
8.How can IMCD assist Kevin return to work?
9.Are there any modifications to Kevin's work duties that would allow him to return to work?
10.How long do you envisage it will take Kevin to return to work with such assistance from IMCD?
(r)On Friday 13 April 2018, Mr Lambert emailed Haywards noting no response and requesting an immediate update … “I will regard [failure to respond by close of business] as refused consent and prepare my next instruction to Kevin”;
(s)on 16 April 2018, Mr Lambert emailed Mr Wildman, copied to Haywards, requesting Mr Wildman attend a meeting at IMCD's Bella Vista office on Friday 20 April 2018 at 11am to “discuss the legitimacy of your unfitness for work, which if found to be an abuse of entitlements, could lead to your termination of employment at IMCD”, and inviting him to nominate an alternative time, if inconvenient. Mr Lambert warned “If you do not attend this meeting, I will interpret this as a refusal to follow a direct instruction.” (pleaded 1st Adverse Action, 1st Contravention, and 7th Coercion);
(t)on 18 April 2018, Mr Lambert emailed Mr Wildman and Haywards noting IMCD had not received a response to the previous email, or about the questions posed for Dr Pinnock, and requiring a response the same day with an alternative meeting time, or failure would be a refusal to obey a direct instruction;
(u)on 19 April 2018, Haywards sent a letter by email to IMCD (Mr Lambert), noting that IMCD had corresponded with Mr Wildman, notwithstanding their repeated requests not to, on each of 10 March, 3, 6, 16 and 18 April 2018. Haywards referred to the then current medical certificate (10 March to 18 May 2018), and advised the author had enquired of Dr Pinnock "as to whether he is fit enough to attend any work-related activity. She has advised me that he is ‘not fit to attend any work-related activity and this includes any extra ordinary meetings’. Accordingly, my client will not be attending any proposed meetings.” Haywards enclosed written advice from Dr Pinnock to this effect;
(v)Mr Lambert responded to Haywards on 23 April 2018, attaching a final warning and letter of instruction to Mr Wildman for urgent attention. In the attached letter IMCD (Mr Lambert) listed the medical certificates, the communications both direct and to Haywards, asserted:
IMCD can clearly demonstrate its support and flexibility with your past history of sick leave, and asserting that “taking into account you were relocated from our Bella Vista office to Rosehill on 16/1/18 [sic – the evidence establishes the date was 8 January 2018] a very short time before you went off on sick leave from which you have not yet returned 3 months later, nor provided details of your condition … we have formed the prima facie view that there is a real possibility that you are being dishonest and abusing your sick leave entitlements.
IMCD gave a formal written warning for Mr Wildman’s refusal to obey lawful and reasonable directions, and provided a final opportunity to attend a meeting to discuss his sick leave:
I now give you a final opportunity to meet with me on Friday 27 April at 2:00pm to discuss and provide understanding of why you have been certified unfit for work and to satisfy me that you are not abusing your sick leave entitlements. If you again refuse to attend or to provide details of your claimed unfitness to work that would satisfy a reasonable employer, or are otherwise unable to satisfactorily demonstrate that your sick leave is legitimate, your employment at IMCD may be terminated.
(The letter of 23 April 2018 is the pleaded 2nd Adverse Action, 2nd Contravention, and 8th Coercion);
(w)on 26 April 2018, Haywards wrote to IMCD reiterating that Mr Wildman was not well enough to attend the proposed meeting the next day, but subject to the information from the doctor being confined solely to Mr Lambert, and giving an undertaking to keep that information confidential, and that he provide Haywards a copy of his letter to the doctor, and sign an appropriate confidentiality undertaking, Mr Wildman would allow Mr Lambert to ask Dr Pinnock directly the questions proposed in the email of 11 April 2018 (see sub‑paragraph (q) above);
(x)on 27 April 2018, Mr Lambert emailed Haywards attaching a draft letter to be sent to Dr Pinnock (with the same questions as previously listed 1-8, and new questions 9 and 10: (9) If there are modifications to Kevin's work duties, when would he be able to return to work? and (10) What type of specialist treatment is Kevin undertaking, if any, in addition to your care?), and advising that the response would be kept confidential between IMCD's managing directors, human resources manager, and any legal and tax advisors on a needs to know basis;
(y)on 1 May 2018, Haywards wrote to IMCD stating that Mr Lambert had failed to address at all Mr Wildman’s privacy concerns, and failed to give any reassurance he would be provided with a copy of any response from the doctor, and advising consent was not given to contact the doctor;
(z)on 1 May 2018, Mr Lambert sent a further email to Haywards stating his previous email constituted the written undertaking to confidentiality, confirming he would copy both the letter and response to Haywards, and requesting any amendments sought to the draft letter by close of business on 2 May 2018. He stated “I have booked an appointment with Dr Pinnock on Thursday 3^rd May for her to provide answers to my questions”. He advised that if consent was not then forthcoming, or if Mr Wildman did not contact Mr Lambert to discuss his continued employment by close of business on 3 May 2018, IMCD will proceed to make a decision to the continuance or otherwise of his employment;
(aa)on 2 May 2018, Haywards sent a letter rejecting Mr Lambert’s characterisation of his email as a confidentiality undertaking, and stating that Mr Wildman did not consent to IMCD speaking to Dr Pinnock. The author of the letter made the matter clear:
I understand from my client that you have made an appointment to see his Doctor with the IMCDs HR manager tomorrow.
My client has not consented to you speaking to his doctor. My client has not agreed to you writing to his doctor.
For you to arrange an appointment with my client [sic] Doctor apparently intending to speak to her about my client private medical information is wholly unacceptable. You appear to know no boundaries.
My client does not consent to you speaking to his doctor.
I propose to write to my client’s doctor and advise her that she does not have my client’s consent to speak to you about anything concerning him.
I reserve my client’s legal rights concerning your conduct.
(bb)on 4 May 2018, IMCD (Mr Lambert) wrote to Haywards terminating Mr Wildman’s employment with immediate effect. (the pleaded 3rd Adverse Action, 3rd Contravention, and 4thContravention).
The letter was headed ‘TERMINATION OF EMPLOYMENT’. In the letter, Mr Lambert said as follows:
…
Your role at IMCD provides required functions for the necessary operations of the business. The efforts of Ms dela Fuente and I have been frustrated by you and Mr. Hayward in our attempt to understand the reasons you have been certified unfit for work, how we can assist you in your return to work and whether your condition could impact the health and safety of other IMCD employees in the workplace. The supportive allowances IMCD has made to assist you with health issues over the last 2½ years contrasts with your unspecified medical condition apparently causing your absence from work for 3½ months commencing on 19/1/18. This has led to my suspicion of your current intentions as specifically outlined in my email to Mr. Hayward on 27/4/18.
…
You did not meet with me, you did not respond, and you have again failed to comply with a lawful and reasonable request. You have not given me any reason to believe that your claimed unfitness to work is legitimate and is not an abuse of sick leave benefits.
Most recently, in my email to Mr Hayward of 1/5/18 (copied to you) I invited you to contact me by close of business 3/5/18 to discuss your continued employment. I note that your solicitor mistakenly understood that we had made an appointment with your doctor with the intention to attend. I detailed my proposed process in my draft letter to your doctor and contained in my email to your solicitor dated 27/4/18. You solicitor’s understanding was incorrect; we had booked an appointment at a convenient time in her schedule, to allow her window of time to consider and answer our proposed questions (without us being present), but you disallowed that.
In the circumstances I have formed the conclusion that you are abusing your sick leave benefits and have no interest in returning to work at the new location as directed, nor have any intention to do so. You have refused to comply with my lawful and reasonable instructions and requests issued on 2/3/18, 10/3/18, 3/4/18, 6/4/18 and 23/4/18 and 1/5/18. Your refusal to comply with those instructions and requests, or to communicate with me are unreasonable and have had an adverse impact on the operations of the business. I have decided to terminate your employment with immediate effect based on your further refusals of those requests since the final warning issued to you on 23/4/18.
CONSIDERATION – THE WITNESSES’ EVIDENCE

Each of the witnesses gave oral evidence, and I had the opportunity to observe them, and to take notes. I have considered their written evidence and the transcript of their oral evidence. In addition, I refreshed my recollection by reviewing my contemporaneous notes.
Mr Wildman
As I have stated at [2] above, by the final day of hearing the fact of Mr Wildman’s illness was accepted by IMCD, and by agreement that acceptance put on the record by Mr Rinaldi, IMCD’s counsel, and it was agreed that the cause of his illness was not relevant.
Mr Wildman’s affidavit and oral evidence is that his reasons for not disclosing his ill health were because he was a “stoic man”, and because he had concerns about the stigma he perceived attached to mental health issues. He was firm in his oral evidence on these reasons: “Mental illness has quite a stigma in the market place and by employers and it’s – and I’m a stoic person and it’s not something you are proud to walk around saying, you’re buggared [sic, transcript spelling error] in the head.”. I accept his evidence as to his reasons, and that they were and are genuinely held. As I have said above, I note that Mr Wildman did not disclose his rheumatoid arthritis for some 14 months from first diagnosis.
His affidavit and oral evidence is also that as a consequence of Ms dela Fuente’s emails in January 2018, and at that time, he felt there was a lot of “background chatter”, and after he went on sick leave, and the emails continued, he felt so bullied. He attests “each email felt like a threat to my employment and therefore mine and my family’s livelihood”.
There was some dispute in the evidence between Mr Wildman and Ms dela Fuente whether on 13 December 2017 in meeting with Ms dela Fuente and Mr Egan he said that the proposed role at Rosehill was beneath him. Mr Egan, the third person at the meeting, did not say any such statement was made. Further, Mr Egan’s evidence in cross-examination was that there was no discussion about actioning samples at the meeting. Ms dela Fuente’s evidence is that she made a file note of the meeting shortly afterwards, perhaps on return to Melbourne. I discuss her evidence below.
Having regard to the chronology, the affidavit evidence, documentary material, and the oral evidence, I accept Mr Wildman’s evidence that he did not proffer the statement or observation that the role was beneath him in the meeting of 13 December 2017. For the reasons I set out below, I do not accept Ms dela Fuentes’ version of events.
I accept Mr Wildman’s further evidence that Ms dela Fuente put the proposition to him on a number of occasions that he seemed to think that the Rosehill role was beneath him, and that he denied it each time. Mr Wildman was firm on this matter in cross-examination. His evidence, which I accept, is that he was not reluctant to take on the project management role. I accept that he was, initially, reluctant about the necessity to relocate to Rosehill as in his view the project management role did not require him to be located physically onsite at Rosehill; rather, the role required him to be across the subject. I also accept that he accepted that move on 14 December 2017, the time frame in which Mr Egan requested his response (see above at [10]), and stood by his acceptance thereafter.
Mr Wildman attests that when it was raised on 12 January 2018 that he would be picking and packing samples he indicated that it was beneath him to perform a warehouse role.
Mr Wildman gave evidence that upon Haywards receiving IMCD’s response dated “4 February 2018” (sic, letter of 5 February 2018, auto-updated on printing to 4 February 2019, see [39(c)]) he felt IMCD’s reasons for wanting to contact his doctor were that they did not believe he was sick, and was abusing his sick leave entitlements. He attests that he felt it was very evident that he had not previously abused sick leave over his many years of employment, and was shocked and upset that IMCD would assert he was abusing his sick leave (first affidavit, at [72]).
During his first period of sick leave, Mr Wildman made an overnight visit to his daughter, a health professional, in Newcastle, and later, as I have set out above, travelled to Western Australia. IMCD sought to rely on a Facebook/Instagram post of a picture of Mr Wildman smiling in Newcastle. It is unclear when IMCD (Ms dela Fuente) obtained the Newcastle post. As to a later post from Ms Wildman relating to her absence at the time they were travelling to Western Australia relied upon by IMCD, IMCD’s evidence is it was located by Ms dela Fuente and brought to Mr Lambert’s attention on 4 May 2018, the day IMCD terminated Mr Wildman’s employment.
I reject any suggestion that because Mr Wildman made these trips, or smiled, it follows that he was fit for work, or, indeed, not ill. I accept that these trips were encouraged to aid in his recovery. I accept Dr Singh’s written evidence in relation to the disorder suffered by Mr Wildman that “non‑pharmacological interventions including travel and lifestyle changes can be effective tools to ameliorate symptoms”.
Ms Wildman gave evidence of her observations of the changes in Mr Wildman’s health and wellbeing. As I have said, these matters were ultimately not in contention.
Doctors Singh and Pinnock
Dr Singh provided an affidavit affirmed 16 April 2019, and annexed his expert report dated 20 February, 2019, which was objected to, and admitted provisionally, subject to relevance. He was cross-examined. He stood by his diagnosis of Mr Wildman as having adjustment disorder, with mixed anxiety and depressive symptoms, rather than major depression (which had been the opinion of a report dated 6 November 2018 provided by Dr Peter Young, consultant psychiatrist, in connection with a later, separate claim for worker’s compensation, not relevant to this proceeding).
Dr Singh reported Mr Wildman’s history, and that prior to 2017 (the present episode), he had no earlier history of depression. Under cross-examination, Dr Singh gave evidence of Mr Wildman’s belief that:
… since he was already been trivialised and his complaints not being looked at, so providing evidence of having the mental health issues would have created further problems for him and he anticipated no support from the workplace around those issues. … In relation to the rheumatoid arthritis, my discussions with him were that this had flare[ed] up in the year or two before seeing me and he was – at times he had to take a day off to attend exercise physiology or have his injections, and that was what was leading to probably the employer thinking that he should be on his way out.
Under cross‑examination, Dr Singh also explained that “it’s a very common problem to feel stigmatised by mental health issues, especially at a workplace which is competitive and needs people to be, you know, working to their highest efficiencies, …”. He emphasised that “it is a hugely personal decision for the individual themselves to make, as well as to when and how they make that decision to disclose these issues.”
Mr Rinaldi put to Dr Singh that if IMCD had been made aware of the nature of his illness, it would have been possible for IMCD to assist Mr Wildman to return to work. Dr Singh responded that he could not speak on their behalf, “but that is the assumption”. I accept, as Dr Singh said, that such an assumption is possible.
Dr Pinnock attests that she provides a standard medical certificate which does not state the patient’s illness. I understand, and accept, that this is evidence of her customary practice.
Dr Pinnock gave evidence that IMCD’s actions (in seeking to communicate with Mr Wildman to obtain more information about his illness) caused distress to him. She doubted that they increased his depression at that point.
Dr Pinnock accepted the proposition put to her that: “If IMCD, the employer, had known what was wrong with him, that is, the nature of his illness, obviously it follows they may have or they could have been in a position would have been in a position, to help him.” As a hypothetical proposition, this may be accepted.
Doctors evidence is admitted
Mr Miles submitted that the doctors’ evidence is relevant to whether Mr Wildman’s ill health meant he was unfit for work. I consider the doctors’ evidence is relevant, to the extent that Mr Wildman’s diagnosis and his unfitness for work remains in issue following IMCD’s concession on the final day of hearing, and also as being relevant to the perception of stigma, the effectiveness of non-pharmacological interventions as tools to ameliorate symptoms, and Mr Wildman’s attendances.
I admit the doctors’ evidence. I admit Dr Singh’s affidavit and report, and it follows, his oral evidence. It provides insight into Mr Wildman’s condition, and his reluctance to provide the Health Information, or to meet with IMCD. I admit Dr Pinnock’s written and oral evidence for the same reasons, and additionally, I consider relevant her customary practice of the wording on medical certificates that she issues.
The correspondence from IMCD does not give any indication of what IMCD foresaw it could, would or might do to assist Mr Wildman return to work. No specific evidence was adduced by IMCD of any assistance it proposed to give Mr Wildman. The only evidence before me of the form of assistance IMCD had earlier given in acknowledging his rheumatoid arthritis prior to 19 January 2018 was that Mr Wildman could take some Fridays as sick leave, and that he on occasion worked from home on Fridays (and noting that he had a significant amount of sick leave accrued, and there is no suggestion that IMCD gave him additional leave). In the circumstances, whilst I admit their evidence, I do not give great weight to the doctors’ acceptance of the possibility of IMCD being able to provide assistance.
IMCD’s witnesses
In their affidavits the respondent’s witnesses all refer to IMCD as “IMCD Australia Pty Ltd”, whilst Mr Wildman’s employer is, according to the documentation, the respondent in the proceeding – “IMCD Australia Limited”, ABN 44 000 005 578. The relationship between the named entities in 2018 was not explained. I have ascertained from the Australian Government’s Australian Business Register ABN Lookup that on 26 July 2019, the respondent ABN 44 000 005 578 changed its name from “IMCD Australia Limited” to “IMCD Australia Pty Ltd”, although the trading name remains “IMCD Australia Limited”.
IMCD’s witnesses gave evidence in support of its case, seeking to rebut the statutory presumption under s 361 of the Act. Their evidence of positions and responsibilities is as at the date of hearing. Accordingly I refer to it in the present tense.
Mr Lambert
Mr Lambert is located in IMCD’s head office, in Mulgrave, Victoria. Since May 2017 he has been joint managing director with Mr Egan. Previously he was Director–Finance and Administration. He attests that his focus as joint managing director is on operations and organisational structure, and his responsibilities include the operating and financial performance, employee welfare and corporate compliance of IMCD Australia and IMCD New Zealand.
Mr Lambert’s evidence is that he was the decision maker in relation to IMCD’s actions in dismissing Mr Wildman, and that Ms dela Fuente acted under or in accordance with his instructions. He consulted with Mr Egan when terminating Mr Wildman’s employment.
Mr Lambert’s written evidence is that in the lead up to Mr Wildman’s relocation Ms dela Fuente told him of her conversations with Mr Wildman, and her “feedback” to Mr Lambert that she thought Mr Wildman was resisting the relocation. It is clear from his written evidence that Mr Lambert relied on Ms dela Fuente’s early characterisation of Mr Wildman as abusing his sick leave entitlements.
In his written evidence, in the same paragraph as he sets out his receipt of Ms dela Fuente’s feedback, Mr Lambert gives an undated explanation for his behaviour in contacting Mr Wildman shortly after he went on sick leave, as follows:
… Combined with my knowledge of how his job role had to be modified in the past because of his dismissive behaviour to some tasks, for example the Quality Management System and adhering to standards of product masterfile creation, the timing of his sick leave being taken immediately after his work relocation, and the large balance of sick leave he had accrued, I wanted to be satisfied his sick leave was genuine. If his unfitness to work was related to his rheumatoid arthritis, what had changed to prevent him from working at Rosehill and what could IMCD do to assist his return to work? His absence was also having an impact on the business and the work load of other employees. Without knowing the reason for his sick leave, if genuine, I felt at risk in relation to my obligations of providing a safe working environment for the other Rosehill staff as I didn't know why Mr Wildman was unfit for work.
Mr Lambert’s rationale set out in the preceding paragraph is a curious explanation for Mr Lambert’s immediate scepticism of the first medical certificate, particularly in view of the fact that Mr Wildman was an employee of such long standing and experience. The description of Mr Wildman’s attitude to past tasks is not borne out by the documentary evidence as a whole. Having regard to the events described earlier in these reasons, and Mr Egan and Ms dela Fuente’s evidence, the immediate assumption, adopted from the receipt of the first medical certificate, only 2 days into his absence, and in the face of the first medical certificate, that Mr Wildman might be abusing his sick leave entitlements, is not an assumption of a reasonable person in IMCD’s position.
Under cross-examination, Mr Lambert said that as at 5 February 2018, because he only had correspondence from Haywards, Mr Wildman’s lawyers, and not “direct advice from our employee what Mr Wildman’s preferred course of action was”, he did not know Mr Wildman did not consent to IMCD contacting Dr Pinnock; only that “Haywards Solicitors didn’t pass on any consent”.
Mr Lambert accepted the proposition that his requests in his emails of 2 and 10 March 2018 to Mr Wildman to meet, were not giving him the option to meet. Mr Lambert stated he was flexible about when and where to meet.
Mr Lambert accepted that at the time Mr Lambert was directing Mr Wildman to meet with him on 27 April 2018, he had received Dr Pinnock’s letter saying Mr Wildman was not fit to attend any extra‑ordinary meeting (letter dated 19 April 2018, see [39(u)] above). Mr Lambert instructed Ms dela Fuente to make an appointment directly with Dr Pinnock, without consulting Haywards beforehand, or discussing with Haywards the necessity for making the appointment.
Mr Miles put to Mr Lambert that it was not reasonable to ask what specialist treatment Mr Wildman was receiving, and that it did not relate to his unfitness for work. Mr Lambert’s explanation as to why the information as to specialist treatment was sought was unclear: his evidence was IMCD “needed whatever information we could get to understand why Kevin was unfit for work, whether there was anything we could do to assist him in his return to work, or whether there was any other risk posed”. I consider that Mr Lambert’s response does not explain why this particular information was sought, or how it would assist IMCD, given the separate questions 3 and 8 (see [39(q)]).
Whilst Ms dela Fuente brought the Facebook post to Mr Lambert’s attention on 4 May 2018, he rejected any suggestion that it influenced or had any role in his decision to terminate Mr Wildman’s employment. Given the tenor of IMCD’s earlier correspondence and conduct, I accept that the post did not influence the fact of his decision. However, the inference is reasonably available, and I so infer, that it influenced the timing of the termination on that day.
Mr Lambert accepted that part of his reason for giving Mr Wildman a formal written warning on 23 April 2018 was that Mr Wildman did not follow IMCD’s directions of 10 March and 16 April, as well as not providing reasons for his unfitness for work.
In his affidavit Mr Lambert explains his decision to send the letter of 23 April 2018, and subsequent actions, and then to terminate Mr Wildman’s employment as follows:
[39]I wrote to Mr Wildman …offering him a final opportunity to meet with me to discuss why he was unfit for work and to satisfy me that he was not abusing his sick leave entitlements. Given Mr Wildman's past history of having open dialogue with me about the reasons for his sick leave taken due to his rheumatoid arthritis condition and the conciliatory manner in which his sick leave was managed, I considered it was most unusual and out of character for him to not be open about his extended period of sick leave on this occasion. I considered I had exhausted all reasonable efforts in attempting to determine the legitimacy of Mr Wildman's sick leave and could not come to any other conclusion than he was wanting to exhaust his sick leave entitlements before taking some other course of action to IMCD's detriment. This conclusion seemed to me to be stronger in the circumstance of Mr Wildman taking sick leave just 3 days after his relocation to the Rosehill site and not returning. …
[43]On 1 May 2018, I sent the email … to Mr Wildman and his solicitors … This email included advice that IMCD had booked time for Dr Pinnock to complete her responses in anticipation of approval by Mr Wildman to submit written questions discussed in prior correspondence. I instructed Ms dela Fuente to make this appointment and pay for Dr Pinnock’s time even though no‑one would be attending the appointment to enable her to complete written responses to my questions, if we received permission from Mr Wildman’s solicitors. I wanted to avoid the situation of a delayed response from Dr Pinnock due to lack of available time due to her other appointments. I asked Ms dela Fuente to inform the clinic that there would not be anyone attending those appointments and the time was for her to answer my questions at a time during the day when she may be least busy. We also took this approach so the doctor would not be financially disadvantaged for the time she needed to complete her written responses.
[44]I received the letter … from Mr Wildman’s solicitors dated 2 May 2018, including an incorrect assumption that I had made the appointment to see his doctor.
[45] I considered I had exhausted all reasonable attempts to understand the reasons for Mr Wildman's unfitness for work I gave consideration to the possibilities fox his sick leave being related to his rheumatoid arthritis, but I couldn't understand why he would not inform me of this when considering the support IMCD had given Mr Wildman in the past, I then considered whether Mr Wildman could be suffering from another physical or mental illness. However, I couldn't understand why he would not divulge a physical illness so I could consider any exposure to other IMCD employees. Then if he was suffering from a mental illness, why would he not share this when IMCD have demonstrated respect and confidentiality, when previously requested in relation to his rheumatoid arthritis. Mr Wildman also knows IMCD is a global, ethical and professional company and the issue of employees with mental health issues is not uncommon. I was therefore left with the conclusion that Mr Wildman was unhappy about his relocation to IMCD’s Rosehill site, despite providing his earlier consent, and intended to use his outstanding leave balance to the further detriment to IMCD caused by his absence. My view of his abuse of his sick leave entitlements was Mr Wildman had no genuine intention to work with IMCD to return to work and I had to provide direction to the other IMCD employees who were enduring the operational difficulties by having to cover Mr Wildman's functions. I made the decision, on behalf of IMCD, to terminate Mr Wildman’s employment for that reason, and because of his repeated refusals to comply with what I regarded as lawful and reasonable directions that I had given him. I did not terminate his employment because of his illness or his absence, but because of their effect on IMCD’s operations. His repeated refusals to comply with my directions or provide any information about his illness so that IMCD could endeavour to assist him to return to work and ensure the health and safety of other employee caused my belief that he was simply using up his sick leave entitlements with no genuine intention of returning to IMCD, as I and my fellow managers were wanting to achieve.
[46]I therefore sent the letter dated 4 May 2018 to Mr Wildman care of his solicitors advising of the termination of Mr Wildman's employment.

As I have said, above, Mr Lambert’s statement in his affidavit at [39] that Mr Wildman went on leave 3 days after relocation is incorrect. Mr Wildman returned from Christmas vacation on 8 January, and was absent from 19 January 2018, two weeks later.
As to Mr Lambert’s explanation of his appointment with Dr Pinnock in his affidavit at [43] – [44], the advice was clumsily worded, and inappropriate in any event (see chronology at [39(z)]). The evidence does not disclose any reason for urgency.
I accept that Mr Lambert was not aware of Mr Wildman’s mental health diagnosis until several months after he terminated Mr Wildman’s employment. In the light of this, however, I do not accept Mr Lambert’s proffered explanation that he gave any thought prior to termination that Mr Wildman might be suffering any mental health problems. That explanation is not borne out by Mr Lambert’s actions since 23 January 2018 (relating to Ms dela Fuente’s actions), particularly his persistent direct contacts to Mr Wildman, and IMCD’s attempts to directly contact Dr Pinnock.
The evidence from the doctors is unequivocal, Mr Wildman was ill. I reject IMCD’s submission that Mr Wildman was abusing his sick leave entitlements.
Mr Lambert’s explanations in his affidavit at [45] as to his reasonableness do not survive scrutiny. As I have said at [68], from the first communication from IMCD, each communication expressed, and then reiterated doubt about, the validity of Mr Wildman’s reason for his absence, and sought to go behind the medical certificate(s). Over time, that disbelief was reiterated more loudly. From the first communication, IMCD sought to approach Mr Wildman’s doctor. Although Mr Lambert says he had exhausted “all reasonable attempts to understand the reasons for Mr Wildman’s unfitness”, repeating the same request several times does not constitute all attempts at understanding nor any variations in attempt, nor make reasonable the attempts.
As to the effects on IMCD’s workplace and other employees, at most, Mr Lambert’s statements are generalisations. Mr Egan – Mr Wildman’s direct boss - did not give any evidence of any such effects or concerns.
No proper explanation is given of what Mr Wildman’s absence was having or had on IMCD’s business or staff’ workload. The asserted ‘operational difficulties’ are not disclosed, nor what or how unnamed employees were experiencing having to cover for his absence. Given Mr Egan’s email on 13 December 2017 (see at [10] above), and the work referred to at [15] above, in the absence of any content or detail, I give little weight to Mr Lambert’s asserted generalisations.
So too, Mr Lambert’s concern about IMCD’s obligations to provide a safe working environment, and how Mr Wildman’s ill health and absence posed a risk to such an environment, is couched in generalisations, and wanting detail. No explanation is given. Nowhere in IMBD’s evidence was I able to ascertain what sort of safety risk or operational difficulties then arose or were likely to arise.
Mr Lambert’s bald assertions are in stark contrast to the detailed evidence and context given by and on behalf of the employer in Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32; (2014) 240 IR 342, to which authority I make further reference below.
Ms dela Fuente
Ms dela Fuente has been employed with IMCD since 2015 as the Human Resources manager. As I have said above, she is based in Melbourne. Her evidence is that she acted on instructions from Mr Lambert.
It is apparent from her written evidence, her correspondence with Mr Wildman, and her actions, that she held a negative view of Mr Wildman from at least the meeting of 13 December, 2017. Ms dela Fuente flew from Melbourne and attended the meeting on 13 December 2017. The meeting was to obtain Mr Wildman’s buy in to a management decision already made.
Ms dela Fuente’s file note of the meeting on 13 December 2017 was written after the meeting. She believes it was written when she returned to Melbourne. It is curiously titled “File Note: Kevin Wildman 13.12.2017 Bella Vista Office”. It is undated, and does not expressly identify that Mr Wildman was being asked to relocate his workplace. It does not include the time, duration, specific outcomes or identified next steps of the meeting. I consider that it contains a significant amount of self-serving commentary. It does not reconcile it in all respects with Mr Egan’s email to Mr Wildman sent 13 December 2017, the same day of the meeting, and confirming the outcome of the meeting. Ms dela Fuente acknowledges that the discussion she commented adversely on was regarding Mr Wildman’s concern about his status within the business and his reputation amongst his colleagues. I consider that Mr Wildman’s concern is a reasonable concern to be expressed by an employee of over 20 years standing. This concern subsequently expressed itself in exchanges between them in the week of 8 January 2018, following Ms dela Fuente’s direction that he was to action CI (that is, Capitol Ingredients’) samples and proposed to inform staff accordingly. It is apparent from her file note of the 13 December 2017 meeting that Ms dela Fuente was not prepared to give Mr Wildman time to absorb the decision imposed on him, and to be reconciled to it.
Ms dela Fuente’s correspondence with Mr Wildman in the period 10 January‑16 January 2018 evidences changes to Mr Wildman’s duties imposed after his acceptance of the relocation to Rosehill on 14 December 2017, including imposing pick and pack duties. The evidence is, and I accept, that to date these duties in relation to Capitol Ingredients samples were ones undertaken by a part time employee who had reported to Mr Wildman. Further, Mr Egan’s evidence is that staff already performed those duties at both Bella Vista and Rosehill.
Ms dela Fuente’s email sent on 16 January 2018 after a discussion about the additional tasks Mr Wildman was now being required to do, includes the statement “Several times you mentioned if the Company wants you to leave then start the discussion, IMCD has not proposed this option, nor intends to, however should you prefer to exit the business, I am sure we can discuss with an amicable outcome”. Ms dela Fuente’s email ends with a comment, unrelated to the other subject matter of the email, and relating to Mr Wildman’s absence from the workplace the previous Friday: “Absences must be entered into Outlook Public Folders. Your absence for Friday 12^th January was not entered until Monday 16th January 2018 [sic]”. It is apparent from this email that Ms dela Fuente had no patience for Mr Wildman. She was quick to invite him to present a proposal for him to leave IMCD.
In cross‑examination, on being directed to a work-related email from Mr Wildman sent on 12 January 2018, she accepted that he dealt with work related matters whilst on sick leave, and that he had done so that day.
Although existing staff performed duties actioning samples at both Bella Vista and Rosehill at the time Ms dela Fuente informed Mr Wildman of the additional pick and pack duties on 12 January 2018, I do not accept it necessarily follows that Mr Wildman was being “eased out” of his employment at that time. I accept, however, that it is reasonable that Mr Wildman may have been inclined to that view.
Ms dela Fuente doubted Mr Wildman had issues with his health even before he went on leave, viz. her email of 16 January 2018. Her emails of 23 and 31 January 2018 demonstrated she was extremely quick to disbelieve him. In her affidavit Ms dela Fuente states that she believed Mr Wildman was using up his sick leave entitlements due to his accrued sick leave balance being too high, and that she expressed this view to Mr Lambert and Mr Egan. She situates this view as held by her from at least early February 2018. It is apparent from Mr Lambert’s evidence (including above at [75]) that this belief conveyed to him was a motivating factor in his subsequent actions.
It is reasonable to infer from Ms dela Fuente’s actions, and specifically, her written evidence and the correspondence, that so far as Ms dela Fuente was concerned, at least, Mr Wildman was abusing his sick leave entitlements, even before 19 January 2018, and that his exit from IMCD was to be encouraged. It does not follow that because an employee has a high accrued sick leave balance that when they are on leave and submit medical certificates they are abusing their entitlements.
Ms dela Fuente attests that on 12 February 2018, within the period of the first medical certificate, she contacted Dr Pinnock’s clinic by email, and sought to make an appointment to call her. Ms dela Fuente followed up with a telephone call to the clinic on Friday 16 February 2018, and a further request that Dr Pinnock call Ms dela Fuente. Ms dela Fuente attests that she ascertained from the clinic that Mr Wildman had consulted his doctor on 26 February 2018. She continued to approach Mr Wildman’s doctor and her clinic, notwithstanding Haywards’ request that communications to Mr Wildman be directed to the lawyers.
It is apparent from these actions that Ms dela Fuente (and thus IMCD) had no compunction in trying to speak directly with Dr Pinnock, and that she expressed no regard for doctor‑patient confidentiality. I have serious reservations about the genuineness of Ms dela Fuente’s explanations of her actions in relation to Mr Wildman throughout the relevant period. Even taking into account her suspicions, which I consider unwarranted and reflective of her own attitude, and not reasonable, her behaviour is reprehensible.
That IMCD (through Ms del Fuente, and Mr Lambert) in each of its correspondence and communications from 23 January 2018 expressed disbelief as to Mr Wildman’s ill health, and the veracity of his doctor’s clear statement, and notwithstanding his existing rheumatoid arthritis, and their conduct similarly in directly contacting his doctor, and acting in repeated disregard for Haywards’ requests that communications with Mr Wildman be to the lawyers, are factors to which I give considerable weight.
Mr Egan
As I have I have described above, Mr Egan is joint managing director of IMCD. Mr Wildman reported to him effective March 2014, and until his employment ceased, although there was a period in 2015 when there was an intermediate report.
Mr Egan did not recall it being suggested at the 13 December 2017 meeting that Mr Wildman should be responsible for actioning CI sample requests. As I have noted above, he said that IMCD already had staff at both Bella Vista and Rosehill who were responsible for that role.
Mr Egan was on annual leave from 11 January to 16 January 2018. He had no further contact with Mr Wildman thereafter. His evidence under cross‑examination was that Mr Wildman’s work performance was satisfactory, and there were no real issues. I give weight to this evidence in view of the fact that Mr Wildman reported to Mr Egan.
Mr Egan did not have any input into the decision that Ms dela Fuente contact Dr Pinnock. It was not his decision to terminate Mr Wildman’s employment. He was consulted.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
There is no issue in the proceeding that Mr Wildman was a national system employee as defined in s 13 of the Act, and that IMCD was a national system employer as defined in s 14 of the Act. Accordingly, by s 43(1)(a) of the Act, the minimum terms set out in the National Employment Standards (contained in Part 2-2) apply, relevantly, the provisions for paid personal leave in Div 7 (ss 96, 97, 107), and the requirement for notice of termination, period of notice, and payment in lieu in Div 11 of the Act (ss 117 and 123). Section 44(1) provides that an employer must not contravene a provision of the National Employment Standards.
I set out relevant statutory provisions below.
Personal leave
Section 97 of the Act provides, relevantly, that:
An employee may take paid personal/carer’s leave if the leave is taken:
(a)because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or …
Section 107 of the Act provides as follows:
Notice
(1)An employee must give his or her employer notice of the taking of leave under this Division by the employee.
(2)The notice:
(a)must be given to the employer as soon as practicable (which may be a time after the leave has started); and
(b)must advise the employer of the period, or expected period, of the leave.
Evidence
(3)An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that:
(a)if it is paid personal/carer’s leave -- the leave is taken for a reason specified in section 97; or …
Compliance
(4)An employee is not entitled to take leave under this Division unless the employee complies with this section.
Mr Miles referred to the explanatory memorandum, which at [4.15] states “… The types of evidence commonly requested includes a medical certificate or statutory declaration. It may not be reasonable in every instance for an employer to require an employee to provide a medical certificate. …”
Adverse action
Section 342(1) of the Act provides that an employer takes ‘adverse action’ against an employee if the employer:
(a)dismisses the employee; or
(b)injures the employee in his or her employment; or
(c)alters the position of the employee to the employee's prejudice; or
(d)discriminates between the employee and other employees of the employer.
Section 340(1) provides that:
A person must not take adverse action against another person:
(a)because the other person:
(i)has a workplace right; or
(ii)has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposes or proposes not to exercise a workplace right; or
(b)to prevent the exercise of a workplace right by the other person.
Adverse action taken for a reason other than a reason set out in s 340(1) is not a contravention of the Act.
‘Workplace right’ is defined in s 341(1) of the Act:
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law; workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceeding under a workplace law or instrument; or
(c)is able to make a complaint or inquiry: …
(ii) if the person is an employee - in relation to his or her employment.
Mr Wildman submits that he had a workplace right to take paid personal leave in accordance with Division 7 of Part 2-2 of the National Employment Standards under the Act, that is, pursuant to s 97.
Section 360 of the Act provides that for the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason. Section 361(1) of the Act then provides that:
(1) if:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
Sections 360 and 361 facilitate proof in relation to the employer’s reasons. Section 361 provides a presumption as to the employer’s reasons, unless the employer proves otherwise.
In Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 (to which counsel referred) at [13]‑[15], the Full Court of the Federal Court of Australia said that, stated compendiously, s 361(1) places an onus or burden on a person involved in a proceeding relating to a contravention of Part 3-1 of the Act (here, of ss 340, 343, and 352) to “prove otherwise” than that they took the contravening action for the particular reason, or with the particular intent, alleged in the applicant’s application. The consequence of a failure to discharge this burden is that it is presumed against the person concerned (here, IMCD) that the contravening action was taken for that particular reason or with that particular intent.
The Full Court stated that before the presumption operates, however, two preconditions must be met: first, (in sum) an allegation under s 361(1)(a) must precisely and distinctly identify the particular alleged reason, or the particular alleged intent, for the contravening conduct, and secondly, the requirement in s 361(b), additionally, that taking the alleged action, for the alleged reason or with the alleged intent (or both) “would constitute a contravention of this part”.
There must be a causal connection between the act of the employer and the employer’s reasons for those actions which are critical to the allegations of determination of the alleged contraventions of ss 340, 343 and 352 of the Act: see Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34; 94 IR 244. Normally sworn evidence from the employer denying the prohibited reason is necessary, and in most cases, an explanation of the real reason consistent with the absence of the prohibited reason as a reason is, in a practical sense, also necessary: Seymour v Saint-Gobain Abrasives Pty Ltd [2006] FCA 1452; (2006) 161 IR 9. The task for the Court is to consider whether the employer has excluded the existence of a prohibited reason. It does not require the Court to go further and determine whether the respondent made the correct decision, there was a valid reason for the action, nor to consider whether that action was harsh, unjust or unreasonable. That is the issue turns on whether the action was motivated by a prohibited reason, not on whether the action was taken for a reason which is not shown to have been correct: Mendonca v Chan & Naylor (Parramatta) Pty Ltd [2014] FCCA 1042 per Judge Cameron at [178].
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 is the leading authority on the operation of ss 360 and 361 of the Act. The principles explained in it were affirmed by the High Court of Australia in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243. Those principles were summarised by the Full Court of the Federal Court in State of Victoria (Office of Public Prosecution) v Grant [2014] FCAFC 184; (2014) 246 IR 441, at [32]:
…
•The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
•That question is to be answered having regard to all the facts established in the proceeding.
•The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
•It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”
•Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
•If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.

I find that the second medical certificate satisfies the requirements of s 107(3) of the Act. The second medical certificate, for just under a fortnight (excluding overlap), and bringing the total absence to 6 weeks, is evidence that would satisfy a reasonable person that the leave is taken for a reason specified in s 97 of the Act, namely because Mr Wildman is not fit for work because of a personal illness.
Separately, I note Ms dela Fuente’s evidence that she ascertained from Dr Pinnock’s clinic that Mr Wildman had consulted his doctor on 26 February 2018. Although that evidence was not proffered by Mr Wildman, and thus does not satisfy the provisions of s 107(3) of the Act, I consider that it is relevant to take into account as information available to the employer.
The period 3 March 2018 to 9 March 2018 – the third medical certificate
The third medical certificate was sent to IMCD on 1 March 2018. It was for a further 7 days / 5 work days. As did the previous medical certificates, it states both that Mr Wildman is undergoing medical treatment, and is unfit for work for the period stated. As with the first medical certificate, it is reasonable to understand these statements as connected, and I so find.
In addition, on Sunday 4 March 2018, Mr Wildman emailed Mr Lambert that “I will be in hospital tomorrow for further tests and depending on the outcomes will get back to you then. Thank you for getting in touch”.
In these circumstances, I consider that the third medical certificate, together with the information provided by Mr Wildman in the email, is evidence that would satisfy a reasonable person within s 107(3) of the Act, and I so find it satisfies those requirements. It is evidence that would satisfy a reasonable person that the leave is taken for a reason specified in s 97 of the Act, namely because Mr Wildman is not fit for work because of a personal illness.
The period 10 March to 18 May 2018 – the fourth medical certificate
The fourth medical certificate was sent to IMCD (Ms dela Fuente) on 9 March 2018. It was for a further approximately 10 weeks (including the Easter and Anzac holidays). As did the previous medical certificates, it states both that Mr Wildman is undergoing medical treatment, and is unfit for work for the period stated. As with the first medical certificate, it is reasonable to understand these statements as connected, and I so find.
In the circumstances of a preceding 7 weeks of paid personal leave, which had been for varying periods, that this certificate was for a 10 week period rather than further incremental short periods, of itself should satisfy a reasonable person that the subject had, as the doctor stated, a medical condition and was not fit for work because of a personal illness.
On 19 April 2018, during the period of this certificate, and notwithstanding his lawyers’ statement that the medical certificate was sufficient for the purposes of s 107(3), Mr Wildman’s lawyers informed IMCD that the author had enquired of Dr Pinnock "as to whether he is fit enough to attend any work-related activity. She has advised me that he is ‘not fit to attend any work-related activity and this includes any extra ordinary meetings’. Accordingly, my client will not be attending any proposed meetings.” Haywards enclosed written advice from Dr Pinnock to this effect (see [39(u)], above).
I consider that the combination of the medical certificate, Haywards letter and Dr Pinnock’s written advice sent 19 April 2018 together satisfies the requirements of s 107(3) of the Act. It is evidence that would satisfy a reasonable person that Mr Wildman’s leave was taken for a reason specified in s 97, namely because he is not fit for work because of a personal illness. I find accordingly.
I consider that the circumstances pertaining in each of Qantas, and Swanson are of a very different character, and distinguishable, in so far as they are called in aid by IMCD to support the argument that the fourth medical certificate (or any of the preceding medical certificates), is not evidence that would satisfy a reasonable person, for the reasons already stated.
Conclusion
For the above reasons, I have concluded that:
(a)Mr Wildman was not fit for work because of a personal illness;
(b)Mr Wildman met the evidence requirements of s 107(3) of the Act for each of the periods of the first, second, third, and fourth medical certificate, that is, for the period 19 January 2018 up to and including 4 May 2018 (the Period);
(c)Mr Wildman’s absence from work for the Period was an exercise of his workplace right to take personal leave;
(d)Mr Wildman met the requirements of regulation 3.01(2) and (4).
It follows that for the Period up to 4 May 2018, Mr Wildman was on paid personal leave for a purpose mentioned in paragraph 97(a), and thus that sub-reg 3.01(5) does not apply to exclude Mr Wildman from being temporarily absent from work because of illness or injury. It follows that for s 352 of the Act, Mr Wildman was temporarily absent from work because of illness of a kind prescribed by the Regulations.
Were the directions by IMCD lawful?
The parties’ submissions
I accept IMCD’s submissions that IMCD has an implied duty to provide employees with a safe system of work (see Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169 at [40]), and that Mr Wildman has an obligation to co‑operate at common law.
Mr Rinaldi submits that IMCD’s attempts to ascertain the nature of the illness were to determine whether the illness was legitimate, and also to satisfy the employer by evidence that would satisfy a reasonable person (see inter alia, at [160] above); they were lawful and reasonable in accordance with s 107(3) and the implied term referred to in Blackadder. (IMCD’s attempts included directly approaching Dr Pinnock, and enquiring of her clinic whether Mr Wildman had attended consultations, to be informed that he had done so.)
IMCD further submits that the directions (identified in [138] above), including that provided in the final warning letter of 23 April 2018 from Mr Lambert to Mr Wildman to attend the workplace (the pleaded 8th coercion), were lawful and reasonable because they were pursuant to the implied term in employment contracts referred to in Blackadder at [67]-[69] that employers ensure the health and safety of all employees, particularly at [68]. Mr Rinaldi submits Qantas at [64] and [72] demonstrates that asking an employee to come in for a meeting, notwithstanding that a doctor has stated he is unfit to do so (Dr Pinnock’s advice of 19 April 2018), is both lawful and reasonable in the circumstances. The employer’s lawful entitlements allows the employer to request evidence that would satisfy a reasonable person.
Mr Rinaldi reiterated his submissions as to the lack of a workplace right being exercised, as s 107(3) has not been enlivened. I have concluded above that s 107(3) was enlivened, and that Mr Wildman was exercising his workplace right to paid personal leave.
Mr Miles submits that Swanson should be viewed narrowly on the facts of the case, and that the decisions of Blackadder and Qantas pertain to very different, and distinguishable situations. The employer’s right is not unconstrained.
In Blackadder, the right to require an employee to attend a medical examination (see decision at [68], set out above), is not about whether the employee is fit for work at a time they are saying they are sick, but rather the time at which the employee attends for performance of work, which is when an employee is saying that they are able and ready to return to work. At [68], Madgwick J’s reference is to the fulfilment and affirming the employee’s continuing fitness to undertake duties, because the dispute there was about the employee’s continuing fitness to undertake specific duties (in the context of a dangerous workplace), and the obvious risks associated with repetitive use of limbs and such matters. Whether it is reasonable for an employer to request an employee attend a medical examination will always be a question of fact, as will be the terms for undertaking such an examination.
The conduct of IMCD is the complete opposite to the situation in Qantas as IMCD was seeking to interfere with the workplace right to take sick leave, particularly considering the circumstances in Qantas. The right to request a medical attendance discussed in Qantas, must be considered in relation to the facts present in that case. The Civil Aviation Safety Authority required a Class 1 medical certificate for pilots that would need to be recertified yearly. An important aspect of an employer being able to require an employee to attend a medical examination is qualified by Rares J in Qantas, is that there be “a genuine indication of a need for [the medical examination], on reasonable terms” at [54]; see also Qantas [64] and [66].
Mr Miles accepts that return to work does give rise to an obligation, and accepts that particularly with mental health issues, in terms of how that return is to be structured and communicated is a matter that would need to be carefully managed, particularly in the light of both the work health and safety obligations, and the obligation to provide reasonable adjustments under the Disability Discrimination Act 1992 (Cth). However, Mr Wildman was not at the point where he was seeking to return to work, but was on sick leave. Further, in this case IMCD had no idea of the nature of Mr Wildman’s illness.
Consideration
I have concluded that the medical certificates were evidence that would satisfy a reasonable person, and in respect of the third and fourth medical certificates, also the additional evidence I have identified. The correspondence and other evidence demonstrated IMCD had formed its views that Mr Wildman was abusing his sick leave entitlements from the first medical certificate. For the above reasons I find, those views were not views of a reasonable person.
I accept however that the duty to co-operate at common law may arise, notwithstanding that the requirements of s 107(3) are satisfied.
I have concluded that Mr Wildman was not abusing his sick leave entitlements. Mr Lambert’s suspicion was unfounded. Ms dela Fuente’s views were similarly unfounded.
IMCD, through Mr Lambert, also expressed a desire to ascertain what IMCD could do to assist Mr Wildman return to work. He explained his request and directions were also to ensure the ongoing health and safety of IMCD’s other employees, who were being required to perform Mr Wildman’s functions in his absence. I have earlier considered Mr Lambert’s explanation. For the reasons I there stated, I am not persuaded by IMCD’s submission that IMCD’s directions to attend medical examinations, to allow contact with doctors, and to attend meetings are lawful and reasonable in the circumstances. The evidence does not demonstrate a genuine indication of any need for the medical examinations, or provision of medical information (the Health Information), or for Mr Wildman to attend the workplace notwithstanding his doctor’s advice, and his medical certificates and evidence (c.f., Qantas).
I do not consider it is correct to say (if IMCD does say) that there is a duty of cooperation that by the simple fact of the duty, therefore extends to any requirement of the employee to submit to whatever it is that the employer wishes to ask the employee’s doctor, or to submit to an examination by a general practitioner, without any guidance or disclosure as to what that general practitioner has been instructed to consider, or the basis upon which that has been instructed. As Judge Jones said in Swanson at [53], directions issued by employers must also be reasonable. What is reasonable in any given circumstances will depend on the particular type of employment.
I do not accept that IMCD’s directions identified as the coercions (see [39] and [138] above) fall within the duty of co‑operation, or pursuant to the implied terms of employment contracts of the kind identified in Blackadder, Qantas and Swanson. I accept that the circumstances of those cases are very different, and that the duty of co-operation /implied term is qualified as I have identified and emphasised in my discussion of those decisions earlier in these reasons. IMCD’s circumstances are distinguishable. Mr Wildman’s employment by IMCD was not such that its directions were reasonable.
At a factual level, IMCD’s witnesses’ evidence lacks the content to support its claims as to the lawfulness and reasonableness of the identified directions on 5 February, 2 and 10 March, and 3, 6, 16, and 23 April and 1 May 2018. In the present case, on the facts I have set out and found, the directions and requests were not necessary (c.f., Blackadder), or reasonable (c.f., Swanson), nor were they reasonable requirements for the purpose of assisting IMCD in understanding how it would need to deal with Mr Wildman on his return, or the operational needs of IMCD’s business, or the health and safety of other employees (c.f., Qantas), c.f., IMCD’s submissions summarised at [143]-[145] and [163] above.
It follows for the reasons I have set out above, I have concluded that IMCD’s directions were not lawful. They were not reasonable. I reject IMCD’s submission that directions were legitimate exercises of the employer’s power to direct.
Coercion in contravention of s 343
I now turn to the 8 coercions pleaded.
Counsel were agreed that the leading authority is the decision of the Full Court in Hall which I have discussed above. In sum, coercion requires the use of illegitimate means by the impugned actor with the intention to negate the choice of the other party (see Hall at [13]‑[19] and [23]-[26]).
The parties’ submissions
The parties’ contentions and submissions have been referred to above.
In closing oral submissions for Mr Wildman, Mr Miles conceded that the Court need not trouble itself with the allegation in relation to the 1st coercion.
As to the second and following coercions, Mr Miles stated that Mr Wildman does not assert that the right to privacy is a workplace right, but that the privacy went to the reason that the action was unlawful, illegitimate or unconscionable. Mr Wildman submits that both limbs of s 343, being the coercion not to exercise the workplace right, and to exercise it in a particular way are engaged, as the only way in which, on IMCD’s directions / threats, Mr Wildman could exercise his right to privacy is by not exercising his workplace right to sick leave. IMCD intended that its unlawful directions/ threats negate choice regarding Mr Wildman’s exercise of his workplace right to sick leave.
Mr Miles made submissions in relation to the 2nd coercion, and argued that the third to eighth coercions were of the same character, and the analysis of the 2nd coercion also applied to them. The letter of 5 February 2018 (2nd coercion, see [39(c)]) states that unless Mr Wildman acts in a certain way, IMCD intends to contact his doctor to request details of the reason for him being unfit for work, to understand how they can assist his to return to work. Mr Wildman says this was not an idle threat, as that is exactly what Ms dela Fuente did. Failure to consent does not give the employer the right to override that absence of consent. It is the deliberate decision to act in the absence of consent that is unlawful and illegitimate. That is what IMCD did. The duty of co-operation does not extend to the point IMCD submits.
Mr Miles submits that Madgwick J’s caution in Blackadder at [69]: “the matter will generally require a sensitive approach, including as far as possible, respect for privacy”, is contrary to the approach taken by IMCD by attempting to directly contact Dr Pinnock.
IMCD submits the directions given were a legitimate exercise of the employer’s power to direct. The intention of the directions was not to negate the choice of Mr Wildman as to the exercising of his workplace right, but to ascertain the nature and extent of Mr Wildman’s illness so as to ensure his health and safety, the health and safety of other employees, and to assist Mr Wildman’s return to work. Mr Wildman had a duty to co-operate, which was not negated by being on paid personal leave. See also, IMCD’s submissions above, including at [200]‑[201].
Consideration
I accept Mr Miles analysis of the 2nd coercion. I accept that each of the following pleaded coercions has the same indicia, and are established pursuant to the same analysis, and additionally for the following reasons.
IMCD acted in the face of evidence I have found satisfied s 107(3). Mr Wildman’s absence of consent to contact the doctor was unambiguous. In relation to the 8th coercion, Dr Pinnock’s advice of 19 April 2018 was clear.
IMCD did not believe Mr Wildman was sick, but believed he was abusing his leave entitlements. It expressed that disbelief strongly, and sought to interrogate Mr Wildman and his doctor to establish to its satisfaction otherwise. That reason is a continuing substantial theme evident in its communications and conduct. Mr Wildman was exercising his workplace rights and IMCD considered he should not be doing so.
I have concluded above that I am not satisfied by Mr Lambert’s and Ms dela Fuente’s explanations that IMCD’s actions were for reasons of Mr Wildman’s health and safety or that of other employees, or to assist Mr Wildman’s return to work.
I have rejected above IMCD’s submission that the directions given by IMCD were a legitimate exercise of the employer’s power to direct. I have found that the directions of IMCD were not lawful, and reasonable. I consider the duty of co‑operation submitted by IMCD, on the particular facts of this case, does not extend to the point sought of Mr Wildman. In the circumstances, it did not extend to co‑operation as sought by IMCD’s directions and threats.
The import of Mr Lambert’s oral evidence was that the directions of 2 March and 10 March 2018 were intended not to give Mr Wildman a choice to accept or to refuse to follow the directions. A limited choice was given as to timing and location. The directions evinced a high degree of compulsion, at least in a practical sense, and not some lesser form of pressure by which Mr Wildman was left with a realistic choice as to whether or not to comply (see [121] above). It follows from the directions on their face, and Mr Lambert’s evidence, that Mr Wildman’s choice of whether to exercise his workplace right, or how to exercise his right is negated, and that it was IMCD’s intention that it be negated.
So too, the subsequent directions evinced a high degree of compulsion. IMCD intended that they negate Mr Wildman’s choice whether and how to exercise his workplace right to paid personal leave, and they did so.
As Qantas and Blackadder make clear, and Swanson supports, the power to direct is not unconstrained. The power must be exercised reasonably in the circumstances. In the present case, it was not.
For the foregoing reasons, I find that Mr Wildman has made out each of the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th coercions, and that IMCD has contravened s 343 of the Act.
ADVERSE ACTION – SECTIONS 340(1) AND 352 OF THE ACT
Contravention of s 340 of the Act
It is not in dispute that IMCD took adverse action against Mr Wildman by dismissing him from his employment on 4 May 2018. As I have adverted to above at [142], IMCD submits that this 3rd Adverse Action – dismissal - subsumes the two earlier adverse actions claimed to be threats to dismiss or injure Mr Wildman in his employment (the two warning letters of 16 April 2018 (above at [39(s)]) and 23 April 2018 (above at [39(v)]). Those letters leading up to termination were preparatory to, and gave Mr Wildman warning of, the potential disciplinary action. They are not properly regarded as relevant adverse action in themselves.
I accept IMCD’s characterisation of the 1st and 2nd Adverse Actions. The two earlier letters are subsumed in the later Adverse Action of dismissal.

IMCD says true it is that but for Mr Wildman being on personal (sick) leave he would not have been dismissed, but that it not the requisite causation test. IMCD says that even if there was an exercise by Mr Wildman of the workplace right to take personal leave, the adverse action was not taken because of that exercise. IMCD says (closing submissions, [6A(3)]) the dismissal was solely because of Mr Wildman’s repeated and serious misconduct in refusing to comply with IMCD’s lawful and reasonable directions, after having been given multiple opportunities to remedy that misconduct.
IMCD has put on evidence from critical witnesses. Mr Lambert was the decision maker. Mr Rinaldi submits Mr Lambert’s evidence demonstrates the above sole reason for the dismissal, and rebuts the statutory presumption in s 361 of the Act.
Mr Miles submits that Mr Lambert’s evidence cannot be accepted. The Court is not sitting in judgment in this particular aspect about whether the real reason was valid, but merely trying to identify that there was, in fact, a reason. It is not necessary for it to be a complete explanation. Even if there is a real reason for the dismissal, if there is also a prohibited reason, then by reason of s 360, that is a contravention of s 340 of the Act. The critical question is therefore is the prohibited reason absent, rather than whether there is the presence of some other reason (see authorities referred to above at [115]‑[117]).
Mr Miles submits that inconsistencies in Mr Lambert’s evidence - that he instructed the filing of the defence and cross-claim, and [2] and [3] of the cross-claim, contradict what Mr Lambert says were his reasons for terminating Mr Wildman. He further submits that the continuing payment of sick leave also contradicts that evidence: IMCD continued payment in February, March, and April 2018, after it stated and claimed it did not believe Mr Wildman was sick, and he had not provided evidence that would satisfy a reasonable person. There is no explanation on the evidence as to why it paid him sick leave.
Mr Miles submits considerable time is spent in Mr Lambert’s affidavits attempting to establish the actual reason for dismissal, but very little in terms of expressly denying the prohibited reason. Mr Miles submits that if IMCD is not satisfied with the evidence, then it should cease to pay the sick leave, and that this conclusion is supported by Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157.
Consideration
Mr Wildman has established as a matter of fact that he exercised his workplace right to paid personal leave under s 97 of the Act (meeting the requirements of s 107(3)). IMCD has admitted that it took adverse action by dismissing him. The evidentiary onus thus shifts to IMCD to satisfy the Court that the reason/s it took adverse action did not include the reason that Mr Wildman had exercised his workplace right to take paid personal leave under s 97 of the Act.
Whilst direct evidence of the decision maker as to their reasons is relevant and in general necessary, to discharge the statutory presumption in s 361, whether the presumption is in fact discharged turns upon the Court’s assessment of all of the facts and circumstances and available inferences. The proscribed reason need not be the sole or dominant reason, it must however, be a substantial and operative factor in the employer’s reasons for dismissal: RailPro at [85]-[86].
Mr Lambert’s written evidence (affidavit at [45]) was that his decision to terminate Mr Wildman’s employment was [not] “because of his illness or his absence, but because of the effect Mr Wildman’s absence was having on IMCD’s operations”. He says Mr Wildman’s “repeated refusal to comply with directions or provide any information about his illness, and the subsequent effects that this was having on IMCD’s business and day to day operations … caused my belief that he was simply using up his sick leave entitlements with no genuine intention of returning to IMCD”. As I have said above, IMCD did not support or substantiate his claims of the effect of Mr Wildman’s absence.
Mr Lambert repeatedly stated in cross-examination that Mr Wildman’s entitlement to sick leave was not a part of the reasoning for dismissing him, nor was the quantum of that entitlement.
Mr Lambert’s bald denials notwithstanding, assessing all of the facts and circumstances I have set out in these reasons, including the chronology and documentary evidence, the affidavit and oral evidence, and available inferences, I am not satisfied that IMCD has discharged its evidentiary onus on the balance of probabilities.
I find a substantial, and operative factor in the reasons IMCD terminated Mr Wildman’s employment, although it may not be the sole reason, was because he was exercising his workplace right to be on paid personal leave, and specifically, that he was continuing to exercise that right. Mr Wildman did so in the face of directions and threats I have found were not lawful and reasonable. In Mr Lambert’s affidavit at [45] (see at [75] above and also [241]), his explanation attempts to distinguish between the fact of the absence and the effect of the absence on IMCD’s business. As I have already said, no detail of that effect was provided. I have addressed Mr Lambert’s explanation earlier in these reasons. I was not persuaded by his explanations that the prohibited reason was absent – in the words of s 360, that IMCD’s reasons did not include that reason.
For the above reasons, I conclude that IMCD took adverse action against Mr Wildman by threatening to, and on 4 May 2018 dismissing him because Mr Wildman exercised his workplace right to take paid personal leave under s 97 of the Act. IMCD thereby contravened s 340(1) of the Act.
Contravention of s 352 of the Act
I have concluded that Mr Wildman was temporarily absent from work because of illness of a kind prescribed by the Regulations.
For the same reasons as I have concluded that IMCD has contravened s 340(1) of the Act, I conclude that on 4 May 2018 IMCD dismissed Mr Wildman for reasons that included that Mr Wildman was temporarily absent from work because of illness or injury of a kind prescribed by the Regulations. IMCD thereby contravened s 352 of the Act.
SECTION 117
IMCD terminated Mr Wildman’s employment on 4 May 2018 without 5 weeks’ written notice and without making payment in lieu.
Mr Wildman refused to comply with IMCD’s directions requesting further particulars in relation to his leave, specifically the directions to attend medical appointments on 6 and 10 April 2018, and attending meetings with IMCD on 20 and 27 April 2018. He did not provide the consent sought by IMCD (Mr Lambert’s) email on 1 May 2018. I have found that those directions were not lawful and not reasonable.
It follows from the findings and conclusions I have reached above that IMCD had not made out its defence to s 117 of the Act that Mr Wildman engaged in serious misconduct. The exception in s 123(1)(b) is not engaged. IMCD breached s 117 of the Act. It has thereby contravened s 44 of the Act.
THE CROSS-CLAIM
The Cross-claim dated 30 November 2018 is relevantly as follows:
…
[2]IMCD paid Mr Wildman his usual remuneration during the periods of claimed personal leave referred to in paragraphs 11, 20, 29, 36 and 46 of the Statement of Claim (Personal Leave) under a mistake of law, mistakenly believing the lawful requirements for the payment of personal leave to have been fulfilled, when in fact by reason of the matters pleaded in paragraph 48(b) of the Defence those requirements were not fulfilled.
[3]Further or alternatively to paragraph 2, IMCD paid for the Personal Leave under a mistake of fact, mistakenly believing Mr Wildman to have been unfit for work during the Personal Leave based on the medical certificates he supplied.
[4]By reason of the payment for Personal Leave made under a mistake, IMCD has suffered loss and damage.
PARTICULARS
The loss and damage consists of the total amount of payments made to Mr Wildman for the Personal Leave between 19 January and 4 May 2018, viz, $42,465.83 plus $4,034.25 superannuation.
[5]Further or alternatively to paragraph 4, by reason of the payments for Personal Leave made under a mistake, Mr Wildman:
(a)has been unjustly enriched; and
(b)is liable to make restitution to IMCD of the amount of the unjust enrichment.
PARTICULARS
The amount of the unjust enrichment consists of the total amount of payments made to Mr Wildman for the Personal Leave between 19 January and 4 May 2018, viz, $42,465.83 plus $4,034.25 superannuation.
Submissions and consideration
In view of the above findings in the principal claim, the cross-claim can be dealt with briefly.
IMCD submits that medical certificates were accepted at face value at first instance by IMCD. I have found, however, that the preponderance of the evidence is to the contrary.
IMCD now submits that Mr Wildman did not satisfy the requirements under the Act to be paid sick leave and that payments were made under a mistake. IMCD relies on David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48 that “if the payer has made the payment because of a mistake” which IMCD submits it did, then it should not have been paid. As s 107(3) was not satisfied, s 107(4) applies and the entitlement goes away: see Swanson at [27], where her Honour stated the s 107 obligations must be satisfied in order for the employee’s entitlement to be paid personal leave due to illness be enlivened.
IMCD says as s 107 has not been enlivened, Mr Wildman is unjustly enriched by the payments made. The principle of repayability of funds paid under the law of restitution should apply. Thus, the $42,465.83 and $4,034.25 paid for wages and superannuation respectively should be repaid. Mr Rinaldi submits there has not been any evidence filed to support any defence to the cross-claim.
Mr Wildman’s submissions
The cross-claim is without substance. As has been agreed at the hearing, it is clear that Mr Wildman was genuinely sick in the period: [3] of the cross-claim falls away. Paragraph [2] refers to a mistaken belief that the lawful requirements had been fulfilled. This is contrary to the assertions made by IMCD in letter dated 5 February 2018, in which IMCD positively asserted:
… Kevin has not provided evidence that would satisfy a reasonable person that he is not fit for work because of a personal illness.
This is not the action of an employer who is mistaken. More fundamentally, however, is that IMCD says it dismissed Mr Wildman on 4 May 2018 because it was not satisfied he was sick, and he had not produced evidence that would satisfy a reasonable person, had refused a direction to meet with Mr Lambert, and yet, immediately following termination IMCD made a further payment. There is no evidence as to why that payment was made, let alone that it was paid by mistake.
Consideration of the Cross-Claim
I accept Mr Miles reasoning. The actions of IMCD, to doubt Mr Wildman’s illness, and stating that he had not provided adequate evidence of his illness, demonstrate that IMCD was not making these payments under a mistake of law or fact.
Further, and in any event, it follows from my findings on the principal claim, that the cross‑claim is dismissed.
DISPOSITION
For the reasons set out above, I have found that Mr Wildman’s claim succeeds and the cross‑claim fails. IMCD has contravened the Act by (i) taking adverse action against Mr Wildman for exercising his workplace right to take personal leave pursuant to s 97 of the Act, contrary to s 340(1) of the Act, (ii) coercing him to not exercise a workplace right to take personal leave, or to take it in a particular way, contrary to s 343, (iii) dismissing him for reasons that included his temporary absence because of illness of a kind prescribed, contrary to s 352, and his workplace right to take personal leave, and (iv) failing to make payment in lieu of notice of termination in contravention of s 117 of the Act. IMCD is to make payment accordingly together with interest.
I will direct the parties to confer, and within 14 days, provide to my Chambers proposed short minutes of orders giving effect to these reasons for decision.
The remainder of the proceeding will be adjourned to a date to be fixed to program the further conduct of the proceeding, including in relation to the penalty, if any, which should be imposed on the respondent for the breaches of the Act referred to in these reasons for decision.
I so order.

I certify that the preceding two hundred and sixty-three (263) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Baird.
Associate:
Dated: 23 June 2021

File number(s):	SYG 1844 of 2018
Judgment of:	JUDGE BAIRD
Date of judgment:	23 June 2021
Catchwords:	INDUSTRIAL LAW – adverse action – coercion – workplace right to take paid personal leave under s 97 of the Fair Work Act 2009 (Cth) – applicant employee on paid personal leave for more than 3 months – where applicant submitted medical certificates – respondent asserted applicant did not provide evidence of requisite character that would satisfy a reasonable employer as to applicant’s unfitness for work under s 107 of the Act – where did not enliven right to take personal leave under s 97 of the Act – applicant on paid personal leave – applicant dismissed from employment whilst on paid personal leave – termination without notice or payment in lieu – legitimate exercise of employer’s power to direct respondent – employer issued directions to attend independent medical assessment, meetings with employer, and workplace whilst on paid personal leave – applicant refused – respondent asserted directions lawful and reasonable – whether applicant dismissed for a reason or reasons including his exercise of a workplace right – respondent alleged applicant engaged in serious misconduct – duty to co-operate at common law – held applicant dismissed for reasons including exercise of workplace right to paid personal leave, or to exercise leave in a particular way – held respondent’s conduct unlawful – held respondent’s conduct coercion – held medical certificates and evidence satisfied s 107 of the Act – held respondent’s directions not lawful – held respondent’s directions not reasonable – held duty to co-operate not breached – held respondent’s directions and conduct unlawful coercions – held adverse actions – held contraventions of Act established – application allowed – cross-claim for repayment of payments whilst on sick leave – cross-claim dismissed.
Legislation:	Fair Work Act 2009 (Cth), ss 12, 13, 14, 43, 44, 96 97, 107, 117, 123, 340, 341, 342, 343, 352, 360, 361 Fair Work Regulations 2009 (Cth) rr 1.07, 3.01
Cases cited:	Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32; (2014) 240 IR 342 Australian Building and Construction Commissioner v Ravbar [2018] FCA 1196 Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603; (2002) 118 FCR 395 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169 Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48 Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34; 94 IR 244 Mendonca v Chan & Naylor (Parramatta) Pty Ltd [2014] FCCA 1042 RailPro Services Pty Ltd v Flavel [2015] FCA 504; (2015) 242 FCR 424 Seymour v Saint-Gobain Abrasives Pty Ltd [2006] FCA 1452; (2006) 161 IR 9 State of Victoria (Office of Public Prosecution) v Grant [2014] FCAFC 184; (2014) 246 IR 441 Swanson v Monash Health [2018] FCCA 538
Number of paragraphs:	263
Date of last submission/s:	24 July 2019
Date of hearing:	22, 23, 24 July 2019
Place:	Sydney

Counsel for the Applicant:	Mr B Miles
Solicitor for the Applicant:	Haywards Solicitors
Counsel for the Respondent:	Mr M G Rinaldi
Solicitor for the Respondent:	Fitz Gibbon Law

ORDER MADE BY:	JUDGE BAIRD
DATE OF ORDER:	23 JUNE 2021