1
[2013] FWCFB 2390
DECISION
Fair Work Act 2009
s.604—Appeal of decision
Ulla-Maija Dunkerley
v
Commonwealth of Australia (Department of Industry, Innovation, Science,
Research and Tertiary Education)
(C2012/6342)
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
SENIOR DEPUTY PRESIDENT HARRISON
COMMISSIONER RIORDAN
SYDNEY, 29 APRIL 2013
Appeal against decision - valid reason for dismissal - dismissal under the Public Service Act
1999 - permission to appeal not granted.
[1] This is an application for permission to appeal and, if permission is granted, an appeal
pursuant to s.604 of the Fair Work Act 2009 (the Act) by Ulla-Maija Dunkerley (the
Applicant). The Applicant seeks to appeal against a decision of Commissioner Deegan made
pursuant to s.394 of the Act.1 In the decision, the Commissioner rejected a jurisdictional
objection by the Commonwealth of Australia (the Respondent) based on an alleged
abandonment of employment. However the Commissioner decided that the termination of the
Applicant’s employment by the Respondent was not unfair and therefore dismissed the
application for an unfair dismissal remedy.
[2] The background to the appeal can be briefly set out as follows. Between 2008 and the
time of the termination of her employment (June 2012), the Applicant worked in the
Department of Industry, Innovation, Science, Research and Tertiary Education (the
Department). Previously she had worked in the Department of Education, Science and
Training (DEST). In 2007 the Applicant had experienced workplace bullying at DEST. As a
result she lodged a workers’ compensation claim. This claim was initially rejected by
Comcare, but the Applicant obtained a favourable outcome through consent orders in the
Administrative Appeals Tribunal (AAT) in June 2009. In the first half of 2008, the Applicant
was transferred from DEST to the Department.
[3] In July 2009 the Applicant unsuccessfully applied for a higher level position within
the Department. After the selection process was completed, the Applicant was provided with
feedback by the chair of the interview panel, Mr Schwager. After the meeting, the Applicant
lodged a workers’ compensation claim for stress allegedly caused by Mr Schwager’s
feedback, and went on leave. The workers’ compensation claim was denied by Comcare. This
decision was challenged by the Applicant through several jurisdictions while the other events
1 [2012] FWA 10220.
AUSTRALIA FAIR WORK COMMISSION
[2013] FWCFB 2390
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leading up to the Applicant’s termination occurred. Comcare’s refusal decision was upheld by
the AAT and by both a single judge and then a Full Court of the Federal Court of Australia.2
[4] In October 2009, the Applicant commenced a return to work plan that had been
prepared for her, and she briefly returned to work in the Department in January 2011. On
returning to work, the Applicant discovered that Mr Schwager had been promoted to the head
of the Division of the Department in which she worked. The Applicant gave the Department a
list of nine demands to be met if she was to consider remaining at work, including that Mr
Schwager not approach her or speak to her and that he limit his need to walk past her desk,
and that the Department provide studies assistance if she decided to undertake a course in
Commonwealth Compensation Law.
[5] The Applicant used various forms of leave to remain away from work, and provided
the Department with several medical certificates. In August 2011 she provided a medical
certificate stating that she was fit to return to work “without a stressor”. The Department
sought further information about the meaning of “without a stressor”. The Applicant’s email
in response to this request, sent on 23 August 2011, did not indicate what the “stressor” in
question was. She was then advised by the Department in an email later on the same day that
she would be on “unauthorised leave without pay” if she did not provide an acceptable
medical certificate or return to work. In February 2012 the Applicant provided a medical
certificate stating, without qualification, that she was fit to return to work.
[6] In March 2012 the Applicant met with a Rehabilitation Provider to prepare a second
return to work plan. The Applicant informed the Rehabilitation Provider that she would not
participate further in developing this plan unless the Department accepted a further list of
demands. The Department informed her that the majority of these demands would not be met.
In both April and May 2012 Mr Richard Byron (the Department’s General Manager, Human
Resource and Facilities Branch, Corporate Division) wrote to the Applicant and directed her
to return to work, which she refused to do on both occasions. After the second refusal Mr
Byron wrote to the Applicant indicating that he had reached a preliminary view that her
employment should be terminated and giving her an opportunity to respond. The Applicant’s
employment was terminated by letter dated 18 June 2012.
[7] In the Notice of Appeal, it is alleged that the Commissioner erred in various respects
in deciding that the Applicant’s dismissal was not unfair. However in the written and oral
submissions in the appeal, only one of these grounds was pressed. It was submitted that the
Commissioner failed to consider the Respondent’s failure to follow various procedures
required prior to the termination of the Applicant’s employment pursuant to the Public
Service Act 1999 (the Public Service Act), and therefore erroneously concluded that there was
a valid reason for the dismissal.
The Commissioner’s Decision
[8] The hearing in relation to the unfair dismissal application was held in Canberra on 2-3
October 2012, and included the hearing of evidence from the Applicant and three witnesses
called by the Respondent. The Commissioner summarised the main evidence and submissions
2 Dunkerley v Comcare [2010] AATA 915; Dunkerley v Administrative Appeals Tribunal [2012] FCA 41; Dunkerley v
Comcare [2012] FCAFC 132.
[2013] FWCFB 2390
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in her decision and then considered, having regard to the relevant statutory provisions,
whether the dismissal was unfair.
[9] The Commissioner found that the Applicant “wilfully refused to abide by her
employer’s directives to attend the workplace or to offer any proper medical evidence for her
failure to do so”.3 The Commissioner held that this was a valid reason for the dismissal (see
s.387(a) of the Act).
[10] In relation to the considerations in s.387(b)-(h) of the Act, the Commissioner found
that the Applicant was notified of the reason for her dismissal (s.387(b)); that she was given
an opportunity to respond to the employer’s reasons for the dismissal (s.387(c)); that s.387(d)
was not relevant as the Applicant refused to attend the workplace and in consequence there
were no discussions relating to the dismissal; that s.387(e) was not relevant because the
Applicant was not dismissed for performance reasons; that the Department is a large
Commonwealth government agency and that it is unlikely that the size of the agency would
impact upon the procedures followed, as the agency would have followed its own policies and
procedures as well as those relevant to the whole Australian Public Service (s.387(f)); and that
the Department has dedicated human resource management expertise that was used in relation
to the dismissal (s.387(g)).
[11] The Commissioner considered two other relevant matters (s.387(h)). The first was the
history of the Applicant’s compensation claims against the Department and DEST, and the
series of appeals against Comcare’s rejection of her claim relating to the interview feedback
provided by Mr Schwager. The Commissioner said that the Applicant’s refusal to return to
work was “largely motivated by her expectation that she would be successful in her appeal
and would be awarded compensation which covered the period for which she was absent”.
The second matter related to the Applicant’s expressions of concern that her workplace was
unsafe. The Commissioner did not accept that this was a reasonable concern in all of the
circumstances. The Commissioner took the view that if this was a valid complaint, the
Applicant should have responded to the repeated requests by the Department to provide
medical advice to that effect. Given the Applicant’s history of compensation claims, the
Commissioner did not accept that she was unaware of the nature of the medical evidence
required in the circumstances.4
[12] The Commissioner concluded that:
“[82] Every opportunity was given to the applicant to arrange a proper return to work
program but she refused to take part in the process. She made unreasonable demands of the
Department and put as many obstacles in the way of her return to work as she could muster.
The Department acted properly in all its dealings with the applicant, who was clearly a
difficult employee who necessitated the application of a disproportionate amount of
Departmental resources.
[83] The applicant made no effort to prevent the termination of her employment or even to
contest it in any way until the decision had taken effect.
[84] I am satisfied that the applicant’s dismissal was not harsh, unjust or unreasonable. As
the dismissal was not unfair the application is dismissed.”
3 [2012] FWA 10220 at [72].
4 Ibid at [80].
[2013] FWCFB 2390
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Appeal Principles
[13] An appeal under s.604 of the Act involves an appeal by way of rehearing, with the
powers of the Full Bench being exercisable only if there is error on the part of the primary
decision-maker: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations
Commission.5 The majority of the High Court in that case explained in the following passage
how error may be identified where a discretionary decision is involved:
“Because a decision-maker charged with the making of a discretionary decision has some
latitude as to the decision to be made, the correctness of the decision can only be challenged by
showing error in the decision-making process (See Norbis v Norbis (1986) 161 CLR 513 at
518-519). And unless the relevant statute directs otherwise, it is only if there is error in that
process that a discretionary decision can be set aside by an appellate tribunal. The errors that
might be made in the decision-making process were identified, in relation to judicial
discretions, in House v The King in these terms:
‘If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters
to guide or affect him, if he mistakes the facts, if he does not take into account some
material consideration, then his determination should be reviewed and the appellate
court may exercise its own discretion in substitution for his if it has the materials for
doing so’ (55 CLR 499 at 505).”
[14] An appeal under s.604 of the Act may only be pursued with the permission of the Fair
Work Commission (the Commission). This would normally require an applicant to
demonstrate an arguable case of appealable error and to refer to other considerations which
would justify the granting of permission to appeal. Although s.604(2) requires the
Commission to grant permission to appeal if it is satisfied that it is in the public interest to do
so, this does not apply in relation to an application to appeal from an unfair dismissal
decision. The effect of s.400 of the Act is that the general approach to dealing with appeals is
varied in two significant ways in relation to appeals from unfair dismissal decisions. First,
permission to appeal may only be granted where the Commission considers it is in the public
interest to do so (s.400(1)). Secondly, where an appeal is based on an error of fact, the appeal
can only be made on the ground that the decision involved a significant error of fact
(s.400(2)).
[15] The meaning to be given to “public interest” in s.400(1) of the Act was considered in
GlaxoSmithKline Australia Pty Ltd v Makin,6 where the Full Bench said that:
“Appeals have lain on the ground that it is in the public interest that leave should be granted in
the predecessors to the Act for decades. It has not been considered useful or appropriate to
define the concept in other than the most general terms and we do not intend to do so. The
expression ‘in the public interest’, when used in a statute, classically imports a discretionary
value judgment to be made by reference to undefined factual matters, confined only by the
objects of the legislation in question.
Although the public interest might be attracted where a matter raises issues of importance and
general application, or where there is a diversity of decisions at first instance so that guidance
from an appellate court is required, or where the decision at first instance manifests an
5 (2000) 203 CLR 194 at 205.
6 [2010] FWAFB 5343 at [26]-[27].
[2013] FWCFB 2390
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injustice, or the result is counter intuitive, or that the legal principles applied appear
disharmonious when compared with other recent decisions dealing with similar matters, it
seems to us that none of those elements is present in this case.”
Consideration
[16] The main argument of the Applicant in the appeal was that she was dismissed pursuant
to s.29(3)(g) of the Public Service Act for a breach of the Australian Public Service (APS)
Code of Conduct. It was said that because the Commissioner found that the Applicant had not
abandoned her employment, the Respondent could not rely on s.29(3)(c) in terminating her
employment. In this case, the only ground that could be relied upon was s.29(3)(g), and this
required that various processes under s.15(3) of the Public Service Act had to be followed.
These were not followed in this case.
[17] Section 29 of the Public Service Act provides, so far as is presently relevant:
“29 Termination of Employment
(1) An Agency Head may at any time, by notice in writing, terminate the employment of
an APS employee in the Agency.
Note: The Fair Work Act 2009 has rules and entitlements that apply to termination of
employment.
(2) For an ongoing APS employee, the notice must specify the ground or grounds that are
relied on for the termination.
(3) For an ongoing APS employee, the following are the only grounds for termination:
...
(c) non-performance, or unsatisfactory performance, of duties;
...
(g) breach of the Code of Conduct.”
[18] The APS Code of Conduct referred to in s.29(3)(g) includes a requirement that APS
employees “must comply with any lawful and reasonable direction given by someone in the
employee’s Agency who has authority to give the direction” (s.13(5)). Employees can only be
disciplined for a breach of the Code of Conduct if they are found to have committed a breach
through processes which must be established under s.15(3) (see s.15(1)).
[19] It was submitted by the Applicant that the only applicable ground, and the “true
reason”7 for the dismissal, was her failure to comply with the directions to return to work. The
Applicant submitted that because she was contending in the AAT and the Federal Court that
the head of her Division had bullied her, she had a reasonable concern about returning to
work. The direction to return to work was therefore not reasonable. Further, the Applicant
submitted that by failing to undertake the processes set down pursuant to s.15(3) of the Public
7 Transcript of proceedings, 21 February 2013, PN127.
[2013] FWCFB 2390
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Service Act, the Respondent denied her the opportunity to make out a case that this was so.
Because the direction was not a lawful and reasonable direction, the Applicant submitted that
her failure to comply was not a breach of the Code of Conduct. Therefore it was said that
there was no valid reason for her dismissal. For this reason, the Applicant submitted that the
Commissioner’s consideration of s.387(a) of the Act was attended by appealable error.
[20] The Respondent submitted that the Applicant was not performing her duties and
therefore s.29(3)(c) of the Public Service Act was available as a ground for termination.
[21] It is clear that the Applicant was terminated under s.29(3)(c) of the Public Service Act.
In this respect, it is noted that:
The warning letter from the Department’s General Manager, Human Resource and
Facilities Branch, Corporate Division of 28 May 2012 states that “my preliminary
decision is that the appropriate action for me to take is to terminate your employment
under s 29(3)(c) of the Public Service Act for non-performance of duties”;8
The termination letter from the Department’s General Manager, Human Resource
and Facilities Branch, Corporate Division of 18 June 2012 states that “I have
decided... that it is appropriate to terminate your employment under section 29(3)(c)
of the PS Act for non-performance of duties”; 9 and
The proceedings before the Commissioner proceeded on the basis that the
Applicant’s employment had come to an end either as a result of abandonment of
employment or on the basis of termination by the Respondent for non-performance
of duties. The Respondent in its submissions to the Commissioner explicitly
disclaimed any reliance on misconduct as being the basis for the termination of the
Applicant’s employment.10
[22] The Commissioner decided that the termination of the Applicant’s employment was
for a valid reason. In this respect the Commissioner said that:
“[69] I find that the applicant’s employment was terminated at the initiative of the employer
as a consequence of her failure to return to the workplace as directed by the employer.
...
[72] I am satisfied that there was a valid reason for the applicant’s dismissal. Her wilful
refusal to abide by her employer’s directives to attend the workplace or to offer any proper
medical evidence for her failure to do so was a valid reason for the termination.
...
[76] The dismissal related solely to the applicant’s refusal to return to work in
circumstances where she had provided no medical reason for her failure to do so.”
8 Ibid, attachment 1.
9 Annexure RB2 to Exhibit W7 in the first-instance proceedings.
10 Submissions of the Respondent in the first-instance proceedings, at para 74.1.
[2013] FWCFB 2390
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[23] It was suggested that the Commissioner’s reasons amount to a finding that the valid
reason for dismissal was the Applicant’s refusal to obey a direction. The Commissioner did
not, however, characterise the Applicant’s conduct as a failure to comply with a lawful and
reasonable direction and therefore a breach of the APS Code of Conduct. The relevance of the
Applicant’s failure to comply with the direction did not lie in the refusal itself, since the
Respondent did not rely on misconduct as a basis for termination, but in the consequence of
that refusal, namely the non-performance of the Applicant’s duties. The above paragraphs
from the Commissioner’s decision clearly demonstrate that it was the Applicant’s failure to
return to work which led to the termination of her employment.
[24] In the circumstances of the case, the Respondent may have had the option to proceed
with the termination of the Applicant’s employment under either s.29(3)(c) or (g) of the
Public Service Act. However it is clear that the Respondent did proceed under s.29(3)(c). The
Applicant’s submission that s.29(3)(c) is not available except in the case of abandonment of
employment cannot be sustained. An employee who refuses to attend work is clearly not
performing their duties. In this regard, we were taken to previous decisions of the Federal
Court of Australia11 and the Australian Industrial Relations Commission12 where s.29(3)(c)
was used as the basis for termination in cases that fell short of abandonment of employment.
[25] The evidence before the Commissioner demonstrated that the Applicant had refused to
participate in a return-to-work process, even though there was no sound medical reason for
such refusal. Furthermore, the Applicant failed to return to work despite efforts by the
Department to facilitate her return in such a way as to address her concerns, and even though
she was aware that dismissal would be the likely consequence.
[26] In these circumstances, it was open to the Commissioner, and correct, to conclude that
there was a valid reason for the Applicant’s dismissal.
Permission to appeal
[27] The Applicant submitted that the appeal “raises for determination questions about the
interaction between the obligation of the Commission to have regard to whether there was a
valid reason [for dismissal] and the codification of the grounds for termination of employment
under the Public Service Act”.13 In the appeal hearing, counsel for the Applicant expanded
upon this submission, noting that failure to have regard to mandatory procedures and denying
the Applicant the chance to make the case that she was not obliged to follow the direction to
return to work enlivens the public interest.14
[28] The Applicant’s submissions on the public interest assumed that there were mandatory
procedures that the Respondent was required to follow before terminating the Applicant’s
employment under s.29(3)(g) of the Public Service Act. However, as noted above, in the
circumstances of the present matter it was open to the employer to dismiss the employee for
non-performance of duties under s.29(3)(c) of that Act. Since the employer clearly relied upon
s.29(3)(c) in terminating the Applicant’s employment, the procedures under s.15(3) of the
Public Service Act were not required to be followed.
11 See e.g. Hamden v Commonwealth [2010] FCA 924 (Lander J).
12 See e.g. Tozer v Centrelink [2008] AIRC 195 (Spencer C).
13 Applicant’s submissions on appeal at para 25.
14 Transcript of proceedings, 21 February 2013, at PN341.
[2013] FWCFB 2390
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[29] In these circumstances, we do not consider that it has been demonstrated that there is
an arguable case of appealable error in relation to the Commissioner’s decision. It has not
been demonstrated that there was any error of fact or law in relation to the conclusions
reached by the Commissioner. Indeed the main ground on which the appeal proceeded
involved a misconceived construction of the disciplinary provisions of the Public Service Act
under which the termination was effected. Further we do not consider that the present case
raises questions of general application relating to the interaction between the Act and the
provisions of the Public Service Act that deal with the termination of employment. The
Applicant was dismissed for non-performance of duties and this was found by the
Commissioner to be a valid reason for the termination of her employment. The Commissioner
also found that, having regard to the criteria in s.387 of the Act, the dismissal was not unfair.
These findings were made on the basis of the particular facts and circumstances of the present
case and the application of the relevant statutory provisions to those facts.
Conclusion
[30] For all of the above reasons, permission to appeal is refused and the appeal is
dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr J Macken of counsel with Mr J Wilson, solicitor, for Ulla-Maija Dunkerley.
Ms S Wright and Ms T Williams, solicitors, for the Commonwealth of Australia.
Hearing details:
2013.
Canberra:
21 February.
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