[2010] FWA 9147
The attached document replaces the document previously issued with the above code on 1 December 2010. Amendments include:
Erin Bulluss
Associate to Commissioner Roe
Dated 3 December 2010
[2010] FWA 9147 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Steven Isles
v
Northern Territory Police, Fire and Emergency Services T/A NTPSES
(U2010/10617)
COMMISSIONER ROE |
MELBOURNE, 1 DECEMBER 2010 |
Termination of employment - inability to perform duties.
[1] The matter arises from an application filed on 15 July 2010 under s 394 of the Fair Work Act 2009 (the Act) by Mr Steven Isles (the Applicant) for relief in respect to the termination of his employment from Northern Territory Police, Fire and Emergency Services T/A NTPSES (the Respondent).
[2] Following an unsuccessful conciliation conference the matter proceeded to arbitration. The parties elected to proceed to a hearing.
[3] Directions were issued by Fair Work Australia and the matter was heard in Darwin on 15 November 2010.
[4] At the hearing the Applicant represented himself and Mr Kelvin Currie and Ms Lauren Dewson represented the Respondent. Mr Currie is a lawyer directly employed by the Northern Territory Government. It is unlikely that he required leave to appear however to avoid doubt I granted leave to appear and there was no objection from the Applicant. Mr Currie, whilst strongly and effectively representing the Respondent, maintained an approach which respected the situation of the unrepresented Applicant and assisted the Tribunal.
[5] The Applicant gave evidence and was subjected to cross examination. The parties agreed to admit into evidence a very large number of documents relating to this matter. Much of the material was correspondence between the Respondent and the Applicant. Other documents were medical reports from professional medical practitioners relating to the Applicant and applications made by the Applicant in other jurisdictions relating to his employment. There were also some documents relating to police procedures and incidents affecting the Applicant. Extensive written submissions were provided by the Respondent and there was an equally extensive submission in reply provided by the Applicant. When referring to the voluminous correspondence I will generally use the date which appears on the correspondence rather than the date the correspondence was received. There were no witness statements.
[6] I am satisfied that:
[7] Except for the issue of multiple applications or complaints which I deal with later in this decision, there is no jurisdictional objection to the fact that the Applicant is protected from unfair dismissal. I formed the opinion that given the overlap between the matters which needed to be considered for the jurisdictional objection and the matters which needed to be considered in determining whether the dismissal was unfair that I should consider evidence and submissions in respect to both matters concurrently. I consulted the parties about this matter in advance of the hearing and they consented to this approach. I also consulted the parties prior to the hearing to seek clarification as to the number and status of the other applications or complaints made by the Applicant.
[8] The Applicant made reference to alleged breaches of Section 772 of the Fair Work Act 2009 (“the Act”) in his application and submissions. He alleged that the termination occurred because of various complaints that he made including an internal complaint about the Senior Constable Assessment process, and complaints under the NT Anti-Discrimination Act, and that this was contrary to Section 772 of the Fair Work Act 2009. The Respondent made submissions that it appeared that the Application was in fact an Application under Section 772 not a Section 394 Application. Having considered the submissions made by the parties prior to the commencement of the hearing I made the following statement at the commencement of proceedings:
“... this is an action under section 394 of the Act. It's not an application under section 772. The Tribunal cannot arbitrate applications under section 772. Applications under section 772 are a matter for the federal Magistrates Court following a conciliation process in this Tribunal. There is no suggestion in my view that this is anything other than an unfair dismissal section 394 application and I intend to deal with it as such. I take the submissions of the applicant to be that the dismissal is unfair, unjust and unreasonable because the applicant submits the dismissal was because he was pursuing certain grievances and complaints of the sort set out in section 772.
...It has been previously found that a dismissal for an unlawful reason of the sort set out in section 772 would be unlikely to be a fair, just or reasonable dismissal. Because this is a matter under section 394 it's essential for me to examine whether or not there was a valid reason for the dismissal and then whether or not in all the circumstances the dismissal was unfair, unjust or unreasonable.
The respondents made a number of submissions about why there was a valid reason for the dismissal and why the dismissal was not for the unlawful reason set out by the applicant. The applicant made some submissions in reply which to some extent addressed the issues raised in respect of the unlawful reasons, but they don't explicitly address the contention that there was a valid reason for the dismissal because both doctors, that is both the doctor for the applicant and the doctor for the respondent agreed that the applicant cannot return to perform the inherent requirements of his job in the Northern Territory police. That is a matter obviously which I want to be addressed on.” 1
[9] There were no issues concerning the conduct or performance of the Applicant which the Respondent claimed warranted disciplinary action prior to 13 July 2007.
[10] On 13 July 2007 the Applicant was advised that he had failed an assessment process for promotion to Senior Constable. The Applicant raised a grievance about the assessment process with a number of relevant officers in a number of separate meetings between 17 and 23 July 2007 and then submitted a written complaint on 23 July 2007. The Applicant claims that he was subjected to abuse and advised not to pursue his complaint by a senior officer. On 30 July 2007 the Applicant went on sick leave.
[11] The Applicant then did not attend for work as a Police Constable but was instead on paid sick leave for the period from 30 July 2007 until the dismissal on 9 July 2010.
[12] The events between July 2007 and 9 July 2010 fall into three periods. I will now consider the evidence in respect to each of these periods in turn.
The first period: July 2007 to 17 July 2008
[13] The first period from July 2007 until 17 July 2008 is the period during which the Applicant and the Respondent disagreed about how to handle the complaint and absence from duty of the Applicant. The Respondent insisted that the complaint did not fit the “Equity and Diversity” policy and needed to be dealt with at the Training College level. On 7 August 2007 the Applicant advised that he was not prepared to deal with the complaint informally. On 13 August 2007 it was proposed by the Respondent that a meeting could be organised with the head of the Training College. The Applicant advised that he was willing to participate in such a meeting but he wanted a written response to his grievances first so that could be part of the discussion and he did not want the meeting to be held at the Training College.
[14] A written response was provided by the Respondent on 19 September 2007 which essentially advised the Applicant that the complaint could not be dealt with by Human Resources under the Equity and Diversity Plan as requested by the Applicant, but that the Applicant should submit an appeal against his individual assessment to the Training College and take up the opportunity for a meeting with appropriate personnel from the Training College. The Applicant did not perceive this as a satisfactory response for a number of reasons. The Applicant stated that he was not just seeking a review of the outcome of his assessment but he was also raising significant concerns about the whole assessment process and he wanted this dealt with formally not informally.
[15] Having carefully reviewed the documentary evidence I am satisfied that during the first period (July 2007 to 17 July 2008) the Applicant had reason to be frustrated by the approach taken by the Respondent to his complaint. I do not have sufficient evidence before me to determine whether or not the Applicant was verbally abused by a senior officer in July 2007 concerning the making of his complaint. However, I am able to conclude that the Respondent took a rather inflexible and inadequate approach to dealing with the complaint.
[16] It was understandable that the Applicant did not trust the informal avenues for dealing with the complaint proposed by the Respondent. It was not clear that the avenues for dealing with the complaint offered by the Respondent were capable of leading to an effective resolution of the grievance. The Applicant’s complaint concerning the Senior Constable Assessment process was clearly carefully considered, well argued and presented. It deserved a similar response.
[17] It is clear that the Applicant could also have been more flexible and proactive in seeking ways around the obstacles to the resolution of his complaint. It would have been wiser for him to take up some of the more informal avenues offered even if he maintained his position that he ultimately wanted a formal response. However, if his allegations concerning the abusive response he received in July 2007 were found to be substantiated then his behaviour in this respect would be more understandable.
[18] On 5 December 2007, the Applicant was directed to attend an appointment with Dr Giese on 13 December 2007. The report of Dr Giese was provided to the Applicant on 5 June 2008. The six months’ delay between the direction to attend and the provision of the report contributed significantly to the frustration and stress of the Applicant. No action was taken by the Respondent or the Applicant to deal with the complaint or the return to work during this period. This delay made it much harder for the dispute between the Applicant and the Respondent to be resolved and also made it much more difficult for a return to work to be achieved.
The second period: 17 July 2008 until 10 February 2009
[19] The second period from 17 July 2008 until 10 February 2009 is the period during which the Respondent actively sought to resolve the issues concerning the grievance and the absence from duty of the Applicant.
[20] This period began with a case conference on 17 July 2008. The catalyst for this was the report of Dr Giese. As described above, the Applicant was directed on 5 December 2007 to attend an appointment with Dr Giese on 13 December 2007. The report of Dr Giese was written on 23 April 2008, was received by the Respondent on 15 May 2008 and then provided to the Applicant on 5 June 2008.
[21] Dr Giese advised that “Failure to progress this management issue has resulted in ongoing frustration leading to anxiety symptoms. He would be fit to return to normal operational duties when the management issues are fully resolved.” This report led the Respondent to actively seek to resolve the situation by the calling for a Case Conference in the letter to the Applicant on 5 June 2008. That Case Conference took place on 17 July 2008 and it was attended by the Applicant, Assistant Commissioner Mark Payne, Dr Tracey who is the Applicant’s doctor and Ms Campbell for the Human Resources Management Branch of the Respondent.
[22] I am satisfied that the Applicant and the Respondent reached an agreement at the Case Conference of 17 July 2008 which had the capacity to lead to a return to work and a resolution of the July 2007 complaint.
[23] For reasons which are set out below and as a result of an examination of the correspondence and also the evidence given in proceedings by the Applicant, I am satisfied that the outcome of the Case Conference on 17 July 2008 is accurately summarised in the first section of the letter from Assistant Commissioner Mark Payne to the Applicant of 13 August 2008. 2 I am satisfied that there was agreement between the Applicant and the Respondent that there would be a mediation process to resolve the complaint but that prior to the mediation the Respondent would provide to the Applicant; a) a response about the alleged lack of a Grievance Policy to deal with the complaints; b) a formal response to the initial complaint; c) a response to the claim of a inadequate employee support during the period of sick leave, and; d) a response to a claim for reimbursement of tertiary education course fees. There is some dispute about when this last issue was in fact raised but it is not a material factor in the overall case.
[24] On 13 August 2008 the Respondent did provide a detailed response providing the Applicant with details of the various Grievance Policies and procedures, a formal response to the initial grievance, a formal response to the claim of inadequate employee support and also the names of four suggested mediators. The Applicant did not regard the formal response to the initial complaint as satisfactory and as a result refused to progress to the mediation stage.
[25] The period ended when the Respondent provided a final detailed response to the initial complaint on 10 February 2009 and directed the Applicant to return to work by 2 March 2010.
[26] I advised the parties at the commencement of the proceedings that having read the documents and submissions provided, I had formed the preliminary view that in respect to the question of a valid reason for the dismissal, the period from middle of 2008 and to early 2009 was the critical period and I invited the parties to ensure that they addressed this in the proceedings. 3 On 10 February 2009 Assistant Commissioner Payne directed a return to work. Assistant Commissioner Payne on behalf of the employer came to the conclusion by 10 February 2009 that everything reasonable had been done to address the complaint and that a return to work was then required. It was important to establish whether or not the agreed outcomes of the 17 July 2008 Case Conference had been implemented. In response to this the parties in proceedings did address the evidence in respect to this matter in some detail.
[27] The Applicant submitted that at the 17 July 2008 Conference the parties agreed that there would be a written response from the Respondent to the substance of the matters raised in the complaint but that such a response had not been provided and therefore he was justified in delaying the mediation. The Respondent submitted that it complied with the agreed outcomes of the Conference having provided a formal written response and that the Applicant had refused to proceed to the agreed mediation. The Respondent submitted that it was therefore justified in reaching the conclusion on 10 February 2009 that everything reasonable had been done to resolve the grievance.
[28] The letter to the Applicant of 13 August 2008 does set out in detail the grievance policies available for dealing with the complaint. I am satisfied that this response met the first pre-requisite for mediation agreed at the 17 July 2008 Conference 4 and provided the basis on which mediation could sensibly resolve how the complaint could be dealt with further, if required, following the mediation. The Applicant did not suggest in any subsequent correspondence or in evidence in the proceedings that this response did not meet the requirements of the agreement made at the 17 July 2008 Conference.
[29] The letter to the Applicant of 13 August 2008 does provide a “response to the initial complaint” of 18 July 2007 which was the second prerequisite for the mediation agreed at the 17 July 2008 Conference. 5 This response set out the steps that had been taken to date to deal with the complaint. The response also adequately explained the reasons why the Respondent was taking the approach it was to the handling of the complaint. The response also provided specific answers and background information to some of the factual matters raised in the complaint. The response made it clear that it was not intended as a resolution of the complaint.
[30] In cross examination the Applicant agreed that the only part of the 17 July 2008 agreed pre-requisites for mediation which was not satisfied by the letter of 13 August 2008 was the written response to the grievance of July 2007. 6 The Applicant agreed that “I asked for a written response, not a definitive written response.”7 The Applicant confirmed this point on a number of occasions in cross examination. It is clear that the letter of 13 August 2008 did in fact contain a written response to the complaint.
[31] The Applicant appeared to have two problems with the response. Firstly he wanted a different response. Secondly, he did not think that it contained specific responses to some of the matters raised but instead proposed a process whereby those matters could be further discussed. It is inescapable that the Applicant did not like the response. The Applicant argued that the four points responded to in detail in the correspondence of 10 February 2009 from Assistant Commissioner Payne were in fact the essential points he wanted responses to. 8 Those four points were; the high failure rate in the Senior Constable exam, the lack of remedial training for unsuccessful candidates, that it should not be necessary to re-sit Parts A&B of the assessment if you only failed Part C, and that the oral assessment in Part C is too subjective and is unfair. The response of 13 August 2008 did to some extent address the failure rate and the rationale behind the assessment process. It did not address the question of remedial training. It did however outline how the grievance overall could be dealt with.
[32] I am satisfied that the response of 13 August 2008 was consistent with the requirements of the agreement made at the 17 July 2008 Conference. I can see no reason why the perceived shortcomings in the response to the complaint could not have been dealt with at the mediation. I believe that the Respondent would have made available to the Applicant through the mediation process the material which was eventually provided in writing on 10 February 2009 which the Applicant said addressed the essential points of the grievance. I reach this conclusion having carefully considered the correspondence between the parties from 13 August 2008 until 3 April 2009 and also the extensive cross examination of the Applicant in proceedings in respect to this issue 9, and the submissions of the parties in proceedings.
[33] The letter to the Applicant of 13 August 2008 does provide a clear response to the third prerequisite for mediation 10; that is the lack of adequate employee support to the Applicant during his period of absence on sick leave. The Applicant maintains that the Respondent should have been more proactive in seeking to provide the Applicant with access to support and assistance but that is a matter which could have been pursued in the mediation if necessary. The response sets out how the Respondent says it had made attempts to provide access to support, the policies applicable to employee support assistance and how the Applicant could get access to such assistance in the future. The Applicant suggested in cross examination that there is an inaccuracy in the response in that he says that he was never made aware of the Keep In Touch support program.11 However, the Applicant did not suggest in any subsequent correspondence or in evidence in the proceedings that this response did not meet the requirements of the agreement made at the 17 July 2008 Conference.
[34] The letter to the Applicant of 13 August 2008 also proposed a panel of mediators for the Applicant to consider. The letter was clearly intended to clear all remaining obstacles to the mediation proceeding. The responsibility then lay with the Applicant to respond so that the mediator could be finalised and the mediation scheduled.
[35] The Applicant did not respond to the letter of 13 August 2008. He says that he did respond by telephone to Assistant Commissioner Mark Payne. 12 However, the Respondent disputes this and there was no record of this or detail of the time and date presented to the Tribunal. Given the careful way in which both the Applicant and the Respondent documented in writing every event in this dispute and the fact that there is no reference to this conversation in any of the subsequent correspondence from either the Applicant or the Respondent I cannot be satisfied that this conversation occurred.
[36] On 29 October 2008 Assistant Commissioner Payne wrote to the Applicant stating that “it has now been approximately two months since my correspondence and you have not made any attempt to contact either Ms Campbell or myself to discuss my proposal to progress the resolution to this matter”. He wrote that if a response was not provided within 14 days it would be assumed that the Applicant had “no intention of participating in any process to resolve the issues”. 13
[37] On 17 November 2008 the Applicant responded stating that in his view, the outcome of the Case Conference was that “prior to entertaining the prospect of progressing through mediation” there needed to be a “definitive written response” to the grievance. 14This response was negative and confusing and did not clearly state that the Applicant still wished to proceed with mediation. As discussed in detail earlier, the Applicant conceded in cross examination that the conference of 17 July 2010 agreed that he would be provided with a written response to the complaint prior to the mediation, not that he would be provided with a definitive written response.
[38] On 9 December 2008 Assistant Commissioner Payne wrote to the Applicant clearly stating that he regarded the Applicant’s letter of 17 November 2008 as rejection of the offer of mediation and stating that “it is clear that you have no intention of participating in any positive means of resolution”. 15
[39] In his letter of 15 December 2008 the Applicant again fails to state his preparedness to enter into mediation but again insists that he was to receive a definitive written response. 16
[40] On 2 January 2010 the Acting Commissioner Bruce Wernham reaffirmed the view that the Respondent believed that the Applicant had no intention of entering into mediation. Finally in response to this on 16 January 2009 the Applicant says essentially that he would progress to agree upon a mediator and then to mediation if he was provided with a definitive written response to the compliant. 17 This is the first occasion since the 17 July 2008 when the Applicant has made his willingness to participate in the agreed mediation clear. However, the precondition he sets, namely a definitive written response, is not a precondition which was agreed on at the Conference of 17 July 2008.
[41] As stated earlier I am satisfied that the Respondent met the pre-conditions for mediation agreed at the conference on 17 July 2008 in its correspondence of 13 August 2008. It would have been reasonable for the Applicant to express his views about the adequacy of the response to his complaint but the Applicant had no justification for using the fact that he felt that the response was inadequate as a reason to delay mediation. The Applicant had a number of opportunities to recover the situation by making it clear he was still prepared to participate in mediation without further delay but the Applicant did not do this.
[42] In the circumstances I am satisfied it was then reasonable for the Respondent to abandon efforts to establish the mediation and instead adopt the approach of providing the Applicant with a final and definitive response to the complaint together with a direction to return to work by a certain date or face the prospect of dismissal proceedings. Given that Dr Giese had said in his report that the Applicant “would be fit to return to normal operational duties when the management issues are fully resolved” it was reasonable for the employer to say that it had now done everything reasonably possible to resolve the complaint, and to proceed to initiate return to work or dismissal procedures. This is what was then set out in the letter to the Applicant of 10 February 2009 which also included a “definitive written response” to the original complaint of 18 July 2007. 18
The third period: 10 February 2009 until 9 July 2010 (the dismissal)
[43] The third period from 10 February 2009 until 9 July 2010 is the period during which the Respondent undertook a process to terminate the employment of the Applicant.
[44] The Applicant was dismissed pursuant to the relevant processes under the Northern Territory Police Administration Act.
[45] On 9 December 2008 Assistant Commissioner Payne advised the Applicant that he had come to the conclusion that the “employment relationship between you and the NT Police Force is completely untenable” and that “it is the intention of the Commissioner to commence proceedings to finalise your employment.” On 2 January 2009 the Acting Commissioner Bruce Wernham confirmed that advice. On 10 February 2009 Assistant Commissioner Mark Payne directed the Applicant to return to work on 2 March 2009 or “your case will progress to a compulsory retirement option.” In response to this the Applicant in correspondence dated the 23 February proposed that mediation should now proceed and that a further conference be held “to discuss and establish the parameters of my return to work”.
[46] On 3 April 2009 the Commissioner of Police gave notice of his intention to retire the Applicant from the NT Police Force on the grounds that he was “unfit to discharge, suited to perform or capable of efficiently discharging the duties you are employed to perform.” The letter set out in detail the grounds and the basis for having reached the opinion that this was appropriate. Pursuant to Section 87 of the NT Police Administration Act, the Applicant was given 14 days to respond to the series of conclusions reached by the Commissioner as set out in the letter.
[47] The Applicant provided a detailed response dated 27 April 2009. However, at no point in this or earlier responses does the Applicant concede that he was ready and willing to return to work without pre-conditions. The Applicant stated that his correspondence of 23 February 2009 in response to the direction to return to work on 2 March 2009 did not dispute the direction to return to work. 19 The response to the direction in the correspondence of 23 February 2009 was as follows:
“I note page 3, correspondence dated 10 February 2009 “direction to return to work”, certainly after 19 months of absence from duty and currently being classified as a “Paid Inoperative”, it would be the most adequate course of action for a conference to be held in the presence of my treating general practitioner and legal representative to discuss and establish the parameters of my return to work.” 20
I do not believe that in all the circumstances this response can be regarded as an acceptance of the direction to return to work or as an acceptance in principle of the direction to return to work or even as a qualified acceptance of the direction to return to work. It was reasonable for the Respondent to conclude that the proposed further conference to discuss the matter was unlikely to lead to an early return to work.
[48] The Commissioner then was required by Section 88(1) of the Police Administration Act to have a review of his opinion conducted. This review was eventually conducted by Assistant Commissioner Mark McAdie.
[49] Following the notice of 3 April 2009 there was some confusion as to whether the retirement (dismissal) was to be on the ground of total and permanent incapacity pursuant to Section 91 Medical Incapacity in the Police Administration Act or whether the retirement (dismissal) was to be pursuant to Section 87 and 89(d) of the Police Administration Act on the ground of inability.
[50] Assistant Commissioner McAdie finally advised the Applicant of the outcome of his review on 7 December 2009. That letter stated that both the medical advisor Assistant Commissioner Mark McAdie consulted and the medical adviser for the Applicant have as their “prognosis that there is no prospect that you could work for the NT Police whilst at the same time indicating that you remain able to work for other employers”. The Applicant was informed that “the opinion of the Commissioner of Police that you should be retired from the NT Police Force on grounds of inability, is well founded”. The Assistant Commissioner stated that he had taken into account the response provided by the Applicant on 27 April 2009 in reaching his assessments.
[51] On 4 February 2010 Acting Assistant Commissioner Maxwell Pope deferred the proceedings under Section 87 of the Police Administration Act. The Applicant was advised that the “Commissioner is of the opinion that you are unable to perform duties because of a physical or mental condition” based on the same grounds as had been raised on 3 April 2009. On 1 March 2010 the Applicant was directed to attend a further medical examination with Dr Mary Frost.
[52] On 5 April 2010 Grahame Kelly Acting Deputy Commissioner advised the Applicant that Dr Mary Frost had concluded that the Applicant was not totally and permanently incapacitated and that he was able to work in any employment for which he “is reasonably qualified by education, training or experience or could become reasonably qualified after retraining, provided that the employment is not with the NT Police”. The Applicant was given the opportunity to provide alternative medical advice.
[53] On 17 May 2010 the Commissioner of Police advised the Applicant that as a consequence of the medical advice that the Applicant was not totally and permanently incapacitated and that “it would be neither reasonable nor practical to facilitate you resuming duties as a member of the Northern Territory Police Force” the “proceedings pursuant to Section 87of the Act that were stayed while investigating your medical incapacity will now be resumed”. Notice was given of intention to retire the Applicant pursuant to Section 89(d) of the Police Administration Act and the Applicant was given 14 days to respond.
[54] The Applicant responded on 17 June 2010. In my view nothing in that reply or the earlier reply of 27 April 2009 affects the validity of the conclusions reached at paragraphs 41 and 42 above.
[55] On 5 July 2010 the Commissioner advised the Applicant that he was retired from the NT Police on the grounds of inability effective 9 July 2010. That notice referred to the reasons set out in the correspondence of 3 April 2009, the medical report of Dr Frost of 12 March 2010 and the letter of 17 May 2010 and the 17 June 2010 response of the Applicant to that letter.
The other complaints
[56] The Applicant says that the situation has been exacerbated by two events. These two events the Applicant says are relevant to these proceedings and they have also been the subject matter of complaints to the NT Anti-Discrimination Commission.
[57] On 24 February 2010 the Northern Territory Commissioner of Police advised a Deputy Commissioner of the Queensland Police Service, in response to a request seeking advice about the suitability of the Applicant holding a gun licence, that “Mr Isles has been diagnosed by his treating medical practitioner/s as suffering a stress related condition. He is currently on long term sick leave from NT Police for a psychiatric condition stemming from a grievance against the NT Police.”
[58] The Applicant is aggrieved by this correspondence since the medical advice available to the Respondent at the time from Dr Frost was that the Applicant was not suffering from a psychiatric condition that is covered by the DSM-IV Psychiatric Diagnosis system.
[59] In late October 2009 a medical practitioner who has been treating the Applicant alleges that he received a phone call from a senior employee in the Human Resources office of the NT Police, a person with whom he says he was familiar. The medical practitioner alleges that this employee asked him if the Applicant was a psychopath and if the Applicant could have killed his father. The Applicant’s father disappeared in North Queensland in September 2009 and has not, as yet, been found.
[60] Given that the Respondent commenced proceedings to terminate the employment of the Applicant in early 2009 I do not see how the complaints raised by the Applicant in relation to these alleged incidents could affect the validity or otherwise of the decision to dismiss the Applicant. Without in any way casting judgment on the merits of the two complaints, I also do not see them as particularly relevant evidence in respect to the attitude of the Respondent to the Applicant in the lead up to the decision to proceed to terminate the Applicant in the early part of 2009.
The jurisdictional issue - multiple complaints or grievances.
[61] The Applicant lodged an application for unfair dismissal remedy on 15 July 2010. On 15 September 2010 I drew the attention of the parties in these proceedings to the decision of the Full Bench of 13 September 2010 in Ilardo V Rail Corporation of New South Wales T/A Rail Corp 21 which related to the operation of Sections 725 and 732 of the Fair Work Act 2009 in a circumstance where a Section 394 unfair dismissal application has been made.
[62] The relevant sections of the Act in the circumstances of this case are Sections 725, 729 and 732. They provide:
“725 General rule
A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.
729 Unfair dismissal applications
(1) This section applies if:
(a) an unfair dismissal application has been made by the person in relation to the dismissal; and
(b) the application has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction; or
(iii) failed because FWA was satisfied that the dismissal was a case of genuine redundancy.
(2) An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.
732 Applications and complaints under other laws
(1) This section applies if:
(a) an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and
(b) the application or complaint has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction.
(2) An application or complaint under another law is an application or complaint made under:
(a) a law of the Commonwealth (other than this Act); or
(b) a law of a State or Territory.
(3) For the purposes of this Subdivision, if a complaint under the Australian Human Rights Commission Act 1986 relates to a dismissal only as a result of an amendment of the complaint, the complaint is taken to be made when the complaint is amended.”
[63] There are five applications or complaints made by the Applicant which may be relevant for the purposes of Section 725 in this case. I deal with each of them below.
[64] The unfair dismissal application to Fair Work Australia which is an application which meets the criteria set out in Section 729 of the Act and which was made on and received by Fair Work Australia on 15 July 2010. It is stamped in the FWA registry file as being received between 2pm and 3pm.
[65] An application received by the NT Anti-Discrimination Commission on 4 May 2010 and accepted by that Commission on 11 June 2010 under the NT Anti-Discrimination Act 2010 in respect to “Impairment and Unnecessary Information in the area of work contrary to Section 19, 31(2)(d) and 26”. This Application does not make the unfair dismissal application statute barred in that it is not in relation to the dismissal. That it is not in relation to the dismissal is evidenced by the fact that the complaint pre-dated the dismissal and furthermore its subject matter is essentially confined to the alleged conversation between the Applicant’s treating psychiatrist and a senior Human Resources employee of the NT Police. (See Paragraph 59 above)
[66] An application received by the NT Anti-Discrimination Commission on 6 August 2010 and accepted by that Commission on 4 October 2010 under the NT Anti-Discrimination Act 2010 in respect to “impairment in the area of work contrary to Section 31(2)(c) and “a failure to accommodate a special need because of his impairment contrary to section 24 in the area of work.” The Applicant submitted that this complaint does not relate to the dismissal but it is clear from the advice provided to the Respondent by the NT Anti-Discrimination Commission on 5 October 2010 that one of the aspects of the alleged discriminatory action is the dismissal. However, this Application does not make the unfair dismissal application statute barred, as it has been made subsequent to the unfair dismissal application. To the extent that this Application does relate to the dismissal, the Respondent may be able to argue that pursuant to Sections 725 and 732 of the Fair Work Act the NT Anti-Discrimination Commission should refrain from dealing with the complaint of 6 August 2010.
[67] An application to the Inability Appeal Board against a notice of retirement under Section 89 of the Police Administration Act (NT) dated 15 July 2010. The Applicant says that he withdrew this action on 7 October 2010. This Application clearly relates to the dismissal. It is an application within the meaning of Section 732 of the Fair Work Act. However, the Applicant says that this application was made some 30 minutes after the unfair dismissal application. The Applicant submitted a “proof of service” document signed by Pauline Benaim on behalf of the Police Commissioner stating that the Application was received at 3.25pm. 22 This evidence was not challenged. I am of the view that this withdrawn application therefore does not render the unfair dismissal application invalid. If the Application had not been withdrawn the Respondent may have been able to argue that pursuant to Sections 725 and 732 of the Fair Work Act the Inability Appeal Board should be restrained from hearing the complaint before it.
[68] An application to the NT Anti-Discrimination Commission which the Applicant says that he made on 8 July and withdrew on 10 August 2010. We do not know about the substance of this complaint. The Applicant says that it was about “victimisation contrary to Section 23 of the NT Anti Discrimination Act 2010”. 23 We do not know the extent to which the complaint related to the dismissal. We do not know whether or not this Application has been accepted by the NT Anti-Discrimination Commission. The NT Anti-Discrimination Act 2010 requires the Commissioner to accept or reject a complaint within 60 days. As there was no advice received by the Respondent or the Applicant that the Application had been accepted as required by the legislation24 it can be assumed that the Application had not been accepted prior to the Applicant taking action to withdraw the complaint.
[69] There is an argument that at the time the Applicant made the application of the kind referred to in Section 729, his unfair dismissal application, section 732 did apply in that he had already made this complaint to the NT Anti-Discrimination Commission. However, I think that there is an argument that the application can now be validly dealt with since Section 732 no longer applied after 10 August 2010, when the Applicant withdrew the Application. From that time on there was no bar to considering the unfair dismissal application.
[70] There is an arguable case that the terms “made” and “make” in Sections 725 and Section 732 are not confined to the event of filing an application. In my view it is likely that provided that the offending earlier application or complaint is “withdrawn” or has “failed for want of jurisdiction” prior to the application being heard then the application the Applicant wishes to pursue is not statute barred. That is, the preferred Application can be “made” because there is no other offending earlier application in place at the relevant time - that is at the time the relevant Tribunal needs to make the judgement about the matter. This reading is supported by the Explanatory Memorandum to the Fair Work Bill 2008, which states that the ‘anti-double dipping provisions’ are ‘intended to ensure that a person does not miss out on a remedy because they were unable to make a competent application for another remedy or where they have realised another remedy may be more appropriate than the remedy they originally sought’. 25 The statutory purpose is clearly to prevent an employer having to deal with multiple applications in respect to a dismissal and to force an Applicant to choose which action they wish to pursue. This purpose is clearly met in circumstances where at the first available opportunity the Applicant withdraws an offending application. The purpose is not to deny an unrepresented Applicant his or her day in court. The section of the statute is not well know or easy to understand. In this sense it is quite different from the provision which says that Section 394 applications must be made within 14 days of the dismissal. A beneficial reading is therefore warranted.
[71] Despite the above, it is unnecessary for me to determine whether or not the withdrawal of the 8 July 2010 complaint removes the barrier to the validity of the unfair dismissal application because in the absence of more evidence I cannot be satisfied that the application of the 8 July 2010 is a complaint that is in relation to the dismissal. This is particularly the case when it is a matter for the Anti-Discrimination Commission to assess the applications and in deciding whether or not to accept such an application to identify how the allegation relates to the relevant statute. 26 It is at the point we can understand whether or not the complaint relates to the dismissal or not. That point was never reached as the application was never accepted prior to it being withdrawn.
[72] I advised the parties at the commencement of the proceedings that the approaches outlined above were my preliminary views on each of the applications 27 and invited the Applicant and Respondent to make further submissions.
[73] The Applicant submitted that the July 8 2010 complaint was not in relation to the dismissal. The Respondent argued that I should draw an inference from the failure of the Applicant to provide a copy of the July 8 2010 complaint that the Applicant had not presented the evidence because to do so would not be helpful to his case. I accept that there may be some force in the Respondent’s submission. If I were to accept that inference it would throw some reasonable doubt on the submission of the Applicant. However, it would not in my judgment be sufficient, taking into account my examination of all the evidence, to allow me to conclude on the balance of probabilities that the July 8 2010 complaint was in relation to the dismissal. I think that it is appropriate for me to only find that a complaint is in relation to the dismissal in circumstances where the facts clearly demonstrate this. I should not make such a finding in the absence of any clear evidence particularly given that the consequences of a finding against the Applicant on this point could be that he is denied the ability to pursue both his unfair dismissal claim and the complaint he withdrew.
[74] For the above reasons I am satisfied that the unfair dismissal application is not barred by statute because of any of the other applications or complaints.
Was there are valid reason for the dismissal?
[75] I am satisfied that the Applicant was unfit to perform his usual duties from 30 July 2007 until the present time. Further medial certificates and correspondence from his treating doctor were submitted in proceedings. 28The Applicant’s doctor, Dr Wal Tracey, stated that the Applicant had been suffering mild depression and anxiety. This was confirmed by Dr Jock McLaren.
[76] I have found earlier that in the first period (July 2007-17 July 2008) the Applicant had reason to be frustrated by the way in which the Respondent handled his complaint concerning the Senior Constable Assessment process.
[77] The complaint was well presented and had some reasonable basis. In its definitive written response to the complaint, the Respondent accepted that the failure rate on the course attended by the Applicant was 66% and that there had been a need to alter the process for moderation of oral assessments since considering the Applicant’s complaint. 29 The high failure rate and the subjectivity of the oral assessments were the central elements of the Applicant’s complaint of 18 July 2007.30
[78] The Applicant was understandably critical of the Respondent’s attempts to deal with the formal complaint as a complaint about the Applicant’s own individual assessment outcome. That said, the manner in which employees are classified and trained is a matter which is covered by collectively negotiated industrial instruments and as such broad based grievances about these processes are generally best handled through collective processes and disputes settlement procedures managed by the Police Association. It is reasonable for the employer to deal with disputes about collectively negotiated matters through the appropriate representatives. There is little evidence before me of the efforts made by the Applicant to engage the Police Association in this matter.
[79] The Applicant demonstrated some inflexibility and failed to be proactive in taking up opportunities for informal consideration of his complaint. This may have been reasonable if the alleged hostile response to the making of the complaint from a senior police officer did in fact occur in July 2007. I do not have the evidence to be able to make any judgment about that matter.
[80] The fact that the Applicant had to wait six months to get the report of Dr Giese exacerbated the problems with the handling of the grievance and also increased the anxiety of the Applicant.
[81] The examination by Dr Giese was at the instigation of the Respondent. His finding confirmed that the illness of the Applicant would be resolved if the issues surrounding the management of the Applicant’s complaint were resolved.
[82] The Respondent and the Applicant reacted appropriately and reasonably promptly once the report of Dr Giese was provided to the Applicant. The Respondent and the Applicant through a case conference agreed on a course of action to resolve the concerns about the management of the complaint with the intention of then achieving a return to work.
[83] Following the case conference on 17 July 2008 and the written response to the key issues provided on 13 August 2008 the Applicant failed to take up the opportunities to implement the outcomes agreed at the conference on 17 July 2008.
[84] Given the justifiable grievances the Applicant had with the way in which his complaint had been handled prior to 17 July 2008, it was appropriate that the Respondent should make some further effort to resolve the situation after the failure of the Respondent to respond appropriately to the correspondence of 13 August 2008. I am satisfied that the Respondent did in fact make reasonable further efforts to seek to resolve the matter consistent with the approach agreed on 17 July 2008.
[85] I was satisfied that the Applicant was generally an honest witness. He presented as an intelligent person who took his work responsibilities very seriously. He has a very strong commitment to behave in accordance with his moral code. I have no doubt, based upon the four medical opinions submitted in evidence, that the Applicant is not suffering from a psychiatric illness but that he has been suffering from an anxiety related illness which has a relationship to his concerns about the handling of his complaint concerning the Senior Constable Assessment in July 2007.
[86] The Applicant’s own specialist doctor and the specialist doctor appointed by the Respondent (on two separate occasions) both confirm that the Applicant cannot return to work for the NT Police Department and that an essential step in his recovery from illness is that he plan an alternative career. His own specialist noted that the Applicant “has the intellectual ability, the drive and the disposition to be able to be effectively employed elsewhere”. The Respondent’s specialist agreed that alternative employment outside of the NT Police was possible. 31 The Applicant did not dispute this evidence.
[87] My conclusion is that a valid reason for dismissal existed which relates to the Applicant’s capacity and conduct.
[88] The employer in the circumstances of this case would not have had a valid reason to dismiss the worker in July 2008 because the way in which the employer handled the Applicant’s complaint about the Senior Constable Assessment process had contributed to the Applicant’s absence due to illness.
[89] In part this is because of the reason stated by the Full Bench in the Iliadis matter 32 that “if the appellant were able to demonstrate that her incapacity for work arose through the fault of the respondent, a finding that the termination was unreasonable would be open, subject of course to the circumstances overall.”33
[90] The Applicant submitted that he had begun workers compensation proceedings in January 2009 and that he submitted a statement of claim on 12 July 2009. The employer may have obligations under the relevant Workers Rehabilitation and Compensation Act in respect to suitable employment and retraining. In December 2009 there was a directions conference held in respect to the workers compensation matter which the Applicant says considered work placement options including options external to the NT Police and led to an appointment for vocational assessment in April 2010. 34
[91] However, between July 2008 and February 2009 I am satisfied that the Applicant failed to positively respond to the opportunities provided by the Respondent to mediate a resolution to the Applicant’s complaint of July 2007 and facilitate a return to work.
[92] In mid-2008 the Respondent had medical advice which supported the view of the Applicant that he would be able to return to work once his complaint concerning the Senior Constable Assessment and the way this had been handled was resolved. The Respondent attempted to resolve the complaint but this did not lead to a return to work. The Respondent concluded that the July 2007 complaint could only be resolved if they provided a response which satisfied the Applicant. I am satisfied that this was a reasonable conclusion and it is clear that the Respondent could not provide the Applicant with a response which would satisfy him. The Applicant said during cross examination that the response provided on 10 February 2009 addressed the issues in his complaint. 35 However, in his response to that correspondence sent to Assistant Commissioner Payne on 23 February 2009 he stated that “the position provided by the most recent correspondence is ultimately one that is not satisfactory as it highlights a number of contradictions, conflicting and erroneous statements.”36
[93] An examination of the events during the period July 2008 to February 2009 leads to the conclusion that the actions of the Applicant in making a workers compensation claim or contemplating making a workers compensation claim was not the reason or one of the reasons for the termination of the employment of the Applicant. The Applicant’s claim for workers compensation can, and is, still being pursued notwithstanding the termination of employment.
[94] I am also satisfied that the filing by the Applicant of a complaint or the initiation of proceedings against the employer in respect to alleged violations of laws or regulations or recourse to competent administrative authorities was not the reason or one of the reasons for the termination of employment of the Applicant. (Section 772 of the Fair Work Act 2009) The relevant complaints were all made after the time that the Respondent first provided formal advice to the Applicant that it was contemplating termination of employment and an examination of the events during the period July 2008 to February 2009 provide other clear and valid reasons why the Respondent was contemplating termination.
[95] At the time of dismissal the Applicant had been absent on paid sick leave for just short of three years. The Respondent had clear medical evidence from both the Specialist appointed by the Applicant and the Specialist appointed by the Respondent that a return to work with the NT Police was not possible. The Respondent was correct to conclude that the Applicant was unable to perform the inherent requirements of the job. This provides a valid reason for dismissal in circumstances where reasonable efforts have been made to resolve the complaint and the situation which led to the absence.
Was the dismissal harsh, unjust or unfair?
[96] It is not disputed that the Applicant was notified of the reasons for dismissal. Nor is it disputed that the Applicant was given a number of opportunities to respond to the reasons for dismissal. The Applicant had adequate opportunity to obtain advice and representation. The Applicant was given more than 16 months notice on full pay that dismissal could be the result if the return to work was not able to be achieved. The employer is a large one and it has access to appropriate human resource management specialists and this had no impact on the fairness of the processes adopted in this case.
[97] The Applicant submitted that on several occasions the Respondent imposed unreasonable timelines on his response to correspondence. The evidence is clear that the correspondence dated 3 April 2009 was not in fact received by the Applicant until 15 April 2009 and that the Respondent granted an extension of time for response until 29 April 2009. It is also true that in the letter 7 December 2009 referred to the fact that the response of the Applicant to the 3 April 2009 correspondence had not been received within 14 days. Sections 87, 88 and 89 of the NT Police Administration Act provide that:
“87. Inability of member to discharge duties
Where the Commissioner is of the opinion, on reasonable grounds, that a member:
(a) is not fit to discharge, suited to perform or capable of efficiently performing, the duties the member is employed to perform;
(b) because of circumstances beyond the member's control, is not performing those duties efficiently or satisfactorily; or
(c) is not qualified for the efficient and satisfactory performance of those duties,
the Commissioner shall, by notice in writing, advise the member of the Commissioner's opinion and the grounds on which the Commissioner has formed the opinion, and invite the member, within 14 days, to indicate in writing whether the member agrees with the Commissioner's opinion or to explain in writing any matter referred to in the notice.
Review of grounds
88. Review of grounds
(1) As soon as practicable after the expiration of the 14 days referred to in section 87, the Commissioner shall, if not satisfied with the member's explanation, if any, arrange for a review to be carried out by one or more members to determine whether the Commissioner's opinion is well founded and shall, in writing, advise the member accordingly.
(2) In the course of a review referred to in subsection (1), if the member or members carrying out the review is or are of the opinion that it is relevant to the review for the member to be so examined, the member or members may direct the member to submit to an examination by one or more health practitioners as the member or members carrying out the review think fit.
(3) Where a member has been directed under subsection (2) to submit to an examination, the member may, in addition, submit to an examination by a health practitioner, of the member's own choice and submit the report of that examination to the member or members carrying out the review, who shall take the report into account.
(4) Where a member refuses to comply with a direction under subsection (2), the member or members carrying out the review shall notify the Commissioner of the refusal and the Commissioner, on receiving the notification, shall take such action under this Act (other than dismissing the member) as the Commissioner thinks fit.
(5) The member or members carrying out the review shall, in writing, advise the Commissioner and the member of their findings as a result of the review.
Action following review
89. Action following review
If a member on whom a notice under section 87 is served indicates that the member agrees with the Commissioner's assessment or, as a consequence of a review referred to in section 88(1), the Commissioner remains of the opinion on the same or different grounds revealed by the review, the Commissioner may take no action or:
(a) direct the member to take any leave that has accrued to the member under this Act;
(b) stand the member down from the Police Force, on full salary on compassionate grounds, for a period not exceeding 3 months;
(c) transfer the member to other duties, including duties (and at a rate of salary) of a lower rank; or
(d) advise the member, in writing, that the Commissioner intends to retire the member from the Police Force.
[98] It is clear from an examination of the relevant correspondence that the response of the Applicant of 27 April 2009 was taken into account for the purposes of the review under Section 88 and the action following the review under Section 89. I do not believe that any significant unfairness resulted from the shortness of the response time provided in respect to the April 3 2009 correspondence. I have come to the same conclusion in respect to the other instance of short response time referred to by the Applicant. 37
[99] The Applicant raised the issue that the Respondent should be required to do more to provide him with assistance to obtain other employment. In particular he argued the Respondent should be actively seeking alternative employment for him and providing him with appropriate retraining. The Applicant submitted that the dismissal was unfair because this had not been done prior to the dismissal. There was evidence to suggest that these matters had been raised as part of a workers compensation claim raised by the Applicant. I make no comment as to whether or not these are relevant considerations in respect to that matter.
[100] There are circumstances where it would be reasonable for the employer to fully explore all options for redeployment within the enterprise. However, the medical opinions are quite clear that the Applicant cannot work within the NT Police and the relationship is clearly irreparable so internal redeployment is not an option. I do not think that the dismissal is unfair because the employer has not made efforts to find a new job outside the NT Police for the Applicant after almost three years on paid sick leave. I am also satisfied that the Applicant is a qualified metal tradesperson and has a number of other skills. He is generally fit and intelligent. In the circumstances of this case, I do not think that the dismissal is unfair because the employer did not provide the Applicant with retraining for a new career outside the NT Police.
[101] I find that the dismissal was not harsh, unjust or unreasonable. I dismiss the Application.
COMMISSIONER
Appearances:
Mr S Isles representing himself
Mr K Currie and Ms L Dewson on behalf of the Respondent
Hearing details:
2010
Darwin
15 November
1 PN10-12
2 Exhibit NTP-1
3 PN22-24
4 See paragraph 23 above
5 See paragraph 23 above
6 PN11
7 PN113
8 PN127-130
9 PN100-231
10 See paragraph 23 above
11 PN103
12 PN117
13 Exhibit NTP-1
14 Exhibit NTP-1
15 Exhibit NTP-1
16 Exhibit NTP-1
17 Exhibit NTP-1
18 Exhibit NTP-1
19 PN204
20 Applicant’s Submissions in Reply, Appendix F
21 Ilardo V Rail Corporation of New South Wales T/A Rail Corp [2010] FWAFB 6473
22 Applicant Submissions in Reply, Appendix S
23 Application for Unfair Dismissal Remedy Form F2 submitted by the Applicant at point 10 under the heading “Why was the dismissal unfair?”
24 Anti-Discrimination Act 2010 (NT), ss.69, 70
25 Explanatory Memorandum, Fair Work Bill 2008 (Cth), 2710-2711
26 Anti-Discrimination Act 2010 (NT), ss.69, 70
27 PN13-22
28 Exhibit I-1 and I-2
29 Letter of 10 February 2010 from Assistant Commissioner Payne to Applicant
30 Complaint of Applicant 18 July 2010
31 Medical Report of Dr McLaren 1 May 2009, Medical Report Dr Frost of 25 September 2009 and 12 March 2010
32 Guidice J, Lacey SDP and Cargill C, Y Iliadis and Rail Corporation New South Wales 2007 AIRCFB 1041
33 Y Iliadis and Rail Corporation New South Wales 2007 AIRCFB 1041 para.14
34 Applicant Submissions in Reply, p.4 and Applicant Submissions in reply, Appendix M
35 PN127-130
36 Applicants Submission in Reply, Appendix F
37 Correspondence from Respondent dates 17 May 2010 which was responded to by Applicant on 17 June 2010
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