[2021] FWCFB 1906

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Ming Gao
v
Department of Home Affairs
(C2020/9322)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT HAMILTON
COMMISSIONER WILSON

SYDNEY, 8 APRIL 2021

Appeal against decision [2020] FWC 6842 of Commissioner Johns at Sydney on 16 December 2020 in matter number U2019/10470 - permission to appeal refused.

[1] On 16 December 2020, Commissioner Johns handed down a decision in Ming Gao v Department of Home Affairs [2020] FWC 6842 (the Decision) in relation to an application for unfair dismissal lodged under s.394 of the Fair Work Act 2009 (Cth) (the Act). The Decision concerned a jurisdictional objection to the application made by the Department of Home Affairs (the Respondent). The Respondent submitted that Mr Gao (the Appellant) had resigned from his employment voluntarily and was therefore not dismissed within the meaning of s.386(1) of the Act.

[2] The jurisdictional objection was heard in Canberra before Deputy President Kovacic on 7 February 2020. Following the passing of the Deputy President, the matter was reallocated to Commissioner Johns.

[3] Commissioner Johns found that the Appellant was not forced to resign from his employment because of conduct, or course of conduct, engaged in by his employer and that the Appellant was not dismissed from his employment with the Respondent within the meaning of s.386 of the Act.

[4] The matter on appeal was subject to a telephone hearing on 10 March 2021. The parties sought permission to be legally represented. The Full Bench granted the parties’ application for permission to be represented pursuant to s.596(2)(a) of the Act.

[5] The Full Bench has heard the parties on permission to appeal and the substantive appeal. For the reasons that follow, permission to appeal is refused.

The appeal

[6] On 31 December 2020, the appellant lodged an appeal against the Decision on the basis that:

“1. The matter commenced, and the evidence was heard by Deputy President Kovacic before his death. The matter was then transferred to Commissioner Johns for the final decision.

2. The Commissioner did not engage with the material evidence or submissions of the appellant but rather appears to have accepted the evidence and submissions of the respondent at face value [71]-[74].

Particulars:

(a) The Commissioner did not engage with the evidence or submission of the appellant to the effect that the respondent had formed the intent to dismiss the appellant at the point it issued the ‘Show Cause’ letter and the process thereafter was a sham [74];

(b) The Commissioner did not engage with the evidence or submission of the appellant to the effect that the respondent had misused or had failed to comply with its own guidelines on management performance including the unauthorised duration of the management performance program [15][20][53];

(c) The Commissioner did not refer to, and hence engage with, the evidence or submission of the appellant concerning the alleged pen throwing incident and its role in the respondent’s decision to terminate the appellant [47(d)].

3. The Commissioner was either unaware of, or failed to address, the content of the Applicant’s Further Submissions of 21 April 2020. These submissions addressed:

(a) The extension of time sought by the appellant [25] to respond to the Show Cause letter;

(b) Whether he was fit to provide the response in the time provided by the respondent [47(f),(g)][53(uu)]

4. The significant errors of fact are each of these set out above.” 1

[7] In submissions before us, the Appellant submitted that the ‘central issue’ in the appeal related to his submissions of 24 April 2020, which related to the matters set out in paragraphs 2(a) and 3 of the appeal grounds.

The Act

[8] An appeal under s.604 of the Act is an appeal by way of rehearing. The Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 2 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[9] Section 400 of the Act applies to this appeal. It provides:

“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”

[10] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 of the Act as “a stringent one”. 3 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.4 The public interest is not satisfied simply by the identification of error, or a preference for a different result.5 In GlaxoSmithKline, a Full Bench of the Commission identified some of the considerations that may attract the public interest:

“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 6

[11] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of an appealable error. 7 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

Consideration

The Respondent corrects Ms Whiting’s evidence

[12] The Appellant submitted that a submission filed by him on 24 April 2020 8 was ‘central’ to the appeal before us. This 24 April 2020 submission came about as follows.

[13] On 12 March 2020, after submissions and evidence had closed before Kovacic DP, the Commonwealth wrote to the Commission acting as a ‘model litigant’ in order to clarify the issue of whether or not the report of Dr Habicht was attached to the Appellant’s request for an extension of time. The Commonwealth said:

“We refer to the Applicant’s email below.

Following receipt of this email, Home Affairs conducted further searches as to what was attached to the Applicant’s email of 19 August 2019 at 8:57am and what was subsequently provided to Ms Whiting.

Given that evidence has closed, the Respondent as a model litigant seeks leave to raise the outcome of those searches with the Fair Work Commission, being that it is now apparent to the Respondent that the Applicant provided the following attachments to his email of 19 August 2019, and that these documents were provided to Ms Whiting for her consideration in responding to the Applicants request for an extension of time to respond to the Show Cause letter:

• Medical Certificate of Dr Flynn dated 13 August 2019

• Letter from Dr Flynn dated 13 August 2019

• and, as stated by the Applicant), the Letter of Dr Habicht to the Department of Home Affairs dated 22 July 2019.

The Respondent raises this in circumstances where the evidence of Ms Whiting at the hearing on 7 February 2020 was that she did not recall seeing the letter of Dr Habicht.

As the Applicant’s email below was received on 8 February 2020, following the closure of evidence and the Deputy President reserving his decision, the Respondent raises this for consideration of what, if any, further steps are necessary. The Respondent respectfully suggests that this issue may be addressed by leave being granted for the Respondent to file clarifying written evidence from Ms Whiting and written submissions on whether or not this evidence is relevant to the jurisdictional issue, with the Applicant then being afforded an opportunity to put on written evidence and submissions in reply.”

[14] On 24 April 2020 the Appellant submitted a further submission which questioned Ms Whiting’s evidence and said that the Appellant’s evidence should be preferred to her evidence, for a range of reasons which include serious allegations that Ms Whiting deliberately misled the Commission in giving evidence 9. We deal with this submission later in more detail.

[15] On 1 May 2020 the Commonwealth responded to the Appellant’s further submission of 24 April 2020 and sought leave to ‘put on a further brief statement of Ms Whiting’:

“We refer to the material recently filed by the parties in this matter, and in particular the Applicant’s Further Submission of 24 April 2020 (the 24 April 2020 submission).

Given the nature of the 24 April 2020 submission insofar as it refers to the conduct of Ms Whiting, we seek the Commission’s leave to put on a further brief statement of Ms Whiting. The purpose of this statement would be to allow Ms Whiting to explain her process in reviewing her own records.

If leave is granted, we would expect to be in a position to provide the statement by 7 May 2020.

The Applicant’s solicitor is copied into this email.”

[16] The applicant responded on 1 May 2020 and opposed the request:

“The applicant instructs us to oppose this request.

Ms Whiting had the opportunity both through her statement and then through evidence at the Commission to provide her position on this matter.

Our submission simply shone the light on her inconsistent evidence of which she had the opportunity to correct

Submitted for Deputy President Kovacic’s consideration.”

[17] On 1 May 2020 the Deputy President decided not to allow any further evidence or to conduct a further hearing:

“The Deputy President has reviewed the material and the parties further submissions and evidentiary material and advises a further hearing is not required. The Deputy President has also considered the Respondent’s request to put on a further brief statement of Ms Whiting and advised that the Respondent will not be granted leave to put on further evidence.”

[18] Sadly, our colleague Kovacic DP died before he handed down his decision in the matter, after which there was a mention/directions conference before Catanzariti VP on 7 August 2020. At the conference it was agreed that the matter be determined ‘on the papers’ without a further hearing or submissions, and the Respondent said if any adverse finding made against Ms Whiting, they seek leave for her to respond to a finding. The matter was allocated to Johns C on 7 August 2020. Johns C handed down the Decision on the papers, without a further conference or hearing.

The extension of time period

[19] The 24 April 2020submission relates to a period of time in a long and somewhat complex process conducted by the employer which we refer to as the extension of time period. This is a period summarised as follows by Commissioner Johns:

“[23] On 16 August 2019 the Applicant received a letter (Show-cause Letter) from Ms Rebecca Taylor (Director of Case Management Services), who was delegated by the Secretary to make a decision and advise what, if any, action to be taken. The letter advised the Applicant of the preliminary decision to terminate the Applicant’s employment. This letter provided the Applicant until 30 August 2019 to provide any reasons as to why his employment should not be terminated.

[24] On 19 August 2019 at 8.57am, the Applicant sent an email to the Department. Attached to the Applicant’s email was a medical certificate and correspondence from two psychologists. He wrote he would delay his response. The Department treated the email as a request for an extension of time.

[25] On 21 August 2019 the Department declined an extension of time”

MsWhiting and her evidence

[20] Ms Whiting was the decision maker regarding the extension of time but did not issue the ‘show cause’ letter. This was issued by a Ms Taylor. In her letter refusing an extension of time of 19 August 2019, Ms Whiting said that she would make her decision on the basis of the material before her as at 30 August 2019, and referred to the medical evidence of ‘Dr Carolyn Flynn, Sports Psychiatrist’, and ‘IME Forensic Psychiatrist Dr Luke Murphy’, but not that of Dr Habicht 10.

[21] Ms.Whiting was cross examined about her decision refusing the Appellant an extension of time during proceedings in the matter:

“PN121

THE DEPUTY PRESIDENT: Ms Whiting, the document at page 184 of the of the court book, if you'd - did you see that prior to responding to Mr Gao's request for an extension of the timeframe for his response to the show cause letter, prior to your response? I don't recall the document on 184 but I do recall the document on 185.”

[22] This question was then the subject of re-examination by the Respondent’s Counsel

“PN153

MS SEKLER: And you were asked a question before from Mr Gao about - in relation to whether he had been informed that Ms Taylor was no longer going to be the delegate. Could I get you to read the email on page 365? The entire email?

PN154

In particular paragraph 1 and the last paragraph on page 365? "Mr Gao, thank you for your email dated 19 August, two" - - -

PN155

THE DEPUTY PRESIDENT: You don't need to read it out loud.

PN156

MS SEKLER: I apologise? Sorry.

PN157

Yes, you don't need to - just to yourself.

PN158

THE DEPUTY PRESIDENT: You don't need to read it out aloud. Just - - -? Thank you. Thank you.

PN159

MS SEKLER: In light of that, what if anything do you have to say about whether Mr Gao was informed that Ms Taylor would no longer be the delegate in this process? Well, I obviously advised him on the 19th.

PN160

Of - I might - - -? The first paragraph we've advised him that she was on leave and that I would be taking over as the delegate.

PN161

I might just bring your attention to the email date? Yes.

PN162

And it's dated the - - -? The 21st, yes.

PN163

So that's when you say you advised him? Yes.

PN164

In relation - you were asked questions about the psychologist's report of Dr Habikt and whether you saw it. Have you recently gone back to review that email chain about what you were provided? Yes, I did.

PN165

And when did you review it? Yesterday.

PN166

Was that report attached to the email chain? Not that I can recall.

PN167

Okay? I might say I've been doing this at home, so assume my IT is working - but not that I could recall, so - - -

PN168

No further questions.”

[23] Ms Whiting’s evidence on these matters varies, with her explanations on the subject ranging from her recollection that the report was not attached to the email chain; that she does not recall if it was attached; and that she does not recall if she had regard to the report of Dr Habicht but acknowledges that it was attached. During the cross examination, Ms Whiting said that she had reviewed the email chain and Dr Habicht’s report was not attached to the email of 19 August 2019 11. She adds that ‘I might say that I have been doing this at home, so assume that my IT is working – but not that I recall, so ---‘. She is then arguably cut off by counsel for the Appellant who says he has no further questions.

[24] Having regard to all the evidence given by Ms Whiting our overall assessment is that she was somewhat confused about whether or not Dr Habicht’s report was attached to Mr Gao’s email of 19 August 2019. While that is our assessment, the Appellant draws far more serious conclusions about Ms Whiting’s evidence, which we discuss below.

Ms Whiting corrects her evidence

[25] In her later supplementary witness statement of 6 April 2020, Ms Whiting said:

“6. I do not recall whether I also had regard to the Report of Dr Habicht in determining whether to grant an extension of time for Mr Gao to respond to the show cause letter, but I acknowledge that it was attached to Mr Gao’s email of 19 August 2019 at 8.57 am and forwarded onto me by Fiona Sheaves on 19 August 2019 at 5.10 pm.” 12

Serious allegations made by the applicant against Ms Whiting on 24 April 2020

[26] On 24 April 2020 the Appellant submitted that his evidence should be preferred to the evidence of Ms Whiting, and that Ms Whiting might have engaged in ‘negligence’ or ‘criminal conduct and perjury’ in giving her evidence: 13

“7. The issue of whether there was any evidence before Ms Whiting to the effect that the Applicant was not fit to continue with the performance management and subsequent termination process, was a live issue before Ms Whiting at all times. In her reasons for decision and her statement filed in the Commission, Ms Whiting said that there was no such evidence before her. Ms Whiting referred to the report of Dr Flynn (psychiatrist) which she construed as stopping short of expressing such an opinion.

8. The report of Dr Habicht (psychologist) of 22 July 2019 arguably does go so far as to recommend the cessation of the performance management process that eventually led to the termination process. Ms Whiting denied that she had seen this report before making her decisions. Had Ms Whiting read the report then she could and should have: (a) referred to it in her reasons for her decisions and in her statement in the Commission; and (b) had regard to it when considering the extension of time issue and the termination.

9. There are only three possibilities: (a) Ms Whiting seriously did not see the report of Dr Habicht before making her decisions and drafting her statement for the Commission, because the report had become detached from the covering email; (b) The report was attached to the covering email but Ms Whiting failed to notice it; or (c) Ms Whiting did see the report at all material times and has mislead the Commission.

10. The Respondent now concedes that the report was before Ms Whiting. There is no explanation offered about how and when this knowledge came to the Respondent’s attention. There is no indication whether the report was in fact still annexed to the covering email or whether it had somehow been detached and found elsewhere. In the absence of any explanation by the Respondent on this point, the Applicant is entitled to infer that the report was in fact still annexed to the covering email and was always so attached. In this event alternative 9(a) is eliminated, leaving only alternatives 9(b) and (c).

11. Alternative 9(b) is at least an admission of negligence on the part of Ms Whiting and alternative 9(c) represents a criminal action and possibly perjury on her part.

12. Even if alternative 9(b) were the case, Ms Whiting knew that the content of the report was relevant to her decisions and was a potential impediment to a decision to terminate the Applicant i.e. if she in fact had the motivation attributed to her by the Applicant, then she had a motive for failing to acknowledge the existence of the report.

13. When these proceedings commenced Ms Whiting prepared a statement which she adopted under oath. In that statement she made no reference to the report of Dr Habicht, but at the time of preparing this report she must have known that its existence was relevant.

14. At PN121 the Commissioner asked Ms Whiting whether she had seen the report of Dr Habicht before making her decisions,; she replied ‘I don’t recall the document on 184 (Dr Habicht), but I do recall the document at 185 (Dr Flynn).

15. The Applicant protested about the untruthfulness of this answer (PN 123) on a number of occasions, including immediately after the above evidence was given.

16. At PN 164 counsel for the Respondent asked Ms Whiting whether she had recently reviewed the email chain to see if the report of Dr Habicht was attached. She said she had done that ‘yesterday’. When asked whether the report was annexed, she answered ‘Not that I can recall’. 214

17. These answers are evasive. Ms Whiting was under a duty on three separate occasions to inspect the file and accurately report on its contents; the first occasion was when making her decisions, the second when preparing her statement for the Commission and the third when she inspected the file the day before giving her evidence. It is most implausible that the report was annexed to the covering email at all three times and Ms Whiting just failed to notice it on each of these occasions. Conclusion:

18. The Commission is entitled to prefer the evidence of the Applicant over that of Ms Whiting and to otherwise reject the evidence of Ms Whiting.’

Commissioner Johns’ assessment of the evidence of Ms Whiting and the correspondence of 24 April 2020

[27] Commissioner Johns does not specifically mention the submission made by the Appellant on 24 April 2020. In relation to the conduct of Ms Whiting and her refusal of the extension of time he said:

[25] On 21 August 2019 the Department declined an extension of time”

….

[54] Although the Applicant relies upon a course of conduct, it is important, in particular, to reflect upon the immediate events leading up to the resignation.

[55] On 16 August 2019 the Applicant received the Show-cause Letter. It is useful to set out the full terms of the Show-cause Letter (attachments omitted):

…

[56] On 19 August 2019 at 8.57am, the Applicant sent an email to the Department’s workplace relations and behaviours email address, Ms Taylor and others. Attached to the Applicant’s email were a medical certificate and correspondence from two psychologists. The Applicant wrote, “I will provide my comment [i.e. to the Show-cause Letter] when my health condition improved (sic) and stablised (sic).” [57] The 19 August 2019 email was forwarded to Ms Whiting (who was the then current Delegate of the Secretary in Ms Taylor’s absence).

[58] On 21 August, at 3.03 pm Ms Whiting responded as follows, “…. Having regard to the medical assessment of Dr Luke Murphy, and your recent work attendance, I see no compelling reason to grant you an extension to the time provided to the Notice of intention to Terminate Your Employment letter. I acknowledge that the process is difficult that is why I provided you a two week timeframe with which to submit a response. This is also consistent with Dr Murphy’s report that you should receive advance notice so that you can put in place appropriate support. If you do not provide a response by the close of business on 30 August 2019, I am intending to make a final decision based on information before me this includes your responses to the process today and, most recently, the Independent Assessor’ report.” [59] For the reasons given by the Delegate I am satisfied that the refusal of an extension of time was not unreasonable. There was no medical evidence to the effect that the Applicant could not participate in the show-cause process.’

[28] He then concluded that the Department’s ‘processes’ in period up to the Appellant’s resignation were ‘balanced, fair and reasonable’:

“[71] Having carefully considered the evidence concerning the events that occurred in the lead up to the Applicant deciding to resign, I have reached the conclusion that the conduct of the Department did not give rise to circumstances that amounted to a dismissal within the meaning of s.386(1)(b).

[72] I am satisfied that, viewed objectively and considered in its entirety, the Department’s processes were balanced, fair and reasonable. If there was any procedural misstep, it was minor. Further, I am satisfied that, on the whole, the officers of the Department behaved professionally. That is not say that the conduct of the Department and its officers was perfect. However, we do not expect perfection. In all the circumstances of this matter the conduct of the Department and its officers was what could be reasonably expected of it and them. The process leading to the Show-cause Letter was not unfair.

[73] The Show-cause Letter then provided another opportunity for procedural fairness.

[74] It is very clear from the evidence that, as at 16 August 2020 no definite decision had been made to terminate the Applicant’s employment. The Show-cause Letter was a genuine opportunity for the Applicant to show why his employment should not be terminated. The fact that the Delegate had discounted alternatives to dismissal, but left open the question of dismissal, supports a finding that no definite decision had yet been made. The Show-cause Letter does not evidence a closed mind on behalf of the Delegate.

[75] Consequently, the Applicant was not placed in a position where he had no other choice but to resign. He could have actively engaged with the Show-cause Letter. That was the opportunity presented to him. He chose to pass up on that opportunity. He did so after receiving advice from the CPSU that his best option was to resign. He consulted with his wife. He carefully considered his options. He then decided to resign. To his CPSU representative he wrote, “After some research and discussed with my wife, we decided to take your advice and resigned to move on. Please advise on what to do next.” 15 [2015] FWC 1647, [7]. 16 Print N6999 (9 December 1996) AIRC (per Munro J, Duncan DP and Merriman C), p2. 26 [2020] FWC 6842 24

[76] In his submissions the Applicant wrote “… I was persuaded by [my] union representative and decided to resign to avoid termination…”

[77] I am satisfied that Mr Gao’s resignation was voluntary. He decided it was in his best self-interest to do so. The Applicant bears the sole responsibility for that decision. This finding is consistent with the authorities in Pacific National (NSW) Limited v Bell, Hardwick v National Australia Bank Ltd, and Knight v Wattly Australia Pty Ltd.

[78] It is also important to bear in mind that the Applicant did not resign with immediate effect. This was not a case of him resigning in haste. He resigned on Monday, 26 August 2019 with effect on Friday, 30 August 2019. At no time during the intervening period did the Applicant seek to withdraw his resignation. At no time on the four business days after he resigned did the Applicant assert to the Department that he thought he had made a mistake or regretted the decision and wanted to retrack the resignation.

[79] The Department did not engage in conduct or a course of conduct that forced the Applicant to resign. There was no absence of effective or real choice. Having been served with the Show-cause Letter on 16 August 2019 the Applicant had other choices other than to resign. Consequently, in deciding to resign the Applicant exercised his free will to end the employment. He thought resignation would look better. There was no compulsion or inevitability in the resignation.”

[29] A conclusion that the Respondent’s conduct was ‘balanced, fair and reasonable’, any missteps were ‘minor’, and the officers presumably including Ms Whiting ‘behaved professionally’, although not ‘perfect’ is a clear rejection of the Appellant’s submissions of 24 April 2020. Commissioner Johns clearly did not consider that Ms Whiting’s conduct was ‘negligent’, ‘criminal’, or ‘perjury’. While he did not specifically refer to the submissions of 24 April 2020, he did say that he took account of all of the material that was before the Deputy President, which included the material of 24 April 2020:

“[9] On 7 August 2020 the matter was reallocated to me after the untimely death of the Deputy President. In coming to this decision, I have had regard to all of the material that was before the Deputy President. Because of the volume of material and the need to reconsider it in its entirety this decision is regrettably being delivered outside the Commission’s benchmarks.”

Appeal grounds in paragraphs 2(a) and 3 of the appeal grounds.

[30] Firstly, as previously noted, we have examined the evidence given by Ms Whiting and have concluded that at most Ms Whiting was confused in her evidence about whether or not the report of Dr Habicht was attached to Mr Gao’s email of 19 August 2019. This is consistent with the decision of Commissioner Johns that the Department acted appropriately.

[31] However, the Appellant submitted on 24 April 2020 that:

9. There are only three possibilities:

(a) Ms Whiting seriously did not see the report of Dr Habicht before making her decisions and drafting her statement for the Commission, because the report had become detached from the covering email;

(b) The report was attached to the covering email but Ms Whiting failed to notice it; or

11. Alternative 9(b) is at least an admission of negligence on the part of Ms Whiting and alternative 9(c) represents a criminal action and possibly perjury on her part.

15. The Applicant protested about the untruthfulness of this answer (PN 123) on a number of occasions, including immediately after the above evidence was given.

Conclusion:

18. The Commission is entitled to prefer the evidence of the Applicant over that of Ms Whiting and to otherwise reject the evidence of Ms Whiting.”

[32] It should be noted that nowhere in this submission does the Appellant note the possibility that Ms Whiting was simply confused in her evidence:

“9. There are only three possibilities:

(b) The report was attached to the covering email but Ms Whiting failed to notice it; or

[33] On the material before us there are not only three possibilities as claimed by the Appellant. There is also the possibility that Ms Whiting was confused or had a failure of recollection. In relation to the first option suggested by the Appellant, that Dr Habicht’s report had become detached, there is no evidence of this. This is just speculation. In relation to the second, Mr Whiting may indeed have failed to notice it, which is one interpretation of her evidence already quoted. The Appellant also raises the possibility that Ms Whiting deliberately misled the Commission.

[34] The Appellant prefers the option that Ms Whiting deliberately misled the Commission in giving sworn evidence. However, with respect, the allegation that Ms Whiting deliberately gave false evidence is weak. It rests on assertions that Ms Whiting’s evidence was ‘deliberately evasive’, and that Ms Whiting had an obligation to provide truthful evidence and should have properly researched the issue and other allegations. We have already examined her evidence and we do not agree with this conclusion. We do not think that Ms Whiting’s evidence was evasive. In the alternative it was open on the evidence before Commissioner Johns to find that the Department behaved professionally but not with perfection, and that perfection cannot be expected, as he did.

[35] The Appellant makes serious allegations about Ms Whiting’s conduct, and a court or tribunal will not make such serious findings lightly. As the High Court said in Briginshaw v Briginshaw: 14

“The standard of proof remains the balance of probabilities but 'the nature of the issue necessarily affects the process by which reasonable satisfaction is attained' and such satisfaction 'should not be produced by inexact proofs, indefinite testimony, or indirect inferences' or 'by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.”

[36] The Briginshaw principle does not raise the standard of proof beyond the balance of probabilities. The strength of the evidence needed to establish a fact on the balance of probabilities 'may vary according to the nature of what it is sought to prove'. 15 More serious allegations may require stronger evidence. In this case the evidence sustaining such allegations is not sufficient.

[37] In our view little attempt was made by the Appellant to sustain a claim of perjury or deliberately false evidence, and the evidence and reasoning of the Appellant is with respect weak.

[38] There is a further difficulty with the Appellant’s submissions. It is well established that findings of witness dishonesty should not be made by this Commission without the allegation being fully put to a witness, and the witness being given an opportunity to reply. 16 Yet in this case the Appellant made serious allegations on 24 April 2020, and then persuaded the Commission not to provide the Respondent or Ms Whiting with the opportunity to respond. If the Appellant wished the Commission to make a finding of dishonesty against Ms Whiting, it would have been aware that it needed to give Ms Whiting the opportunity to directly respond to that allegation. The Appellant opposed the Respondent being given an opportunity to respond to the 24 April 2020 submission. After this submission was put, the Commonwealth sought, as we have seen, ‘leave to put on a further brief statement of Ms Whiting. The purpose of this statement would be to allow Ms Whiting to explain her process in reviewing her own records.’ The Appellant replied on 1 May 2020:

“The applicant instructs us to oppose this request.

Ms Whiting had the opportunity both through her statement and then through evidence at the Commission to provide her position on this matter.

Our submission simply shone the light on her inconsistent evidence of which she had the opportunity to correct

Submitted for Deputy President Kovacic’s consideration.”

[39] On 1 May 2020 the Deputy President decided not to allow any further evidence or to conduct a further hearing:

[40] If the credibility of Ms Whiting was a central issue, then the Appellant should not have opposed the Respondent’s request for a further opportunity to respond, given the need to provide the Respondent with natural justice. With respect the applicant cannot complain that the credibility of Ms Whiting is a ‘central issue’, after the Commonwealth acting as a model litigant provided new material, and then deny the Commonwealth the opportunity to put a case in relation to this new ‘central issue’.

[41] On the material before us it was open to Commissioner Johns to conclude as he did that the Department’s procedures were appropriate although not perfect, and to further conclude that the Appellant resigned and was not terminated.

Ms Whiting’s refusal to grant an extension of time

[42] On the material before us there was good reason for Ms Whiting to refuse to grant an extension of time. It was open to Ms Whiting to act on the other medical evidence, which she did. On 19 August 2019, the Appellant sent an email which attached medical certificates and medical advice from his treating medical practitioners:

“Hi

I am very unwell and having sick leave from 19/08/2019 to 01/09/2019 to undergo new treatment plan. Please find the medical certificate and specialist doctors letters attached. I will provide my comment when my health condition improved and stabilised.

Cheers
Ming Gao”

[43] The medical certificate and letter from Dr Flynn dated 13 August 2019 provides that the Appellant has a medical condition and will require time off work from 19 August 2021 to 1 September 2021, that the Appellant is suffering from depression and anxiety, is unhappy with his work environment, and is experiencing side effects from antidepressant medication which was in the process of being changed and reviewed. Dr Flynn goes on to state that the Appellant would benefit with being transferred to another area within the public service. Further, it would be therapeutic for the Appellant to have 2 weeks leave to ensure that the medication changes are effective, and that the Appellant would also seek to use his long service leave to have a longer recovery period to assist in his mental health recovery.

[44] The letter from Dr Habicht, a Forensic and Clinical Psychologist, dated 22 July 2019 is quite short. Amongst other things it provides that the Appellant was diagnosed on 26 February 2018 with an adjustment disorder with depressed and anxious moods, that he is not in a position to meaningfully engage in any performance management discussions, that his depression and anxiety scores are in the extremely severe range and his stress levels are in the severe range, and that it is strongly recommended that the Appellant be transferred to another position outside of his current work area which Dr Habicht notes he had previously recommended in July 2018.

[45] On 21 August 2019, Ms Whiting acknowledges the medical certificate provided by the Appellant’s Psychiatrist, Dr Caroline Flynn dated 13 August 20119 which provided that the Appellant would be absent from work from 19 August 2019 to 1 September 2019. Ms Whiting notes that the Appellant attended the workplace from 14 August 2019 to 16 August 2019. Ms Whiting continues that the Appellant attended a medical assessment with an Independent Medical Examiner on 12 February 2019. Ms Whiting explains that the Department prefers advice provided from IMEs as they have specialised knowledge and expertise in assessing work capacity and developing strategies to assist employees’ return to work. The Department provided an explanation of the role and responsibility, work history and environment to the IME concerning the Appellant’s role. The IME concluded that the Appellant was fit to attend work and perform all inherent duties associated with that role. The Notice of Intention to Terminate Employment Letter dated 16 August 2019 provided that the Appellant would benefit from receiving substantial warning of any performance management process. Ms Whiting states that with regard to that medical assessment and the Appellant’s work attendance to date, no persuasive reason had been provided by the Appellant which was deemed sufficient or appropriate to extend the time with which to provide comment with respect to the Notice to Terminate. Ms Whiting highlights the two-week timeframe for the Appellant to provide a response was made in light of the recommendation of the IME to afford the Appellant with substantial warning of any performance management process and obtain appropriate supports.

[46] The material provided by the Appellant from Dr Habicht does not on one view add anything to the request to extend time. It merely relates to the point already made that the Appellant is suffering from an ongoing medical condition.

[47] It is reasonable for and was open to Ms Whiting to rely on the IME report over the letters of the Appellant’s treating medical practitioners for the reasons stated by Ms Whiting. The IME sits outside of the parties and makes an independent assessment on the material provided with respect to the role.

[48] The time provided to the Appellant to provide a response was made with respect to the IME report. It is therefore based on independent advice and has been acted on accordingly.

Evidence supporting Commissioner’s Johns’ findings

[49] There was considerable evidence that the Appellant did resign voluntarily, which is set out in Commissioner Johns’ decision:

[73] The Show-cause Letter then provided another opportunity for procedural fairness.

[76] In his submissions the Applicant wrote “… I was persuaded by [my] union representative and decided to resign to avoid termination…”

[50] This evidence included the Appellant’s discussions with his family, his trade union representative, and his written resignation.

[51] Ms Whiting had no role in this decision of the Appellant, other than perhaps putting some pressure on the Appellant to decide whether to continue his case given the facts that he knew about and are summarised above. It is difficult to see that an error of Ms Whiting relating to attachments to the Appellant’s application for an extension of time is of any real relevance.

[52] Commissioner Johns did not see any significance in the error. He referred simply to three medical reports being attached to the Appellant’s application for an extension of time. 17 Nor did Kovacic DP see any relevance. He decided that he did not need to hear further from the Commonwealth on the issue of Ms Whiting’s evidence. The Commission was at all times cognisant of the issue and took it into account.

[53] As Johns C said, the series of events was as follows:

[25] On 21 August 2019 the Department declined an extension of time

[26] On 22 August 2019: a) the Commission conducted a conference in relation the Applicant’s application for a Stop Bullying Order. b) the Applicant requested a voluntary redundancy.

[27] On 23 August 2019 the Department advised the Applicant that his request for a voluntary redundancy had been declined.

[28] On 26 August 2019, the Applicant resigned. He nominated 30 August 2019 as the “separation date.”

[29] Later that afternoon the Department accepted the resignation.

[30] The employment ended on 30 August 2019.”

[54] For the above reasons we dismiss appeal grounds 2 and 3.

Other appeal grounds

[55] The Appellant made little effort to sustain the other appeal grounds that:

“2(b) The Commissioner did not engage with the evidence or submission of the appellant to the effect that the respondent had misused or had failed to comply with its own guidelines on management performance including the unauthorised duration of the management performance program [15][20][53];

[56] This appeal relates to a decision that the Appellant was not terminated, but instead resigned. These appeal grounds refer to findings that are peripheral and of little relevance to his finding that there was no termination of employment, nor did the appellant attempt to persuade us that there was relevance, or that there was a basis for the complaints. On the material before us the findings that he made were open to him. We dismiss these appeal grounds.

Conclusion

[57] On the material before us and for the reasons set out above, we are not satisfied, for the purpose of s.400 of the Act, that it would be in the public interest to grant permission to appeal or that the Decision involves a significant error of fact. Further, we are not persuaded that the matters set out in the grounds of appeal otherwise raise an arguable case of error in the Commissioner’s exercise of his discretion. We do not consider the Decision to be attended by sufficient doubt to warrant its reconsideration, nor are we persuaded that substantial injustice will result if permission to appeal is refused.

[58] For these reasons we refuse permission to appeal.

al of the Fair Work Commission with member's signature,

VICE PRESIDENT

Appearances:

Mr A Anforth of Counsel and Mr D Healey for the Appellant

Ms I Sekler and Ms S Krauss for the Respondent

Hearing details:

2021.

Telephone hearing.
10 March.

Printed by authority of the Commonwealth Government Printer

1 Form F7 – Notice of Appeal, q.2.1.

2 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194, 204 [17] (Gleeson CJ, Gaudron and Hayne JJ) (‘Coal and Allied Operations Pty Ltd’).

3 (2011) 192 FCR 78; (2011) 207 IR 177 [43].

4 O’Sullivan v Farrer and another (1989) 168 CLR 210, 216 – 217 (Mason CJ, Brennan, Dawson and Gaudron JJ); applied in Hogan v Hinch (2011) 243 CLR 506, 548 [69] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78; (2011) 207 IR 177 [44] - [46].

5 See: GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266, 273 - 274 [26] - [27] (‘GlaxoSmithKline’); Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth], (2010) 202 IR 388, 396 [28] affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office (2014) 241 IR 177, 188 [28].

6 GlaxoSmithKline (n 6) (2010) 197 IR 266, 274 [27].

7 Wan v AIRC (2001) 116 FCR 481, 489 [30].

8 Appeal Book, 215.

9 Ibid.

10 Ibid, 151.

11 Transcript, PN164-167.

12 Ibid, 169.

13 Ibid, 215.

14 [1938] HCA 34 (30 June 1938), [(1938) 60 CLR 336]; cited in Barber v Commonwealth of Australia as represented by the Department of Parliamentary Services [2011] FWA 4092 (Thatcher C, 6 July 2011) at para. 33, [(2011) 212 IR 1].

15 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 (16 December 1992), [(1992) 67 ALJR 170]; cited in Guneyi v Melbourne Health T/A Royal Melbourne Hospital [2012] FWA 10270 (Hamilton DP, 18 December 2012) at para. 14. See also Budd v Dampier Salt Limited [2007] AIRCFB 797 (Giudice J, Lacy SDP, Cargill C, 5 October 2007) at para. 15, [(2007) 166 IR 407].

16 Xiu Zhen Huang v Rheem Australia Pty Ltd [2005] AIRC 108, [21]-[22].

17 Ming Gao v Department of Home Affairs [2020] FWC 6842, [23]-[27].

18 Form F7 – Notice of Appeal, q.2.1.