FEDERAL COURT OF AUSTRALIA

Keys v Department of Disability, Housing & Community Services

[2011] FCA 1424

THE COURT ORDERS THAT:

1.    The appeal be dismissed with no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

1    At all relevant times from January 2002 to 22 April 2009, the appellant (Mr Keys) was employed by the first respondent, the Department of Disability, Housing and Community Services of the ACT (the Department). He was employed as a Disability Services Officer Grade 1 (DSO 1), in a division known as Disability ACT. The second respondent (Ms Gotovac) was, at all relevant times, an employee of the Department and was supervised by the third respondent (Mr Beardsley), who was another employee of the Department.

2    By letter dated 22 April 2009, Mr Keys was notified by the Executive Director of Disability ACT (Ms Ford) that she had decided that his employment with the Department should be terminated as at that date.

3    Mr Keys brought proceedings in the Federal Magistrates Court in relation to that determination. The Federal Magistrate dismissed Mr Keys’ claim. Mr Keys appeals from that decision.

Relevant Statutory Provisions

4    The main provisions of the now repealed Workplace Relations Act 1996 (Cth) (the WR Act) on which reliance was placed by Mr Keys on appeal are ss 659(2)(e), 659(2)(f), 659(3) and 663. These sections provide:

Section 659

(2)    Except as provided by subsection (3) or (4), an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:

…

(e)    the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;

(f)    race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;

(3)    Subsection (2) does not prevent a matter referred to in paragraph (2)(f) from being a reason for terminating employment if the reason is based on the inherent requirements of the particular position concerned.

Section 663

(1)    Subject to subsection (5), an employee may apply under this section to the Court for an order under section 665 in respect of an alleged contravention of one or more of sections 659 and 660 by his or her employer.

(2)    Subject to subsection (5), an employee may apply under this section to the Court or to an eligible court as defined in section 717 for an order under section 665 in respect of an alleged contravention of section 661 by his or her employer.

(3)    Subject to subsection (5), a trade union that has made an application under section 643 on behalf of an employee on the ground of an alleged contravention of one or more of sections 659 and 661 may apply to a court under this section for an order under section 665 in respect of that alleged contravention or each of those alleged contraventions.

(4)    Subject to subsection (5), an inspector, a trade union, or a trade union officer or employee who has made an application under section 643 in respect of an alleged contravention of section 660 may apply to the Court under this section for an order under section 665 in respect of that alleged contravention.

(5)    An application under subsection (1), (2), (3) or (4) in respect of an alleged contravention of section 659, 660 or 661 may not be made to a court unless the applicant:

(a)    has received a certificate under subsection 650(2) regarding conciliation of an application made wholly or partly on the ground of the alleged contravention; and

(b)    has elected under section 651 to begin proceedings in that court for an order under section 665 in respect of the alleged contravention.

(6)    The application must be made within 14 days after the lodgment of an election under subsection 651(6), or within such period as a court allows on an application made during or after those 14 days.

5    Mr Keys made reference to ss 792 and 793(1)(j)-(k) of the WR Act, although the focus of his submissions in relation to the issues covered by those sections was directed to the application of s 659(2)(e) of the WR Act. Mr Keys also placed reliance on the onus provisions in ss 664 and 809 of the WR Act, as will be detailed below.

The proceedings in the Federal Magistrates Court

The pleadings

6    It is relevant to understand the issues as set out in Mr Keys’ “Statement of Points of Claim” (the Statement), which formed the basis for his application in the Federal Magistrates Court. The initial basis of his claim was that:

[Mr Keys] makes a claim of unlawful Termination of Employment under s 663 of the [WR] Act … and seeks remedies for alleged contraventions of s 792 of the … WR Act for the “Prohibited Reasons” proscribed on subsection 793(1)(j) and/or (k).

7    The “Prohibited Reasons” cited relate to participation in other proceedings and the Statement gives particulars.

8    By amendment to his grounds of application, Mr Keys added as a ground:

A mental disability imputed to the Applicant [s 659(2)(f) of the WR Act].

9    The Statement cites the letter of 22 April 2009 and then sets out details of:

    complaints that Mr Keys had made;

    proceedings in the Administrative Appeals Tribunal (the Tribunal) in which Mr Keys had participated; and

    case conferences that were conducted by the Australian Industrial Relations Commission (AIRC) in which Mr Keys had participated.

10    In respect of s 659(2)(f), Mr Keys also added, by amendment, reference to an affidavit of Mr Beardsley, the adviser to Ms Ford. The Statement said, in summary, that Mr Keys disputed Mr Beardsley’s evidence, including his opinion that:

    Mr Keys had a “disability”;

    Mr Keys had not accepted positions offered to him; and

    Mr Keys’ imputed disability would continue to prevent him from sustaining attendance at work in the future.

The Statement also disputes the contention that ‘sustained attendance at work’ was an inherent requirement of Mr Keys’ particular position.

11    By their Response (the Response), the respondents:

    stated that Mr Keys’ employment was terminated for the reason (and the only reason) that he was, between 2005 and 2009, unable to sustain reasonable attendance at work due to a mental disability, namely a medical condition known as ‘adjustment disorder with emotional features’. The Response also asserted that the termination was for the reason (and no other reason) that Mr Keys was unable, due to his mental disability, to carry out an inherent requirement of his particular position, namely to sustain reasonable attendance at work;

    denied that the Department terminated Mr Keys’ employment for any reason prohibited by ss 659 or 793 of the WR Act;

    denied that Ms Gotovac and Mr Beardsley were accessories to the termination of Mr Keys’ employment for any prohibited reason;

    provided particulars of Mr Keys’ attendances and absences from 14 October 2005 to 22 April 2009 with descriptions of the reasons for periods of leave; and

    denied that a reason for termination was Mr Keys’ involvement in other proceedings.

12    It is useful to point out that there is some lack of clarity in the Statement and the Response concerning the use of the term “Prohibited Reasons”. The Statement uses the term as a definition relating to ss 793(1)(j)-(k) of the WR Act and participation in other proceedings. However, the Response refers to reasons that are prohibited by ss 659 or 793 of the WR Act. This, together with the emphasis placed by Mr Keys on his participation in other proceedings, has to be borne in mind in understanding the Federal Magistrate’s reasons.

The Federal Magistrate’s decision

The nature of Mr Keys’ position

13    As the Federal Magistrate noted, it was not in dispute that Mr Keys’ employment as a DSO 1 involved caring for significantly disabled persons in residential homes, where 24 hour care is provided. The duties included:

…internal and external domestic responsibilities, personal care, food preparation and support with meals, organising possessions and assisting with transportation, and carrying out administrative tasks.

His Honour inferred, and it does not seem to have been in dispute, that the employment demanded physical presence or attendance (including “sleepovers”) at the residence, where supervision of persons with severe disabilities was required. His Honour concluded at [5] that ‘personal attendance by carers is essential’.

14    That finding is not the subject of appeal.

Mr Keys’ employment history and termination

15    His Honour set out some of the history which resulted in Mr Keys’ employment being terminated. The grounds for the termination of his employment, as set out in Ms Ford’s letter of 22 April 2009 were, as noted by his Honour at [9]:

(a) his prolonged and repeated periods of absence from work in 2008-2009, and (b) his frequent and prolonged inability since 2006 due to illness or injury (namely, adjustment disorder) to carry out any work in his particular position.

The grounds of Mr Keys’ application

16    The Federal Magistrate noted that Mr Keys contended that his employment was terminated for one or more “prohibited reasons” as proscribed by s 659 of the WR Act. Mr Keys maintained that his employment was terminated because he had undertaken a range of proceedings against his employer in different jurisdictions and before different fora, these being prohibited reasons.

17    The Federal Magistrate considered Mr Keys’ application by reference to s 659 of the WR Act. His Honour referred to “prohibited reasons” as proscribed by that section and proceeded to elaborate on the other proceedings in which Mr Keys had participated and which he asserted formed the reason for the termination of his employment.

18    As noted by the Federal Magistrate, Mr Keys also relied upon an alleged breach of s 659(2)(f) of the WR Act. He said that his employment was terminated ‘because of his physical or mental disability’.

19    His Honour noted at [15] that, in the Response, the respondents said that Mr Keys’ employment was terminated for the reason, that he was, between 2005 and 2009, unable to sustain reasonable attendance at work due to a mental disability. His Honour also recorded at [14] that the Department maintained that the termination of Mr Keys’ employment was for the reason, the only reason, that Mr Keys was unable due to his mental disability to carry out the inherent requirement of his particular position, namely to sustain reasonable attendance at work and that, accordingly, s 659(3) of the WR Act applied.

Documentary and medical evidence

20    The Federal Magistrate set out in some detail the history of Mr Keys’ relevant period of employment and the reasons for his absences, together with the correspondence between Mr Keys and various officers of the Department. The Federal Magistrate also set out the details of the medical evidence, as to which there was no cross-examination.

21    Of relevance is an exchange that occurred immediately prior to Ms Ford’s letter of termination. As summarised by the Federal Magistrate at [83]:

•    By email dated 9th April 2009 Mrs Gotovac confirmed to Mr Keys that notwithstanding the three earlier “offers”, “DHCS is prepared to make another position as a DSO 1 available to you. The position will be in a group house in a supernumery capacity. The details of this position will be provided to you following a receipt of an indication from you that you are prepared to return to work in this capacity and in accordance with the Action Plan attached to my letter of 3rd April 2009.”

•    Mr Keys replied to Mrs Gotovac by email of 15th April 2009. Without addressing all of the matters noted by Mr Keys in his 3 page reply to Mrs Gotovac, he confirmed that he had always been prepared to return to work as a DSO 1 and to comply with recommendations made by Dr George in August 2008 where Dr George stated that he believed that Mr Keys is “quite capable of working in his previous position provided that he is protected by those whom he has had grievances with before”.

22    Mr Keys made it clear that he was not prepared to work if it meant working with or in the presence of certain other officers of the Department with whom he had had previous problems or grievances. This was supported by various medical reports, including that of Dr George, who expressed the view, as set out at [88] of the Federal Magistrate’s reasons, that Mr Keys was ‘capable of undertaking a rehabilitation program, but only if it was recognized [sic] that he would work in a different area’. On that basis, it would seem, Dr George said that he believed that Mr Keys was fit to return to work. That report was dated May 2007. From the particulars in the Response, it would seem that Mr Keys did not return to work immediately following that report.

23    In a third and final report in August 2008, Dr George expressed the opinion that Mr Keys presented with ‘what appears to be an acute stress disorder’. He commented on what he described as Mr Keys’ ‘chronic sense of frustration… with respect to his grievances dating back to 2005’ and continued:

Undoubtedly, if Mr Keys is to return to the workplace he will have to have no contact with people associated with his previous grievances.

24    Dr George’s opinion was that Mr Keys did have the capacity to engage in work and that he was capable of working in his previous position ‘provided he is protected from those with whom he has had grievances before’. Those were matters adverted to by Mr Keys in his response to the Department immediately prior to the termination of his employment.

25    The medical reports seem to have been accepted by both Mr Keys and the respondents. The Federal Magistrate noted at [94] that all of the medical reports referred to the effect on Mr Keys of his adjustment disorder. There was also ‘a plethora of medical certificates before the Court in relation to Mr Keys’ absences from work’ (at [97]). The Federal Magistrate referred in particular to Dr George’s assessment of February 2008 that Mr Keys presented without a DSM-IV psychiatric diagnosis and observed that Mr Keys ‘appeared to be unable to move on from his sense of aggrievement related to the incidences of 2005’ (at [151]).

Assessment of witnesses

26    His Honour considered the evidence of the witnesses, including oral evidence and cross-examination.

27    The Federal Magistrate expressed concern about the veracity of parts of the evidence given by Mr Keys. His Honour accepted that:

It may be part and parcel of a number of “perceptions” (or understandings) that either Mr Keys (or indeed his sister [who represented him before the Federal Magistrate and in this appeal]) had about what was said or done on any given occasion.

28    His Honour set out the evidence of Ms Ford. His Honour accepted that Ms Ford took advice solely from Mr Beardsley and had limited detailed recollection of events involving Mr Keys. His Honour accepted Ms Ford’s evidence that Mr Keys’ ‘perfect right to dispute matters’ and his exercise of that right did not influence her decision to terminate his employment in any way (at [120]). His Honour accepted that Ms Ford was not aware of a number of matters on which Mr Keys relied, such as those set out in correspondence sent by Mr Keys to the Department. His Honour also accepted that ‘Ms Ford was, to a significant degree “quarantined” from the day-to-day detail of matters involving Mr Keys’. His Honour found at [123] that her understanding, in accordance with the advice she received from Mr Beardsley, was that Mr Keys’ employment was terminated because he was unable to perform the duties of his position and that those duties were an inherent requirement of the position. She said, and his Honour accepted, that a person could not and would not be dismissed because they had taken personal leave. In her view, Mr Keys did not accept the supernumery position that he was offered. Ms Ford regarded his response to the offer not as a confirmation but as a detailed analysis of the terms upon which he was prepared to accept a position.

29    Having set out the evidence before him, including that of other officers of the Department, his Honour accepted the evidence given by the respondents and others called on the Department’s behalf. Where there was a direct inconsistency between their evidence and that of Mr Keys, his Honour said that he preferred and accepted the evidence of, or on behalf of, the respondents (at [149]).

30    The Federal Magistrate did not form the view that Mr Keys was lying. To the contrary, he accepted that Mr Keys’ evidence was firmly believed and held and that the anxiety that his ongoing circumstances caused were, to him, real. However, the Federal Magistrate formed the view that Mr Keys’ evidence was often founded on ‘either a mis-understanding or a mis-perception of an event or events’ (at [150]). His Honour rejected any conclusion that could be drawn by reason of the “coincidence” of the timing between the AIRC proceedings and the letters to Mr Keys in late March and April 2009 from Ms Ford.

Findings and conclusion

31    The gravamen of his Honour’s decision is at [153]:

In my view, as a matter of fact, I do not consider that it has been established that the Department terminated Mr Keys’ employment for a ‘prohibited reason’. More relevantly, having regard to the terms of ss 664 and 809 of the [WR] Act, in my view, the Department has established to my satisfaction that Mr Keys’ employment was terminated solely for the reason of his inability to attend at his workplace, and not because he was involved in any proceedings against the Department, including before the AIRC, or indeed for any proscribed reason under the [WR] Act.

32    Section 664 relates to proof of issues in relation to s 659(2). It refers to such a reason as a “proscribed reason” and makes it clear that the onus is on the Department to prove that the termination was for a reason or reasons that do not included a proscribed reason other than a proscribed reason to which s 659(3) applies. Section 809 also concerns onus, making it clear that it lies on the person who carried out the alleged conduct.

33    It is apparent from the context of his Honour’s finding at [153], including the footnote (which refers to ss 659(2)(e) and 793(1)(j)), that the Federal Magistrate was referring in [153] to the “prohibited reasons” of ss 659(2)(e) and 793(1) of the WR Act. His Honour was not there considering questions of mental disability under s 659(2)(f).

34    At [155], the Federal Magistrate said that he then turned to consider legal principle and ‘the inherent requirements of Mr Keys’ position’ for the purposes of s 659(3) of the WR Act.

35    His Honour first set out the legal principles to be applied in relation to s 659(2). In particular, his Honour adopted and applied the reasoning of Gordon J in Stevenson v Murdoch Community Services Inc (2010) 202 IR 266 at [100], recognising that s 659 of the WR Act is a “reverse onus” provision, such that an applicant must prove the existence of objective facts said to provide a basis for the respondent’s contravening conduct. His Honour queried but ultimately accepted that Mr Keys had established the existence of objective facts, namely, the coincidence of timing between the AIRC proceedings that he had instigated and the letters to him from Ms Ford in late March and April 2009. Mr Keys relied upon those facts and the “presumption” that he said followed from them: that the Department ended his employment for a prohibited reason.

36    The Federal Magistrate concluded that the Department had discharged its onus in establishing that the termination of employment was not for a reason proscribed under the WR Act. In context, this conclusion was directed to these objective facts and the proscribed reason in s 659(2)(e) of the WR Act.

37    His Honour then discussed and applied the reasoning in Qantas Airways Limited v Christie (1998) 193 CLR 280 and X v Commonwealth of Australia (1999) 200 CLR 177. Those cases discussed the circumstances in which a person’s disability rendered him or her unable to carry out the inherent requirements of the particular employment. His Honour recognised that it was inability and not difficulty that must be demonstrated and that the consideration concerned the ‘inherent requirements of the particular position’. His Honour noted that the position of a DSO 1 required the officer to attend in person at the place of employment in order to fulfil his or her duties of:

…identifying people’s needs from individual plans, files, direct observation and in consultation with the individual…

and under direction to:

…plan and participate in individual skilled development activities within the home and community setting, which include activities of daily living and organising recreation and leisure.

38    The duty statement for the position also required, his Honour said, physical attendance at a group house as an inherent requirement.

39    His Honour concluded at [173]:

Consistently, and for long periods of time, Mr Keys has not attended, and has not been able to attend, at his usual or required place of employment. In my view, the inherent requirements of his particular job require his attendance at work.

40    It is apparent from the whole of his Honour’s reasons, in light of the issues raised in the Statement and the Response, that his Honour accepted that Mr Keys’ mental disability was a cause of his inability to attend at his workplace and a reason for the termination of his employment. That is, his Honour accepted that it was not in dispute that, subject to s 659(3), s 659(2)(f) applied. The Federal Magistrate found that the mental disability had rendered Mr Keys unable to fulfil the inherent requirements of his particular position and that the Department had established the application of s 659(3). That is, his Honour found at [175] that, ‘according to the requisite standard’, the respondents had established that Mr Keys’ employment was not terminated for any prohibited reason and that, to the degree necessary, s 659(3) had been shown to apply.

The grounds of appeal

41    In summary and relevantly, the grounds of appeal are:

1.    The Federal Magistrate made findings of fact not supported by the evidence, in finding that Mr Keys had failed to establish objective evidence of the prohibited reasons, namely:

    his complaint to the Workplace Ombudsman;

    his participation in the AIRC proceedings; and

    his participation in proceedings in the Tribunal.

2.    The Federal Magistrate’s finding that Mr Keys’ employment was terminated solely for the reason of his inability to attend at the workplace was not supported by the evidence.

3.    His Honour erred in finding that:

    the action plan prepared by the Department complied with the Department of Disability, Housing and Community Services Union Collective Agreement 2007-2010;

    Mr Keys’ participation in the AIRC proceedings at the same time formed no part of the reasoning for the termination of his employment;

    Mr Beardsley (who advised Ms Ford) ultimately formed a view in relation to the termination of Mr Keys’ employment after receipt of Mr Keys’ response to the offer of an alternative position;

    Mr Beardsley had not formed a predetermined or settled view regarding Mr Keys’ employment.

4.    The Federal Magistrate erred in concluding that the Department discharged the onus of establishing that the termination was not for a proscribed reason because of:

    the Tribunal proceedings; and/or

    the AIRC proceedings.

5.    The Federal Magistrate applied incorrect principles of law:

    in concluding that the Department had discharged its onus of proving that the determination was not for a proscribed reason;

    in failing to find that Mr Keys’ employment had been terminated for the reason of his mental disability in contravention of s 659(2)(f) of the WR Act;

    in failing to find a causal relationship between the inability to perform the inherent requirements of a particular position and Mr Keys’ disability;

    in failing properly to consider whether there was a causal relationship between Mr Keys’ participation in the AIRC and/or the Tribunal proceedings and the termination of his employment;

    in failing to take proper account of Mr Beardsley’s initial refusal to give evidence concerning the identify of his “advisors” in connection with the “strategy” concerning Mr Keys’ employment (for which Mr Beardsley claimed legal professional privilege); and

    in failing to apply s 728(2) of the WR Act to a submission that Ms Gotovac was “aiding and abetting” in breach of the “freedom of association” provisions of the WR Act.

6.    A denial of natural justice in his Honour making the following observations and findings about Mr Keys’ evidence without affording Mr Keys any opportunity to respond to or comment about these matters:

(i)    “I find it remarkable that the Department … would … apparently make some disclosure or comment about what its intentions were in proceedings before the AIRC, and seemingly in private discussions at the Commission” [111];

(ii)    “No less remarkable, in my view, is that such a disclosure or comment was made in the course of AIRC proceedings (formal or otherwise) that, … a Commissioner would, seemingly without any notice to the Department, convey such information to [Mr Keys]. Indeed, how or why would a Commissioner make such a ‘disclosure’ and not inform the other party to the proceedings? It would be, in my view, astonishing for such a comment to have been made and not reported to the Department. If that had occurred, I am certain that this Court would have been advised of it by one or more of the Respondents” [111]; and

(iii)    “For my part, I have some concern about the veracity of the evidence to which I have just referred” [112].

Further factual matters

42    It is necessary briefly to outline some further factual material that was before the Federal Magistrate and is relevant to submissions made on the appeal.

43    On 3 April 2009, Ms Gotovac, the HR Business Partner of Disability ACT, wrote to Mr Keys noting his non-attendance at a meeting to discuss ‘matters related to your non-performance of work in your position’ to which he had been invited in a previous letter dated 30 March 2009. The letter noted that the offer for Mr Keys to make a written submission remained open and that the action plan that was to be the subject of discussion at that meeting would commence on 6 April 2009.

44    On 6 April 2009, Ms Gotovac emailed Mr Keys with the request that she be advised as soon as possible via email if he was or became fit to perform his DSO 1 duties. Mr Keys replied by email on 7 April 2009. The first sentence stated ‘I have been fit to perform my DSO 1 duties for some time now’. The email then referred to reports from his consultant psychiatrist, Dr George and from his general practitioner and quoted passages that stated that he was capable of working in his previous position, provided that he was “protected” from those with whom he had had grievances before and ‘providing that appropriate communication and supervision strategies are implemented’.

45    On 9 April 2009, Mr Keys responded to Ms Gotovac’s letter of 3 April 2009 in a document entitled “Proposed Termination of My Employment by DHCS – Comments & Chronologies”. In this document, Mr Keys set out in detail his version of events over the period of 2008 and 2009 and then extending back to 2006.

46    On 9 April 2009 Ms Gotovac emailed Mr Keys, referring to his email of 7 April 2009 in which he had advised that he was fit to return to work. Ms Gotovac noted in her email that Mr Keys had recently rejected offers of three different positions outside the Department and advised Mr Keys that the Department was prepared to make another position as a DSO 1 available to him, in a group house in a supernumery capacity. The email further advised Mr Keys that the details of the position would be provided to him following the receipt of an indication from him that he was prepared to return to work in that capacity and in accordance with the action plan previously notified.

47    Mr Keys replied to Ms Gotovac’s email on 15 April 2009. He reaffirmed that he had always been prepared to return to work as a DSO 1 ‘and in so doing, to comply with the recommendations made on 16 August 2008 by Consultant Psychiatrist, Dr Graham George’. Mr Keys again quoted Dr George’s statement that ‘I believe that he is quite capable of working in his previous position provided he is protected from those with whom he has had grievances before’. Mr Keys stated that the proposal for his return to work ‘does not appear to address the recommendations of Dr George’. He then asked a series of questions, which included detailed questions about persons with whom it would seem he did not wish to work or have contact. He also stated that he had not previously rejected offers of three different positions but had commented on reasons why those positions were not suitable.

48    In her affidavit, Ms Ford said that she had understood that Mr Keys’ 2008-2009 absence was not all due to his medical condition because he had been declared fit to work in January 2009 but had not returned despite several job offers. On or about 22 April 2009 she understood that Mr Keys had been made a further job offer but had not accepted it. Ms Ford considered his response as a rejection of the offer. She said that her sole “reasons” for terminating Mr Keys’ employment were that he had been unable consistently to work in his job due to his medical condition, reflected in his frequent long absences over several years.

49    Ms Ford expanded on the inherent requirements of the job in cross-examination. Ms Ford said that the performance of duties, that is, to ‘be able to provide support people who have a significant disability – to be able to attend to them’, was an inherent requirement of the job. Ms Ford also said that attendance at work was an inherent requirement of the job. She expressed this requirement as being ‘to arrive at work. To be at work. To provide the services to the people that we provide services to’.

Grounds of appeal involving The Federal Magistrate’s application of s 659 of the wr Act

Mr Keys’ submissions

50    Mr Keys’ written submissions make tolerably clear the basis for his appeal.

51    Mr Keys seems to accept that an inherent requirement of his position was ‘to sustain reasonable attendance at work’. However, Mr Keys says that the question to be determined by the Federal Magistrate was whether he was unable to perform his duties ‘because of his disability’ and contends that the Federal Magistrate failed to address that question. He submits that his Honour failed to have regard to the relationship between his mental disability and the inherent requirements of the position.

52    Further, he points out, it is an inability that must be demonstrated, not a difficulty (X v Commonwealth at [101] per Gummow and Hayne JJ).

53    Mr Keys sets out in his written submissions some of his medical history, including a diagnosis that his acute stress disorder had ceased at 16 August 2008, although he also notes another medical opinion dated 10 October 2008 from a different psychiatrist to the effect that he was suffering ‘an adjustment disorder of mixed anxiety and depressive symptoms’ which was ‘an aggravation of the pre-existing adjustment disorder that occurred on 17 July 2008’. That psychiatrist indicated that Mr Keys did have a capacity to engage in work if it was in a ‘different department completely’. Mr Keys accepts that there were difficulties with his sustaining reasonable attendance at work but says that the evidence does not establish that he was unable to sustain a reasonable attendance at work because of any mental disability. Mr Keys contends that the Federal Magistrate failed to find a causal relationship between an inability to perform the inherent requirements of the particular position and his disability. Mr Keys asserts that he was fit to continue his pre-injury work as long as it was in a different department and/or in the presence of different people.

54    Mr Keys also maintains that the Federal Magistrate failed to take account of a causal relationship between his participation in the AIRC proceeding and the termination of his employment. He says that his Honour erred by simply accepting the evidence of the respondents’ witnesses and, in particular, Ms Ford, as to the reason for the termination of his employment and that that finding was insufficient for the purposes of the respondents’ obligation to discharge the onus of proof that the termination of employment was not for a prohibited reason. He maintains that findings based on credibility and, in particular, the acceptance of Ms Ford’s evidence, were not relevant. He contends that once he established his participation in an AIRC proceeding under the WR Act and alleged that his employment was terminated for that reason, the Department had to prove that his employment was not terminated because of his participation in those proceedings.

55    Mr Keys relies upon the reasoning of Gray and Bromberg JJ in Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 at [28] where their Honours said that the state of mind or subjective intention of the person who took what is characterised under s 346 of the Fair Work Act 2009 (Cth) (the FW Act) as “adverse action” would be centrally relevant to the application of s 346 but would not be decisive. It is necessary, their Honours said, that there be a determination of ‘the real reason’ for the conduct. Such a reason is not necessarily the reason that the person asserts ‘even where the person genuinely believes he or she was motivated by that reason’. Their Honours observed that ‘the real reason may be conscious or unconscious, and where unconscious or not appreciated or understood, adverse action will not be excused simply because its perpetrator held a benevolent intent’. Their Honours said at [32] that the onus cast by s 361 of the FW Act was that the person taking the adverse action must establish that he or she was not actuated by the attributes or industrial activity which s 346 of the FW Act seeks to protect and that the real reason ‘must be dissociated from the circumstances’.

56    This submission is not relevant to the Federal Magistrate’s application of s 659(2)(f) of the WR Act because, as noted at [40] above, it was not in dispute that Mr Keys’ mental disability was a cause of his inability to attend at his workplace and a reason for the termination of his employment. However, this submission is relevant to his Honour’s application of s 659(2)(e).

The respondents’ submissions

57    The respondents point to three sources of evidence to support the finding that Mr Keys’ employment was terminated solely because of his inability to attend the workplace:

(a)    the evidence of Ms Ford;

(b)    the evidence of the principal adviser, Mr Beardsley, who was the sole source of information upon which Ms Ford made her decision;

(c)    the undisputed evidence of Mr Keys’ frequent and prolonged absences from work due to a medical condition. These were supported by medical certificates and doctors’ reports.

Consideration

58    It is necessary to outline the operation of s 659 of the WR Act, as is relevant to the appeal.

59    Section 659(2)(e) provides that an employer must not terminate an employee’s employment for the reason of, or for reasons including, ‘the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities’.

60    Section 659(2)(f) provides that an employer must not terminate an employee’s employment for the reason of, or for reasons including, ‘mental disability’. However, s 659(2)(f) is subject to s 659(3), which provides that s 659(2) does not prevent a matter referred to in s 659(2)(f) ‘from being a reason for terminating employment if the reason is based on the inherent requirements of the particular position concerned’. In other words, if the employer is able to establish that his or her reason/s for terminating the employee’s employment come within s 659(3), the prohibition in s 659(2)(f) will not apply.

61    There are a number of relevant matters as to the application of these provisions that are not in dispute on appeal:

    There is no dispute that, as an objective fact, Mr Keys had commenced proceedings or participated in proceedings in other institutions in relation to his employment prior to the termination of his employment.

    Mr Keys’ lack of attendance at the workplace is not in dispute. The period of absence was approximately 34 months over a period of 42 months.

    It is not in dispute that Mr Keys did not recommence duties in the period between his correspondence with Ms Gotovac outlined at [43]-[47] above and the termination of his employment.

    There is no dispute that it was accepted in the pleadings before the Federal Magistrate that Mr Keys’ mental disability was one of the reasons for the termination of his employment in contravention of s 659(2)(f) of the WR Act.

    There is no dispute that in relying on s 659(3), the onus is on the respondents to establish the requirements of and application of that provision.

62    The key issues before the Federal Magistrate were:

    whether s 659(2)(e) applied. That is, whether Ms Ford’s stated reason for the termination of Mr Keys’ employment was in fact the sole reason for the termination or whether a reason for the termination was: the fact that Mr Keys engaged or proposed to engage in one or more proceedings in the AIRC, the Tribunal or elsewhere; the fact that Mr Keys made or proposed to make complaints; and/or the fact that Mr Keys engaged or proposed to engage in recourse to “any body or authority”;

    whether s 659(3) applied. If so, the prohibition against terminating Mr Keys’ employment for a reason within s 659(2)(f) would not have applied.

63    The evidence and submissions before the Federal Magistrate were directed to these issues.

64    Mr Keys seems to maintain that a principal error on the part of the Federal Magistrate is that he failed to make a specific finding that a reason for the termination of his employment was his mental disability. However, it was admitted in the Response that:

[Ms Ford] terminated [Mr Keys’] employment for the reason (and the only reason) that [Mr Keys] was, between 2005 and 2009, unable to sustain reasonable attendance at work due to a mental disability, namely a medical condition known as ‘adjustment disorder with emotional features’.

65    There was no need to make a finding on a matter that was not in dispute. The basis of the dispute on this aspect of the case was the application of s 659(3). This was relevant because Mr Keys’ mental disability was a factor or cause of the termination of his employment and therefore s 659(2)(f) had been invoked.

66    This underlies his Honour’s finding at [153], as set out at [31] above, that the Department did not terminate the employment for a ‘prohibited reason’ or ‘for any proscribed reason’ but solely for the reason of his inability to attend at his workplace, that being an inherent requirement of Mr Keys’ position. The Federal Magistrate found this as a fact, based on the evidence and his assessment of the witnesses. In other words, his Honour found as a fact that s 659(2)(e) did not apply.

67    A focus of the appeal was on his Honour’s finding at [153]. His Honour’s finding at [153] was not strictly coincident with the grounds set out in the Response, which was that Mr Keys’ employment was terminated for the reason (and no other reason) that he ‘was unable, due to a mental disability, to carry out an inherent requirement of his particular position, namely, sustainable reasonable attendance at work’. However, as a matter of logic, a practical inability to attend at the workplace comes within the stated reason in the Response of being unable to sustain a reasonable attendance at work.

68    I now turn to consider his Honour’s application of ss 659(2)(e) and (3).

Application of s 659(2)(e)

69    The Federal Magistrate adopted and applied Stevenson in assessing the onus applicable for s 659(2)(e).

70    In Barclay, Gray and Bromberg JJ made it clear that it was necessary for the employer in that case to establish that it was not actuated by factors within s 346 of the FW Act. That is, the onus was on the employer positively to establish that the s 346 factors played no part, were not an operative or immediate reason and were not a factor in the decision to terminate the employee’s employment (at [28]-[32]). As their Honours made clear at [32], the employer was required to show that the real reason or reasons for the taking of the adverse action were ‘disassociated in the circumstances’ from the s 346 factors.

71    I do not express a view as to whether Barclay is applicable to s 659 of the WR Act. If it were applicable, it would make no difference to the outcome of this appeal. It is clear that the Federal Magistrate considered the reason or reasons for Ms Ford’s decision to terminate Mr Keys’ employment and whether or not the other legal proceedings in which Mr Keys had been engaged played any part whatsoever in that decision. The Federal Magistrate accepted the evidence of Ms Ford that the sole reason for her dismissal of Mr Keys was because of his frequent and prolonged absences due to his medical condition, which meant that he could not fulfil all of the requirements of his position, which necessitated his presence at the workplace. She said, and his Honour accepted, that she did not consider his making complaints or participating in industrial proceedings as a reason for his dismissal. Indeed, she had no prior knowledge of these matters, so that Gray and Bromberg JJ’s statement about “subconscious reasons” is inapposite in the present case. In any event, the existence of and Mr Keys’ participation in other proceedings were disassociated from and formed no part of Ms Ford’s decision.

72    The Federal Magistrate found that the sole reason for the termination of Mr Keys’ employment was his prolonged absence from and his inability to attend at his workplace. If that was the sole reason, there was no other reason. The reason for dismissal was a question of fact, determined by the Federal Magistrate based upon his assessment of the evidence. Mr Keys does not submit that his Honour was not entitled to make findings on credibility.

73    Mr Keys maintains that it was “artificial” for his Honour to consider only the evidence of Ms Ford and to ignore the evidence of other persons within the Department who were aware of a number of other matters relating to Mr Keys and had not been “quarantined”.

74    The Federal Magistrate took the view that the relevant determination was of the decision-maker’s reason for the termination of Mr Keys’ employment. The Department established that Ms Ford, whose action it was, was not actuated by any personal leave or industrial activity being taken by Mr Keys. Mr Keys has not shown why that approach was incorrect.

Application of s 659(3)

75    Before the Federal Magistrate, the respondents asserted that, by reason of his mental disability, Mr Keys had failed to sustain attendance at work over an extended period. The respondents admitted that Mr Keys was dismissed for this reason.

76    His Honour found that attendance at the workplace was an inherent requirement of Mr Keys’ particular position and, accordingly, under s 659(3) of the WR Act, the termination of Mr Keys’ employment on the grounds of his mental disability was not prohibited (at [173] and [175]).

77    Mr Keys says that at the time of the termination of his employment he was not unable to carry out the inherent requirements of the position. He maintains that he was not mentally disabled at the time and that he was fit to work in modified duties, so long as the work was under the conditions that he cited in correspondence, which were to the effect that he not be required to work with or see certain people, in particular those with whom he had previously worked.

78    The respondents point to a number of qualifications to Mr Keys’ assertion that he was fit to recommence his duties as at April 2009:

    Mr Keys made it clear that he was only prepared to resume duties if his conditions were met.

    He did not attend to discuss the action plan drafted and presented to him.

    He did not actually attend at the workplace.

    His absences were prolonged over the relevant period of time.

79    Mr Keys relies on the decision of Selway J in Power v Aboriginal Hostels Limited (2003) 133 FCR 254 concerning the application of s 15(4) of the Disability Discrimination Act 1992 (Cth) (the DD Act). Justice Selway considered the relevant provisions of the DD Act, and stated that the Court was required to find that the employee’s inability to perform duties was ‘because of [the employee’s] disability’. Section 15(4) of the DD Act provided:

Neither paragraph (1)(b) nor (2)(c) renders unlawful discrimination by an employer against a person on the grounds of the person’s disability, if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:

(a) would be unable to carry out the inherent requirements of the particular employment; or

(b) would in order to carry out these requirements, require services or facilities that are not required by persons without the disability and the provisions of which would impose an unjustifiable hardship on the employer.

80    Further, he says, if the respondents are relying on s 659(3) of the WR Act, the inability to carry out the requirements of the position must be shown to be an inability and not just a difficulty in carrying out those requirements.

81    I do not accept Mr Keys’ submissions.

82    First, Mr Keys’ reliance on Power is misplaced. Section 659(3) of the WR Act is cast in different terms to the now repealed s 15(4) of the DD Act and requires a somewhat different test.

83    Secondly, the reason for the termination of Mr Keys’ employment was not because, assuming he did attend, he would in future be unable to fulfil his duties by reason of his disability. If that were the case, it may have been necessary for the respondents to adduce evidence of inability, rather than difficulty, in meeting Mr Keys’ conditions for return to work and to provide evidence as to whether he could fulfil, on his terms or on the terms suggested by his doctors, the inherent requirements of a DSO 1.

84    It is clear that even as Mr Keys maintained that he was fit for work as a DSO 1, it was on conditions that he required by reason of his mental disability (see [47] above).

85    The fact, as found by the Federal Magistrate, was that he had failed to attend at work and that attendance was an essential requirement of the position. The reason for the termination of Mr Keys’ employment was not his inability to attend work on a certain day by reason of mental disability. It was his inability, for that reason, to sustain attendance at work over an approximately three and a half year period. Mr Keys did not attend for over 34 months of that period. As at April 2009, he had not attended at work for a period of approximately 9 months. The position of DSO 1 inherently required attendance at work because of the nature of the duties involved. Those facts were not in dispute, although Mr Keys did dispute the reasons recorded by the Department for some of those absences.

86    Further, Mr Keys contends that it was necessary for the respondents to establish that his mental disability caused all of his absences from work. He refers to the fact that at least part of the time that he was absent, the absence was due to annual leave and personal leave, including the requirement to attend medical appointments. That is, he says that the reasons for his absences and his entitlement to take leave mean that his inability to sustain attendance at work was not “based on” a mental disability.

87    There are some specific factual differences between the parties as to the reasons for some of Mr Keys’ absences. The particulars in the Response referred to Mr Keys’ mental disability of ‘adjustment disorder with emotional features’ and his pattern of presence and absence at work from 14 October 2005 to 22 April 2009, which, as described by the Federal Magistrate and as accepted by Mr Keys, demonstrated a total absence of work in that period of 34 months (at [16]). While Mr Keys asserts that some of his absences were due to personal leave or paid annual leave, Mr Keys’ chronology cites a series of prolonged absences as relevant to an injury that he sustained in October 2005, being an ‘adjustment reaction with mixed emotional features’. Even if Mr Keys’ version is accepted, it remains true that he failed to sustain attendance at work over the period and that, on any view, the bulk of that absence was attributable directly and indirectly to his mental disability.

88    Mr Keys makes reference to s 664 of the WR Act, which provides:

In any proceedings under section 663 relating to a termination of employment in contravention of section 659 for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section:

(a)    it is not necessary for the employee to prove that the termination was for a proscribed reason; but

(b)    it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 659(3) or (4) applies).

89    However, Mr Keys’ reliance on s 664 is misplaced. The respondents do not assert that the termination was for a reason that did not include his mental disability. They accept the application of s 659(2)(f) of the WR Act but assert that s 659(3) of the WR Act applies.

90    Mr Keys also makes reference to s 809 of the WR Act, but this is not relevant to the application of s 659(3) of the WR Act.

91    As stated above, the Federal Magistrate found at [153] that Mr Keys’ employment was terminated solely for the reason of his inability to attend at his workplace. His Honour also found that an inherent requirement of the particular position was attendance at work sufficient to care for disabled persons. His Honour found, based on this reason, that s 659(3) applied (at [173]).

92    It is not appropriate to take these findings out of context. It is clear that the Federal Magistrate recognised that, over the period of time in question, Mr Keys took sick leave to which he was entitled by reason of certification by a medical practitioner and compensation leave where it was certified by a medical practitioner. His Honour noted at [16] that the respondents acknowledged this to be the case in the Response. His Honour also noted that the Response set out such periods of leave, as well as other occasions when leave was taken either with or without any requisite authority. In context, in making the findings at [153] and [173] of his reasons, it is apparent that the Federal Magistrate was referring to Mr Keys’ prolonged absences from work between 2005 and 2009 that were not explained by the leave to which the respondents acknowledged he was entitled. His Honour determined that, based on these absences, Ms Ford had terminated Mr Keys’ employment for the reason of his inability to attend at his workplace. There was no error in his Honour’s finding.

93    Mr Keys has not demonstrated any error in his Honour’s application of s 659 of the WR Act.

Additional grounds of appeal

94    Mr Keys relies upon the fact that in the proceedings before the Federal Magistrate Mr Beardsley responded to a question about the identity of his advisors by refusing to disclose their identity. Mr Beardsley claimed legal professional privilege. Mr Keys submits that his Honour should have “taken proper account” of the fact that Mr Beardsley declined to answer questions concerning the identity of his legal advisors on the grounds of legal professional privilege. However, Mr Beardsley did in fact disclose the identity of those advisors a short time later in his evidence but the identity of the advisors bore no relevant part in Mr Beardsley’s decision as to what he would or would not tell Ms Ford. Neither before the Federal Magistrate nor in the appeal has Mr Keys explained why the identity of Mr Beardsley’s advisors was relevant. It was clearly the subject of discussion before the Federal Magistrate and it did not affect his Honour’s conclusions as to the credibility of Mr Beardsley. Mr Keys has not established any basis for the assertion that Mr Beardsley’s evidence should have been diminished or affected by his claim to legal professional privilege. I see no error on the part of the Federal Magistrate relevant to that issue.

95    Mr Keys submits that Mr Beardsley’s initial refusal to answer the question about the identity of his advisors ‘might amount to contempt of court’. I see no basis for that assertion. As Mr Keys himself noted, no application for contempt proceedings was made.

96    Mr Keys also makes submissions as to the reasons why the Federal Magistrate should not have accepted Mr Beardsley’s evidence. Mr Keys has not established a sufficient basis for that contention. Further, as the sole decision-maker was Ms Ford, and her evidence was accepted, Mr Keys has not established how a different finding in respect of Mr Beardsley’s evidence would have affected his Honour’s conclusions.

97    In the proceedings before the Federal Magistrate, Mr Keys alleged that Ms Gotovac aided and abetted the unlawful termination of his employment. As his Honour found that there was no such unlawful termination, this question did not arise for determination. Further, the factual basis for an obligation or an occasion whereby Ms Gotovac should have refused to comply with directions or questioned the directions as alleged has not been explained. In any event, the evidence which the Federal Magistrate accepted was that the conduit to Ms Ford was not Ms Gotovac but Mr Beardsley. There is no evidence that Ms Gotovac had any relevant contact with Ms Ford, or that she affected Ms Ford’s decision or course of action in any way either directly, or indirectly, through Mr Beardsley.

98    Mr Keys asserts a denial of natural justice. Mr Keys contends that the Federal Magistrate erred in making ‘speculative observations critical of [Mr Keys’] evidence’. He submits that the Federal Magistrate was obliged to put to him his conclusions about any concerns that he had about Mr Keys’ evidence. This submission amounts to a contention that the Federal Magistrate was obliged to put his reasoning processes to Mr Keys for comment. There was no such obligation. His Honour was not obliged to put to Mr Keys his conclusions that Mr Keys’ recollection was at fault, or the reasons why he preferred the evidence of Ms Ford. The Federal Magistrate was entitled to form a view about the evidence and the witnesses and to determine, where there was inconsistency in the evidence, which version he would accept, without putting these views to Mr Keys for comment.

99    Mr Keys’ remaining grounds of appeal involve challenges to findings of fact, made on the evidence as assessed by the Federal Magistrate. No sufficient basis has been advanced for such challenges or the reason why they should be revisited on appeal.

Conclusion

100    The appeal should be dismissed with no order as to costs.

Associate:

Dated:    14 December 2011