Fair Work Act 2009
s.394—Unfair dismissal

Ruth Cully
v
Commonwealth of Australia (represented by the Australian National Audit Office)
(U2021/5497)

Application for an unfair dismissal remedy - non-performance of duties – whether direction to return to office reasonable – dismissal unfair – reinstatement ordered.

[1] Ms Ruth Cully commenced employment with the Commonwealth of Australia (represented by the Australian National Audit Office) (ANAO) in 1998, and at the time of her dismissal was employed in the role of Auditor in the ANAO’s Performance Audit Service Group (PASG) in Canberra.

[2] Ms Cully’s employment with the ANAO was terminated on 2 June 2021 under section 29(3)(c) of the Public Service Act 1999 for non-performance of duties. The ANAO considered Ms Cully took two periods of unauthorised leave between 18 November 2020 and 17 March 2021 and between 6 and 21 April 2021 and did not provide a reasonable explanation for the absences. Further, it considered she had refused to follow a lawful and reasonable direction to return to work at the Canberra office. A short time before her dismissal, Ms Cully was found to have breached the APS Code of Conduct because of her refusal to return to work at the Canberra office and as a result the sanction imposed on her was her demotion from EL1 to APS6, effective 24 May 2021.

[3] She made an application pursuant to s.394 of the Fair Work Act 2009 claiming that she was unfairly dismissed. She seeks reinstatement to her former position.

[4] The application was heard by video on 10, 26 October, 8, 9, 23, 26 November and 17 December 2021. At the hearing, Ms Cully was self-represented and the ANAO was represented by Mr Craig Rawson of the Australian Government Solicitor.

[5] For the reasons set out below, I have found that Ms Cully was unfairly dismissed and have decided to reinstate her.

The Evidence

[6] Ms Cully gave evidence on her own behalf and relied upon evidence from three persons: Ms Marian Allen (a former audit manager of ANAO), Ms Cherise Reed (a former auditor of the ANAO) and Sister Rosemary Carroll.

[7] Ms Joyce Knight (Senior Director PASG) and Mr Alexander Wilkinson (Executive Director PASG) gave evidence for the ANAO.

[8] For the most part, the events leading to Ms Cully’s dismissal are not disputed, with most of the communication between the parties being in written form. Where there are differences in recollection or version of events, I prefer the evidence of Ms Cully who gave her evidence in a considered manner and was supported by the written correspondence between the parties.

Events leading to dismissal

[9] Ms Cully worked as a performance auditor on a part time basis, 3 days per week.

[10] On 16 March 2020 Ms Cully sought approval to work from home from that date until 13 May 2020. Attached to her application was a medical certificate which stated that Ms Cully was considered to be at increased risk of complications from COVID and recommended that she be allowed to work from home. The ANAO approved the request.

[11] On 23 March 2020 the ANAO informed all staff that they were encouraged to commence working from home from the following day in response to COVID.

[12] As a result, Ms Cully continued to work from home after her approval to work from home expired on 13 May 2020.

[13] In April 2020, the ANO published the ‘Flexible Work Policy 2020 - Pandemic Version’. Relevantly, the new policy required that staff who wished to work remotely from interstate locations must seek approval from the Deputy Auditor-General.

[14] Under her direct manager’s instructions, Ms Cully wrote to the Deputy Auditor-General on 30 July 2020 seeking retrospective approval for remote working arrangements from 18 May 2020 to 29 July 2020, and approval for remote working arrangements for a six month period commencing 30 July and ceasing on 30 January 2021. Ms Cully stated in her application, amongst other things, the following:

•  “I was previously approved to work from my home in Canberra from 13 March to 13 May 2020. I subsequently travelled to my home in Woolgoolga, where a medical specialist confirmed that a member of my household was terminally ill. I am seeking to remain in Woolgoolga to continue caring for this family member, who is particularly vulnerable in the current global COVID-19 pandemic.”

•  “I have discussed these proposed changes with my direct manager, Ms Joyce Knight, who supports this request, provided that I commit to delivering audit tasks and assignments and provide regular updates on my progress.”

•  “In accordance with the ANAO Employment Manual - Working from Home/Remotely and the flexible working arrangements policy Flexible Working Arrangements – Pandemic, I am aware that I am considered to be ‘on call’ and as such I may be requested to attend branch and/or team meetings as COVID restrictions are lifted. Where my physical presence is requested I will comply with said request, unless I am unable to do so on medical grounds. Where I am unable to do so, I will obtain and provide a medical certificate in accordance with the applicable ANAO employment policies.”

[15] On 27 August 2020, the ANAO approved Ms Cully’s retrospective application to work remotely from Woolgoolga for the period 13 May to 28 August 2020. Approval was also granted for Ms Cully to work remotely for the period of 31 August 2020 to 31 December 2020, subject to a number of conditions, including that:

•  She must attend the office or an audited entity in person to undertake audit fieldwork as determined by her Executive Director;

•  she must attend the office for specified meetings as determined by her Executive Director – these meetings will include AWP, PR2, Section 19 meetings (as already required by the Auditor-General) and on occasion team or Branch meetings;

•  she must maintain the appropriate level of performance for an Executive Level 1 officer required under the ANAO Performance and Career Development Framework; and

•  she must participate in a monthly review with her Executive Director on the effectiveness of these arrangements.

[16] Ms Cully took annual leave between 24 August and 9 September 2020.

[17] On 2 September 2020 Mr Wilkinson advised Ms Cully that her application for personal leave for the period 14 to 23 September 2020 was not approved, stating that “the person you are caring for is not a member of your immediate family, and Woolgoolga is not your principal place of residence”. Ms Cully was asked to consider other arrangements.

[18] On 6 September 2020 Ms Cully responded to Mr Wilkinson’s email with the following:

“Thank you for your reply. Please be advised that my uncle has been a member of my household since January 2016. My uncle is terminally ill (as per medical certificate). We are dealing with a personal emergency as previously discussed. I could not find any reference to ‘principal place of residence’ in the EA or the Employment Manual; however, I have lived exclusively at my home in Woolgoolga largely in self-isolation since mid May 2020. In two weeks I will be attending a NSW Civil and Administrative Tribunal hearing in connection with this matter (please see Tribunal directions attached). I have copied and pasted relevant sections from the ANAO Employment Manual below. Could you please review your decision regarding my application for personal leave from 14/9/2020 to 23/9/2020?

If you still believe that I do not qualify for personal leave, could you please advise me what other leave options are available to me? Please let me know if you need any further information – happy to discuss.”

[19] Ms Cully then sought leave without pay in lieu of personal leave but the request was again declined. The email from Ms Lisa Rauter (Group Executive Director PASG) of 9 September 2020 reads:

“Ruth, I have considered your request for leave without pay from 15 September to 23 September and I have decided not to approve this leave.

You asked to be moved off the Veteran Centric Reform audit due to personal issues with the management approach being taken for that team. The approach was considered and found to be appropriate to meet audit deadlines and quality expectations. We then assigned you to the ANU Governance audit and you are the only staff member that Joyce has on this audit. Your contribution to the audit, as for any EL1 officer, is critical to meeting required timeframes for the audit and it would be unfair to leave Joyce to undertake this audit on her own. You have been on leave for the majority of the time you have been assigned to that audit and I now need you to assist Joyce to undertake fieldwork. You have exhausted all other forms of leave (including taking a total of 990 days of leave over the past five years). You have also been given temporary approval to work remotely, subject to this meeting business needs and your ability to attend key meetings in Canberra and participate in field work in Canberra.

Joyce and Alex are relying on your input to the ANU Governance audit. We will see you back at work on Monday 14 September following your current leave period.”

[20] This leave application of Ms Cully was the subject of another email on 15 September 2020, this time from Ms Deborah Rollings (Senior Executive Director, Corporate Management Group), who advised her that her remote working arrangements were being revoked. The email reads:

“I have been asked to consider your recent request for carer’s leave to care for your uncle Mr Joseph Cully. This request is supported by medical evidence and, noting you have 6.8 days of leave available, this is approved for the period on the certificate 10 September to 23 September 2020. I am concerned that you applied for personal leave and leave without pay which were both declined for not meeting requirements, noting that you were seeking leave to attend a tribunal hearing. You also made enquiries about using long service leave. You should be aware that the ANAO’s employment manual states that personal leave and carer’s leave should only be used for the purpose it is intended.

Following this period of approved carer’s leave you will have exhausted all of your available paid leave and you are expected back at work on Tuesday 29 September 2020. You were recently granted approval by the Deputy Auditor-General to work remotely. One of the conditions of the approval was that the circumstances would be reviewed monthly to ensure they remain appropriate. Given your ongoing absence from the workplace and the potential impact this is having on your performance you are required to return to work at 38 Sydney Avenue Forrest from Tuesday 29 September 2020. Upon your return you will be required to meet with me and Lisa Rauter so we can understand your intentions with your ongoing EL1 role in performance audit noting that the extended periods of leave over the past five years, on face value, have made it difficult for you to fulfil the requirements of your role at the appropriate standard.

Following this meeting you will then meet with your Executive Director to hold your performance discussion for the current cycle and develop a performance plan that ensures you have the capability to perform your role in Performance Audit at the EL1 standard required.”

[21] Around the same time Ms Rollings’ email was sent, Ms Cully lodged an application for personal leave for the period 14 to 23 September 2020 and in support of the application provided the ANAO with a medical certificate stating that she was unfit for duty for that period.

[22] On 23 September 2020, Ms Cully wrote in response to the emails from Ms Rauter and Ms Rollings stating in summary that:

•  She was distressed by their emails and the ANAO’s unilateral revoking of her previously approved flexible working arrangements.

•  Her GP had recommended that she worked from home until 31 December 2020 due to her elevated risk of complications from COVID-19.

•  She was caring for her 91 year old terminally ill uncle of whom she was next of kin at her home in Woolgoolga.

•  If she was to return to the Canberra office (850 kilometres away) for the proposed meeting, she would need to self-isolate for at least two weeks before she could return to her uncle. There were also issues around how she could safely travel this distance during that time.

•  She had sought 5 weeks leave on 19 August because friable asbestos had been discovered in her home, and she and her uncle were required to evacuate to allow urgent and costly asbestos removal to happen. This necessitated her having to find appropriate emergency accommodation for her and her uncle. The asbestos contamination was also the subject of litigation, which the ANAO was aware of.

•  She was incorrectly advised by the Senior Director HR of the ANAO that she was ineligible to access her long service leave.

•  Her application for carers leave was declined notwithstanding the ANAO had previously been advised that she was her uncle’s primary carer.

[23] Her email went on to state that:

“On 14 September 2020, I was anxious and stressed about the ANAO's ongoing treatment of me, including the way the ANAO was blocking, declining and delaying my leave applications. I consulted with my GP, who issued me with a medical certificate. On 15 September 2020, I checked the status of my carer's leave application in Aurion, and no decision had been made. I withdrew that application, and re-submitted an application for personal leave for myself. I subsequently received Deb's email below of 15 September 2020 approving my carer's leave but raising serious new issues.

I am shocked by Deb's assertion that it has been "difficult for you to fulfil the requirements of your role at the appropriate standard". This is the first time that there has been any suggestion that I have performance issues. In 22 years I have never had an adverse performance appraisal, and on occasion I have been rated as "exceeding expectations" or equivalent. If I did have performance issues, I would expect them to be raised by my supervisor in the first instance. I certainly would not expect to be first notified of alleged performance issues in an email from a Band 2 in the Corporate Branch, directing me to return for a face to face meeting with two Band 2s.

ANAO's actions appear to be a deliberate and systematic attempt to put additional pressure on me in an already highly stressful situation.

In her email below, Lisa states that I was given temporary approval to work remotely, subject (inter alia) "...my ability to attend key meetings in Canberra and participate in field work in Canberra". The requirement to attend face to face meetings and participate in field work at this time is in contravention of my medical advice. I note that for many years, the ANAO has approved staff to work remotely from locations such as Paris and Athens. The ANAO has not imposed such requirements on these staff.

I would like to clarify that I did not request to be moved off the Veteran Centric Reform audit due to "personal issues with the management approach being taken for that team". I admire the manager of the VCR audit. I was very worried about the audit but not due to any fault of the audit manager. You may not be aware that my former branch head, Mr Paul Bryant, advised me that AASG had requested my secondment to assist with financial statement audit. However, following Paul's departure, another member of the VCR audit team was transferred to AASG, and most unhappy about it. I requested my a/g Branch head to swap with my colleague, so she could return to the VCR audit, and I could assist AASG as planned. This was not possible but I was transferred to the ANU governance audit.

There seems to have been a further misunderstanding about the ANU governance audit. On Wednesday 19 August 2020, the ANU governance audit manager advised me that she thought I was "the wrong fit" for the ANU audit because she wanted someone who could work at ANU’s premises. She said that she would talk to our a/g Branch head about finding other work for me. I advised my a/g Branch head that I was willing to work wherever needed, including returning to the VCR audit.

In regard to Lisa's comment that I have taken 990 days leave over the past five years, I note that I have been a public servant for some 35 years, and my accrued leave entitlements reflect that. Is the ANAO suggesting that I was not authorised to take any of my leave in the last five years? Please note that I cannot confirm Lisa's figures without seeing the underlying data. Do they include weekends and public holidays?

Please be advised that I am willing to assist on any audit and to work more or less hours to meet the ANAO's business needs, providing I can continue to work remotely while caring for my uncle and myself during the pandemic. If the ANAO does not have suitable work for me, then I am willing to take leave without pay until 31 December 2020, as per my medical advice.

If I do not receive a response to my email by COB Thursday 24 September 2020, please be advised that I intend to seek legal advice regarding this matter.

For your consideration.”

[24] On 28 September 2020, Ms Rollings wrote to Ms Cully restating that her flexible work arrangements were being revoked. Ms Rollings’ email reads, in part:

“As noted previously, the ongoing support to work remotely is driven by business need and performance. Your continued applications for leave and resulting lack of work output has driven a decision to revoke your ongoing approval to work from Woolgoolga. You have been provided with ongoing feedback from your previous supervisors over the course of the last few months, which was to result in a performance discussion being planned prior to your annual leave period in August. As a result of your continued leave applications, this discussion has not yet gone ahead.

In your application to work remotely, submitted on 30 July 2020 you stated ‘I am aware that I am considered to be ‘on call’ and as such I may be requested to attend branch and/or team meetings as COVID restrictions are lifted. Where my physical presence is requested I will comply with said request, unless I am unable to do so on medical grounds’ and as such you have been allocated to an audit that requires on the ground field work. At this stage there is no audit work available that would be appropriate at the EL1 level that can be completed entirely remotely.

If you wish to apply for leave without pay for the period 28 September 2020 to 31 December 2020 a business case and application will need to be submitted to delegate, noting that the required 30 days notice period is not achievable and leave without pay is discretionary based on business requirements.

Your leave figures stated in the email from Lisa do not include weekends and public holidays and also encompass in excess of 268 days of unpaid leave (which sits outside of an accrued entitlement).

Your current medical certificate requires you to be able to work from home, however as the excerpt from your remote working application above states, you have agreed to attend the office when required to do so. As you do not have a current medical certificate stating you are unfit for duty, it is expected that you are available to attend the office on Tuesday 6 October 2020. Your carers certificate for Mr Joseph Cully expires on 23 September 2020, previous certificates provided are not considered carers certificates as they merely state the Mr Cully is under the care of a specialist team and do not state an ongoing caring requirement.”

[25] Ms Cully was on personal leave from 28 to 30 September 2020, on leave without pay from 2 October to 14 October 2020 and on annual leave from 19 to 21 October 2020. She returned to work in Canberra office on 26 October 2020.

[26] On 13 November 2020 Ms Cully emailed her Group Executive Director requesting leave to care for her uncle. In support of this application she provided a doctor’s letter confirming that her uncle was currently an inpatient at the Coffs Harbour Hospital and that his age and risk of further deterioration were grounds for Ms Cully to be given leave from work to visit him. The ANAO declined this application on the basis that Mr Cully was not an immediate family member of Ms Cully, and on business grounds.

[27] On 18 November 2020 Ms Cully did not attend work. The ANAO contend that she remained absent without authorisation until 17 March 2021, with the exception of 2 days carers leave in January 2021. Ms Cully had applied for further leave on 18 November on the basis that her uncle had been referred to in-home palliative care and she was required to care for him. Ms Knight responded with an email saying that Ms Cully’s application was not supported by appropriate medical evidence and advised her to obtain such evidence for her application to be approved.

[28] On 19 November the ANAO issued Ms Cully with a direction, which it submits was reasonable and lawful, to return to work at the Canberra office from 23 November 2020 (the first direction). It says she did not respond or comply with the first direction.

[29] On 26 November 2020 and 2 February 2021 Ms Cully was advised by email that she was required to attend work and that she was on an unauthorised unpaid absence. Ms Cully’s then lawyer wrote to the ANAO on 27 November 2020 advising that she would be absent until 2 January 2021 as she was providing care for her uncle and could not comply with the direction to return to the office as a result.

[30] On 3 November 2020 the ANAO advised Ms Cully that she would be investigated for breaching the APS Code of Conduct for failing to follow a lawful and reasonable direction.

[31] On 15 January 2021 the ANAO emailed Ms Cully asking when she would be returning to the office. She advised that she had a medical certificate covering her absence from 1 January to 28 February but when she checked the leave system (Aurion) she saw that someone had entered a leave application for the period up to 31 January which prevented her from submitting a further leave application. She understood this to be approved leave for that period.

[32] The ANAO subsequently approved unpaid leave for the period 1 January to 28 February.

[33] On 19 February 2021 Ms Cully was given a further direction to return to work at the Canberra office from 1 March 2021 (the second direction). Ms Cully did not return to the Canberra office on this date.

[34] On 25 February 2021 the ANAO advised all staff that the Canberra office would be reinstated as the primary place of work from 1 March 2021. On this date, Ms Cully advised the ANAO that she was willing and able to return to work on 1 March but in a remote capacity.

[35] On 28 February 2021 the ANAO again directed Ms Cully to return to the Canberra office by 1 March 2021. She did not return to the office, but instead advised her manager that she was reporting for duty remotely and requesting that work be allocated to her. In response, Ms Cully was advised that the ANAO were considering whether a second Code of Conduct investigation should be commenced in respect of her failure to comply with the second direction.

[36] On 2 March Ms Cully again advised her manager that she was working from home and requested that work be allocated to her. She was advised on the same day that she did not have approval to work from home and had been directed to return to the office. She was also advised that a second code of conduct investigation had been commenced.

[37] On 5 March 2021 Ms Cully was informed that the ANAO had determined she had breached the Code of Conduct by failing to comply with the first direction.

[38] On 8 and 9 March, Ms Cully again requested her manager provide her work to perform. She was advised that her work needed to be performed from the office in Canberra.

[39] On 9 March 2021 Ms Cully was issued with a Notice of Intention to terminate her employment due to non-performance of duties. She was given 7 days to respond.

[40] On 17 March 2021 Ms Cully returned to the office. She then applied for long service leave which was declined by the ANAO. She continued to work at the office.

[41] On 19 March 2021 Ms Cully provide a response to the Notice of Intention to terminate her employment, which is set out in full below:

“Dear Ms Mellor

RESPONSE TO NOTICE OF TERMINATION – NON-PERFORMANCE OF DUTIES

1. I refer to your letter of 9 March 2021 concerning your proposal to terminate my employment with the Australian National Audit Office, under paragraph 29(3)(c) of the Public Service Act 1999 on the basis of non-performance of duties.

2. Your letter of 9 March 2021 was the first notice I received that you were considering such action.

3. Your letter states that: ‘Since November 2020, you have remained on unauthorised leave, with the exception of two days of unpaid carers leave in January 2021…’.

Reasons for taking leave

4. As previously advised, since 18 November 2020, I have been caring for a terminally ill 92 year old relative (Joseph), who was discharged from Coffs Harbour Hospital into my care to be managed on an End of Life Pathway at home under the Coffs Clinical Network Palliative Program. (For further information on the reasons for taking leave, please see my letter to you dated 18 March 2021 re investigation report and proposed sanctions for an alleged breach of the APS Code of Conduct.)

5. On Monday 16 November 2020, I consulted with the head clinician and surgeon of the Coffs Harbour Hospital team treating Joseph, regarding his prognosis. I consequently made arrangements for Joseph to be discharged from hospital under the Coffs Clinical Network Palliative Program because Joseph did not want to die in hospital.

6. On Tuesday 17 November 2020, Joseph received Absolution in hospital.

7. On Wednesday 18 November 2020, Joseph was discharged from hospital into my care at our home in Woolgoolga. Joseph was catheterised, unable to walk and confined to bed. He was aspirating food and unable to feed, dress, wash or toilet himself. All liquids had to be thickened and all solids had to be moistened and blended. He was drifting in and out of delirium, plucking the air and, on occasion, subject to terrifying hallucinations. By grace, and through the exceptional support of the Coffs Harbour Base Hospital equipment loan service, speech pathologist, dieticians, physiotherapist and occupational therapist; the Coffs Clinical Network Palliative team; and Joseph’s GP, locum cardiologist and nephrologist, Joseph unexpectedly stabilised and survived. However, Joseph remains frail, and continues to be treated for end stage renal failure and congestive heart failure.

Attempts to comply with directions

8. Your letter further states: ‘[you] have made no attempts to comply with reasonable and lawful directions provided to you to return to the Canberra office and resume duty’.

9. As discussed in my correspondence of 18 March 2021, I question whether the directions issued to me were reasonable or lawful because they disregarded my rights as a primary carer and medical advice regarding my own health. I was willing to return to duty remotely or take unpaid leave. Both of these options were refused and the ANAO insisted that I return to Canberra.

10. In addition, I have made numerous attempts to comply with the direction to resume duty by regularly logging on remotely and requesting work. During this period I have also worked unpaid—processing work emails, responding to corporate requests, reading bulletins and other ANAO information, and performing administrative tasks.

11. In accordance with ANAO directions, on Wednesday 17 March 2021, I resumed duty at ANAO’s Canberra office, notwithstanding medical advice that I should continue working from home until I have received the Covid-19 vaccine due to my elevated risk profile during the global coronavirus pandemic.

Attempts to take authorised leave

12. Reflecting the email advice of my GED dated 13 November 2020, I applied to take leave based on my accrued leave entitlements. However, HR had incorrectly advised me that I was ineligible to take my accrued Long Service Leave (LSL). In addition, my application for Personal (Carers) leave on 18 November 2020 was declined despite providing a further medical certificate on 27 November 2020, confirming previous medical advice that I was Joseph’s carer.

13. In addition, I believed that my second application for leave without pay had been approved because Aurion (ANAO’s HR system) reported that I had approved ‘Carers Leave Unpaid’ from 1/1/2021 to 28/2/2021 (24 days) – please see Attachment A.

14. The Senior Director HR subsequently advised me that the Aurion entry was incorrect and that I was only entitled to two days unpaid carers leave. However, she approved 2–3 January 2021 as unpaid leave days – a weekend (Saturday and Sunday). I believe this entry should be reversed, and I should have unpaid carers leave approved for two of my regular work days (Monday to Wednesday).

15. The Senior Director HR did not advise me that her earlier advice that I was ineligible to apply for Long Service Leave was incorrect. I was thereby denied the opportunity to use this leave to care for my uncle and myself during the pandemic.

Proposed termination

16. I understand my employment obligations under the Public Service Act 1999; however, your proposal to terminate my employment at ANAO appears to be based on the view that I have made no attempt to comply with reasonable and lawful directions provided to me to return to the Canberra office and resume duty. I believe this view is misled for the reasons set out above, and in my letter to you dated 18 March 2021.

17. I note that the ANAO Employment Manual provides for up to two years Leave Without Pay at ANAO’s discretion in exceptional circumstances. I believe that my circumstances, particularly in the context the global coronavirus pandemic, are exceptional. I have never sought to take more than two years Leave Without Pay.

18. I submit that my proposed termination, issued without formal warning, is extreme and unwarranted, noting that I have provided more than 22 years of loyal service to the ANAO, with an unblemished employment record.

19. I am also attaching a medical certificate for myself for the period 20–30 November 2020, which I previously overlooked (please see Attachment B).

20. For your consideration.

Yours sincerely

Ruth Cully
Director (EL1)
National Security, Industry and Infrastructure Branch
19 March 2021”

[42] While in Canberra on 6 April 2021, Ms Cully could not contact her uncle. She called ‘000’. The police and ambulance officers broke into her home in Woolgoolga to find her uncle barely responsive in his bedroom. He was rushed to hospital and died there on 7 April 2021. Ms Cully did not attend work on 6 or 7 April 2021.

[43] On 9 April 2021 the ANAO wrote to Ms Cully noting she had not applied for leave but as a gesture of goodwill it would approve miscellaneous leave without pay for those 2 days.

[44] On 12 April 2021 Ms Cully wrote to the ANAO’s Auditor General seeking a review of the decision to refuse to approve her application for long service leave, and to reinstate her remote working arrangements. She noted that the decisions of the ANAO in respect of both matters had led to a tragic set of circumstances the previous week which culminated in the death of her uncle. She informed the Auditor General that she was making the necessary funeral arrangements and again requested either the granting of her leave application for long service leave or compassionate leave from 12 April to 28 April.

[45] On 21 April 2021 the ANAO says the second period of unauthorised absence ended when Ms Cully returned to the Canberra office.

[46] On 19 May 2021 the ANAO determined to impose on Ms Cully the sanction of a reprimand, a reduction in classification to APS6, and a reassignment of duties for her failure to comply with the first direction.

[47] On 2 June 2021 the ANAO terminated Ms Cully’s employment on the basis set out in the Notice of Intent dated 9 March 2021. As at this date, Ms Cully was performing her duties at the Canberra office and had been doing so for more than 6 weeks, having resumed work on 21 April after arranging her uncle’s funeral.

The case for Ms Cully

[48] Ms Cully relied on extensive written material and detailed submissions to support her case.

[49] In essence, she contended that her dismissal was harsh, unjust and unreasonable because there was no valid reason related to her capacity or conduct. At the time of her dismissal, she had been performing her duties from the office for more than six weeks. She highlighted that the alleged non-performance of duties occurred in the context of:

a. her having carers responsibilities and her own health issues which were supported by medical evidence;

b. her being repeatedly provided with incorrect advice as to her leave entitlements and was unreasonably declined valid leave requests;

c. the ANAO refusing to allocate work to her to perform from home;

d. the ANAO unreasonably revoking approval on 15 September 2020 for Ms Cully to work from home for the period 13 May to 31 December 2020

[50] Further, the ANAO refused to recognise that she was a carer as defined under the Fair Work Act.

[51] Ms Cully argued that the ANAO did not provide any warning of its proposal to dismiss her and did not warn her that the consequence of not resuming her duties in Canberra would be dismissal.

The case for the ANAO

[52] The ANAO’s case, in summary, was that there was a valid reason for Ms Cully’s dismissal, that being her failure to perform her duties. In particular, it said her non performance of duties occurred in defiance of three lawful and reasonable directions given to her to return to the Canberra office.

[53] The ANAO submitted that its directions to Ms Cully to return to work were lawful, including because s25 of the Public Service Act conferred power to determine where Ms Cully could perform her duties. Further, it contended that the directions were reasonable, because:

a. The Canberra office is the ANAO’s only office;

b. At the time the directions were given, there was no question that the office was a safe location for Ms Cully to perform work;

c. Each of the directions were given in the context of Ms Cullying having a history of not engaging with it about her absences from work, or her inability or unwillingness to comply with the ANAO’s policy for remote work or the conditions on which her previous approval for remote work had been given, including;

i. Ms Cully’s failure to seek approval for her remote working arrangement from 16 May 2020;

ii. Her unilateral decision to commence the first unauthorised absence without waiting for her application for leave to be determined and her assertion that she would remain on leave until her uncle had died and the funeral completed; and

iii. Her failure to return to work on 2 January 2021 without notification.

[54] The ANAO submitted it had already agreed to significant requests from Ms Cully to modify her working arrangements, and Ms Knight had made a legitimate decision that her concerns about Ms Cully’s performance could be better managed if she was working from the office rather than remotely.

[55] The ANAO also argued that Ms Cully’s uncle was not a member of her household because her household was in Canberra and Mr Cully lived in Woolgoolga.

Consideration

Protection from Unfair Dismissal

[56] There is no dispute and I am satisfied that Ms Cully was dismissed and is a person protected from unfair dismissal by virtue of s.382 of the Act. I now turn to consider if his dismissal was unfair within the meaning of the Act.

Was the dismissal unfair?

[57] A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[58] There is no dispute that Ms Cully was dismissed and that subsections (c) and (d) do not apply.

Was the dismissal harsh, unjust or unreasonable?

[59] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[60] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd¹ as follows:

“... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[61] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.²

Valid reason - s.387(a)

[62] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”³ and should not be “capricious, fanciful, spiteful or prejudiced.”⁴ However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.⁵

[63] There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give the matter(s) weight as a fundamental element in the decision making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.

[64] For the reasons that follow, I find that there was no valid reason for Ms Cully’s dismissal.

[65] The ANAO was clear that the dismissal of Ms Cully was for reasons of non-performance of her duties, and not unsatisfactory performance. To the extent that performance issues were raised by the ANAO during the hearing, I have not placed any weight on them. In any event, no specific allegations of unsatisfactory performance were formally put to Ms Cully prior to her dismissal.

[66] There is no doubt that an employee is required to follow a direction that is both lawful and reasonable, and in most circumstances I would agree that a refusal by an employee to follow their employer’s direction to attend the workplace would be a valid reason for dismissal.

[67] These circumstances, however, are unique. While I accept that the directions given by the ANAO to Ms Cully to return to the office were lawful for the reasons put forward by the ANAO, I am not satisfied that the directions were reasonable in the circumstances of this case. Ms Cully considered she had an elevated risk of COVID (supported by medical evidence) and had caring responsibilities for her uncle, a member of her household, and who had at the latter stages of the events set out above, been sent home in Ms Cully’s care to die.

[68] The ANAO disputed that Ms Cully was a carer within the meaning of the Act, either because her uncle was not a member of her household or because he was not part of her immediate family. However, I am satisfied that she met the definition of carer. The evidence is clear that Ms Cully was residing at Woolgoolga with her uncle at the relevant time and that the ANAO had been advised that this was her residence. There was no evidence to suggest that an employee of the ANAO could not have two residences. Further, her uncle had been residing with her since 2016 (either in Canbera or Woolgoolga) and was therefore a member of her household. Ms Cully had provided medical certificates confirming she was responsible for his care when he was not in hospital. She was entitled to make a request for flexible working arrangements, which was only able to be declined on reasonable business grounds.

[69] I am not satisfied that the ANAO had reasonable business grounds to revoke the flexible working arrangement that had been approved for her through to December 2020, particularly where none of the purported performance issues had been formally raised with her.

[70] The ANAO cited Ms Cully’s “ongoing absence from the workplace and the potential impact this is having on your performance” as the basis to revoke her previously approved remote working arrangements in September 2020. In essence, it was Ms Cully’s extended periods of leave, which had been approved by the ANAO, that triggered the revocation of her remote working arrangements and led to the events that followed. The taking of leave, accrued after more than 30 years with the Commonwealth public service, was no basis for such revocation. Further, at this time most staff had been working from home from March 2020 and were not required to return to the office until March 2021. I consider in these circumstances that the revocation of her remote working arrangements was unreasonable.

[71] There was no basis for the ANAO to decline leave requests on the basis that her uncle was not an immediate family member. As stated earlier, it is clear he was a member of her household and she had caring responsibilities for him.

[72] The ANAO relied on the decision of the Commission in Dunkerley v Commonwealth of Australia 6 (Dunkerley), in which it was found that there was a valid reason for dismissal in what the ANAO described as similar circumstances, because of the Applicant’s “wilful refusal to abide by her employers directive to attend the workplace or offer any proper medical evidence for her failure to do so …”. However, for the reasons set out in this decision, I am satisfied that the unique circumstances of this matter are distinguishable from the circumstances in Dunkerley. This includes that in this case, Ms Cully had returned to work at the time she was dismissed.

[73] The disregard it seems the ANAO held for Ms Cully’s circumstances were highlighted in the cross examination of Ms Knight by Ms Cully, when the following exchange took place 7:

MS CULLY:  My question is, is it ever lawful and reasonable - can a direction ever be lawful and reasonable if there is a material risk that it results in the death - in the suffering and/or death of a human being?---I think, potentially, yes.

Okay?---As sad as that may be, I think, potentially, yes, there is an option, option's not the right word.  Could it be a consequence?  Yes.  Would it be still reasonable or lawful?  Yes, because life isn't fair and sometimes bad things happen.

[74] If I am wrong in finding that the directions to return to the office were not reasonable in these circumstances, it is clear that Ms Cully had in fact returned to the office and had been performing her duties for more than six weeks when she was dismissed. During the time she had returned, she had been subjected to a sanction which included her demotion to APS6 level, because of her non-compliance with the first direction. At the time of her dismissal there was no basis for dismissing her for non-performance of duties as she was in fact performing her duties as directed and had already been the subject of a sanction.

[75] For these reasons, I am not satisfied there was a valid reason for her dismissal.

Notification of the valid reason and opportunity to respond - s.387(b) and (c)

[76] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,⁸ in explicit terms⁹ and in plain and clear terms.¹⁰ In Crozier v Palazzo Corporation Pty Ltd¹¹ a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”12

[77] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern.¹³ This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.¹⁴

[78] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to Ms Cully before his dismissal was effected.

[79] I am satisfied that Ms Cully was advised of the proposal to dismiss her for non-performance of her duties, and she was provided with an opportunity to respond. In this regard, she did provide a comprehensive response explaining her circumstances for the period between 18 November 2020 and 16 March 2021 while she was providing end of life care for her uncle.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[80] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[81] Ms Cully was not refused a support person.

Warnings regarding unsatisfactory performance - s.387(e)

[82] A warning for the purposes of s.387(e) must clearly identify:

a. the areas of deficiency in the employee’s performance;

b. the assistance or training that might be provided;

c. the standards required; and

d. a reasonable timeframe within which the employee is required to meet such standards.¹⁵

[83] The warning must also ‘make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.’¹⁶

[84] This is a neutral consideration given the reason for the dismissal was non-performance of duties, not unsatisfactory performance.

Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))

[85] The Respondent is a large employer with dedicated human resource specialists. I am satisfied that the size of the Respondent did not impact on the procedures followed by it in effecting the dismissal.

Other relevant matters - s.387(h)

[86] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[87] I have taken into account that Ms Cully was 64 years old and had been employed as a performance auditor with the ANAO for 23 years, having been employed in the Commonwealth public service for more than 30 years. Prior to the matters canvassed in this decision, she had never been the subject of underperformance allegations and had an unblemished employment record.

[88] I have also taken into consideration the submissions on behalf of the ANAO regarding other matters the Commission should have regard to.

Conclusion as to unfairness

[89] Having weighed up all of the matters requiring consideration under s.387, I find that the dismissal of Ms Cully was harsh and unreasonable, and as a result, unfair.

[90] I now turn to the appropriate remedy.

Remedy

[91] Having found that Ms Cully was protected from unfair dismissal, and that her dismissal was unfair, it is necessary to consider what, if any, remedy should be granted to her. Ms Cully seeks the remedy of reinstatement.

[92] I am not satisfied that there is any good reason not to reinstate Ms Cully to her former position given it is the primary remedy for an unfair dismissal.

[93] The ANAO argued that it was not available for the Commission to reinstate her to her EL1 position, because this was not the position she held immediately prior to her dismissal. I agree with this submission.

[94] The ANAO also argued that reinstatement is not an appropriate remedy given Ms Cully’s prolonged absences from work and her repeated and wilful defiance of reasonable directions given by it. Further, it argued that there had been an irreparable breakdown in the employment relationship. I am not satisfied that either submission has merit. There is no basis for finding that the employment relationship is irreparably damaged, and I have already found that the directions were not reasonable in the circumstances.

[95] Accordingly, I find that the reinstatement of Ms Cully to her position (APS6) is appropriate in all the circumstances.

[96] Ms Cully’s reinstatement is to be effective within 14 days of the date of this decision.

[97] Section 391(2) of the Act provides that, if the Commission makes an order for reinstatement and considers it appropriate to do so, the Commission may also make any order that the Commission considers appropriate to maintain the following:

a. the continuity of Ms Cully’s employment;

b. the period of Ms Cully’s continuous service with the employer or, if applicable, the associated entity.

[98] In all the circumstances, I consider it appropriate to make an order to maintain Ms Cully’s continuity of employment and period of continuous service with the ANAO. There is no reason not to do so.

[99] Section 391(3) of the Act provides that, if the Commission makes an order for reinstatement and considers it appropriate to do so, the Commission may also make any order that the Commission considers appropriate to cause the employer to pay to Ms Cully an amount for the remuneration lost, or likely to have been lost, by Ms Cully because of the dismissal.

[100] Section 391(4) of the Act provides that, in determining an amount for the purposes of such an order, the Commission must take into account:

a. the amount of any remuneration earned by Ms Cully from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

b. the amount of any remuneration reasonably likely to be so earned by Ms Cully during the period between the making of the order for reinstatement and the actual reinstatement.

[101] An order to restore lost pay does not necessarily follow an order for reinstatement. The Commission may only make an order if it considers it appropriate to do so and only make an order that the Commission considers appropriate.¹⁷ Where an employee has engaged in misconduct, the Commission may refuse to make any order to restore lost pay.¹⁸

[102] I consider that I should make an order causing the ANAO to pay lost remuneration to Ms Cully. While I am satisfied that Ms Cully has lost wages since her dismissal, the Commission does not have before it evidence as to whether Ms Cully has earned any remuneration since her dismissal. Directions will separately be issued to deal with this matter.

[103] Finally, the reasons for Ms Cully’s absences, that being the heightened risk to her of earlier strains of COVID and her responsibilities as a carer, are no longer present. It is this unique combination of circumstances that has led to this outcome. Ms Cully ought to be aware now of the importance of attending work as directed and otherwise following lawful and reasonable directions from the ANAO.

[104] Orders to give effect to this decision will be issued separately.

DEPUTY PRESIDENT

Appearances:

R Cully on her own behalf.
C Rawson for Commonwealth of Australia (represented by the Australian National Audit Office).

Hearing details:

2021.
By video:
October 10 and 26;
November 8, 9, 23, 26;
December 17.

Printed by authority of the Commonwealth Government Printer

<PR739057>

1 (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.

2 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

3 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

4 Ibid.

5 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

 6   [2012] FWA 10220.

 7   Transcript PN4281.

8 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

9 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

10 Previsic v Australian Quarantine Inspection Services Print Q3730.

11 (2000) 98 IR 137.

12 Ibid at 151.

13 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

14 RMIT v Asher (2010) 194 IR 1, 14-15.

15 McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd [2013] FWC 3034, [32].

16 Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].

17 Aurora Energy Pty Ltd v Davison PR902108 (AIRCFB, Watson SDP, Williams SDP, Holmes C, 8 March 2001), [25].

18 See, eg, Regional Express Holdings Ltd v Richards [2010] FWAFB 8753, [29].