Federal Court of Australia
Serpanos v Commonwealth of Australia [2022] FCA 1226
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
SNADEN J:
1 The applicant, Mr Serpanos, is a former employee of the respondent’s—more particularly, of the Australian Taxation Office (the “ATO”). For reasons that will become apparent, it is convenient to refer to the ATO as though it were the respondent; and references to it throughout these reasons should be understood as references to the respondent.
2 By notice dated 16 December 2019, Mr Serpanos’s employment was terminated on the basis of misconduct that was said to have placed him in breach of section 13 of the Public Service Act 1999 (Cth) (the “Public Service Act”). That section contains what is commonly and hereafter referred to as the “APS Code of Conduct”.
3 That, at least, was the justification that the ATO gave for Mr Serpanos’s dismissal. By this proceeding, Mr Serpanos maintains that he was in fact dismissed because of a complaint that he had made and maintained over a series of communications. He submits that his dismissal amounted to “adverse action” that the ATO took against him in contravention of s 340(1) of the Fair Work Act 2009 (Cth) (hereafter, the “FW Act”). He seeks relief in the nature of compensation and the imposition of pecuniary penalties (as well as other, ancillary relief).
4 The ATO denies that it dismissed Mr Serpanos from his employment because, or for reasons that included that, he had made or maintained any complaint. It submits that the reason for his dismissal was legitimate or, at any event, that the dismissal did not contravene s 340(1) of the FW Act. It denies that Mr Serpanos is entitled to any relief as claimed.
5 For the reasons that follow, Mr Serpanos was not dismissed in contravention of s 340(1) of the FW Act. No relief will be granted. The application will be dismissed and there will be no order as to costs.
Part 2. The proceeding and trial
6 The proceeding was commenced by originating application lodged on 1 April 2020. It was supported by a statement of claim bearing that same date.
7 In its initial incarnation, the matter that Mr Serpanos hoped to prosecute was much greater in its scope. It is unnecessary to particularise the respects in which that scope was subsequently reduced—it suffices to say that, a few days prior to the scheduled trial of the matter (and with the ATO’s consent), Mr Serpanos filed an amended statement of claim that brought the matter within the confines of the very brief summary offered above. A further amendment was made (also with the ATO’s consent) after the commencement of the trial, which addressed minor matters that needn’t here be rehearsed.
8 The condensing of the matter brought two welcome consequences: first, the volume of matters requiring evidence and resolution by the court was moderated; and, second, much of the material that had been compiled into the form of a very substantial court book ceased to be relevant.
9 Nonetheless, even in its condensed state, the trial occupied four hearing days. It was allocated to a different docket judge and was scheduled for hearing before him in March 2022. It was reallocated to me in February 2021, following an interlocutory application that Mr Serpanos made for a more prompt trial date.
10 At the trial, Mr Serpanos gave oral evidence on his own behalf and tendered a selection of documents from (or predominantly from) the aforementioned court book. The ATO called oral evidence from two of its officers, Ms Theofani Kotronakis and Ms Megan Boyd. It, too, tendered various documents from the court book. Happily, the trial coincided with a brief period of respite from Victoria’s lockdown-focused response to the covid-19 pandemic.
11 Unlike most that are advanced under pt 3-1 of the FW Act, the present matter proceeded without any bifurcation as to liability and remedy. Evidence was led and submissions were advanced on all questions, including damages and the imposition of a pecuniary penalty.
Part 3. The factual background
12 The relevant factual background is dense and cannot briefly be stated. Although there are elements of evidential conflict throughout, much of the relevant factual matrix emerges without material controversy from the documents that were tendered at trial.
13 Immediately prior to his dismissal in December 2019 (and at all of the times presently relevant), Mr Serpanos was employed in the role of Audit Leader (Integrated Compliance). He commanded remuneration of $133,766.06, inclusive of superannuation. In his role as an Audit Leader, Mr Serpanos reported to a team leader, Mr Peter Keily, and, ultimately to Ms Wendy Cavanagh, who occupied the role of “Director” in the ATO’s “Integrated Compliance” division.
14 In April 2019, Mr Serpanos found himself on the wrong end of a disciplinary process overseen by Ms Cavanagh. He was alleged to have made some “inappropriate comments on social media”, the full particulars of which needn’t here be stated. He was directed to refrain from making such comments in the future and was warned that, were he to do so again, he might find himself facing sanction up to and including dismissal from his employment.
15 Three-and-a-half weeks later, a colleague of Mr Serpanos’s made a complaint against Ms Cavanagh. The nature of that complaint is not presently relevant, save to acknowledge what follows. The complaint in question was made by email sent to, amongst others, Mr Ian Read, who was then employed in the role of Assistant Commissioner, Complex Assurance & Evasion and was the ATO officer to whom Ms Cavanagh reported. It was also copied to Mr Serpanos, from whom various of the factual matters to which it referred were said to have been sourced.
16 The following day—Saturday, 11 May 2019—Mr Serpanos sent an email in response to his colleague’s complaint. By that correspondence, he sought broadly to corroborate what had been said by way of complaint against Ms Cavanagh. He also indicated that he, too, had been a recent victim of mistreatment at Ms Cavanagh’s hands, including in the form of the warning referred to above.
17 There then followed an internal investigation into Ms Cavanagh’s conduct. On 29 May 2019, Mr Serpanos had a discussion with Mr Read and Ms Alenka Lawrence, from the ATO’s “People Support Team”. During that meeting, Mr Serpanos aired an array of grievances concerning his interactions with Ms Cavanagh. One such grievance related to events that transpired in October 2017, when he had apparently made an approach to another ATO officer about some mentoring. Mr Serpanos told Mr Read and Ms Lawrence that he had raised the possible mentoring arrangement with Ms Cavanagh by email, to which she had never responded. That failure to respond was, it seems, advanced as an example of Ms Cavanagh having “bullied” Mr Serpanos.
18 Mr Serpanos’s grievances were put to Ms Cavanagh for her response. That response was provided at least partly on Thursday, 13 June 2019. Specifically in respect of the mentoring email referred to above, Ms Cavanagh responded as follows:
…
This email followed an incident a few days earlier involving a number of males in the team. This matter was escalating to the point where some female staff members were considering a formal complaint in relation to comments made, however a complaint was not forthcoming.
At the same time, I became aware of a comment made by Hari [Serpanos] about me at a happy hour some months earlier. Olivia Kim advised me that she had received a text message from Samantha Peeters, a former graduate in the team, advising that Hari had said publicly words to the effect ‘…he would even f#!k Wendy if that’s what it takes to get an EL2..’. I understand this comment was made to a group, including males in the team, at a happy hour on site. I have seen the text and have a screenshot that can be provided if required. This comment was allegedly made in front of other males in the team.
I was pretty angry and frustrated with Hari’s behaviour/conduct and rightly or wrongly I acknowledge that his email went without response…
19 It is from that response (hereafter, the “Cavanagh Complaint Response”)—and, in particular, from Ms Cavanagh’s reference to Mr Serpanos having said that “he would even f#!k Wendy if that’s what it takes to get an EL2” (hereafter, the “Even Wendy Comment”)—that the matters relevant to this proceeding arise. It was not controversial that the reference to “an EL2” was a reference to a promotion; in other words, that Mr Serpanos was alleged to have said that, in order to gain promotion within the ATO, he would be willing to have sex with Ms Cavanagh.
20 At around lunchtime on Thursday, 18 July 2019, Mr Read sent an email to Mr Serpanos, informing him of the outcome of his investigations into Ms Cavanagh. That outcome is of little moment presently; it suffices to note that Ms Cavanagh was exonerated and that Mr Read took the view that Mr Serpanos should be relocated to a new role that did not report to her. Importantly, Mr Serpanos was provided with a copy of a “Complaint Report” pertaining to the grievances that he had aired. That report incorporated the Cavanagh Complaint Response, including the extract reproduced above (at [18]).
21 At or about 8:58 pm that evening, Mr Serpanos sent an email to Mr Read in the following terms (errors original):
Dear Ian,
At the outset I am extremely disappointed with your decision on this matter as I respectfully do not think you made your decision based upon a fair and unbiased consideration of my complaint against Ms Cavanagh.
I have noted that Ms Cavenagh alleges in response 4 of your document where she stated inter alia that an incident occurred several days earlier where in the presence of a number of males in the team, I allegedly said publicly that ……”he would even f#!k Wendy if that’s what it takes to get an EL2”. I find this disgusting and quite frankly I did not say those words to anyone. I would never make such a statement in a public office knowing that this is in breach of the code of conduct. This is a serious allegation against my character and reputation and I am surprised that Ms Cavenagh has never raised this matter with me both personally or as a Director as soon as she became aware of this. This matter was only raised after I filed my complaint against her. It is clear that she has failed in her duties as a manager in being open and transparent.
Additionally the fact is that no one has made any complaints against me for such disgusting comments, I believe that Ms Cavanagh allegation is untrue and unsubstantiated. I note that a former team member Samantha Peeters had texted a current member of the team Olivia Kim about the above made comments and Wendy acknowledged that she had seen this text and indeed has a screenshot of same. I would like to get a copy of this text and will discuss the contents of the text with my lawyer for legal action against Samantha, Wendy and Olivia for defamation.
I have cc’d my lawyer Bold Lawyers Mr Stuart Wright to this as I am of the opinion that this statement is seriously defamatory and I will be seeking advice to recover damages for loss to my reputation caused by actions by Wendy , Olivia and Samantha. I note that Olivia Kim has just been rewarded with higher duties in my team.
I will be seeking a review of your decision as advised.
Stuart enclosed FYI
22 As its text indicated, that email (hereafter, the “18 July Email”) was sent not only to Mr Read but also to Ms Lawrence, Mr William Day (an ATO Deputy Commissioner, to whom Mr Read then reported) and “Bold Lawyers”.
23 It is convenient to pause at this juncture to make some observations about the “Code of Conduct” to which the 18 July Email referred. Section 13 of the Public Service Act is headed, “The APS Code of Conduct”. Its terms are explored in more detail below. For now, it suffices to note that it enumerates a number of behaviours that “APS employee[s]” are expected to demonstrate. In part, it calls up (and requires compliance with) a set of values known as the “APS Values”, for which separate provision is made by s 10 of that enactment (the relevant terms of which are also explored below).
24 On Monday, 22 July 2019, Mr Serpanos sent an email to an internal ATO complaints email address, known simply as “Review of Employment Actions”. That email (hereafter, the “22 July Email”) contained the text of Mr Read’s email of 18 July 2019. Attached to it was a copy of the Complaint Report that Mr Read had attached to his email. The text of the 22 July Email read as follows (errors original):
I would like to seek a review of action made by AC Ian Reid concerning my complaint against Ms Wendy Cavanagh.
I enclose copy of the decision made by Ian Reid which contains all relevant documentation for your perusal.
The decision contains a chronology of events as well as attachments of correspondence in support of my action by lodging complaint against Ms Wendy Cavanagh for Bullying.
I appeal against Ian Reid’s finding that Ms Wendy Cavanagh’s actions are reasonable management actions and that I cannot substantiate my allegations of bullying. I am not interested in establishing harassment or discrimination. I accept those aspects. My only review is that my complaint of bullying should be upheld.
Example where Ms Cavanagh bullies me is where she criticised the clothes that I wear and yet does nothing to a person that walks around the office in bare feet. I disagree with Ms Cavanagh’s statement that I wear broad shorts, but I wear proper professional shorts by bands such as Polo, and Tommy Hillfinger. I do not think wearing runners is contrary to the dress code policy and is better than wearing no shoes at all which is what the officer who is a friend of Ms Cavanagh does.
The matters identified in finding 2 are not correct, the people that Ms Cavanagh relied upon were her favourites. Ms Cavanagh formed her conclusions about me without bothering to contact me and consider what I said before forming her decision. She did not act reasonably, but in a manner designed to intimidate , embarrass and humiliate me.
In relation to finding 3 I have no problem with Ms Cavanagh checking my attendance record. However it must be done fairly and reasonable across the whole team, I believe that Ms Cavanagh singled me out on this occasion. Of particular note Ms Cavanagh has not explained her actions on this, by not providing a response.
The most relevant response by Ms Cavanagh is contained in her response 4: where she states that some female members were considering in 2017 making a complaint against me in relation to some comments I made at happy hour. Ms Cavanagh states that at around the same time she became aware of comments made by me, that she had received a text message from a former staff member Ms Peeters which was sent to Olivia Kim (another team member), advising that I said words to the effect … he would even f#!k Wendy if that’s what it take to get an EL2..” Ms Cavanagh claims to have a screen shot of the text. Ms Cavanagh acknowledges that she did not raise this matter with me and that she was angry with me and she acknowledges that my email for her support was ignored by her. This is bullying behaviour and unreasonable managerial action. I am considering defamation action for this as the comments are untrue and were never made by me. If the parties to the comments were concerned they should have raised their issue with me way back then or in the alternative issued a complaint against me. This was never done.
The concern of bullying also is based upon response 7 where she states that the coffee cup was mine. She also apologised to me for her mistake before issuing her response, she is clearly lying here. The coffee cup does not have my name on it. I have a photo of the cup and can tender it if required.
Ms Cavanagh in her response 9 has not responded to my comments about my work load and revenue achieved. She just glossed over this saying that it a team effort. However in my individual performance plan this is a fundamental record of ones performance in audit. My team leader has been influenced by Ms Cavanagh and it bullying me by placing me on an informal performance plan etc. It is interesting that before 2017 when Ms Cavanagh became aware of my alleged comments she has a good relationship with me.
Ms Cavanaugh in her response to the employee census contained in my concern 10 and her response 10 states that 3 out of 12 team members who all stated that she failed in her managerial duties was insufficient to support my concern, as the 3 members claim that they were co oerced to agree with the majority of the team . I note that the majority in the team were not supportive of Ms Cavanagh’s managerial style which was identified as being bullish, favouritism, and that if you disagreed with her you could be out of a job.
Overall I believe that AC Ian Reid has made his decision with bias and in support of Ms Cavanagh.
I also note and you will see in the enclosed documents that Ms Cavanagh had no issues with me before 2017, and I can only assume it is because of the text she received from the staff members about my comments that have triggered Ms Cavanagh to act in a bullish manner to me.
Please review this matter and let me know if you require any further information.
Regards
Hari
25 It is necessary to recall some detail relating to the Even Wendy Comment. According to Ms Cavanagh, the comment was made in the presence of Ms Samantha Peeters, who, at the time, was said to be a graduate in the same team as Mr Serpanos. Ms Peeters was understood to have sent a text message to another ATO employee, Ms Olivia Kim, within which reference to the comment was made. That text message was said to be the subject of a “screenshot”, which Ms Cavanagh indicated that she had seen.
26 Over the course of the week of 22 July 2019, Mr Serpanos consulted his lawyers. By letters dated Friday, 26 July 2019, Bold Lawyers sent to each of Ms Cavanagh, Ms Kim and Ms Peeters a concerns notice pursuant to s 14(2) of the Defamation Act 2005 (Vic) (hereafter, the “Defamation Act”). It is unnecessary to replicate each of those notices (hereafter, the “First Concerns Notices”) here. It suffices to note that each referred to the Even Wendy Comment. In the case of the letter that was sent to Ms Cavanagh, reference was made to her having recounted the comment (and attributing it to Mr Serpanos) in the Cavanagh Complaint Response. In the case of the correspondence sent to Ms Kim, reference was made to her having provided to Ms Cavanagh a copy (or “screenshot”) of the text message that she had received from Ms Peeters (within which the comment had been recalled). In the case of the correspondence sent to Ms Peeters, reference was made to her having sent that text message. In each case, the First Concerns Notices complained that Mr Serpanos had been defamed by means of the Even Wendy Comment (or, more accurately, by the various ways in which Ms Cavanagh, Ms Kim and Ms Peeters were said to have alleged that he had made it).
27 On Friday, 2 August 2019, Mr Jeff Lapidos—a representative of the Australian Services Union—sent an email to Mr Day, requesting that Mr Serpanos be transferred to a role outside of Ms Cavanagh’s remit. That, it might be recalled, was a course that Mr Read had recommended in his email of 18 July 2019 (see above, [20]). Mr Serpanos was copied to Mr Lapidos’s email. At the time, he was on a period of what was described as “stress leave”.
28 On Tuesday, 6 August 2019, Mr Serpanos sent an email in reply to Mr Lapidos’s email from the previous Friday, enquiring as to whether there might be “…any update on when [his] transfer into a new position will occur”. Two days later, he sent a further email in that chain, the text of which it is convenient here to replicate (errors original):
Hi all
I refer to Ian Reid’s recommendation to transfer me into a new role.
I am becoming concerned that I have heard no response yet given that I will be returning to work on the 16th August 2019 .
I note that my employer has a duty to ensure that all reasonable steps are taken to protect the health and safety of its employees of which I am one of. This includes the mental wellbeing of its employees in the workplace and mitigating any further risks of injuries being aggravated due to any steps that are not taken.
I am putting it on the record that I am pursing civil action for defamation against 3 current employees of the ATO , 2 of which are in my team. This is a private matter.
Notices have been issued to the affected parties.
As an employee of the ATO I assume that I would have rights to protect my character and reputation within the organisation. As a result I request that the ATO treat me fairly and equally with the other parties on this matter.
Once this matter proceeds to court ultimately a Jury will make a decision on the defamatory imputation as well as any defences available to the parties.
However I do appreciate that there is a conflict of interest if the ATO takes the side of one party over another before any decisions are made by the Court accordingly I will not request that the ATO indemnify my legal costs and the legal action will be funded privately. I expect that the other parties will also fund their defence.
Regards
Hari
29 That email correspondence (the “8 August Email”) was copied to Mr Mark Stan, a solicitor of the law firm Boutique Defamation Lawyers. Mr Serpanos had, by then, retained Mr Stan in connection with his then-proposed defamation action against Ms Cavanagh, Ms Kim and Ms Peeters. The 8 August Email was also copied to various ATO representatives, including Mr Day, Ms Cavanagh and Mr Dominic Sheil, Assistant Commissioner, ATO People.
30 On Friday, 9 August 2019, Mr Nathan McFarlane, a member of the ATO’s “People Support Team”, sent an email to Mr Sheil (amongst others). By it, Mr McFarlane offered a “high level update” concerning Mr Serpanos’s position. Amongst other things, he noted that moves were afoot to find Mr Serpanos a role outside of Ms Cavanagh’s field of management and that he (Mr Serpanos) had “…sent 3 ladies defamation claims” which had been described as a “private matter”. That email also noted that “…a potential sexual harassment matter has come to light [and that] 3 ladies have lodged allegations against [Mr Serpanos]”. In relation to those claims, the email recorded that “Nardine McLoughlin…has been undertaking the fact finding relating to those allegations including conducting interviews onsite all day yesterday (with the 3 ladies plus other ‘witnesses’)”.
31 By letters dated Wednesday, 14 August 2019, Mr Stan sent to each of Ms Cavanagh, Ms Kim and Ms Peeters new notices pursuant to s 14(2) of the Defamation Act. Again, it is unnecessary to replicate the full text of those letters (hereafter, the “Second Concerns Notices”). It suffices to note that they maintained against the three recipients allegations equivalent to those outlined in the First Concerns Notices. Additionally, each concluded in the following terms (errors original):
We have instructions to commence legal action against you claiming substantial damages and legal costs. Our instructions may change, in the event that you make amends by within twenty-eight (28) days:
l. Issuing a written public apology to our client, one that our client is entitled to publish, the apology is also to be published to the workplace
2. A written undertaking to immediately retract any defamatory publications made against our client;
3. A written undertaking that no further defamatory publications will be made against our client in the future;
4. That you pay our client [a nominated sum, outlined below] being for the legal costs that our client has reasonably incurred to date and for damages.
If you do not stop defaming our client and continue engaging in activities injurious to his reputation, our client may seek to obtain injunctive relief against you, not limited to a civil defamation suit and may further obtain damages against you via the courts.
Please take notice that we are writing under section 14 (2) of the Defamation Act 2005 (Vic) and put you on notice as to our client's distress as to the allegations and imputations you have made and that this letter is to be considered as a "concerns notice" for the purposes of the Act.
If our client does not receive a satisfactory response within 28 days, we will seek our client's instructions to issue legal proceedings against you. Our client may commence court proceedings seeking damages and injunctive relief restraining you from publishing further defamatory content, without further notice to you.
Furthermore, we put you on notice that if the matter proceeds to trial and our clients obtains a result no less favourable than the offer in this letter, our client will produce this letter to the court on the question of costs. In that event, our client will seek an order that you pay their costs from the date of this letter, in accordance with the principals set out in Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (N02) 2005 13 VR 435, Calderbank v Calderbank [1976] Fam 93; [1975] 3 WLR 586 and lpex ITG Pty Ltd v Melbourne Water Corporation (NO 6) [2009] VSC 571.
Our client reserves all their rights.
32 In the case of Ms Kim and Ms Cavanagh, the notices invited payment of $350,000.00 for damages and costs. In Ms Peeters’s case, the equivalent invitation was for payment of a sum of $400,000.00.
33 Also on Wednesday, 14 August 2019, Mr Serpanos was issued with a “Notice of Suspension From Duty”, by which he was suspended from work without loss of pay with effect from that date. It is plain that that notice was sent in consequence of the allegations against Mr Serpanos, to which Mr McFarlane had referred five days earlier (above, [30]). It is convenient to replicate the terms of that notice (the “Suspension Notice”):
1. It has come to my attention that there is evidence that you may have breached the APS Code of Conduct (the Code).
2. I have received information that you:
• May have made inappropriate and offensive comments of a sexual nature towards a number of colleagues over an extended period of time.
• Are threatening legal proceedings to harass and bully staff, in circumstances where you know that the proceedings have no reasonable grounds.
3. Under Regulation 3.10 of the Public Service Regulations 1999, an employee may be suspended from duty where it is reasonable to believe that:
a) the employee has, or may have, breached the Code of Conduct (the Code); and
b) the employee’s suspension would be in the public, or the ATO’s interest.
4. In accordance with Regulation 3.10, I have decided to suspend you from duty with remuneration. However, I am considering changing your suspension to suspension without remuneration and I invite your submissions in that respect.
5. This decision, which has effect immediately, is based on the serious nature of the suspected breach of the Code. It also takes account of the interests of both the public, the APS and the ATO, having regard to likely public perceptions of the integrity of the ATO if decisive action were not taken.
6. Regulation 3.10(4) requires that a decision to suspend with remuneration be reviewed at reasonable intervals.
7. In deciding to suspend you, I am not prejudging that it will be determined that you have breached the Code.
8. I will end the suspension if I no longer believe on reasonable grounds:
a) that you have, or may have, breached the Code; or
b) that your suspension is in the public, or the ATO’s, interest.
9. I confirm that you may put forward any information you want me to consider in relation to my decision to suspend you within 7 days. Upon receipt of any submission from you, I will review my decision. If you wish to provide comments, please provide these by COB on 21 August 2019 via email to jade.hamilton@ato.gov.au.
10. While the suspension remains in force, you are directed not to enter any ATO premises without express permission from me.
11. You should read the important information about Suspensions attached to this letter.
12. My decisions about suspension are reviewable under s33 of the Public Service Act 1999.
Employee Assistance Program
13. You are reminded of the availability of the Employee Assistance Program (EAP) on 1300 361 008, should you require support in dealing with this matter.
34 The Suspension Notice was provided to Mr Serpanos under cover of an email from Ms Jade Hamilton, of the “Working Well Branch” of “ATO People”. In that email, Mr Serpanos was invited (if he wished) to “…put forward any information…you want me to consider in relation to my decision to suspend you or my consideration to change the suspension from suspension with remuneration to suspension without remuneration [and to do so] within 7 days”.
35 Mr Serpanos accepted that invitation. On Tuesday, 20 August 2019, Mr Serpanos sent an email to Ms Hamilton attaching two documents. The first was a letter written in response to the Suspension Notice. Although lengthy, it is again convenient to replicate the terms of that correspondence (the “20 August Letter”) in full:
I refer to the Notice of Suspension from Duty issued on 14 August 2019 ("the suspension notice").
I am providing the following information for you to consider in making your decision, which include the staff names, as they are relevant for your consideration.
I deny the un-particularised allegation that I "may have made inappropriate and offensive comments of a sexual nature towards a number of colleagues over an extended period of time" (the first allegation).
The suspension notice invites me to make submissions to you (paragraphs 3 and 9) but omits crucial information, which will enable me to do so.
The information as to the complainants may possibly be protected information in relation to the first allegation.
Full particulars of the first allegation are not protected information and must be provided to enable me to make submissions to you.
I require the following information to properly respond:
a) Full particulars of the first allegation, that include the comments that were allegedly made, and the times, dates and places they were made;
b) Full particulars of the reasons why the first allegation was not made at the time that the alleged inappropriate and offensive comments were made; and
c) Discovery of all documents in your possession, custody or control, in relation to the evidence of the first allegation, that is being relied upon in your decision making capacity (the requested information)
I am entitled to a fair hearing in your decision making process, as my employment rights will be impacted. In re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 McHugh J said at p 121 "One of the fundamental rules of the fair hearing doctrine is that a decision maker should not make an adverse finding relevant to a person' s rights, interests or legitimate expectations ... " The Federal Court has held that a public servant employee is entitled to a fair hearing in relation to their promotion and advancement and similarly, I should be entitled to the same protection in relation to a decision impacting upon my employment. In Finch v Goldstein and Others (1981) 36 ALR 287 Ellicott J said at p 299 "Because the decision of the Promotions Appeal Committee under the Act affect the promotion and advancement of individual public servants in the Public Service. I think the proper protection of their rights at least demands that those involved in the appeal proceedings have the right to know the case put against them as well as the opportunity to state their case either orally or in writing ... "
I am entitled to the requested information to enable me to respond. In Kanda v Government of Malaya (1962) AC 322 Lord Denning for the Privy Council stated at p 337 "If the right to be heard is to be a real right which is worth anything, it must carry with it a right to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him and then he must be given a fair opportunity to correct or contradict them." In Commissioner for Australian Capital Territory Revenue v Alphaone Pty. Ltd. (1994) 127 ALR 699 Northrop, Miles and French JJ said at p 715 " ... That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision maker." I cannot rebut or qualify or provide further information unless I am provided with the requested information, as I cannot rebut, or qualify information which I have no knowledge.
I deny the allegation that I am "threatening legal proceedings to harass and bully staff in circumstances where you (meaning I) know that the proceedings have no reasonable grounds."
I instructed my solicitors to send a concerns notice, which constitutes a genuine attempt to resolve a civil dispute without legal proceedings (see Part 3 of the Defamation Act (Victoria) 2005.
Your characterisation of the concerns notice as a threat to issue legal proceedings is erroneous.
I have reasonable grounds for sending the concerns notice. The defamatory act complained about in the concerns notice is in response to a statement "he would even fuck Wendy if that's what it takes to get an EL2." The serious nature of the defamatory act is that it is an inappropriate and offensive comments of a sexual nature that would justify a suspension, and thus I needed to protect my reputation.
2. In relation to your statement where you state that I have been threatening legal proceedings to harass and bully staff, in circumstances where I know that the proceedings have no reasonable grounds. I draw your attention to the following facts:
a. On the 11 May 2019 I raised a complaint with DC Will Day regarding my Directors Wendy Cavanagh's bullying behaviour towards me.
b. Ian Read AC was appointed to investigate my complaint against Wendy Cavanagh.
c. On the 13th June 2019 Wendy Cavanagh responded to my complaint.
d. In Wendy Cavanagh's response 4: to my complaint she stated that she became aware of a comment made by me to a group of males in the team at a happy hour in 2017 stating the following words
"he would even f#l!k Wendy if that's what it takes to get an EL2."
e. In Wendy's response she clearly identified that this message was sent by Samantha Peeters, to Olivia Kim who then showed the message to Wendy Cavanagh this all occurred in 2017.
f. Wendy states that she has seen the message and has kept a screen shot that can be provided upon request.
3. I became aware of the alleged comment in July 2019 after receiving Ian Read's report in relation to my bullying complaint against Wendy. I was shocked by her statement and immediately felt that my reputation and character has been damaged at the workplace.
4. Wendy states further in her response that she became angry and frustrated with this comment by not responding to my request at the time for my career development.
5. In 2017 my work relationship with Wendy broke down, this is evident by the bullying complaints that I made against her. I believe that this false statement might have contributed towards my unpleasant working relationship with Wendy during the past 2 years. This has caused me constant anxiety and depression at work, which finally led to my diagnosis for manic depression in January 2019.
6. Wendy as my Director and Senior Officer in the ATO should have investigated the substance of my comment allegedly made at the time when she became aware of it, which would have mitigated any damage to my reputation and character and also has curbed my career development at the workplace. However, she failed to investigate and clear the matter at the time.
7. Wendy instead of investigating the matter in 2017 held onto the information and published it maliciously in her response to my bullying claim to Ian Read and Alenka Lawrence that has further damaged my reputation and character at the work place and placed a blocker on my career development in the future at the ATO.
8. I believe that Wendy kept the screen shot for an improper purpose to be used to discredit, and defame my character and reputation at the workplace in the future.
9. I sought advice from my Legal representatives and they advised me that the publication of the statements by Samantha, Olivia and Wendy formed the basis of an action in tort known as Defamation under the Victorian Defamation Act 2005.
10. Accordingly I instructed my lawyers to issue a concerns notice under section 14 of the Defamation Act 2005 (Vic) to the parties that defamed me.
11. I enclose a copy of a letter dated 20 August 2019 from my lawyer confirming his advice provided to me when he issued the concerns notices.
12. I have checked the APS Code of Conduct and submit that I have complied with the following:
• I have behaved honestly openly and with integrity in dealing with this matter.
• I have complied with all Australian laws in following the correct legal avenue to defend my character and reputation at the workplace refer to Tassone v Kirkham (2014) SADC 134 where the Plaintiff and Defendant both worked as Commonwealth Correctional Officers at the Department for Correctional services in Adelaide and were entitled to sue for defamation without risk that adverse action would be taken against them by their employer.
• I have the same rights to commence legal action against other staff members for defamation and this case is a precedent for initiating private legal action between staff.
13. In fact, recently the ATO's own Commissioner Chris Jordan when defending his own private defamation action has taken legal action against the first Commissioner Andrew Mills for not releasing evidence to support his case. Hence, I believe that I have the same rights to take legal action in order to protect my workplace rights against other ATO employees and should not be considered as threatening, harassing or indeed bullying staff.
14. Under the Fair Work Act 2009 an employee has protected rights without adverse action from an employer. Part 6 Division 3 section, 340 in particular affirms those rights. In fact it is unlawful for an employer to take adverse action when an employee is acting to protect their workplace rights.
15. A workplace right includes the ability to make a complaint or inquiry in relation to his or her employment.
16. By denying me the right to seek legal action to protect my character and reputation in the workplace is considered a fundamental breach of my human rights and in fact is unlawful under the FW A 2009.
17. I take issue in particular to the statement you received where you state "in circumstances where I know that the proceedings have no reasonable grounds"
18. I am not a defamation expert however I consulted lawyers who are experts in defamation and was advised by them that I had a reasonable case to pursue an action for defamation against all 3 parties. Accordingly my action is not frivolous and vexatious or indeed threatening bullish or harassing. I remind you that I have already incurred legal costs in seeking that advice.
19. Your notice clearly states in paragraph 2 dot point 2 that my legal action proceedings is threatening, and is harassing, and bullying ATO staff, however I have now provided you with particulars of my claim and reasons why I acted to protect my character and reputation. This is not threatening harassing or indeed bullying behaviour. With respect if you act on that information you received it is contrary towards the protection of my workplace rights and I submit is in fact unlawful under the FWA Act 2009 that affirms my rights as an employee at the workplace.
20. I note that the alleged inappropriate and offensive comments of a sexual nature towards a number of colleagues has only just come to light after I issued a concerns notice to the parties recently. I believe that these allegations have an ulterior purpose, as I have never been investigated for comments made by me of a sexual related nature towards any colleagues within the ATO before I issued the concerns notice to the related parties.
21. For the record the action for defamation is a private matter accordingly I have funded the matter at my own cost as I am aware of the obligations of the ATO under the Financial Management and Accountability Act 1997 and I refer in particular to section 44 which promotes the efficient, effective and ethical use of Commonwealth resources. This includes a responsibility to properly manage the spending of public money on legal services in particular. On the issue of legal costs I would appreciate the ATO to remain impartial until the matter is determined.
Why you should not change my suspension to suspension without remuneration
1. Natural Justice
Under the principles of natural justice and or procedural fairness at common law there are three key requirements:
• The hearing rule: that the person who has allegedly breached the Code has the right to be heard or present their case.
- This means that during an investigation the accused is advised of the allegations and given the opportunity to reply.
• The bias rule: that no one ought to judge his or her own case i.e. there is a requirement that the decision maker is unbiased.
- This means that investigators and decision makers:
• must act without bias in relation to all procedures
• must be impartial
• must make decisions based on a balanced and considered assessment of the information and evidence without favour
• should be careful to avoid the appearance of bias and,
• should ensure there is no conflict of interest.
• the evidence rule: that an administrative decision must be based on logical proof or evidence material. This means that investigators and decision makers should not base their decisions on mere speculation or suspicion, and should be able to clearly point to the evidence on which the inference or determination is based.
I am an employee of the ATO as well and would expect the ATO to treat me fairly, ethically and remain impartial towards my resolution of my private action for defamation against the other parties.
2. APSC HR Managers guide to Handling Misconduct
1. Part 2.2.1 of the APSC Managers Guide (the guide) on handling misconduct states that the misconduct action is not seeking to punish the employee; accordingly I should not have my pay suspended until the evidence proves that I have breached the APS Code of Conduct. (the code)
2. Part 5.8 of the guide provides the framework that an agency should follow when deciding whether to reassign duties temporary or to suspend from duty when investigating whether a breach of the code has occurred. Bearing all the matters raised above I submit that I have acted properly, according to the law and the APS Code of Conduct. Hence, I should not be suspended or punished for simply acting to protect my human rights and workplace rights under the FWA 2009.
3. I submit that it would not be procedurally fair to suspend me without pay additionally I should be suspended with pay until the investigation is completed. Also under s 15 of the Public Governance, Performance and Accountability Act 2013 it is submitted that it would be appropriate for a suspended employee to be remunerated if they are not working in another job as is the case with me.
Due to the serious nature of the allegations and the fact that there is an intractable dispute in relation to the factual issues relation to the allegations, I am entitled to a formal hearing, in which I am able to present evidence, cross examine the complainants and make submissions. Without a formal hearing, it will be impossible for you, as the decision maker to make a decision as to whom should be believed. In Commissioner of Police v Tanos (1958) 98 CLR 383 at 395 Dixon CJ and Webb J said that "it is a deep rooted principle of the law that before anyone can be punished or prejudiced in his person or property by any judicial or quasi judicial proceeding he must be afforded an adequate opportunity of being heard." In Grimshaw v Dunbar (1953) 1 QB 408 at 416 Jenkins LJ said at p 416 "Be that as it may a party to an action is prima facie entitled to dispute his opponent's case and cross examine his opponents witnesses and he is entitled to call his own witnesses and give his own evidence before the court.
I await your reply.
36 The other document that Mr Serpanos sent to Ms Hamilton on Tuesday, 20 August 2019 was a letter of that same date from his lawyer, Mr Stan. That letter referred to a conference that Mr Serpanos had recently attended with a barrister and confirmed that “…based on the instructions facts [sic] you have provided us that you had legal [sic] basis for sending the Concerns Notice [sic] to address the defamation imputations published against you by three parties.”
37 On Wednesday, 21 August 2019, Mr Serpanos sent a further document by email to Ms Hamilton, namely a letter of that date addressed to him from his former solicitor, Mr Wright of Bold Lawyers. In that letter, Mr Wright noted that “[s]ubject to positive verification that the publications were made and that those statements [not identified but presumably including the Even Wendy Comment, or comments as to its having been made] are untrue, the publications and the imputations that the publications convey are clearly defamatory [and that b]ased on [Mr Serpanos’s] instructions there was clearly a reasonable basis to issue the concerns notices.”
38 Notwithstanding his supply of that information, the basis upon which Mr Serpanos was suspended changed with effect from Friday, 23 August 2019. From that point, his suspension from work was accompanied by a suspension of his remuneration.
39 On Monday, 26 August 2019, Ms Kotronakis, acting Assistant Director of the ATO’s “Working Well—ATO People” group issued to Mr Serpanos a “Notice of Suspected Breach”, by which it was alleged that Mr Serpanos had conducted himself contrary to the requirements of the APS Code of Conduct. Ms Kotronakis had, by that point in time, been made responsible for making a “breach determination”—in other words, a determination as to whether or not Mr Serpanos had contravened the APS Code of Conduct—under an internal ATO policy known as its “Procedures for determining whether an employee has breached the APS Code of Conduct and imposition of sanction” (to which I shall hereafter refer as the “APS Code of Conduct Procedures”).
40 It is convenient to set out in full the terms of the notice that Ms Kotronakis sent to Mr Serpanos on Monday, 26 August 2019 (hereafter, the “NOSB”):
1. I have received information that you may have breached the APS Code of Conduct (the Code).
2. In accordance with the Australian Taxation Office (ATO) Procedures for determining breaches of the APS Code of Conduct and the Imposition of Sanction (the ATO Procedures), I am authorised to determine whether you have breached the Code. A copy of the ATO Procedures is at Attachment A.
3. The purpose of this letter is to inform you of the details of the suspected breaches and provide you with the material to be relied upon in determining the suspected breaches. I have set out details of the suspected breaches below and I have attached to this Notice at Attachments B - H the relevant information I will rely on when considering this matter.
Relevant Background
4. You commenced employment with the ATO on 12 May 2000 and are currently employed as an ongoing EL1 Client Engagement Officer in the Integrated Compliance (IC) business line at the ATO’s Dandenong office.
5. Attached are two complaints lodged by:
a. Ms Olivia Kim, acting APS5, Client Engagement Officer IC (refer to Attachment B); and
b. Ms Samantha Peeters, APS4, Client Engagement Officer IC (refer to Attachment C).
6. I have also been provided with relevant information from three other employees (refer to Attachments D – F).
7. The complaints and statements at Attachments B -F contain several allegations and associated information about your behaviour from circa March 2016 to February 2019. Specifically it is alleged that:
a. You engaged in sexually harassing behaviour that included inappropriate discussions and/or made inappropriate comments of a sexual nature, to ATO colleagues including:
i. a conversation with Ms Peeters and Ms Kim in 2016 in which you looked Ms Peeters up down and stated that you don’t like white women, but preferred Asian women,
ii. a conversation with ATO colleagues, including Ms Peeters, on 14 October 2016 in which you stated that you were horny and your wife was not “putting out”. You made comments about “just snapping and grabbing someone”,
iii. repeated references to “the yogurt maker”, referring to your penis and/or your use of an automated masturbation machine in the workplace,
iv. advising ATO colleagues and repeatedly referring to your use of an automated masturbation machine, which you referred to as AB and/or AB2,
v. stating in front of several ATO employees, including Ms Peeters, at happy hour in Dandenong on 7 April 2017, that you would “fuck Wendy for a promotion” and then referenced that she was disabled,
vi. stating to several ATO colleagues, on 16 October 2017, that you had a sexual dream about Ms Peeters which involved bestiality, specifically comments that [Ms Peeters] “enjoyed a chicken in her ass” (sic) and
vii. stating that you cheat on your wife with prostitutes and meet with prostitutes during breaks from work and have sex with them in your car. The comments included a conversation with Ms Peeters where you stated how “you would sleep with them [prostitutes] in your car behind buildings, and how they were all Asian, younger than [Ms Peeters] and were not in it for the money”.
b. You engaged in sexually harassing behaviour by sending Ms Peeters a link to an automated masturbation machine over Facebook.
c. You engaged in harassing behaviour towards several employees. This behaviour included:
i. threatening defamation action against Ms Kim, Ms Peeters and Ms Cavanagh in circumstances where you knew the proceedings were vexatious because:
• they were grounded on an assertion that you did not make the statement “I would even fuck Wendy for a promotion” when you knew that you did make this statement, and
• seeking damages against these three individuals collectively of $1.1 in full knowledge that this quantum has no reasonable basis.
ii. exclusionary behaviour against Ms Prosch and Ms Kim. For example, ignoring and ostracising Ms Prosch and Ms Kim and talking about them in a negative manner when they raised concerns about your behaviour.
Suspected Breach 1
8. By engaging in the behaviour outlined in paragraph 7, specifically:
• Sexually harassing behaviour (paragraphs 7a and 7b) and/or
• harassing behaviour (paragraph 7c),
it is suspected that you have failed to act with honesty and integrity. It is therefore suspected that you have breached subsection 13(1) of the Code:
13(1) An APS employee must behave honestly and with integrity in connection with APS employment.
Suspected Breach 2
9. By engaging in the behaviour outlined in paragraph 7, specifically:
• Sexually harassing behaviour (paragraph 7a and 7b) and/or
• harassing behaviour (paragraph 7c),
it is suspected that you have failed to treat employees with respect and courtesy, and without harassment. It is therefore suspected that you have breached subsection 13(3) of the Code:
13(3) An APS employee, when acting in connection with APS employment, must treat everyone with respect and courtesy, and without harassment.
Suspected Breach 3
10. By engaging in the behaviour outlined in paragraph 7, specifically:
• sexually harassing (paragraph 7a and 7b) and/or
• harassing behaviour (paragraph 7c),
it is also suspected that you have failed to behave in a way that upholds the APS values and good reputation of the ATO and the APS. It is therefore suspected that you have breached subsection 13(11) of the Code:
13 (11) An APS employee must at all time behave in a way that upholds:
(a) the APS Values and APS Employment Principles; and
(b) the integrity and good reputation of the employee’s Agency and the APS.
Specifically, with respect to subsection 13(11)(a):
APS Values: Respectful
10(3) The APS respects all people, including their rights and their heritage.
Suspected Breach 4
11. It is alleged that:
• the behaviour outlined in paragraphs 7a and 7b could reasonably be expected to offend, humiliate and/or intimidate Ms Peeters, Ms Kim and Ms Cavanagh and constitutes sexual harassment, and
• the behaviour outlined in paragraph 7c could reasonably be expected to offend, humiliate, intimidate, threaten or demean Ms Peeters, Ms Kim, Ms Cavanagh and Ms Prosch.
12. It is therefore suspected that you have failed to comply with the directions contained in Chief Executive Instruction (CEI) 2015/02/05 – Workplace Bullying, Harassment and Discrimination (refer to Attachment G).
13. Specifically, the CEI directs employees to demonstrate behaviour in accordance with the APS Values, Employment Principles and Code, including treating everyone with respect and courtesy and not engaging in, aiding or permitting behaviours that constitute bullying, harassment or discrimination.
14. The Workplace Bullying, Harassment and Discrimination – Questions and answers provide context to the CEI (refer to Attachment H).
15. By failing to comply with the directions contained in (CEI) 2015/02/05 it is suspected that you have breached subsection 13(5) of the Code:
13 (5) An APS employee must comply with any lawful and reasonable direction given by someone in the employee's Agency who has authority to give the direction.
Your opportunity to respond
16. Under the ATO Procedures, you are entitled to an opportunity to make a statement in relation to the suspected breaches.
17. If you wish to make a statement or provide additional information in relation to the suspected breaches, you have until close of business on Monday, 2 September 2019 to do so. Your response should be forwarded to me via email, at ani.kotronakis@ato.gov.au.
Employee Assistance Program
18. You are reminded of the availability of the ATO Employee Assistance Program on 1300 361 008 should you require support in dealing with this matter.
(references omitted)
41 Attached to the NOSB were the various attachments to which it refers. The “CEI” was an instrument made pursuant to s 13(5) of the Public Service Act. It is unnecessary to trace its content here. That instrument appears to have been supported by some guidelines published at least within the ATO (if not the broader public service), headed “Workplace Bullying, Harassment and Discrimination – Questions and answers”. Again, the content of that instrument needn’t here be rehearsed.
42 On Monday, 2 September 2019—and by way of acceptance of the invitation extended to him by the NOSB—Mr Serpanos sent to Ms Kotronakis an array of documents responding to the matters that she had identified. Amongst them was a 41-page document headed, “Response to Notice of Suspected breach of APS Code of Conduct”, a slightly revised version of which was sent to Ms Kotronakis the following day. That document (the “2 September Response”) needn’t here be replicated (either in its original or revised form). It suffices to note that, by it, Mr Serpanos:
(1) denied that he had acted in contravention of the APS Code of Conduct;
(2) alleged that the complaints raised against him were, at least in some cases, historical and were designed to “destroy [his] credibility in proceeding with [his] defamation action”;
(3) demanded that all of the people who were present at the time that the Even Wendy Comment was alleged to have been made be interviewed and asked to sign statements recording what they observed or heard;
(4) suggested that Ms Peeters and Ms Kim had gone about obtaining information about him and his movements in the workplace in order that they might provide it to Ms Cavanagh in exchange for “preferential treatment”;
(5) accused Ms Cavanagh of showing “reckless disregard as to the truth” regarding his having allegedly made the Even Wendy Comment, and of having “…published this untrue statement…for an improper purpose and maliciously to further damage [his] name and reputation within the ATO”;
(6) suggested that the “conflicting, hearsay and uncorroborated information” with which he had been provided “[did] not support [the] complaints….[which were] malicious and vexatious”;
(7) accused Ms Peeters of “…deliberately making up gossip and spreading nasty rumours about [him] without any basis” and of having “…a reputation for making sexual allegations against male co-workers”;
(8) denied partaking in sexualised conversations with co-workers;
(9) accepted that he had been present during a discussion or discussions about “yoghurt makers” and a sex toy known as “AB” or “AB2”—but maintained that he did not himself partake in them;
(10) maintained that the defamation action threatened against Ms Cavanagh, Ms Kim and Ms Peeters was not vexatious, was being pursued because what they had said of him was untrue, and sought payment of an amount by way of damages and costs that had been the subject of advice (written facsimiles of which were attached);
(11) observed that another ATO employee, to whom he was alleged to have spoken about a dream that he had had regarding Ms Peeters (and who was alleged to have later recounted the sexually graphic content thereof to her), in fact had admitted that what he had recounted to Ms Peeters was not what Mr Serpanos had told him; and
(12) otherwise denied having engaged in the other conduct of which he stood accused.
43 Two days later (on Wednesday, 4 September 2019), Mr Lapidos sent an email to Mr Sheil regarding Mr Serpanos’s state of mental health. Mr Serpanos was copied to that email and, later that afternoon, replied to it. In that reply (the “4 September Email”), Mr Serpanos made the following observations (errors original):
As I said to [Mr Lapidos] today I have spent most of the last week putting together my response to the NOSB and I confident I did not say what was alleged.
The statements and evidence tendered clearly support my case. As most of the information provided clearly points the finger to Ms Peeters creating and spreading the gossip and lies in 5 out of the 7 allegations in the first place against me.
The other evidence is hearsay and based upon what Ms Peeters has stated. Ms Peeters is the culprit in raising these allegations.
It is crazy that I am not allowed to return to work. These allegations are cleared created some 2 to 3 years after they allegedly occurred . Yet none were reported back then .. they have only come up after I lodged my notices of concern ..
…
The evidence in Ms Peeters complaint strengthens my defamation case as well
44 The following day, Mr Serpanos sent a follow-up email to Mr Sheil and Mr Lapidos. That email (the “5 September Email”) read as follows (emphasis original):
Hi Dom and Jeff,
Further to my email sent yesterday I would like to add the following comments:
My Memory
• I was cleared to return to work by Doctors from the Eastern Health Adult Mental Health Service in Box Hill after undertaking treatment in Upton House in 2015.
• I was also cleared by the Psych from the same centre in 2016 to return to work.
• I have no memory issues at work with respect to my job as this has never been an issue with my manager.
• Given the allegations made against me occurred around 2 to 3 years ago, the nature of the allegations are extremely bizarre and if true no one made any complaints to their Manager at the time. This is unbelievable
• I deny making the sexual comments and I believe that this can be confirmed from the other team members by requesting signed statements from them or other parties mentioned in the complaints.
• The only conclusion I can reach is that Ms Peeters is making fun of me due to my mental health issues of which all my team were aware.
• Unfortunately Ms Kim listened to and was influenced by Ms Ms Peeters in respect to the untrue gossip generated and spread by Ms Peeters.
• I am now alerted to the fact that since 2016 I have been subjected to workplace discrimination and harassment due to my illness. For example Ms Kim in the text conversation with Ms Peeters said the following "He can't even be an acting team leader this guy doesn't even know how to start an audit''.
Legal Action
• Dom as I have stated previously to you my outcome that I am seeking for the defamation action is very simple.
1 An Apology from the 3 parties;
2 Legal costs paid;
3 Damages can be negotiated
• Instead of being pro active to resolve the matter with me, the parties have lodged untrue sexual harassment claims against me as a counter attack to my legal matter against them. Due to the grapevine effect my wife who is completely innocent is suffering as she has to go to work everyday. Because everyone at the office is talking about this matter.
• Some people have even approached my wife and told her that your husband is on unpaid leave.
• I spoke to my barrister…who is preparing my writ who confirmed that the writ will be issued by the end of this week or next early.
• The evidence provided by the other parties which has further strengthened my defamation case.
ATO
• As I have stated previously I have no issues with the ATO and respect the organisation as a whole, although I am disappointed with some ATO peoples decisions.
• However I have found the ATO’s position in dealing with this case bizarre because the evidence is very clear that Ms Peeters has fabricated, generated and spread rumours about me.
• Instead of investigating Ms Peeters behaviour which is misconduct, I am placed in a position of being forced to admit that I did something which I did not do.
• By doing that my Mental Health issues have also now being brought into my case by the ATO.
• My good performance has been ignored ever since I returned to work from hospital.
• If the ATO finds against me based upon unjust and untrue allegations, I will be forced to take legal action in the Federal Court. This will be a sad day for me as I do not want to go down this path.
• I still have hope that the ATO as an organisation maintains its values which integrity is fundamental to maintaining community trust and confidence, and its employees act ethically and with integrity in according to the APS values and Code of Conduct.
• I trust that the ATO will make a decision in accordance to the facts and evidence and not be swayed by any bias or pre conceived judgment already made including my mental illness.
Kind regards
Hari Serpanos
45 On 13 September 2019, Mr Serpanos commenced a defamation action in the County Court of Victoria against Ms Cavanagh, Ms Peeters and Ms Kim. By it—and, perhaps more particularly, by the statement of claim that he filed therein (hereafter, the “Defamation Filings”)—he charged those defendants with having defamed him insofar as they had published allegations that he had made the Even Wendy Comment. Mr Serpanos sought damages, aggravated damages, interest and costs as against each defendant.
46 At some point not long thereafter, Mr Serpanos learned of measures that the ATO had agreed to adopt to indemnify (or at least partially indemnify) Ms Cavanagh, Ms Peeters and Ms Kim in respect of costs incurred in the defence of his defamation action. On Saturday, 21 September 2019, Mr Serpanos sought clarification from Mr Sheil as to “…whether the ATO are [sic] funding or indemnifying the legal costs of Ms Cavanagh, Ms Peeters and Ms Kim…”
47 On 8 October 2019, a lawyer in the ATO’s office of General Counsel confirmed that “…legal assistance under the Legal Services Directions 2017 ha[d] been granted to Ms Cavanagh, Ms Peeters and Ms Kim with respect to [Mr Serpanos’s] defamation proceedings.”
48 Meanwhile, Ms Kotronakis set about determining whether or not (or to what extent) Mr Serpanos was guilty of having conducted himself in the ways outlined in the NOSB. The efforts to which she went in that regard are explored in more detail below. For now, it suffices to summarise her conclusions.
49 On Monday, 2 December 2019, Ms Kotronakis sent an email to Mr Serpanos, attaching a “Determination Report”. Several aspects of that document (the “Determination Report”) warrant noting. The first concerns the factual findings to which Ms Kotronakis was drawn. They were recorded as follows:
FINDINGS OF FACT
51. I am satisfied that between 2016 and 2019, Mr Serpanos engaged in sexually harassing behaviour in the workplace, including behaviour directed at some of his female colleagues, as set out in the [NOSB].
52. I am satisfied that between 2016 and 2019, Mr Serpanos engaged in harassing behaviour towards Ms Kim and Ms Prosch, as set out in the [NOSB].
53. I am satisfied that Mr Serpanos engaged in harassing behaviour towards Ms Peeters, Ms Kim and Ms Cavanagh by threatening and then commencing defamation proceedings against them.
50 In reaching those conclusions, Ms Kotronakis confronted the apparent conflict in the evidence with which she had been provided. She addressed that conflict as follows:
DISCUSSION OF THE EVIDENCE
21. There are differing accounts of critical events grounding the suspected breaches. Several general observations may be made in advance about the state of the evidence.
22. First, all the allegations (with the exception of the email correspondence with Ms Chang, which is discussed further below) are made by women in the team, or women who had dealings with women in the team: Ms Peeters, Ms Cavanagh, Ms Kim, Ms Prosch and Ms Dickman. Mr Serpanos alleges these women are all friends and says the allegations have been concocted to destroy his character ‘making up untrue allegations’ and naming him in these allegations when he was clearly not involved. He says this has now caused damage to his reputation with the ATO and in the future by portraying him as a ‘sexual offender and a monster’. There are no specific complaints about others in the team apart from Mr Serpanos, although Mr Vydelingum and Mr Bartholomeusz appear to have had a role in transmitting some of the relevant information to the complainants. I am not persuaded that the fact the complainants are allegedly friends, or that they have not complained about others, affects the credibility of their evidence.
23. Second, most of the allegations date from 2016 to 2018. The age of the allegations also does not concern me for several reasons. Some of the allegations were reported or discussed by the complainants contemporaneously, so this is not a case where allegations are being made for the very first time in 2019. Also, and more importantly, I find it entirely plausible that these employees, particularly Ms Kim and Ms Peeters, who had recently been employed as graduates under the ATO’s graduate program, would have been reluctant to report the behaviour of a more senior colleague.
24. Third, what is alleged here appears to be a prolonged pattern over several years of sexualised comments and harassment in the workplace. In that context, exact dates and times of events are less important than establishing the existence of the pattern. I have taken a holistic approach to the evidence, rather than considering the details of each allegation in paragraph 7(a) of the Notice in isolation.
25. I have given serious consideration to making enquiries with other potential witnesses, particularly Mr Vydelingum and Mr Bartholomeusz. In the end, I have not done so, partly because some of what they are likely to have to say is already recorded and partly because they appear to have been acquiescent in some of the conduct that has been reported. In addition, I note Mr Bartholomeusz has since left the ATO.
26. I am reluctant at this stage to draw current team members into this investigation. In deciding against drawing more team members into this investigation, I have also considered Mr Serpanos’s submission that the allegations have been made up to cause damage to his reputation and whether I should therefore discount the probative value of the complainants’ evidence. As will become clear from the discussion below, I reject the proposition that the complainants are engaged in some kind of collusion against Mr Serpanos. A more plausible explanation for the similarity of their evidence is that they witnessed the same conduct by Mr Serpanos and others, or were aware of the conduct because they discussed it contemporaneously. I am prepared to accept that the complainants are fundamentally witnesses of the truth. That reinforces my decision not to draw in other members of the team to take sides in dispute as to the facts.
51 On the issue of greatest significance presently—namely, the nature and significance of Mr Serpanos’s threatened-and-then-actual defamation proceeding—Ms Kotronakis made the following observations in the Determination Report:
Threatening defamation proceedings
45. At the time of the [NOSB], Mr Serpanos had threatened defamation proceedings against Ms Kim, Ms Peeters and Ms Cavanagh in relation to the allegation that he had said at a happy hour on 7 April 2017 that he ‘would fuck Wendy for a promotion’. He threatened to sue them collectively for $1.1 million, which appears to be a disproportionate sum in the circumstances. Mr Serpanos has since commenced defamation proceedings against Ms Peeters, Ms Kim and Ms Cavanagh in relation to that alleged incident.
46. I have already concluded that I prefer the evidence of Ms Peeters and Ms Kim to that of Mr Serpanos on the allegation that Mr Serpanos said he would ‘fuck Wendy for a promotion’ because Ms Peeters sent a text message about it to Ms Kim contemporaneously on 7 April 2017. I consider it most unlikely she would have done so if she had not heard Mr Serpanos say what is alleged. Given that I accept her evidence over Mr Serpanos’s evidence, it naturally follows that I disbelieve Mr Serpanos’s evidence.
47. Given that I disbelieve Mr Serpanos’s evidence, I am satisfied that threatening and then commencing defamation proceedings seeking substantial damages against Ms Peeters, Ms Kim and Ms Cavanagh is harassment.
52 Ultimately, Ms Kotronakis determined that Mr Serpanos was guilty of four contraventions of the APS Code of Conduct. Those conclusions were recorded in the Determination Report as follows (errors original):
55. I am satisfied that Mr Serpanos breached section 13(1) of the Code by not behaving with honesty and integrity. His lack of integrity is evidenced by his sexually harassing behaviour, and his exclusionary behaviour of Ms Kim and Ms Prosch, and his harassment of Ms Peeters, Ms Kim and Ms Cavanagh by threatening and then commencing defamation proceedings against them.
56. I am satisfied that Mr Serpanos breached section 13(3) of the Code by failing to treat other employees, particularly Ms Peeters, Ms Kim and Ms Cavanagh, with respect and courtesy, and without harassment. This is evidenced by his sexually harassing behaviour, his exclusionary behaviour of Ms Kim and Ms Prosch, and his harassment of Ms Peeters, Ms Kim and Ms Cavanagh by threatening and then commencing defamation proceedings against them.
57. I am satisfied that Mr Serpanos breached section 13(11) of the Code by failing to behave in a way that upholds the APS Values and good reputation of the ATO and the APS. This is evidenced by his sexually harassing behaviour, his exclusionary behaviour of Ms Kim and Ms Prosch, and his harassment of Ms Peeters, Ms Kim and Ms Cavanagh by threatening and then commencing defamation proceedings against them.
58. I am satisfied that Mr Serpanos breached section 13(5) of the Code by failing to comply with a lawful and reasonable direction, specifically contained in CEI 2015/02/05, which required him to deal with his colleagues without bullying, harassment and discrimination. This is evidenced by his sexually harassing behaviour, his exclusionary behaviour of Ms Kim and Ms Prosch, and his harassment of Ms Peeters, Ms Kim and Ms Cavanagh by threatening and then commencing defamation proceedings against them.
53 In her email of 2 December 2019, Ms Kotronakis explained to Mr Serpanos that her conclusions would be the subject of separate consideration by a “Sanction Delegate” appointed under the APS Code of Conduct Procedures, whose role would be to consider what ought to happen in light of them. That role fell to Ms Boyd, the ATO’s Assistant Commissioner, ATO People.
54 Although adopted and signed by Ms Kotronakis, the Determination Report was prepared (or at least substantially prepared) by Mr Anthony Riley (whom Ms Kotronakis described as a “ghost writer” that she had engaged for that purpose). Its content was the subject of a first draft, which Mr Riley provided to Ms Kotronakis and Mr Sheil, both of whom gave some feedback on its content. Mr Riley’s second draft was then provided to Ms Kotronakis, who made some further changes to it. Once satisfied with its content, Ms Kotronakis provided a copy of it (still in draft form) to the two directors of her “Working Well” team, Ms Nardine McLoughlin and Ms Kirsty Morris, for what she described as “quality control” purposes. Once satisfied about its content, she sent a final copy of the report to Mr Serpanos. That occurred on Monday, 2 December 2019.
55 On Friday, 6 December 2019, Ms Kotronakis sent a copy of her Determination Report to Ms Boyd, together with what she described as a “draft sanction consideration letter”. That draft correspondence was apparently offered as an example of what Ms Boyd might choose to send to Mr Serpanos after considering the findings that were contained within the Determination Report. The evidence that was given as to the preparation of that letter is explored in more detail below; but, for now, it suffices to note that it contained a paragraph that stated that the appropriate “sanction” to impose upon Mr Serpanos in light of the Determination Report was the termination of his employment.
56 On Monday, 9 December 2019, Mr Sheil emailed Mr Serpanos about the steps that would ensue in connection with the Determination Report. Mr Sheil explained that it would normally fall to him to determine what, if any, sanction should result from the conclusions stated within that report; but that, in light of his “involvement to date and the potential for that to give rise to questions about [his] impartiality”, he had delegated that responsibility instead to Ms Boyd.
57 Approximately half an hour later, Ms Boyd sent to Mr Serpanos a letter headed “Sanction Consideration”. With very minor edits, it assumed the form of the draft sanction consideration letter that Ms Kotronakis had sent to her on the previous Friday. It is convenient to set out its terms in full:
1. Ms Ani Kotronakis determined on 2 December 2019 that you breached the APS Code of Conduct (the Code), specifically subsections 13(1), 13(3), 13(5) and 13(11) of the Public Service Act 1999 (the PS Act).
2. I am the delegate to consider what, if any, sanction should be imposed. I have received a copy of the determination report and associated documents related to this matter.
Proposed sanction
3. I have been considering what sanction to impose under section 15 of the PS Act following this determination. My view is that termination of employment is appropriate. I set out below my reasons for reaching this view.
Reasons for proposed sanction
4. Sanctions for breaches of the Code are primarily aimed at protecting the agency and the APS and thereby maintaining community confidence in public administration. Rather than seeking to punish an employee, an objective of misconduct action is to maintain proper standards of conduct by APS employees and to protect the reputation of the APS.
5. My preliminary view on the appropriate sanction in this matter recognises the serious nature of the breaches of the Code.
6. I consider your sexually harassing and exclusionary behaviour to be exceptionally offensive. Your behaviour demonstrates a fundamental lack of respect and courtesy towards other ATO employees.
7. Moreover, your behaviour in threatening and then commencing defamation proceedings in circumstances where you know the proceedings are vexatious demonstrates a lack of integrity.
8. You have not accepted any responsibility for your actions. Rather, you have responded to the allegations in a manner described by Ms Kotronakis to be “at times self-serving and tailored to deal with the facts that he [you] cannot deny”. This suggests a complete lack of awareness or otherwise disregard of the standards of ethical behaviour required of you as an APS employee.
9. You have not considered the impact of your actions on other ATO employees or the potential significant consequences of your actions on the reputation of the ATO. I consider this attitude incompatible with your ongoing employment.
10. In considering the circumstances of this matter and forming a view on an appropriate sanction I have taken into account your length of service and the likely impact of a sanction (particularly termination of employment) on your future employment prospects.
Opportunity to respond
11. I am inviting you to make written submissions regarding the proposed sanction. Any submissions are due by close of business on Friday, 13 December 2019. My email address is megan.boyd@ato.gov.au.
12. I will consider any information you provide and will advise you of my decision as soon as possible.
Access to support
13. You are reminded of the availability of the Employee Assistance Program (EAP) on 1300 361 008, should you require support in dealing with this matter.
58 Later that day (Monday, 9 December 2019), Mr Serpanos sent an email to an internal “ReviewOfEmploymentActions” email address, by which he requested “…a review of the determination issued by the ATO finding breaches of the ATO Code of Conduct against me”. He identified some grounds upon which such a review should occur, namely (errors original):
The investigation was done simply to confirm a pre existing view by the ATO that i had breached the code.
The investigator has failed to interview anyone in making her decision but simply believed the complainants without interviewing Team Leader, and other members of the team.
The investigator failed to take into account my absence from the team during the time the allegations were made.
The investigator failed to take into account my return to work program in 2016 where i suffered severe depression and ECT treatment at a mental hospital that rendered me incapable of making sexual comments during 2016. The investigator said the dates were irrelevant.
The investigator failed to take into account my length of service since 2000 without incident.
The investigator failed to consider that the allegations against me for forwarded to the defendants solicitors before any findings were made.
The investigator failed to consider that the allegations were made immediately after i commenced legal action for defamation.
59 On Thursday, 12 December 2019, Mr Serpanos’s then lawyers, McDonald Murholme Barristers & Solicitors, wrote to Ms Boyd regarding her letter of three days prior. That correspondence offered the following by way of response:
Our client refers to and repeats the material he has provided in response to the allegations and maintains his denial.
Further, we are instructed to respond as follows:
1. Since the 23 August 2019 our client has been suspended without pay which has caused significant financial hardship;
2. The allegations are clearly retaliation for our client issuing genuine defamation proceedings;
3. The investigation was flawed as it was conducted in a manner to achieve a desired outcome, which is evidenced by a failure to interview relevant witnesses;
4. The allegations were provided to the defendants in the defamation proceedings (and their lawyers) before the determination was made, which indicates a clear conflict of interest;
5. The investigator did not apply the Briginshaw standard when considering the allegations;
6. Our client has a long and unblemished career at the ATO prior to the allegations;
7. The investigator failed to consider our client's mental illness from 2015 to 2017 and the related absences, which correlate to the period in which the alleged comments were made.
8. By reason of our client's mental illness he underwent ECT treatment which had the effect of slowing his thinking resulting him being placed on alternate duties.
9. Our client was discriminated against during the period of his mental illness, and the allegations regarding sexual comments are an extension of this discriminatory treatment.
10. The alleged sexual comments were only alleged to have been made while Ms Peeters was in our client's team, and not before or after. This supports a conclusion that Ms Peeters fabricated the allegation.
11. The investigator made conclusions notwithstanding that there was no first hand evidence which supported Ms Peeters allegations. The only evidence in support was hearsay evidence based on what Ms Peeters alleged was said.
12. The allegations were made after our client commenced defamations proceedings, notwithstanding that the alleged conduct was said to have occurred years before.
13. The alleged comments were said to have been in front of 16 ATO employees, however not one made a complaint until 2019, which supports the assertion that the allegations are fabricated.
14. Our client's reputation has been ruined.
Accordingly, our client opposes the proposed sanction on the basis that he did not engage in the alleged conduct and the investigation was flawed.
60 Early in the morning of Monday, 16 December 2019, Ms Boyd resolved to terminate Mr Serpanos’s employment. She prepared a note that recorded her decision as follows (errors original):
Mr Hari Serpanos – code of conduct matter
I have reviewed the information contained in the letter from Mr Andrew Jewell [of McDonald Murholme Barristers & Solicitors] dated 12 December 2019.
Mr Jewell notes that Mr Serpanos refers to the material he has provided previously in relation to the notice of suspected breaches and determination report.
I note that these comments are not about the sanction per say but rather made about the validity of the determination itself.
I note that Mr Serpanos opposes the proposed sanction of termination and that he also asserts that he did not engage in the alleged conduct and that the investigation is flawed.
As noted by Mr Jewell these comments have been previously made to the determining officer and these is nothing additional in the letter from him that relates to the sanction.
As the delegate I am satisfied that termination of employment is appropriate.
61 Shortly afterward, Ms Boyd sent a copy of that note to Ms Kotronakis and asked her (Ms Kotronakis) to prepare a “…covering letter and termination notice for issue today”. Unbeknownst to Ms Boyd, Ms Kotronakis had commenced a period of leave and did not receive the email.
62 Nonetheless, a “notice of termination of employment” dated 16 December 2019 was prepared (most likely by somebody in Ms Kotronakis’s team, although the evidence about that was not conclusive) and signed by Ms Boyd, as was a covering letter addressed to Mr Serpanos. The notice was issued (or purportedly issued) pursuant to s 29(3)(g) of the Public Service Act. It noted that Mr Serpanos’s employment was terminated without notice and that, in the event that he wished to challenge his dismissal, he could seek advice from the Fair Work Commission (a telephone number for which was provided). The covering letter was in the following terms (errors original):
Termination of Employment – section 29(3)(g) Public Service Act 1999
1. On 9 December 2019 I wrote to you about your breach of the APS Code of Conduct (the Code), and in particular the sanction I was considering. I proposed that termination of your employment was an appropriate sanction in the circumstances. I offered you an opportunity to provide me with a statement in response.
2. On 12 December 2019 I received a response from your legal representative. I have given consideration to the matters raised in that submission. The purpose of this letter is to advise you of my final decision.
Decision
3. In light of all the circumstances, I regret to advise that I am terminating your employment pursuant to s 29(3)(g) of the Public Service Act 1999. My reasons are set out below.
Background
4. You have worked for the ATO for 19 years. Currently you are employed as an ongoing EL1 Client Engagement Officer in the Integrated Compliance business line at the Dandenong office of the ATO.
5. On 2 December 2019 Ms Ani Kotronakis determined that you engaged in sexually harassing behaviour and/or other harassing behaviour. Ms Kotronakis determined that by engaging in such behaviour you:
• failed to behave with honesty and integrity. Consequently you breached 13(1) of the Code
• failed to treat employees with respect and courtesy and without harassment. Consequently you breached 13(3) of the Code 448
• failed to behave in a way that upholds the APS values and good reputation of the ATO and the APS. Consequently you breached 13 (11) of the Code
• failed to comply with directions contained in Chief Executive Instruction (CEI) 2015/02/05: Workplace Bullying, Harassment and Discrimination. Consequently you breached 13 (5) of the Code
Your submission
6. In the submission I received from your representative, you state (in summary):
• you have experienced financial hardship as a result of being suspended without pay
• the allegations made against you are in retaliation for issuing defamation proceedings
• you did not engage in the alleged conduct
• the investigation was flawed
• you have had a long and unblemished career at the ATO
• you have been discriminated against because of your mental illness
• your reputation has been ruined
• you oppose the proposed sanction of termination
Reason for the decision
7. Sanctions for breaches of the Code are primarily aimed at protecting the agency and the APS and thereby maintaining community confidence in public administration. Rather than seeking to punish an employee, an objective of misconduct action is to maintain proper standards of conduct by APS employees and protect the reputation of the APS.
8. While you have provided a submission in response to my invitation, you have used the majority of that submission to challenge Ms Kotronakis’ determination and its validity rather than directly addressing the issue of what sanction could be imposed. Ordinarily it is not the role of the sanction delegate to review the misconduct determination. There is however nothing in your submission that would cause me to consider that the determination is not valid. Other than simply stating that the determination was flawed, you provided no information to support those assertions.
9. Your behaviour demonstrates a fundamental lack of respect and courtesy towards other ATO employees and contravenes not only the Code but the ATO’s workplace policies as set out in ATO Chief Executive Instruction 2015/02/05: Workplace Bullying, Harassment and Discrimination
10. Moreover, your behaviour in threatening and then commencing defamation proceedings in circumstances where you knew the proceedings were vexatious demonstrates a lack of integrity.
11. ATO employees are entitled to attend the workplace to fulfil their duties without feeling that they are being bullied or sexually harassed in the way that you have found to have acted in this matter.
12. You have shown no contrition or remorse for your actions. You have offered no concessions or anything else to accept any responsibility for your actions in this matter.
13. A number of employees have been adversely affected by your behaviour; this has included the need for them to take personal leave. The long term effects on the health of people who are bullied and harassed in the workplace are well documented. Employers like the ATO are duty bound to take incidents like those that were found to have occurred in this case very seriously. Because of the nature and extent of your misconduct and your lack of contrition and remorse there does not appear to be any prospect of you changing your behaviour to meet those that are required in a modern workplace.
14. I am also cognisant that your behaviours have taken place over a minimum of a two to three year period and appear to be entrenched and stemming from inimical attitudes towards other employees especially women. These attitudes and behaviours have no place in the ATO or any other modern workplace.
15. In addition, your actions have repudiated the basic element of trust in the employment relationship.
16. In these circumstances I regret to advise you that I’ve decided to terminate your employment for misconduct pursuant to section 29(3)(g) of the Public Service Act 1999.
17. Attached is a formal Notice of Termination. This sets out the grounds for the termination of your employment, the date of effect and your right of review.
63 Between the time of his dismissal and the trial, Mr Serpanos was not able to secure alternative work. At least in part, he attributed that inability to his poor mental state, which was the subject of a medical report from a psychiatrist, Dr Geeta Rudra. That mental distress—or acute stress disorder, as Dr Rudra diagnosed (or appeared to diagnose) it—was said to have arisen at least in part from his dismissal. Mr Serpanos maintained that, but for that dismissal, he would have remained—or, at the least, intended to remain—an ATO employee until he attained the age of 65 years (some 11-and-a-half years after the point of his dismissal).
Part 4. Summary of Mr Serpanos’s adverse action case
64 Mr Serpanos’s adverse action case is conceptually straightforward. He maintains that, between July and November 2019, he made a number of communications by way of complaint about his having been identified as the maker of the Even Wendy Comment. Each such communication is identified and considered below. He alleges that his dismissal was actuated, or partly actuated, by his having made those communications.
65 By his having made the relevant communications, Mr Serpanos alleges that he should be understood, in each case, to have exercised a “workplace right” within the meaning attributed to that phrase by s 341 of the FW Act. He alleges—and the ATO accepts—that his dismissal amounted to “adverse action” within the meaning attributed to that phrase by s 342 of the FW Act. Mr Serpanos submits that his dismissal was effected because of his exercise of workplace rights and was, as a result, effected in contravention of s 340(1)(a)(ii) of the FW Act. He seeks compensation (in respect of lost earnings, distress and psychiatric injury) and the imposition of a pecuniary penalty (as well as other, ancillary relief).
66 I should say something about the pleadings. Mr Serpanos’s further amended statement of claim alleges that he “made and maintained” a single complaint, namely that:
(a) [Ms Cavanagh, Ms Peeters and Ms Kim] had defamed him by communicating false reports (Reports) to the effect that in April 2017 he had said that he would “fuck” Ms Cavanagh in order to obtain a promotion (Alleged Comment); and
(b) the Reports were malicious and improper, in that they were either known to be false (in the case of Ms Peeters) or else were communicated with reckless disregard for their truth and for the purpose of bullying and harassing the Applicant.
67 It goes on to plead that “[t]he [c]omplaint” relevantly pertained to Mr Serpanos’s employment and was one that Mr Serpanos was relevantly able to make in a way that s 341(1)(c) of the FW Act contemplates. Thus, by making and maintaining it, Mr Serpanos is said to have exercised a workplace right. It might be noted that, at each stage, the pleading pitches at a singular rather than plural level: in other words, only a single complaint is alleged.
68 Nonetheless (and appropriately), the making or maintaining of “[t]he [c]omplaint” is particularised. It is said to have been “made and maintained” by means of ten discrete communications, namely:
(1) the 18 July Email (above, [21]);
(2) the 22 July Email (above, [24]);
(3) the First Concerns Notices (above, [26]);
(4) the 8 August Email (above, [28]);
(5) the Second Concerns Notices (above, [31]);
(6) the 20 August Letter (above, [35]);
(7) the 2 September Response (above, [42]);
(8) the 4 September Email (above, [43]);
(9) the 5 September Email (above, [44]); and
(10) the Defamation Filings (above, [45]).
69 Although elegant in its simplicity, the pleading is liable to confuse. It alleges that Mr Serpanos prosecuted (or “made and maintained”) only one complaint; yet it is nonetheless clear that each of those ten communications is said to have involved his exercise of a workplace right. Whether or to what extent that is so turns, in each case, upon whether or not the substance of what was communicated was plaintive in nature, whether it bore a relevant connection to his employment and whether the communication was one that Mr Serpanos was relevantly “able to make”. Those questions are the subject of analysis below.
Part 5. The legislative framework
70 Part 3-1 of the FW Act is entitled “general protections”. Amongst other things, it provides for a suite of protections designed to safeguard the exercise of “workplace rights”. One of those protections is provided for by s 340(1) of the FW Act, which provides (and, at all relevant times, provided) as follows:
340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
…
(ii) has, or has not, exercised a workplace right; or
…
71 Section 342(1) of the FW Act defines (and defined) “adverse action”. It is unnecessary to rehearse that definition here. It is not presently controversial that the ATO took adverse action against Mr Serpanos when, on Monday, 16 December 2019, it terminated his employment. At issue is whether it did so in contravention of s 340(1)(a)(ii) of the FW Act.
72 Section 341(1) of the FW Act identifies (and identified) the circumstances in which a person might be understood to possess a “workplace right”. It relevantly provides (and provided) as follows:
341 Meaning of workplace right
…
(1) A person has a workplace right if the person:
…
(c) is able to make a complaint or inquiry:
…
(ii) if the person is an employee—in relation to his or her employment.
73 Section 360 of the FW Act recognises that adverse action might be taken for a variety of reasons, including some unrelated to reasons that Pt 3-1 of the FW Act proscribes. In order to be actionable under Pt 3-1 of the FW Act, it is sufficient that relevant adverse action is taken for reasons that include such proscribed reasons.
74 Section 361 of the FW Act creates a rebuttable presumption concerning the proof, in any given case, of the reasons for which adverse action was taken. If, in an action alleging that conduct was engaged in in contravention of Pt 3-1 of the FW Act, a person is accused of having done something for a particular reason and the doing of that thing for that reason would constitute a contravention of that part, then it is presumed that the conduct was engaged in for the reason alleged, unless or until the person who engaged in it proves otherwise.
75 Section 539(1) of the FW Act is entitled “applications for orders in relation to contraventions of civil remedy provisions”. Amongst other things, it identifies the provisions of the FW Act that qualify as “civil remedy provision[s]”. Section 340(1) is amongst them and s 539(2) of the FW Act confers jurisdiction upon this court to hear applications for relief relating to contraventions of that section. The court has the power to grant relief in the nature of declarations, compensation and penalties (amongst other things).
76 Where, as here, it is alleged that a body corporate (or other non-natural person) has engaged in unlawful adverse action, s 793 of the FW Act serves to assist in attributing to it the conduct of the human agents through whom it acts and, in certain circumstances, the state or states of mind with which they do so.
77 The court’s jurisdiction to entertain an action alleging a contravention of Pt 3-1 of the FW Act that relates to the termination of an employee’s employment is constrained by Subdiv A of Div 8 of that part. The court’s jurisdiction to hear the present application, however, is not a matter of any controversy.
78 The APS Code of Conduct assumes some significance in this matter. As has been noted, it is (and was) contained within s 13 of the Public Service Act, which reads as follows:
13 The APS Code of Conduct
(1) An APS employee must behave honestly and with integrity in connection with APS employment.
(2) An APS employee must act with care and diligence in connection with APS employment.
(3) An APS employee, when acting in connection with APS employment, must treat everyone with respect and courtesy, and without harassment.
(4) An APS employee, when acting in connection with APS employment, must comply with all applicable Australian laws. For this purpose, Australian law means:
(a) any Act (including this Act), or any instrument made under an Act; or
(b) any law of a State or Territory, including any instrument made under such a law.
(5) An APS employee must comply with any lawful and reasonable direction given by someone in the employee’s Agency who has authority to give the direction.
(6) An APS employee must maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister’s member of staff.
(7) An APS employee must:
(a) take reasonable steps to avoid any conflict of interest (real or apparent) in connection with the employee’s APS employment; and
(b) disclose details of any material personal interest of the employee in connection with the employee’s APS employment.
(8) An APS employee must use Commonwealth resources in a proper manner and for a proper purpose.
(9) An APS employee must not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee’s APS employment.
(10) An APS employee must not improperly use inside information or the employee’s duties, status, power or authority:
(a) to gain, or seek to gain, a benefit or an advantage for the employee or any other person; or
(b) to cause, or seek to cause, detriment to the employee’s Agency, the Commonwealth or any other person.
(11) An APS employee must at all times behave in a way that upholds:
(a) the APS Values and APS Employment Principles; and
(b) the integrity and good reputation of the employee’s Agency and the APS.
(12) An APS employee on duty overseas must at all times behave in a way that upholds the good reputation of Australia.
(13) An APS employee must comply with any other conduct requirement that is prescribed by the regulations.
79 It was not controversial that Mr Serpanos was an “APS employee”, that his engagement sufficed as “APS employment” or that the ATO was an “agency”.
80 The reference in s 13(11) of the APS Code of Conduct to “APS Values” is a reference to what appears in s 10 of the Public Service Act. That section reads (and read):
10 APS Values
Committed to service
(1) The APS is professional, objective, innovative and efficient, and works collaboratively to achieve the best results for the Australian community and the Government.
Ethical
(2) The APS demonstrates leadership, is trustworthy, and acts with integrity, in all that it does.
Respectful
(3) The APS respects all people, including their rights and their heritage.
Accountable
(4) The APS is open and accountable to the Australian community under the law and within the framework of Ministerial responsibility.
Impartial
(5) The APS is apolitical and provides the Government with advice that is frank, honest, timely and based on the best available evidence.
Part 6. Applicable Legal principles
81 As has been noted, it is not presently in contest that, by terminating his employment with effect from Monday, 16 December 2019, the ATO took adverse action against Mr Serpanos. At issue is whether it did so in contravention of s 340(1)(a)(ii) of the FW Act. To succeed, Mr Serpanos must demonstrate two things, namely:
(1) that he exercised a workplace right or workplace rights; and
(2) that his dismissal was actuated, or partly actuated, by reason of his having done so.
82 Insofar as concerns the first of those considerations, a number of questions arise—and, more specifically, arise in connection with each of the ten communications that assume prominence in this matter (above, [68])—namely:
(1) did the communication agitate a complaint (indeed, did each agitate the complaint that was pleaded);
(2) if it did, was the complaint relevantly related to Mr Serpanos’s employment; and
(3) if it was, was the complaint one that Mr Serpanos was relevantly able to make?
If, in respect of each individual communication, all three questions are answered in the affirmative, then it will follow that its making will have qualified as the exercise of a workplace right.
83 Insofar as concerns the second of the two matters identified above (at [81]), substantial assistance is afforded by the statutory presumption for which s 361(1) of the FW Act provides. Subject to observations recorded below, it falls to the ATO to establish that Mr Serpanos’s dismissal was not actuated, in any way, by his having exercised a workplace right or workplace rights. That endeavour will call for some interrogation of the state or states of mind that animated those through whom the ATO took the adverse action that it took.
6.1 Employment-related complaints
84 In PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225 (hereafter, “PIA”), 252-253 [134]-[139] (Snaden J), I made the following relevant observations, which are apt to be applied presently:
In order that the making of a complaint or inquiry might amount to the exercise of a workplace right of the sort to which s 341(1)(c)(ii) of the FW Act refers, it must pertain, as a matter of substance, to its maker’s employment. That being so, it is necessary to consider whether either or both of the [complaints that were made in that case] were of that nature: that is, were they complaints or inquiries that pertained to Mr King’s employment?
That requires analysis at two levels: first, did each of the [relevant complaints] qualify as a “complaint or inquiry”; and, second, did each arise “in relation to [Mr King’s] employment”?
The Macquarie Dictionary relevantly defines “complaint” and “inquiry” respectively as follows:
complaint
...
1. an expression of grief, regret, pain, censure, resentment, or discontent; lament; fault-finding.
2. a cause of grief, discontent, lamentation, etc.
…
inquiry
…
2. the act of inquiring, or seeking information by questioning; interrogation.
3. a question; query.
– phr 4. make inquiry (or inquiries), to request information: to make inquiries at the office.
A “complaint”, then, is a communication that states a grievance or that otherwise asserts the existence of a state of affairs that its maker alleges is unsatisfactory, undesirable or unacceptable: see, in that vein, Hill v Compass Ten Pty Ltd (2012) 205 FCR 94 (Cowdroy J). In Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346…this court had occasion to consider what might qualify as a “complaint” for the purposes of s 341(1)(c)(ii) of the FW Act. Dodds-Streeton J there observed (at 353-354 [29]) that:
…in the context of s 341(1)(c)(ii) of the [FW] Act:
(a) a complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;
(b) the grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;
(c) the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose; [and]
(d) the proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii)…
I respectfully adopt her Honour’s reasoning. I note that the second of the four propositions to which her Honour adverted in the passage above was the subject of some consideration on appeal: see Shea v EnergyAustralia Services Pty Ltd (2014) 242 IR 159, 163 [12] (Rares, Flick and Jagot JJ). Whilst the full court did not appear to adopt Dodds-Streeton’s J implication of good faith, they did not reject it and the appeal was decided on other issues: see, on that score, The Environmental Group Ltd v Bowd [2019] FCA 951, [144] (Steward J)...
Whether a complaint or inquiry qualifies as a complaint or inquiry made “in relation to…employment” depends upon the subject matter that is sought to be agitated. It is not necessary that a complaint be directly related to its maker’s employment: Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697, [64] (Katzmann J); Shea, [631] (Dodds-Streeton J). In Walsh v Greater Metropolitan Cemeteries Trust (No 2) (2014) 243 IR 468, 476 [42] (Bromberg J), this court determined that the connection between a complaint and employment would likely exist in circumstances “[w]here the subject matter of the complaint raises an issue with potential implications for the complainant’s employment”.
That reasoning has been followed (see, for example, Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19, [68]-[69] (Mortimer J)) although not universally without qualification (see, for example, The Environmental Group Ltd v Bowd [2019] FCA 951, [126] (Steward J)).
85 I dissented in the outcome of that case; but I do not apprehend that there is anything about those observations that is (or then was) materially controversial.
86 In The Environment Group Ltd v Bowd (2019) 137 ACSR 352 (hereafter, “Bowd”), Steward J questioned whether the “potential implications” test might be appropriate for senior management employees, whose conduct as such might be thought always to have at least potential employment ramifications. His Honour observed (at 392 [126]):
…in the case of a CEO, the complaint must be one directed at or concerned with that person’s employment in a substantive way. In that respect, observing the required nexus may be direct or indirect, may not greatly assist. It must, as a matter of substance, be about that CEO’s employment.
87 His Honour was led to that conclusion after considering what might be meant of the phrase “in relation to” in s 341(1)(c)(ii) of the FW Act. His Honour observed (at [124]):
As an expression of a sufficient nexus, the High Court has observed that the similar phrase “in respect of” has a “chameleon-like quality”. It takes its meaning from its context: Technical Products Pty Ltd v State Government Insurance Office (1989) 167 CLR 45 at 47; see also Commissioner of Taxation v Scully (2000) 201 CLR 148 at 182-183. In my view, that observation applies equally to the phrase “in relation to”. The statutory context here is the protection of employees who exercise workplace rights. One of those rights is an entitlement to make a complaint about a person’s employment without the fear or risk of retribution.
88 The phrase “in relation to” is one of “wide and general import”: Fountain v Alexander (1982) 150 CLR 615, 629 (Mason J). Save insofar as statutory context might suggest otherwise, it contemplates a relationship between two subject matters: O’Grady v The Northern Queensland Co Ltd (1990) 169 CLR 356, 376 (McHugh J); Smith v Federal Commissioner of Taxation (1987) 164 CLR 513, 520-521 (Brennan J), 533 (Toohey J, with whom Wilson J agreed). The phrase (or analogues of it):
…is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified. That being so, all that a court can do is to endeavour to seek some precision in the context in which the expression is used.
See: Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602, 620 (Taylor J, with whom Dixon CJ and Windeyer J agreed in the result; Kitto and Menzies JJ dissenting.)
89 For the purposes of s 341(1)(c)(ii) of the FW Act, a complaint that an employee makes will be one that is made “in relation to” his or her employment if the subject matter about which a complaint is made concerns an aspect of that employment.
6.2 What does it mean to be “able to” complain or inquire?
90 Much has been written in this court about the circumstances that suffice to distinguish complaints or inquiries that employees are “able to make” (for the purposes of s 341(1)(c) of the FW Act) and complaints or inquiries of other kinds. Recently, in Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677 [141]-[143] (Snaden J), I made the following observations on that score:
Insofar as is presently relevant, s 340(1) of the FW Act prohibits the taking of adverse action against a person because he or she has exercised a workplace right. Section 341(1) identifies the circumstances in which a person should be understood to possess such a right. For present purposes, it is only in circumstances where a person exercises a right that he or she possesses that the protection for which s 340(1)(a)(ii) provides is enlivened.
A person has—and, therefore, may exercise—a right to complain or inquire in relation to their employment, or in order to obtain compliance with a workplace law if that complaint or inquiry is one that they are “able to make”: FW Act, s 341(1)(c). In Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346, (hereafter, “Shea”; Dodds-Streeton J), this court made the following relevant observations (at 440 [625]):
…the requirement that the complaint be one that the employee “is able to make” in relation to his or her employment suggests that there are complaints which the employee is not able to make in relation to his or her employment. The ability to make a complaint does not arise simply because the complainant is an employee of the employer. Rather, it must be underpinned by an entitlement or right. The source of such entitlement would include, even if it is not limited to, an instrument, such as a contract of employment, award or legislation.
Her Honour’s observations have been endorsed at a full court level: PIA, 229 [12] (Rangiah and Charlesworth JJ), 257-258 [164] (Snaden J); Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46 (hereafter, “Whelan”), 55-56 [28] (Greenwood, Logan and Derrington JJ).
91 I went on in that matter to trace some of the authorities that have addressed what it means to be “able to make” a complaint or inquiry for the purposes of s 341(1)(c) of the FW Act. That analysis culminated (at [149]-[150]) in the following observations, which I adopt for present purposes:
…Section 341 does not invest employees with new rights. It merely characterises existing rights or entitlements as “workplace rights”, the possession or exercise of which is the subject of protections located elsewhere in pt 3-1 of the FW Act.
…successive full courts have now made clear [that] in order that a complaint or inquiry made in relation to employment might qualify as the exercise of a workplace right, an employee must first demonstrate that it was made in the exercise of, or otherwise to protect or vindicate, some right or entitlement conferred upon them, whether instrumentally or otherwise. It is not sufficient that a complaint or inquiry is made simply because the employee feels (with good justification or otherwise) that he or she has something about which to complain or inquire.
6.3 Proof of proscribed purpose
92 As it often does in matters such as this, s 361 of the FW Act—and the statutory presumption that it establishes—here looms large. Mr Serpanos claims to have exercised a number of workplace rights whilst employed. He attributes his dismissal to his having done so.
93 Two issues arise for consideration: did Mr Serpanos exercise a workplace right or workplace rights and, if he did, was he dismissed because (or for reasons that included that) he did so? The first half of that equation is for Mr Serpanos to establish: Tattsbet Ltd v Morrow (2015) 233 FCR 46, 75 [119] (Jessup J); Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347, 380 [100] (“Hall”; Tracey, Reeves and Bromwich JJ). If he succeeds in that endeavour, s 361(1) requires that the court presume that the second question should be answered in the affirmative, unless or until the ATO proves to the contrary.
94 Section 361(1) places upon a person who takes adverse action “…the onus of proving that which lies peculiarly within his own knowledge”: General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 (“Bowling”), 617 (Mason J).
95 Discharge of that burden requires that the ATO lead (and that the court accept) evidence as to why it was that Mr Serpanos was dismissed. More accurately, it requires evidence as to what did not actuate the dismissal (which is a task most often discharged by proving what did). The ATO must positively establish that Mr Serpanos’s exercise of a workplace right or workplace rights did not factor in any substantial or operative way as a reason for its decision to effect his dismissal: Bowling, 612 (Gibbs J), 619 (Mason J, with whom Stephen and Jacobs JJ agreed).
96 In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 (hereafter, “Barclay”), the High Court had occasion to consider how an employer might rebut the statutory presumption. French CJ and Crennan J (with whom Gummow and Hayne JJ agreed) observed (at 517 [44]-[45]) (references omitted):
…The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer…
97 Barclay involved an appeal from a judgment of this court: Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 (Gray, Lander and Bromberg JJ). The matter involved a union representative, Mr Barclay, who had been suspended from his position with the Bendigo Regional Institute of Technical and Further Education. He alleged that the reasons for which he had been suspended included that he was an officer of an industrial association and that he had engaged in particular kinds of “industrial activity” (as defined in s 347 of the FW Act). He alleged that his suspension contravened s 346 of the FW Act.
98 At trial, evidence was led of the process by which Mr Barclay came to have been suspended. The court accepted the evidence of the Chief Executive Officer of the TAFE that it was her decision to effect the suspension and that neither Mr Barclay’s status as an officer of an industrial association nor his engagement in industrial activity were matters that factored in her decision to do so: Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2010) 193 IR 251 (Tracey J).
99 On appeal, a majority of this court (Gray and Bromberg JJ) determined that the reasons animating particular adverse action might be found otherwise than in the mind of the person or persons through whose conduct it was effected. Their Honours held (at 221 [28]):
The state of mind or subjective intention of that person will be centrally relevant, but it is not decisive. What is required is a determination of what Mason J in Bowling [(1976) 51 ALJR 235 at 241]… called the ‘real reason’ for the conduct. The real reason for a person’s conduct is not necessarily the reason that the person asserts, even where the person genuinely believes he or she was motivated by that reason. The search is for what actuated the conduct of the person, not for what the person thinks he or she was actuated by. In that regard, 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. It is not open to the decision-maker to choose to ignore the objective connection between the decision he or she is making and the attribute or activity in question.
100 In dissent, Lander J preferred the conclusion of the primary judge.
101 The majority’s reasoning was not the first time that the full court of this court had endorsed the notion that the reasons for which adverse action (or its statutory predecessors) is taken might be “unconscious” or discerned otherwise than through interrogation of the mental processes of the person or people by whose conduct it is taken. Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251 (“Kodak”; Lee, Madgwick and Gyles JJ) involved the dismissal of an employee, Mr Elliott. He was dismissed as part of a redundancy program, which had involved a process of assessment that was carried out by two supervisors, Messrs Shannon and Lay. The decision to proceed with the redundancies (including that of Mr Elliott) was made by the employer’s general manager, Mr Walshe; but the court determined that its reasons for effecting the dismissals resided also in the minds of the two supervisors. That was so because they were said to have made “an indispensable contribution to the rankings”. Their Honours determined (at 260 [37]) that:
…if the Lay/Shannon assessment [was] affected (or infected) by either Lay or Shannon having held an undisclosed prohibited reason, then [Mr Walshe] would have, in effect, inadvertently adopted it so that its force continued regardless of the lack of any express prohibited reason in the mind of Walshe.
102 Similar reasoning was employed in National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139, 147-148 [25]-[29] (hereafter, “RMIT”; Gray J); Voigtsberger v Council of the Shire of Pine Rivers (No 2) (1981) 58 FLR 239, 255-256 (hereafter, “Voigtsberger”; Evatt J); Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697, [78] (hereafter, “Pilbara Iron”; Katzmann J).
103 I return to Barclay. In the High Court, Mr Barclay (and the other respondents) sought to uphold the reasoning that had attracted itself to Gray and Bromberg JJ on the basis that contraventions of s 346 of the FW Act should properly fall to be determined objectively. French CJ and Crennan J (with whom Gummow and Hayne JJ agreed) squarely rejected that contention. Their Honours observed (at 517 [44]):
There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action.
104 Gummow and Hayne JJ considered whether proof of a proscribed reason for the purposes of s 346 required a purely objective or purely subjective approach. Their Honours took the view that neither was required. They reasoned that objective circumstances might, in some matters, serve to inform the acceptance or rejection of evidence of a decision-maker’s subjective reasons for acting in any given way. Nonetheless, they stressed that the focus of the inquiry was upon the reasons of the decision maker. Their Honours observed (at 542 [127]):
In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.
105 Heydon J took the view that “…[e]xamining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action”: Barclay, 544 [140]. His Honour observed (at Barclay, 546 [146]):
To search for the “reason” for a voluntary action is to search for the reasoning actually employed by the person who acted. Nothing in the Act expressly suggests that the courts are to search for “unconscious” elements in the impugned reasoning of persons in Dr Harvey’s position. No requirement for such search can be implied. This is so if only because it would create an impossible burden on employers accused of contravening s 346 of the Act to search the minds of the employees whose conduct is said to have caused the contravention…
106 The High Court had occasion to consider the issue again in Construction, Forestry Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 (hereafter, “BHP Coal”). There, an employee, Mr Doevendans, had been dismissed for brandishing an offensive sign at a rally that had been arranged by the applicant union in support of industrial action that it had organised. The employer (through its representative, Mr Brick) was said to have dismissed him because, or for reasons that included that, he had partaken in “industrial activity”. The employer maintained that Mr Doevendans had been dismissed because of the offensive nature of his sign, not because of his union activism or participation in industrial activity.
107 The High Court considered whether those facts sufficed to make out a contravention of s 346 of the FW Act. By majority (French CJ, Kiefel and Gageler JJ, Hayne and Crennan JJ dissenting), it concluded that they did not. Relevantly for present purposes, French CJ and Kiefel J said (at 249 [7]):
The focus of the inquiry as to whether s 346(b) has been contravened is upon the reasons for Mr Brick taking the adverse action. This is evident from the word “because” in s 346, and from the terms of s 361. The inquiry involves a search for the reasoning actually employed by Mr Brick. The determination to be made by the court is one of fact, taking account of all the facts and circumstances of the case and available inferences.
(emphasis added, references omitted)
Cited as authority for the emphasised propositions were the observations of Heydon J in Barclay reproduced above (at [105]).
108 Gageler J was drawn to a similar observation. Referring to Barclay, his Honour noted (at 267 [85]):
The unanimous holding in that case was that, read in the context of ss 360 and 361 of the Act and of its legislative history, the word “because” in s 346 of the Act connotes the existence of a particular reason as an operative and immediate reason for taking adverse action. Where the adverse action taken is in consequence of a decision made by a responsible individual within a corporation, the existence or non-existence of a particular reason as an operative and immediate reason for taking that adverse action turns on an inquiry into the mental processes of that individual.
109 The issue arose again in this court in Construction, Forestry, Mining and Energy Union v Endeavour Coal (2015) 231 FCR 150 (hereafter, “Endeavour Coal”; Jessup, Perram and Bromberg JJ). As this one does, that matter involved allegations of breach of s 340(1) of the FW Act. The respondent employer was charged with having taken adverse action against one of the applicant’s members, Mr McDermott, because he had taken personal leave to which he was entitled. The action in question involved Mr McDermott’s removal from a weekend roster. The employer led evidence to establish that the action was taken because of the lack of predictability in Mr McDermott’s attendance and in order to ensure that its weekend work fell to its most reliable employees. At first instance, that was accepted and the application was dismissed.
110 By majority, an appeal from that judgment was dismissed. In separate judgments, Jessup and Perram JJ found that the inquiry into the reasons for which the employer was moved to act as it did focused upon, as Jessup J put it (at 161 [32]), “…the actual reason of the decision-maker, in his or her own mind” (see also the equivalent observation of Perram J at 169 [77]). Referring to BHP Coal, Perram J observed (at 169 [75]):
The logic of that decision establishes that the question posed by s 340(1) concerns only the state of mind of the decision-maker.
Later, his Honour observed that “…[t]he inquiry thrown up by s 340 is not one concerned with causation but, rather, the subjective reasons for action of the decision-maker”.
111 In dissent, Bromberg J distinguished the facts of the matter before him from those that confronted the High Court in Barclay and BHP Coal: Endeavour Coal, 187-188 [170]-[172].
112 To that point in time, then—and by as recently as 2018 (see Hall, 381 [101] Tracey, Reeves and Bromwich JJ)—the following relevant principles appeared to have emerged, if not been settled, namely that:
(1) in a matter alleging unlawful adverse action, the inquiry upon which courts are to embark is to identify the reason or reasons for which the conduct that occasioned it was engaged in;
(2) that inquiry involves the interrogation of the mental processes of the person or people who engaged in that conduct; and
(3) circumstances that arise externally to that conduct and those mental processes are irrelevant to that inquiry.
113 Those principles cannot be reconciled with many of the pre-Barclay decisions of this court, including Kodak, Voigtsberger and Pilbara Iron.
114 Nonetheless, the reasoning employed in Kodak—namely, that the states of mind of people other than those whose conduct visits particular adverse action can, in some circumstances, constitute the reasons for which it was taken—has survived. In Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd (2015) 253 IR 166 (hereafter, “Clermont Coal”), Reeves J, after referring to Kodak, made the following observations (at 198 [121]):
…I consider the judgment in Kodak requires me to examine the reasoning process employed by each person whose involvement had a material effect on the ultimate decision. This inquiry does not involve a roving search of the minds of the employees of the kind rejected by Heydon J in Barclay (at [146]). Nor does it involve an objective inquiry of the kind rejected in Barclay (at [44] and [126]), nor import some “unconscious” reasoning to the ultimate decision-maker that was also rejected in Barclay (at [124] per Gummow and Hayne JJ, and [146] per Heydon J). Instead, it focuses on the conscious reasoning processes of those who had a material effect on the ultimate outcome to determine whether their reasoning processes were free of the alleged prohibited reason or reasons. If one or more of the reasons employed by one or more of them was a prohibited reason, that will impugn the ultimate decision. This is what I consider the Full Court meant by “inadvertently” adopting an “undisclosed prohibited reason” in Kodak…
115 Those observations were endorsed by the full court of this court in Australian Red Cross Society v Queensland Nurses’ Union of Employees (2019) 273 FCR 332 (hereafter, “Australian Red Cross”; Greenwood, Besanko and Rangiah JJ). Their Honours there said (at 347-348 [90]-[91]):
The decision of this Court in Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251 (Kodak) that the absence of a proscribed purpose in the mind of a decision-maker who adopts as his or her starting point the results of an assessment and ranking of an employee by reference to certain criteria performed by others does not foreclose the issue of purpose and a proscribed purpose may still be found where such was the purpose of a person who makes an indispensable contribution to the rankings. Kodak was followed by Reeves J in Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd (2015) 253 IR 166 who (at [121]-[122]) spoke in terms of a person whose reasons had a material effect on the ultimate decision or outcome.
We accept that a person who is involved in the process leading to the decision may be a decision-maker for the purpose of a proscribed purpose, but we do not need to formulate a precise test for the purpose of this case and consider it prudent to refrain from doing so.
116 More recently in Qantas Airways Ltd v Transport Workers’ Union of Australia (2022) 402 ALR 1 (hereafter, “Qantas”; Bromberg, Rangiah and Bromwich JJ), this court had occasion to consider the authorities concerning “…the influence of a proscribed reason held by someone who has had a substantial influence on a decision-maker, and is said thereby to have infected that decision.” Their Honours observed (at 63 [221]) that the effect of Kodak, Clermont Coal and Australian Red Cross is to permit:
…in some circumstances, the use or application by a decision-maker of material infected by a proscribed reason held by someone else involved in the decision-making process in some material way to be taken into account, in order to find that the impugned decision was made for reasons that included that proscribed reason.
117 Their Honours reasoned (at 65 [228]) that there was “…no necessary inconsistency between Kodak or Australian Red Cross on the one hand, and Barclay or BHP Coal on the other.” That conclusion followed some analysis of what the High Court had said in those latter cases. Their Honours took the view (at 64-65 [225]-[226]) that the judgments of both French CJ and Crennan J, and Gummow and Hayne JJ in Barclay left open the possibility that there was “…some role for an identified unconscious contributing reason influencing the decision-maker to be factored into the reasons for the decision itself”; or, otherwise, that it was proper to “…[take] into account the reasons held by other material contributors to the decision-making process as being part of what the employer had to exclude”.
118 Their Honours recognised (at 64 [224]) that Heydon’s J observations in Barclay (above, [105]) “…might be interpreted as being contrary to the reasoning on this topic in Kodak”. They also recognised that French CJ and Kiefel JJ had endorsed those observations in BHP Coal. Their Honours did not, however, refer to what Gageler J said in that case (above, [108]), nor to what Jessup and Perram JJ observed in Endeavour Coal (above, [110]).
119 Respectfully, I am unable to see how Heydon’s J observations in Barclay—which a majority of the court adopted in BHP Coal—might be interpreted otherwise than as contrary to the ratio in Kodak. The idea that there might be “…some role for an identified unconscious contributing reason influencing the decision-maker to be factored into the reasons for the decision itself” (Qantas, [225]) is precisely what the majority of this court accepted in Barclay (see above, [99]) and what the High Court rejected; if not expressly in Barclay, then very clearly in BHP Coal. Indeed, Heydon’s J rejection of it in Barclay was emphatic. His Honour described (at 546, [145]) the idea as “indefensible” and the respondents’ attempt to defend it as one plagued by “extraordinary weakness”: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 2) (2012) 248 CLR 549, 553 [9].
120 In my very respectful view, the notion that Heydon’s J remarks in Barclay (above, [105]) “…might be interpreted as being contrary to the reasoning…in Kodak” is something of an understatement. His Honour’s conclusions, like those that emerge from BHP Coal and Endeavour Coal, do not reconcile with Kodak. The former make clear that the relevant inquiry is into, as Perram J put it, “…the state of mind of the decision-maker”. The latter suggests that it might also concern the states of mind of others. One of those propositions must be wrong.
121 The recent (and presently binding) authorities emerging from this court, though, suggest that it is the former. In Wong v National Australia Bank Limited [2022] FCAFC 155 (“Wong”; Katzmann, Charlesworth and O’Sullivan JJ), the full court endorsed (at [25]-[26]) the proposition that emerges from Kodak and Qantas:
…It may be convenient to refer to the person whose conduct directly visited the adverse action on the employee as the “decision-maker” but his or her decision-making process may incorporate the state of mind of other people, including by adopting facts or opinions asserted by them.
…the cases illustrate that a person who does the act or thing constituting the adverse action may act on information or advice the provision or content of which is actuated by a prohibited reason. The adoption of such information or advice may necessitate the conclusion that the corporation’s reasons for the adverse action include that prohibited reason. In such cases, it matters not that the person providing the information and advice does not formally possess the authority or power to effect the decision based on the information and advice. Whether the person performing the act constituting the adverse action is aware that he or she is acting on information or advice given for a prohibited reason may not be relevant in cases of that kind.
122 It is not apparent whether their Honours were there alerted to the observations of Heydon J in Barclay (above, [105]), French CJ, Kiefel and Gageler JJ in BHP Coal (above, [107]-[108]), Jessup or Perram JJ in Endeavour Coal (above, [110]), or Tracey, Reeves and Bromwich JJ in Hall (above, [112]). Regardless, I very respectfully adhere to the position that I articulated in Wong v National Australia Bank Limited [2021] FCA 671, [88]-[96] (Snaden J). That is so despite what is, again with respect, the obvious force inherent in the conclusions that underpin Kodak, Clermont Coal, Australian Red Cross, Qantas and Wong. The search for the reasons animating particular conduct—especially corporate conduct—is (or can be) notoriously difficult. Nonetheless, adverse action inures in conduct—in acts or omissions—in which natural persons engage; and a person (or group of people) can engage in conduct (and, thereby, visit adverse action) because of a reason proscribed by s 340(1) of the FW Act only if that reason operates upon the state of mind with which that person (or group of people) engages in that conduct.
123 But that is not the law as it currently stands. The case law emerging from this court, even after Barclay, BHP Coal, Endeavour Coal and Hall leaves no room for doubt: in assessing the reasons for which conduct amounting to adverse action was engaged in, the court must interrogate not merely the state or states of mind of the person or people who engaged in it; but also that of others whose contribution to that conduct rose beyond some threshold level. That threshold level has been described as “indispensable” (Kodak), “material” (Clermont Coal, Qantas) and “‘significant’, ‘plainly important’, ‘major’, ‘substantial’ or ‘essential’” (Wong).
124 With that analysis complete, the following points of principle can be stated. A respondent may rebut the statutory presumption for which s 361(1) provides by leading evidence as to why it engaged in the conduct that an applicant seeks to impugn. The question for determination starts and ends with whether, in fact, those reasons actuated that conduct. It is not necessary for a respondent to prove that the reasons for which it did as it did were procedurally or substantively fair: Khiani v Australian Bureau of Statistics [2011] FCAFC 109, [31] (Gray, Cowdroy and Reeves JJ). At issue is simply whether they were, in fact, the reasons that animated that conduct.
125 That is an inquiry in two parts: first, were the nominated reasons matters of opinion or belief that formed in the mind of the respondent (or, in the case of bodies corporate, those of its relevant human agents); and, second, did they positively inspire the respondent then to engage in the relevant conduct? If both questions are answered in the affirmative (and if there be no other reasons for which the relevant conduct was engaged in), it is irrelevant that the respondent’s reasons might be impugned as unfair or illogical or otherwise liable to criticism. A claim under Pt 3-1 of the FW Act “…is not a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome”: Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17, [48] (Bromberg J).
126 That is not to say, however, that any substantive or procedural unfairness or illogicality inherent in what a respondent nominates as its reasons for conducting itself in any given way are wholly irrelevant. In Wong v National Australia Bank Limited [2021] FCA 671 (Snaden J), [83] I made the following observations, which bear repeating now:
In some circumstances, it might be possible to infer from evidence tending to show that a respondent’s opinions were formed wrongly or unfairly—that is to say, inconsistently with fact or in a way otherwise susceptible to some other legitimate criticism—that those opinions either were not, in fact, formed or did not relevantly actuate the respondent’s conduct (or both). Such circumstances might warrant the rejection of the respondent’s evidence as to why it did what it did and a finding that the respondent failed to rebut the presumption established by s 361 of the FW Act. But, regardless, the inquiry remains: did the respondent form the views that it said that it formed; and, if it did, was it actuated to conduct itself in the way that it did on account of them (and not on account of any proscribed reason)?
127 Similarly, where the reasons for which a respondent claims to have conducted itself were formed in consequence of a process that was tainted by obvious or significant shortcomings, that too might, in the right circumstances, ground a finding that they did not, in fact, form in the mind or minds of those who effected—or substantially or indispensably or significantly or materially contributed to—the conduct, and/or did not, in fact, actuate or partially actuate it.
Part 7. Did Mr Serpanos possess and exercise workplace rights?
128 Whether or not Mr Serpanos was dismissed in contravention of s 340(1) of the FW Act turns on whether any of the communications upon which he relies amounted to his exercise of a workplace right.
129 It is as well to recall what is pleaded on that front (see above, [66]). Mr Serpanos alleges that, over the period 18 July 2019 to 16 December 2019, he complained that Ms Cavanagh, Ms Peeters and Ms Kim had defamed him, and that they had done so maliciously and improperly (in that what they had said of him was deliberately or recklessly untrue and was designed to bully or harass him). The further amended statement of claim then proceeds to particularise the making and maintaining of the complaint that is alleged. To that end, it refers to the ten communications that assume central significance in this matter (above, [68]).
130 Whether each of those ten communications qualified as an exercise by Mr Serpanos of a workplace right turns upon consideration, in each case, of the following, namely:
(1) was the communication, in fact, made—that is to say, did it, in fact, relay the nature of the complaint that Mr Serpanos alleged that he made and maintained between 18 July and 16 December 2019;
(2) did the communication assume the nature of a complaint;
(3) was the communication made in relation to Mr Serpanos’s employment; and
(4) was the communication one that Mr Serpanos was relevantly “able to make”?
131 Mr Serpanos maintains that each of those questions, asked in respect of each of the ten communications upon which he relies, should be answered in the affirmative. By its pleading, the ATO does not contest that some of them should be. Others, it says, cannot be. It falls to the court to identify—and then to resolve—what remains in contest.
132 For the most part, that is best done by taking each of the ten communications in turn and addressing whether or not each of those constituent questions should be answered as Mr Serpanos would have the court answer them. Insofar as concerns the first and second questions, however, it is convenient to address those issues from a higher perspective.
133 It is to those two issues that attention now turns.
7.1 Were the communications made?
134 It is to be recalled that the complaint that Mr Serpanos alleged that he had made and maintained was comprised of two elements: Mr Serpanos pleaded that, by each of the ten communications, he complained that Ms Cavanagh, Ms Peeters and Ms Kim had defamed him; and that they had done so in a way that was “malicious and improper” (in that what they had said about him they had said either knowing that it was untrue (on the one hand) or recklessly as to its falsity, and for the purpose of bullying and harassing him (on the other)).
135 There is reason to doubt that the ten communications all advanced the same, single (but composite) complaint that Mr Serpanos alleged. The 18 July Email is a good example. Read in its proper context (and with due allowance for the unremarkable imprecision of its language), the 18 July Email made clear Mr Serpanos’s view that he had been defamed by each of Ms Cavanagh’s, Ms Peeters’s and Ms Kim’s attribution to him of the Even Wendy Comment. But it made (at least by its terms) no mention of the states of mind of Ms Cavanagh, Ms Peeters or Ms Kim, nor did it seek to qualify any conduct of theirs as malicious or improper (though the latter was plainly implied insofar as defamation was alleged). Equivalent observations could be made of the 22 July Email, the First Concerns Notices, the 8 August Email, the 4 September Email and the 5 September Email.
136 Nonetheless, the ATO did not squarely deny that Mr Serpanos had made the communications that he alleged and particularised. Instead, it admitted that each of those ten communications had been made; and that each was “…broadly to the effect alleged in sub-paragraphs 3A(a) and (b) [of the further amended statement of claim, the text of which is replicated above, [66]].” Precisely what that means is hard to know and was not the subject of clarification in submissions.
137 Having not been expressly denied, I proceed on the basis that there is no contest that each of the ten relevant communications was made and that, by each of them, Mr Serpanos should be understood to have advanced the single, composite complaint that he pleaded. It follows that, in respect of each of the ten relevant communications, the answer to the first of the four questions identified above (at [130]) is “yes”.
7.2 Did each assume the form of a complaint?
138 There is no dispute that each of the ten relevant communications contains, on its face, an expression of grievance, a finding of fault or an accusation sufficient to qualify (in any case) as a complaint. As much was conceded; and properly so.
139 The ATO does, however, submit that none of those communications, in truth, qualifies as a complaint because none was made in good faith or for a proper purpose. That was said to be a conclusion that the court should draw on the strength of the following circumstances.
140 First, the ATO noted that Mr Serpanos had made a comment materially similar to the Even Wendy Comment in a private discussion that he had with a work colleague only a matter of weeks later. Evidence was led of a conversation that Mr Serpanos had in April 2017 via an instant messaging platform known as “Jabber”. Within that discussion, Mr Serpanos made a comment that, during cross-examination, he rightly conceded was “fundamentally the same or essentially the same” as the Even Wendy Comment. The ATO submitted that, having made essentially the same comment during that discussion, Mr Serpanos could not genuinely have believed that he had been defamed by having had Ms Cavanagh, Ms Peeters and Ms Kim attribute the Even Wendy Comment to him.
141 Second, the ATO submitted that Mr Serpanos’s want of good faith reflected in his intention to inflict “maximum personal financial damage” on Ms Cavanagh, Ms Peeters and Ms Kim. That, in turn, was said to be apparent at least from the First Concerns Notices and the Second Concerns Notices (by which he foreshadowed claims for what, on any view, were significant sums of money).
142 Third, the ATO pointed to the fact (established by the evidence) that Mr Serpanos had made similar threats to sue co-workers in the past. It was suggested that he had done so in order to persuade or coerce them into not pursuing complaints against him; and that his complaint about having been defamed (and his related threat to commence defamation proceedings) was, in the present circumstances, a device that Mr Serpanos designed in order to deter Ms Cavanagh, Ms Peeters and/or Ms Kim from maintaining or further agitating complaints about him.
143 I do not accept that any of the relevant communications was sent otherwise than genuinely with a view to prosecuting the complaint that Mr Serpanos included within it. None of the circumstances to which the ATO points in order to establish the contrary premise suffices to do so.
144 The fact that Mr Serpanos made the comment that he made in the Jabber conversation is neither here nor there. It was made to a solitary colleague, who didn’t obviously repeat it (nor receive it with any sense of outrage). There is no incongruity in Mr Serpanos taking the view that the communications made about him by Ms Cavanagh, Ms Peeters and Ms Kim were defamatory (because they caused others to think less of him), yet having no qualms about saying, more privately, things similar to those about which they so communicated.
145 Likewise, the fact that Mr Serpanos sought (if he did) to inflict upon Ms Cavanagh, Ms Peeters and Ms Kim a measure of financial hardship, though consistent with the lack of good faith that the ATO alleges, is not sufficient to establish it. Indeed, it is also consistent with his having genuinely formed the view that what was said about him was defamatory.
146 Finally, nothing about Mr Serpanos’s history of threatening legal action suffices to establish that the complaint that Mr Serpanos made and maintained was anything other than genuine. It is to be recalled that, early on in the saga, Mr Serpanos was not the subject of any complaint—certainly nothing formal—from Ms Cavanagh, Ms Peeters or Ms Kim. There is no obvious reason why he might have been moved to threaten what he threatened (and to complain about what he complained about)—other than, of course, that he felt that he had good reason to pursue those courses. In any event, most of the communications of relevance were not even sent to Ms Cavanagh, Ms Peeters or Ms Kim. Having not been sent them, it is difficult to see how they could be said to have been devices designed to deter them in some way.
147 I do not accept that the complaint that Mr Serpanos agitated was some kind of device that he engineered and pursued for some ulterior purpose. Nonetheless, it is plain enough why the ATO would think that it was. As is explored in some detail below, it took the view that Mr Serpanos in fact did make the Even Wendy Comment; and that, knowing that he had done so, he did not genuinely believe that anybody had defamed him. On that footing, it is not difficult to see why the ATO would take the view that his pursuit of a defamation complaint proceeded otherwise than genuinely and in good faith.
148 If there were a proper basis upon which this court might conclude that Mr Serpanos in fact did make the Even Wendy Comment and that he prosecuted the complaint that was contained in the ten relevant communications knowing that he had done so, then there might be a basis upon which the want of good faith that the ATO alleges could be established. There is, however, no evidential basis upon which that finding could now be made. By his evidence, Mr Serpanos denied that he had made the comment. There was no direct evidence to counter that denial. It is not necessary that the court should conclude that the Even Wendy Comment wasn’t made; but it is not open to the court to find that it was.
149 I accept that, by means of the ten relevant communications, Mr Serpanos prosecuted a complaint (and, specifically, the complaint that he alleged by his further amended statement of claim).
150 In the analysis that follows, then, each of the remaining questions (that is to say, questions 3 and 4 identified above, [130]) is addressed in respect of the ten communications that are central to Mr Serpanos’s cause of action.
7.3 The 18 July Email
151 The text of Mr Serpanos’s 18 July Email is replicated above (at [21]). It is to be recalled that Mr Serpanos sent it to Mr Read, Ms Lawrence, Mr Day (to whom Mr Read reported) and his solicitors, Bold Lawyers.
7.3.1 Was the complaint related to Mr Serpanos’s employment?
152 To some degree, the text of the 18 July Email speaks for itself. It plainly contains elements of a complaint related to Mr Serpanos’s employment. It commences, for example, with an expression of disappointment about Mr Read’s dismissal of the complaint that Mr Serpanos had earlier made against Ms Cavanagh (above, [15]-[16]). It also accuses Ms Cavanagh of having “failed in her duties as a manager in being open and transparent”. There could be no debate that those statements qualified as employment-related complaints.
153 Those, though, are not the complaints upon which Mr Serpanos’s action hangs. At issue presently is whether his assertion that, by attributing the Even Wendy Comment to him, each of Ms Cavanagh, Ms Peeters and Ms Kim had defamed him in a manner that was malicious and improper; and, more specifically, whether that complaint was one that relevantly related (which is to say, was made in relation) to his employment.
154 Mr Serpanos claims that it did (and was) because the communications by which he alleged that he had been maliciously and improperly defamed were made by and to co-workers, at least partly in the context of an investigation into allegations of wrongdoing that Mr Serpanos had laid against Ms Cavanagh. Those communications concerned conduct in which he was alleged to have engaged whilst present at a work function (or otherwise in the company of other co-workers). The complaint that he had been maliciously and improperly defamed, he maintained, concerned the wrongdoing of fellow employees and its impact upon him. Those things being so, he says, the complaint bore a relationship with his employment that was sufficient to qualify its making as the exercise of a workplace right under s 341(1)(c)(ii) of the FW Act.
155 The ATO submits that Mr Serpanos’s complaint to Mr Read was not made in relation to his employment. Rather, it says, the complaint—that he had been maliciously and improperly defamed—was a complaint in relation to a civil action that, if commenced, would proceed as a private matter against the women concerned.
156 I accept that the complaint that Mr Serpanos agitated by the 18 July Email was one that he made in relation to his employment. It suffices, in my view, that it was a complaint to his employer (through the agency of Mr Read) about the conduct of his co-workers (specifically, Ms Cavanagh, Ms Peeters and Ms Kim). Mr Read, of course—like the ATO more broadly—had no legal function to discharge in determining whether or not Mr Serpanos had, in truth, been defamed; but Mr Serpanos cannot sensibly be understood to have made that complaint believing otherwise. Instead, he should be understood to have been complaining more broadly—and, importantly, to his employer—about how his co-workers had treated him. I accept that that suffices to qualify his complaint as one that he made in relation to his employment.
7.3.2 Was the complaint one that Mr Serpanos was “able to” make?
157 In addition to establishing that the subject matter of the complaint raised by the 18 July Email bore a sufficient connection to his employment, Mr Serpanos must also demonstrate that it was a communication that he was relevantly able to make for the purposes of s 341(1)(c)(ii) of the FW Act.
158 The ATO denied that it was. Instead, it was suggested that the 18 July Email—at least to the extent that it contained the complaint upon which Mr Serpanos relies—was merely an email that he felt justified in sending. It was not, it is said, sent pursuant to, or for the purposes of vindicating, some conveyed right or ability.
159 In answer to that submission, Mr Serpanos sought to invoke an array of procedures applicable to or within the ATO concerning employee conduct. Those processes were said to be contained within the APS Code of Conduct Procedures, the Australian Public Service Commissioner’s Directions 2016 (Cth), and various internal ATO instruments that were apparently in place for the purposes of facilitating, investigating and handling allegations of misconduct. It is unnecessary to particularise all of those instruments. It suffices to note that, at least in combination, they served to require that ATO employees adhere to and promote high standards of integrity within their agency.
160 By his 18 July Email, Mr Serpanos could be understood to discharge that obligation (or, at the least, his obligation to call out misconduct). The email sought to impress upon Mr Read (and others) that ATO employees (including Ms Cavanagh, Ms Peeters and Ms Kim) had acted inconsistently with the values by which they were expected to abide. By those instruments (in combination), Mr Serpanos was entitled—which is to say, was “able to”—to pursue allegations of that kind. It follows that I accept that the 18 July Email was a complaint that he was relevantly able to make.
7.3.3 Did the 18 July Email amount to the exercise of a workplace right?
161 By sending the 18 July Email, Mr Serpanos sought (amongst other things) to agitate a complaint in relation to his employment that he was relevantly able to make. I accept that, by sending it, he exercised a workplace right for the purposes of s 340(1)(a) of the FW Act.
7.4 The 22 July Email
162 The text of Mr Serpanos’s 22 July Email is also replicated above (at [24]). It is to be recalled that Mr Serpanos sent it to an internal ATO complaints email address. The email touched upon an array of subject matters; but relevant for present purposes is the following passage (emphasis added):
The most relevant response by Ms Cavanagh is contained in her response 4: where she states that some female members were considering in 2017 making a complaint against me in relation to some comments I made at happy hour. Ms Cavanagh states that at around the same time she became aware of comments made by me, that she had received a text message from a former staff member Ms Peeters which was sent to Olivia Kim (another team member), advising that I said words to the effect … he would even f#!k Wendy if that’s what it take to get an EL2..” Ms Cavanagh claims to have a screen shot of the text. Ms Cavanagh acknowledges that she did not raise this matter with me and that she was angry with me and she acknowledges that my email for her support was ignored by her. This is bullying behaviour and unreasonable managerial action. I am considering defamation action for this as the comments are untrue and were never made by me. If the parties to the comments were concerned they should have raised their issue with me way back then or in the alternative issued a complaint against me. This was never done.
7.4.1 Was the complaint related to Mr Serpanos’s employment?
163 Whether or not the complaint to which the 22 July Email gave voice was one that Mr Serpanos made in relation to his employment turns largely (if not entirely) upon the same factors as those addressed in respect of the 18 July Email (above, section 7.3.1, [154]-[156]). For equivalent reasons, I consider that it was. As with the 18 July Email, the 22 July Email was a complaint that Mr Serpanos made to his employer about the conduct of some co-workers. I accept that that suffices to qualify the complaint as one that was made in relation to his employment.
7.4.2 Was the complaint one that Mr Serpanos was “able to” make?
164 There was no contest between the parties that the 22 July Email, to the extent that it contained a complaint made in relation to his employment, contained a complaint that Mr Serpanos was “able to make” for the purposes of s 341(1)(c) of the FW Act. That is plainly so.
7.4.3 Did the 22 July Email amount to the exercise of a workplace right?
165 By sending the 22 July Email (as with the 18 July Email), Mr Serpanos sought (amongst other things) to agitate a complaint in relation to his employment that he was relevantly able to make. I accept that, by sending it, he exercised a workplace right for the purposes of s 340(1)(a) of the FW Act.
7.5 The First Concerns Notices
166 By the First Concerns Notices, Mr Serpanos put Ms Cavanagh, Ms Peeters and Ms Kim on notice of his intention to commence defamation proceedings against them unless they each made certain offers to him (including in relation to the payment of compensation and legal costs). The notices were sent directly to the named recipients.
7.5.1 Was the complaint related to Mr Serpanos’s employment?
167 The First Concerns Notices differed from the 18 July Email and the 22 July Email (and, indeed, from other correspondence that Mr Serpanos addressed to ATO management). To begin, none of them was sent or received by anybody in their capacity as an ATO employee. On any view, each was sent on behalf of Mr Serpanos in a personal capacity; and was addressed personally to each of its recipients (albeit at their business addresses). None of them served as a complaint that Mr Serpanos raised with the ATO.
168 Nonetheless, Mr Serpanos maintains that each of the First Concerns Notices is properly described as containing a complaint that he made in relation to his employment. That is put on bases equivalent to those that he agitates in respect of the 18 July Email and the 22 July Email (above, [154]).
169 The respondent maintains that the First Concerns Notices very simply foreshadowed a civil action for defamation against those who received them. There was, the ATO maintains, no connection in substance between that foreshadowed action and Mr Serpanos’s employment. As a result, it submits that the complaint inherent in each of the First Concerns Notices was not one that Mr Serpanos made in relation to his employment.
170 I accept that that is so. The complaint to which the First Concerns Notices gave voice related to the reputational damage that Mr Serpanos claimed to have suffered as a result of having wrongly had the Even Wendy Comment attributed to him. It was, in other words, a complaint about having been the victim of tortious wrongdoing. That that wrongdoing had transpired in a work context—as, on any view, it was alleged to have—cannot suffice to inform the subject matter of Mr Serpanos’s complaint. That subject matter—his alleged subjection to tortious wrongdoing—was not about (that is, did not relevantly relate to) his employment.
171 The point can be illustrated by example. Suppose that an employee’s car were to sustain damage in a workplace carpark as a result of the negligence of a co-worker; and that the employee resolved to or did commence an action in tort to recover damages. Might that action qualify as a complaint made in relation to the employee’s employment? It would not. A complaint of that kind is a complaint to a court about the damage occasioned by the negligence alleged. It is a complaint made in relation to negligence and damage, not employment. Contextual circumstances—including that the negligence was that of the plaintiff’s co-worker and took place at a work location—do not alter that reality.
172 Whether a complaint made by an employee qualifies as one made “in relation to his or her employment” depends upon the subject matter about which the complaint is made. In order so to qualify, a complaint must be about a subject, circumstance, issue or thing that arises by reason of the complainant’s employment. Here, the subject matter of Mr Serpanos’s complaint to the recipients of the First Concerns Notices—namely, that they had maliciously and improperly defamed him—was not of that nature. Mr Serpanos cannot, by those notices, be understood to have been complaining about any aspect of his employment. He was, with respect, correct to describe his foreshadowed legal action as “a private matter” (above, [28], [35]).
173 It follows that I do not consider that the First Concerns Notices prosecuted any complaint that Mr Serpanos made in relation to his employment.
7.5.2 Was the complaint one that Mr Serpanos was “able to” make?
174 Again, there was no contest between the parties that the First Concerns Notices gave voice to a complaint that Mr Serpanos was “able to make”. Again, that is plainly so.
7.5.3 Did the First Concerns Notices amount to the exercise of a workplace right?
175 The First Concerns Notices qualified as complaints that Mr Serpanos was “able to” make; but not as complaints that he was able to make in relation to this employment. It follows that Mr Serpanos cannot be understood to have exercised a workplace right by sending them (or by having them sent on his behalf).
7.6 The 8 August Email
176 The 8 August Email arose from email exchanges involving Mr Serpanos’s union representative, Mr Lapidos, about his (Mr Serpanos’s) potential transfer into a role external to Ms Cavanagh’s remit. Insofar as it incorporated the pleaded complaint by reason (or partly by reason) of the making or maintaining of which Mr Serpanos claims to have been dismissed (as to which, see above, section 7.1 [134]-[137]), it is the following passage that is of particular relevance (errors original):
I am putting it on the record that I am pursing civil action for defamation against 3 current employees of the ATO , 2 of which are in my team. This is a private matter.
Notices have been issued to the affected parties.
As an employee of the ATO I assume that I would have rights to protect my character and reputation within the organisation. As a result I request that the ATO treat me fairly and equally with the other parties on this matter.
Once this matter proceeds to court ultimately a Jury will make a decision on the defamatory imputation as well as any defences available to the parties.
However I do appreciate that there is a conflict of interest if the ATO takes the side of one party over another before any decisions are made by the Court accordingly I will not request that the ATO indemnify my legal costs and the legal action will be funded privately. I expect that the other parties will also fund their defence.
7.6.1 Was the complaint related to Mr Serpanos’s employment?
177 It is to be recalled that the 8 August Email was sent not merely to Mr Lapidos but also to various of the ATO’s management, including Mr Day and Mr Sheil. That being so, it possesses the same qualities that have led me to conclude that each of the 18 July Email and the 22 July Email contained complaints that Mr Serpanos made in relation to his employment. Although there is room for doubt (about not merely the subject matter of the complaint but also whether the correspondence even contained a complaint—or the pleaded complaint—at all), I accept that the 8 August Email similarly contained a complaint of that nature. It agitated a grievance that Mr Serpanos sought to pursue with his employer about the conduct of some co-workers. In context, I accept that that should suffice to qualify the complaint inherent in that communication as one that was made in relation to Mr Serpanos’s employment.
7.6.2 Was the complaint one that Mr Serpanos was “able to” make?
178 The ATO submits that the 8 August Email did not qualify as a complaint that Mr Serpanos was relevantly able to make such that, by making it, he might be understood to have exercised a workplace right by reason of s 341(1)(c)(ii) of the FW Act.
179 There is scope for accepting that submission. On its face, the 8 August Email is an unremarkable link in a chain of emails concerning efforts that were afoot to reposition Mr Serpanos outside of Ms Cavanagh’s team. To the extent that Mr Serpanos incorporated within it a complaint that he had been maliciously and improperly defamed (as I have accepted, notwithstanding appearances to the contrary), that complaint would seem to be little more than one that he felt justified in raising (as opposed to one that he was relevantly able to make for the purposes of s 341(1)(c)(ii) of the FW Act).
180 I think the better view—howsoever hesitantly I have formed it—is that the complaint to which the 8 August Email gave voice was one that Mr Serpanos was relevantly able to make. That is so for reasons equivalent to those expressed in respect of the 18 July Email (above, section 7.3.2, [157]-[160]). By his 8 August Email, Mr Serpanos could be understood to have discharged the same obligation.
181 I accept that the 8 August Email constituted a complaint that Mr Serpanos was able to make.
7.6.3 Did the 8 August Email amount to the exercise of a workplace right?
182 By sending the 8 August Email, Mr Serpanos sought (amongst other things) to agitate a complaint in relation to his employment that he was relevantly able to make. By sending it, he must be understood to have exercised a workplace right for the purposes of s 340(1)(a) of the FW Act.
7.7 The Second Concerns Notices
183 The Second Concerns Notices refined (in respects that are not presently material) the allegations and demands that were the subject of the First Concerns Notices. For all intents and purposes, no distinction need be drawn here between the First Concerns Notices and the Second Concerns Notices. The conclusions reached in respect of the First Concerns Notices (see above, section 7.5 [167]-[175]) apply also (and for the same reasons) to the Second Concerns Notices.
184 By way of summary, then, the Second Concerns Notices qualified as complaints that Mr Serpanos was relevantly “able to make”; but not as complaints that he made in relation to his employment. By sending them (or instructing that they should be sent) to each of Ms Cavanagh, Ms Peeters and Ms Kim, Mr Serpanos cannot be understood to have exercised a workplace right for the purposes of s 340(1)(a) of the FW Act.
7.8 The 20 August Letter
185 Mr Serpanos’s 20 August Letter was sent in response to the Suspension Notice that he had received nearly a week earlier. He sent it by way of acceptance of an invitation that Ms Hamilton had extended to him to that end. Although the correspondence is lengthy, it is convenient to here replicate the parts of it that assume immediate relevance (that is to say, the parts by which Mr Serpanos advanced his complaint that Ms Cavanagh, Ms Peeters and Ms Kim had maliciously and improperly defamed him by attributing the Even Wendy Comment to him):
…
I deny the allegation that I am "threatening legal proceedings to harass and bully staff in circumstances where you (meaning I) know that the proceedings have no reasonable grounds."
I instructed my solicitors to send a concerns notice, which constitutes a genuine attempt to resolve a civil dispute without legal proceedings (see Part 3 of the Defamation Act (Victoria) 2005.
Your characterisation of the concerns notice as a threat to issue legal proceedings is erroneous.
I have reasonable grounds for sending the concerns notice. The defamatory act complained about in the concerns notice is in response to a statement "he would even fuck Wendy if that's what it takes to get an EL2." The serious nature of the defamatory act is that it is an inappropriate and offensive comments of a sexual nature that would justify a suspension, and thus I needed to protect my reputation.
2. In relation to your statement where you state that I have been threatening legal proceedings to harass and bully staff, in circumstances where I know that the proceedings have no reasonable grounds. I draw your attention to the following facts:
a. On the 11 May 2019 I raised a complaint with DC Will Day regarding my Directors Wendy Cavanagh's bullying behaviour towards me.
b. Ian Read AC was appointed to investigate my complaint against Wendy Cavanagh.
c. On the 13th June 2019 Wendy Cavanagh responded to my complaint.
d. In Wendy Cavanagh's response 4: to my complaint she stated that she became aware of a comment made by me to a group of males in the team at a happy hour in 2017 stating the following words
"he would even f#l!k Wendy if that's what it takes to get an EL2."
e. In Wendy's response she clearly identified that this message was sent by Samantha Peeters, to Olivia Kim who then showed the message to Wendy Cavanagh this all occurred in 2017.
f. Wendy states that she has seen the message and has kept a screen shot that can be provided upon request.
3. I became aware of the alleged comment in July 2019 after receiving Ian Read's report in relation to my bullying complaint against Wendy. I was shocked by her statement and immediately felt that my reputation and character has been damaged at the workplace.
…
7. Wendy instead of investigating the matter in 2017 held onto the information and published it maliciously in her response to my bullying claim to Ian Read and Alenka Lawrence that has further damaged my reputation and character at the work place and placed a blocker on my career development in the future at the ATO.
8. I believe that Wendy kept the screen shot for an improper purpose to be used to discredit, and defame my character and reputation at the workplace in the future.
9. I sought advice from my Legal representatives and they advised me that the publication of the statements by Samantha, Olivia and Wendy formed the basis of an action in tort known as Defamation under the Victorian Defamation Act 2005.
10. Accordingly I instructed my lawyers to issue a concerns notice under section 14 of the Defamation Act 2005 (Vic) to the parties that defamed me.
…
186 Later in that correspondence, Mr Serpanos asserted that he had “…the same rights to commence legal action against other staff members for defamation and this case is a precedent for initiating private legal action between staff.” Later still, Mr Serpanos noted:
18. I am not a defamation expert however I consulted lawyers who are experts in defamation and was advised by them that I had a reasonable case to pursue an action for defamation against all 3 parties. Accordingly my action is not frivolous and vexatious or indeed threatening bullish or harassing. I remind you that I have already incurred legal costs in seeking that advice.
…
21. For the record the action for defamation is a private matter accordingly I have funded the matter at my own cost as I am aware of the obligations of the ATO under the Financial Management and Accountability Act 1997 and I refer in particular to section 44 which promotes the efficient, effective and ethical use of Commonwealth resources. This includes a responsibility to properly manage the spending of public money on legal services in particular. On the issue of legal costs I would appreciate the ATO to remain impartial until the matter is determined.
…
I am an employee of the ATO as well and would expect the ATO to treat me fairly, ethically and remain impartial towards my resolution of my private action for defamation against the other parties.
…
187 Attached to that email was correspondence that Mr Serpanos had received from his solicitor, Mr Stan (see above, [36]).
7.8.1 Was the complaint related to Mr Serpanos’s employment?
188 It is unnecessary that I should recite the parties’ submissions as to why the 20 August Letter was or was not a complaint that Mr Serpanos made in relation to his employment. They were the same as (or at least materially equivalent to) those that were advanced in respect of the other communications that Mr Serpanos sent to representatives of the ATO (including the 18 July Email, the 22 July Email and the 8 August Email). I have already summarised and addressed those submissions; and the conclusions to which I was drawn in relation to those other communications apply equally to the 20 August Letter. By that correspondence, Mr Serpanos should be understood (in part) to have agitated with his employer a grievance concerning the conduct of some of his co-workers. That suffices to qualify the complaint inherent in his letter as one that he made in relation to his employment.
7.8.2 Was the complaint one that Mr Serpanos was “able to” make?
189 There was no contest between the parties that the 20 August Letter, to the extent that it contained a complaint made in relation to his employment, contained a complaint that Mr Serpanos was “able to make” for the purposes of s 341(1)(c) of the FW Act. I accept that it did.
7.8.3 Did the 20 August Letter amount to the exercise of a workplace right?
190 Having found that the 20 August Letter prosecuted a complaint that Mr Serpanos was able to make in relation to his employment, it follows that I am satisfied that, by his sending of it, Mr Serpanos exercised a workplace right for the purposes of s 340(1)(a) of the FW Act.
7.9 The remaining communications
191 To this point in these reasons, certain themes will be apparent, as will be the regrettable risk of repetition. With that in mind, it is convenient to group the remainder of the communications that Mr Serpanos seeks to constitute as the exercise of workplace rights.
192 All but one of what remains are of a similar character, in that they assume the form of correspondence that Mr Serpanos sent to various ATO representatives, within which he made various observations related to his defamation claims (all of which have already been set out above). The Defamation Filings are the exception. It will be necessary to return to them momentarily.
7.9.1 Were the remaining complaints related to Mr Serpanos’s employment?
193 Insofar as each agitated Mr Serpanos’s complaint that Ms Cavanagh, Ms Peeters and Ms Kim had maliciously and improperly defamed him, the 2 September Response, the 4 September Email and the 5 September Email were materially similar in character to the other emails and letters that Mr Serpanos sent to representatives of the ATO (and upon which he relies). Like the 18 July Email, the 22 July Email, the 8 August Email and the 20 August Letter, each of the 2 September Response, the 4 September Email and the 5 September Email was in the nature of a complaint that Mr Serpanos made to his employer about the conduct of some co-workers.
194 For the same reasons as are identified in respect of the earlier correspondence (above, [156], [163], [177], [188]), that suffices to constitute each of the 2 September Response, the 4 September Email and the 5 September Email as complaints that Mr Serpanos made in relation to his employment.
7.9.2 Were the remaining complaints ones that Mr Serpanos was “able to” make?
195 The ATO concedes that, insofar as it gave voice, as I have found, to a complaint that Mr Serpanos made in relation to his employment, the 2 September Response amounted to a complaint that Mr Serpanos was relevantly able to make. That concession was appropriate and I accept the proposition conceded.
196 The same concession is not made in relation to the 4 September Email and the 5 September Email. Those emails were very similar in nature to the 8 August Email. For the same reasons as are explained above in relation to that correspondence (above, [180])—and, again it might be said, with some hesitation—I am inclined to the view that each of the 4 September Email and the 5 September Email constituted a complaint that Mr Serpanos was able to make.
7.9.3 Did the remaining complaints amount to the exercise of a workplace right?
197 From the conclusions expressed above, it necessarily follows that, by sending each of the 2 September Response, the 4 September Email and the 5 September Email, Mr Serpanos must be understood to have exercised a workplace right for the purposes of s 340(1)(a) of the FW Act.
7.10 The Defamation Filings
198 As he had foreshadowed he would, Mr Serpanos ultimately commenced an action in the County Court of Victoria against Ms Cavanagh, Ms Peeters and Ms Kim. The Defamation Filings by which (or partially by which) he did so (or by which he prosecuted his action) need not be particularised. It suffices to note that they alleged that each of Ms Cavanagh, Ms Peeters and Ms Kim had defamed him by attributing the Even Wendy Comment to him.
199 There can be no doubt that the commencement and prosecution of that action sufficed to qualify as the making of a complaint that Mr Serpanos was able to make. Save in a very small number of instances, it is a feature of Victoria’s (indeed, Australia’s) civil justice system that litigants are able, in courts of competent jurisdiction, to prosecute originating processes to vindicate (or seek to vindicate) their rights, privileges and immunities as they consider appropriate. Again, the ATO conceded that the Defamation Filings, insofar as they sought to prosecute a complaint that Mr Serpanos made in relation to his employment, amounted to the pressing of a complaint that he was relevantly able to make. Again, that concession was appropriate.
200 Nonetheless—and for the reasons already explored in connection with the First Concerns Notices and the Second Concerns Notices (above, [167]-[172], [183])—the ATO did not accept that the complaint that Mr Serpanos advanced by means of the Defamation Filings was one that he made in relation to his employment. I agree. It was a complaint about whether his reputation had been besmirched, wrongfully and in a manner that might sound in damages. It did not touch upon or concern aspects of his employment. Mr Serpanos’s defamation action was no more pursued in relation to his employment than Geoffrey Rush’s was pursued in relation to Shakespearean theatre.
7.11 Conclusions
201 By making each of the following communications, namely:
(1) the 18 July Email;
(2) the 22 July Email;
(3) the 8 August Email;
(4) the 20 August Letter;
(5) the 2 September Response;
(6) the 4 September Email; and
(7) the 5 September Email,
Mr Serpanos is to be understood as having exercised a workplace right for the purposes of s 340(1)(a) of the FW Act.
202 The same cannot be said in relation to the sending or filing of the First Concerns Notices, the Second Concerns Notices or the Defamation Filings. In each case, the complaint that Mr Serpanos sought to agitate by those processes was not one that he made in relation to his employment. None of those communications, therefore, can qualify as the exercise of a workplace right pursuant to s 341(1)(c)(ii) of the FW Act.
Part 8. Why was Mr Serpanos dismissed?
203 Having established which workplace rights Mr Serpanos did and did not exercise, attention must now turn to whether his dismissal was actuated in any way because of those that were. That is a factual inquiry that calls for the interrogation of the states of mind of those who resolved to effect Mr Serpanos’s dismissal.
204 That, in turn, calls for resolution of a more immediate inquiry, namely: who was it that resolved, or was otherwise materially or significantly influential in the decision, to effect Mr Serpanos’s dismissal? In whose mind or minds did the ATO’s reasons for the dismissal reside?
205 It is to that inquiry that attention shall first turn.
8.1 Whose reasons were the ATO’s reasons?
206 Neither by his pleading nor by his evidence did Mr Serpanos identify which of the ATO’s human agents effected the termination of his employment. Instead, he simply alleged that the ATO dismissed him on 16 December 2019. His pleading did not address, either in the form of pleaded facts or identified particulars, through whom that was alleged to have been effected, nor how it was that their conduct and state of mind should be understood as the conduct and state of mind of the ATO.
207 No issue was taken with the way that that corporate conduct was alleged. Indeed, the ATO admitted what Mr Serpanos alleged on that front (namely, that it dismissed him on 16 December 2019). At that level of generality, it could hardly have done otherwise. Nonetheless, as a result, the search for who it was that effected Mr Serpanos’s dismissal falls to the court to determine upon the evidence that was led.
208 The evidence of both ATO witnesses—Ms Kotronakis and Ms Boyd—was that it was Ms Boyd that made the decision to dismiss Mr Serpanos. She was authorised to do so, having been appointed as the “sanction delegate” in relation to the charges of misconduct that were brought against him. Ms Boyd told the court (and I accept, save to the extent explored below) that she made her decision “in a silo”.
209 There was no evidence to contradict that proposition (although, as will shortly be seen, the evidence made clear that, in various ways and at various stages, others were involved in the broader process that culminated in Ms Boyd’s decision). On any view, a search for the reason or reasons for which the ATO dismissed Mr Serpanos will involve examination of the reason or reasons for which Ms Boyd decided upon that course.
210 On the present state of the authorities (see above, [96]-[123]), it does not suffice to interrogate only the mental processes that led Ms Boyd to terminate Mr Serpanos’s employment. If there were others who, although they did not themselves make it, nonetheless contributed to the making of that decision in a way or ways that qualify as “‘significant’, ‘plainly important’, ‘major’, ‘substantial’ or ‘essential’”—see Wong, [83] (Katzmann, Charlesworth and O’Sullivan JJ)—the ATO will need to demonstrate that their conduct also was not actuated by a reason or reasons prohibited by s 340(1)(a) of the FW Act.
211 It is convenient, first, to identify the possible human sources in whose minds the ATO’s corporate state of mind might relevantly have resided. There can be no doubt that Ms Kotronakis should be amongst them. Ms Boyd’s evidence was that, in making her decision, she formed her own view about whether or not Mr Serpanos had acted in contravention of the APS Code of Conduct; but she did not deny that, in doing so, she relied heavily upon the findings that Ms Kotronakis included in the Determination Report. More than once in the witness box, Ms Boyd made clear that her role as the “sanction delegate” was not to second-guess or re-prosecute the findings to which Ms Kotronakis had been drawn (and which she had included within her Determination Report). Although she did not herself commit the ATO to dismissing Mr Serpanos, Ms Kotronakis contributed to that decision by preparing and sending to Ms Boyd her Determination Report. On the current state of authority, that contribution was very likely sufficient to constitute the state of mind with which Ms Kotronakis did those things as the state of mind (or part of the state of mind) with which the ATO dismissed Mr Serpanos. I shall proceed on the basis that it was.
212 Ms Kotronakis’s involvement in the process that culminated in Mr Serpanos’s dismissal was not limited to the preparation and sending of the Determination Report. The evidence disclosed that she also sent to Ms Boyd a “draft consideration letter”, in which she nominated the termination of Mr Serpanos’s employment as the appropriate sanction. The court was told that it was standard practice for a “breach decision-maker” to prepare draft correspondence of that nature. Nonetheless, Ms Boyd’s evidence was clear: after reviewing Ms Kotronakis’s Determination Report, Ms Boyd independently came to consider dismissal as the appropriate sanction for Mr Serpanos. She did so “in a silo”. There is no evidential basis for supposing that she was influenced to that end by receipt of Ms Kotronakis’s “draft consideration letter”. It could not be said (and I do not accept) that, by preparing and sending that draft letter, Ms Kotronakis contributed to Ms Boyd’s decision in a manner sufficient to warrant examination of why that draft letter was provided.
213 The evidence identified other contributors. Ms Kotronakis’s evidence, in particular, was clear that others had at least some input into various aspects of her investigation and the Determination Report in which it culminated. The evidence identified four such contributors: Mr Sheil, Ms McLoughlin, Ms Morris and Mr Riley. It is prudent to trace their various inputs.
8.1.1 Mr Sheil
214 Mr Sheil’s involvement in the process that ended with Mr Serpanos’s dismissal was limited. The evidence established that he gave some advice to Ms Kotronakis as to how she might go about conducting the investigation that she was charged with conducting. Of some importance, Mr Sheil advised Ms Kotronakis that she should, as she put it, “conduct the investigation on the papers”. History records that she followed that advice. During Ms Kotronakis’s cross-examination, counsel for Mr Serpanos described it as an instruction, rather than advice; but, although she did not cavil with that terminology, Ms Kotronakis consistently described it as advice. That is a matter of at least potential significance, in that, partly in consequence of her acceptance of that course, the investigation that Ms Kotronakis went on to conduct was open to criticism as procedurally or substantially flawed or incomplete. That reality is explored in more detail below.
215 Ms Kotronakis also had occasion to discuss with Mr Sheil Mr Serpanos’s Second Concerns Notices and the amount that Mr Serpanos therein indicated that he sought to recover in damages from Ms Cavanagh, Ms Peeters and Ms Kim. Mr Sheil expressed to Ms Kotronakis his view that the sum that Mr Serpanos threatened—$1.1 million in total—was “unreasonable”. That representation was at least partly why Ms Kotronakis was led to form her own view that the amount that Mr Serpanos had threatened was one for which there was “no reasonable basis”.
216 Mr Sheil was also provided with—and provided some feedback on—the first draft of the Determination Report that Mr Riley prepared. Ms Kotronakis explained that, as with the later involvement of Ms McLoughlin and Ms Morris (which is discussed below), Mr Sheil was provided with the draft in order that he might subject it to a process of “quality assurance”. The evidence made clear that Mr Sheil recommended (and perhaps required) that changes be made to the draft; however, there was no evidence that, by his involvement in that process of quality assurance, Mr Sheil sought to influence or alter the content or substance of Ms Kotronakis’s draft findings. His involvement appears, on the evidence and in any event, to have been limited to the first of the drafts that Mr Riley prepared.
217 In addition to that involvement, the evidence established that it was Mr Sheil who appointed Ms Boyd to the role of “sanction delegate”. Why he did so is not a question that the court need answer; but it might reflect in the email correspondence that he sent to Mr Serpanos (amongst others) on 9 December 2019 (above, [56]). In that correspondence, Mr Sheil indicated that it would ordinarily fall to him to discharge that function; but that, because of the exchanges in which he had been involved to that point (such as, presumably, the 4 September Email, the 5 September Email, and Mr Serpanos’s email of 21 September (above, [46])) and the fact that that might “give rise to questions about [his] impartiality”, it would instead fall to Ms Boyd.
218 Mr Serpanos submits that the findings that Ms Kotronakis made—or, perhaps more accurately, the Determination Report in which she articulated them—had Mr Sheil’s “fingerprints all over [it]”. He invites the court to conclude that Mr Sheil’s involvement in the process that ended with Mr Serpanos’s dismissal was significant or essential or otherwise sufficient to satisfy the Kodak test. That was said to be a conclusion that is available if not on the evidence of Ms Kotronakis, then as a matter of inference arising, first, from Mr Sheil’s involvement in the negotiations (in September 2019) concerning Mr Serpanos’s future at the ATO and the future of his defamation action; and/or, second, the ATO’s failure to call evidence from him.
219 I do not accept any of those contentions. Ms Kotronakis’s evidence about Mr Sheil’s involvement was clear. Mr Sheil was the source of some advice and direction; but there is no evidence to demonstrate that he sought, thereby (or at all), to impose or incline Ms Kotronakis toward any particular finding or outcome, much less that his conduct bore any material or essential or significant or major or plainly important impact upon Ms Boyd when she made her decision to dismiss Mr Serpanos. There is no basis to infer otherwise from Mr Sheil’s involvement in the negotiations (such as they were or might have been) concerning Mr Serpanos’s future (and the future of his defamation complaint). Nor could the court properly infer otherwise from his failure to give evidence.
220 It might well be that Mr Sheil was of the view that Mr Serpanos was guilty of the charges levelled against him and that he should be dismissed in consequence of that guilt; or, otherwise, that Mr Serpanos’s defamation complaints were improper in some way. He might even have held those views because, or partly because, of Mr Serpanos’s exercise of a workplace right or workplace rights. But the decision to dismiss Mr Serpanos was not (and was not suggested to be) Mr Sheil’s. The idea that he might have done something additional to what the evidence exposed; and that that conduct might have amounted to an essential or significant (or Kodak- or Wong-like) contribution to the decision that Ms Boyd made to terminate Mr Serpanos’s employment is speculative, at best.
221 I do not accept that Mr Sheil did any such thing. The disposition of this matter does not turn upon the state or states of mind with which he engaged in any conduct.
8.1.2 Ms McLoughlin
222 Ms McLoughlin was, at relevant times, Ms Kotronakis’s immediate superior in the ATO’s Working Well—ATO People team. According to Ms Kotronakis, it was Ms McLoughlin who received the complaints that were made against Mr Serpanos and who appointed her (Ms Kotronakis) to investigate them. Those complaints were received (or at least partly received) in written form. Ms McLoughlin passed on what she received to Ms Kotronakis.
223 That was not the only aspect of Ms Kotronakis’s investigation into which Ms McLoughlin had some input. Evidence was led about instructions (or, at the very least, advice) that Ms McLoughlin gave to Ms Kotronakis about how she (Ms Kotronakis) ought to go about documenting her findings. Ms Kotronakis told the court that her Determination Report was prepared with the assistance of a “ghost writer”, Mr Riley. That, she explained, was not uncommon within the ATO. Nonetheless, she told the court that Mr Riley’s appointment was not her idea. Although not certain, she told the court that it was likely Ms McLoughlin’s.
224 Ms McLoughlin was also involved in reviewing a draft of Ms Kotronakis’s Determination Report. Ms Kotronakis described that involvement (which extended also to Ms Morris) as a process of “quality control”. Ms McLoughlin gave Ms Kotronakis feedback about her draft. Ms Kotronakis was unable to recall any specifics as to what feedback was provided; but confirmed that it “may have just been wording” and, in any event, “wasn’t anything significant”. There was no suggestion, much less any evidence, that Ms McLoughlin had in some way dictated to Ms Kotronakis, or otherwise brought some influence to bear upon her as to, the findings that her report ought to contain (either at that stage or any other).
225 Ms Kotronakis also gave evidence that Ms McLoughlin advised her (or “would have advised” her) to prepare the draft consideration letter that she (Ms Kotronakis) sent to Ms Boyd together with her Determination Report (above, [55]). That, Ms Kotronakis explained, was the “usual practice”. I have already determined that that conduct—the preparation and provision to Ms Boyd of a draft letter—was not material to Ms Boyd’s ultimate decision.
226 By his counsel, Mr Serpanos theorised that Ms McLoughlin had actively solicited the complaints that were levelled against him. There was no evidence to substantiate that theory. At its highest (if at all), the evidence suggested that Ms McLoughlin, having been alerted to there being issues that might warrant investigation, asked the complainants whether they might be willing to press them. I do not accept that, by doing so, her contribution to the decision that Ms Boyd made, several months later, to dismiss Mr Serpanos was at a level that might here require some interrogation as to why she did that. Indeed, I would be drawn to the same conclusion even if there was some evidence that Ms McLoughlin had actively solicited the complaints. Her reasons for doing so no more bear upon the reasons for which the ATO (through Ms Boyd) resolved to dismiss Mr Serpanos than do the reasons for which the complainants themselves resolved to prosecute their complaints.
227 Mr Serpanos further theorised that Ms McLoughlin was “gunning” for him and was keen to ensure that he be found guilty of the APS Code of Conduct violations that had been alleged against him. Further, he posited that Ms Kotronakis understood as much. Why Ms McLoughlin might have had reason to summarily conclude that adverse findings should be made was not the subject of exploration in Mr Serpanos’s evidence. Regardless, Ms Kotronakis denied that she had any understanding that Ms McLoughlin held the views that were speculatively attributed to her.
228 Ms McLoughlin’s opinions about Mr Serpanos or his guilt, whatever they might have been, are of no moment presently. Let it be assumed, momentarily, that she was “gunning” for him. Ms Kotronakis’s evidence was clear: that was not a matter about which she had any appreciation. If she was unaware that Ms McLoughlin was “gunning” for a particular result, then it is very difficult (even on the current state of the law) to see how Ms Kotronakis’s findings (and the contribution that they made to Ms Boyd’s decision) were tainted in some relevant way by Ms McLoughlin’s conduct (or the state of mind that animated it).
229 Mr Serpanos invited the court to reject Ms Kotronakis’s evidence about what she perceived were Ms McLoughlin’s wishes as to how the investigation might play out. That invitation must be declined and for at least two reasons.
230 First, a finding that the evidence that Ms Kotronakis gave was wrong (in that, in truth, she did perceive that Ms McLoughlin was “gunning” for Mr Serpanos) would require that the court first conclude either that Ms Kotronakis was lying under oath or that her recollection of what she perceived at the time was faulty at the point that she gave her evidence about it. There is no basis for either conclusion. Throughout her oral evidence, Ms Kotronakis presented as confident and conscientious. When she considered that her recollection of matters was impaired, she said so. I see no reason to (and do not) reject, either as deliberate falsity or as the product of faulty recall, her evidence about what she did or did not perceive were Ms McLoughlin’s wishes or intentions or beliefs vis-à-vis Mr Serpanos. As is explored further below, I consider that Ms Kotronakis’s evidence overall was compelling and reliable.
231 Second, the notion that Ms McLoughlin might have been “gunning” for Mr Serpanos and might have made that known to Ms Kotronakis in some way is, to say the least, an awkward one. There was no suggestion in the evidence that Ms McLoughlin and Mr Serpanos had crossed paths before, nor that Ms McLoughlin had any reason to come after him. As one might expect of an organisation like the ATO, the process for investigating alleged APS Code of Conduct breaches was documented; and the evidence discloses no reason why Ms McLoughlin might have been moved to bypass any part of that process here by seeking to influence Ms Kotronakis, directly or otherwise. The court should be slow to infer conduct of that kind in the absence of some clear evidential foundation for doing so.
232 I return, then, to the other ways in which Ms McLoughlin was said to have influenced the investigation that culminated in the findings upon which Ms Boyd heavily relied. It is to be borne in mind what Ms McLoughlin actually did (or is said to have done)—and, more importantly, what she did not do. Ms McLoughlin’s contribution to Ms Boyd’s ultimate decision—or, more accurately, her contribution to the contribution that Ms Kotronakis made to that decision—was limited to the giving of advice or instruction on administrative matters relevant to Ms Kotronakis’s preparation of the Determination Report (such as the engagement of Mr Riley, the form that Ms Kotronakis’s report might assume and the preparation of a draft sanction consideration letter). Ms McLoughlin might or might not have had some views about Mr Serpanos; but there is no basis to conclude that, by her conduct, they were brought to bear upon Ms Kotronakis’s findings (much less Ms Boyd’s decision) in a way that might qualify as essential or significant or otherwise sufficient to warrant the attribution of her state of mind to the ATO in respect of its decision to dismiss Mr Serpanos.
233 Ms McLoughlin did tell Ms Kotronakis that, in her draft consideration letter (above, [55]), she should nominate dismissal as the appropriate sanction for Mr Serpanos. For reasons already explored, that is of no moment. It cannot be said that that draft sufficed to contribute to Ms Boyd’s decision in a way that might satisfy the Kodak test. It was not an indispensable or major or significant or material link in the proverbial chain. On the contrary, such contribution as it might have effected was no more than secretarial. Whether or not Ms McLoughlin, when she gave that advice (or direction, if that is what it was), was animated by a reason or reasons that s 340(1)(a) of the FW Act proscribes is irrelevant.
234 In the absence of clear evidence that, by identifiable conduct, Ms McLoughlin brought some influence to bear upon Ms Kotronakis or Ms Boyd (expressly or otherwise) concerning Mr Serpanos’s fate, there is no basis to impute to the ATO’s conduct (that is to say, to Ms Boyd’s decision to dismiss Mr Serpanos) any reasons or state of mind that actuated Ms McLoughlin.
8.1.3 Ms Morris
235 Ms Morris’s involvement in the investigation process that resulted in Ms Kotronakis’s Determination Report was, on any view, limited. Ms Kotronakis’s evidence was that she (Ms Morris) was involved, with Ms McLoughlin, in a process of “quality control” prior to the finalisation of Ms Kotronakis’s report. There was no suggestion in the evidence that she did anything by which she might be thought to have been “gunning” for any particular outcome for Mr Serpanos. Her limited role in the process that culminated in Ms Kotronakis’s Determination Report—and, later, in Ms Boyd’s decision to terminate Mr Serpanos’s employment—could not be said to have risen above the Kodak threshold (howsoever it might be described).
236 It follows that whatever was the state of mind that animated (or partly animated) Ms Morris’s limited contribution, nothing that she did suffices, on the Kodak test, to constitute the state of mind with which she did it as the state of mind with which the ATO, through Ms Boyd, later resolved to dismiss Mr Serpanos.
8.1.4 Mr Riley
237 Ms Kotronakis’s evidence was that Mr Riley was engaged to “ghost write” the Determination Report. She told the court that the conclusions that he recorded in that document were recorded upon instruction from her. She maintained that the reasoning and the conclusions to which the report ultimately gave voice were her reasons and her conclusions. She could not recall—at least not with precision—how or why Mr Riley came to be involved. Her evidence was that, at one point, his engagement was terminated, only later to be reinstated.
238 Mr Serpanos submits that the court cannot know with certainty precisely what contribution Mr Riley made to the preparation of the Determination Report; and that, in the absence of that certainty, it should infer, from the ATO’s failure to call him to give evidence, that his contribution was at a level sufficient to constitute his reasons for doing whatever he did as the reasons, or part of the reasons, for which the ATO (through Ms Boyd) later resolved to dismiss Mr Serpanos.
239 I do not accept that any such inference should (if it even properly could) be drawn. Ms Kotronakis’s evidence was clear. The content of the report that she provided to Ms Boyd reflected the conclusions and reasoning to which she had been drawn over the course of her investigation. That it may or may not also have aligned with the views of others is irrelevant. There is no evidence to suggest that the report that Ms Boyd was given was held out as a report of anybody other than Ms Kotronakis (who, it might be remembered, was cast in the role of “breach decision-maker” under the APS Code of Conduct Procedures). Ms Kotronakis’s evidence made clear that, in preparing her Determination Report, the guidance, instruction and assistance that she received from others—including Mr Riley—rose no higher than that. None of what they did dictated or altered the conclusions that she drew.
240 The most that might be inferred from the ATO’s failure to call evidence from Mr Riley (or, indeed, any of the other individuals who had a role to play in the process that resulted in Ms Kotronakis’s Determination Report) is that their evidence would not have assisted the ATO. In the circumstances, the ATO did not require their assistance.
241 Mr Riley was not someone whose state of mind, at any point or in relation to any conduct, amounted or partly amounted to the state of mind with which the ATO resolved to terminate Mr Serpanos’s employment.
8.1.5 Conclusions
242 The only states of mind that require interrogation in this matter are those that animated the relevant conduct of Ms Kotronakis (namely, the preparation and sending of the Determination Report) and Ms Boyd (namely, the decision to terminate Mr Serpanos’s employment). As the decision maker, the reason or reasons for which Ms Boyd moved to dismiss Mr Serpanos are centrally relevant. Insofar as she prepared and sent the Determination Report, Ms Kotronakis’s contribution to Ms Boyd’s decision was at a level sufficient to clear the threshold that the current state of authority (established at least by Kodak, Qantas and Wong) contemplates.
243 None of the other identified actors engaged in any conduct in connection with Ms Boyd’s decision that was of a kind that warrants any analysis of why they acted as they did.
8.2 Was Mr Serpanos dismissed because he exercised workplace rights?
244 Both Ms Boyd and Ms Kotronakis gave evidence that, in doing what each did—in the case of Ms Kotronakis, undertaking and concluding an investigation into allegations of misconduct that were levelled against Mr Serpanos and, in the case, of Ms Boyd, deciding what ought to happen to him—they were not actuated by any of the complaints upon which Mr Serpanos relied (including each of those by the making of which he is to be understood as having exercised a workplace right). Each went further and gave evidence about why she did do what she did. At the risk of over-simplification, each told the court that she was satisfied that Mr Serpanos had engaged in the instances of sexual misconduct that were alleged against him and also that, because they were vexatious and/or unreasonable, his defamation action (and, prior to it, his threatened action) amounted to harassment as against Ms Cavanagh, Ms Peeters and Ms Kim. In each case, both were of the view that Mr Serpanos was guilty of having contravened the APS Code of Conduct.
245 Mr Serpanos invites the court not to accept that evidence. It is put that the evidence of each witness as to why she did and did not engage in the relevant conduct was wrong; either because it was deliberately untruthful or because it was otherwise a product of faulty recall. He submits that the real reason that underpinned his dismissal was that Ms Kotronakis and Ms Boyd (amongst others) did not like the fact that he had made any one or more of the ten communications upon which he presently relies. His dismissal, he says, was a product of his having complained about being maliciously and improperly defamed; and should, therefore, be understood to have been relevantly actuated by a reason or reasons proscribed by s 340(1)(a) of the FW Act. At the very least, he maintains that the ATO has not proven to the contrary, as s 361(1) of the FW Act contemplates.
246 I do not accept those contentions. The evidence of Ms Kotronakis and Ms Boyd suffices to establish that neither was actuated to engage in any conduct relevant to the dismissal because, or for reasons that included that, Mr Serpanos had complained about having been defamed (including by means of his First Concerns Notices, his Second Concerns Notices and his Defamation Filings). The ATO must be understood to have rebutted the statutory presumption that otherwise operates against it.
247 In order to explain why that is so, it is prudent to address the evidence of each of Ms Kotronakis and Ms Boyd.
8.2.1 Ms Kotronakis
248 Ms Kotronakis told the court that, by concluding that Mr Serpanos had, in fact, engaged in the instances of misconduct that were alleged against him (and by recording her findings in her Determination Report), she was not actuated by any of the ten communications upon which Mr Serpanos relies, including those that amounted to his exercise of a workplace right.
249 At least insofar as concerns some of those communications, Ms Kotronakis’s evidence can very readily be accepted. She told the court that, prior to completing her role as the “breach decision-maker”, she was not aware that Mr Serpanos had sent the 22 July Email, the 8 August Email, the 4 September Email or the 5 September Email. That evidence was unchallenged and I accept it. It necessarily follows that nothing that Ms Kotronakis relevantly did was done because (or for reasons that included that) Mr Serpanos made any of those communications.
250 Ms Kotronakis otherwise accepted that she was aware of (and, in many cases, had seen and read) the remaining communications. Some, she told the court, she considered irrelevant to her role as breach decision-maker and, for that reason, did not factor at all in her decision-making processes. In that category are the 18 July Email and the 20 August Letter. The former, it might be recalled, pre-dated the misconduct allegations that were levelled against Mr Serpanos. The latter was Mr Serpanos’s letter to Ms Hamilton concerning his suspension. Again, I accept Ms Kotronakis’s evidence that, in fulfilling her role as breach decision-maker, she paid no attention to (which is to say, was not relevantly actuated by) either of those communications.
251 The remaining communications, however, were centrally relevant to the conclusions that Ms Kotronakis drew and included within her Determination Report. The First Concerns Notices, the Second Concerns Notices and the Defamation Filings were relevant at least insofar as Ms Kotronakis determined that Mr Serpanos’s defamation complaints (to which each quite clearly gave voice) were a device through which he had sought to harass Ms Cavanagh, Ms Peeters and Ms Kim. The 2 September Response, of course, was Mr Serpanos’s response to the NOSB that he received from Ms Kotronakis.
252 Ms Kotronakis testified that, in preparing her Determination Report and drawing the conclusions that it contained, she was not actuated by the fact that Mr Serpanos had complained about having been defamed. Instead, she maintained in her evidence that she was satisfied that Mr Serpanos had, in fact, engaged in the instances of misconduct that had been alleged against him.
253 Insofar as concerned his defamation action, Ms Kotronakis drew a distinction between the proceeding that Mr Serpanos had threatened and then commenced (on the one hand), and the objective that he had sought thereby to realise (or, at least, the objective that she attributed to him, on the other). Her evidence was that she had concluded that Mr Serpanos in fact did make the Even Wendy Comment; and that he threatened and then commenced his action knowing that he had done so. That, she said, led her to conclude that there was “no reasonable basis” upon which he might pursue what he had threatened (and later commenced). Further, she told the court that she considered that the amount that Mr Serpanos sought to recover from Ms Cavanagh, Ms Peeters and Ms Kim—$1.1 million in total—was “excessive”. In combination, those conclusions led her to the view that Mr Serpanos’s defamation action (first threatened, then commenced) was, in fact (and in each case), an instrument of harassment that sufficed to qualify as a contravention of the APS Code of Conduct.
254 When asked about the basis upon which she had come to the conclusions that she expressed in the Determination Report, Ms Kotronakis’s evidence-in-chief was as follows:
After reviewing the evidence, and considering both Mr Serpanos’s response and all of the attachments attached to my notice of suspected breach, I, on the balance of probabilities, was satisfied that he had engaged in the sexually harassing conduct or behaviour in the workplace as outlined in the notice of suspected breach and that the same with respect to the harassing behaviour including that exclusionary behaviour, and also satisfied that he had engaged in the harassing behaviour with respect to issuing or threatening – and then later commencing defamation proceedings against the employees.
255 Later, she explained:
…as I had determined that [Mr Serpanos] had engaged in the conduct outlined in the [NOSB], I was satisfied that he had breached the [APS Code of Conduct] as a result…
256 Those explanations, of course, align with the reasons that Ms Kotronakis recorded in her Determination Report as to why she favoured the conclusions that she drew. In her evidence-in-chief, she maintained that those (written) reasons were, in fact, the reasons for which she drew those conclusions.
257 Mr Serpanos invites the court to reject that evidence. That attack fixes primarily (though not exclusively) upon the investigation processes that Ms Kotronakis employed en route to the making of her Determination Report. In short, Mr Serpanos maintains that those processes were flawed in ways so numerous and obvious that Ms Kotronakis could not, in fact, have reached the conclusions that she reached for the reasons that she nominated. Instead, it is put that those conclusions were arrived at in consequence of the complaint that Mr Serpanos prosecuted by the various communications upon which he relies—and, perhaps more significantly than the others, by those through which he threatened and then commenced his defamation action against Ms Cavanagh, Ms Peeters and Ms Kim. At the very least, it is put that the ATO has failed to rebut the statutory presumption that operates against it—in other words, that it has failed to establish that, insofar as concerns the findings that she made against Mr Serpanos, Ms Kotronakis was not actuated by a reason or reasons that s 340(1)(a) proscribes.
258 It is not necessary to explore in detail the procedural and substantive flaws by which Mr Serpanos maintains that Ms Kotronakis’s investigation was tainted. It suffices to note the following.
259 First, it is said that the investigation was flawed by reason of the fact that it was conducted solely on the strength of the written material with which Ms Kotronakis was provided. Mr Serpanos suggests that, had Ms Kotronakis been concerned fairly to determine whether he had done the things of which he stood accused, she ought to (and would) have put his responses to the complainants before making any findings. Key amongst those responses (which are set out in summary form above, at [42]) was that the allegations pressed against him were a product (or partly a product) of collusion and that others could have (and should have been asked to) provide responsive accounts, which would have exonerated him.
260 Second, it is said that, in reaching her conclusions, Ms Kotronakis failed to take account of the so-called Briginshaw standard of proof—in other words, that she was more readily minded to find against Mr Serpanos than the evidence before her warranted.
261 Third, it is said that Ms Kotronakis’s conclusion that the amount that Mr Serpanos sought to recover from Ms Cavanagh, Ms Peeters and Ms Kim was “a disproportionate sum” was beyond her professional competence, was improperly based on an opinion that Mr Sheil had expressed (again, despite a want of professional competence that might warrant his holding it), ought to have been the subject of legal advice and was contrary to the evidence that Mr Serpanos had provided to her.
262 Fourth, it was suggested (at least during her cross-examination) that Ms Kotronakis was improperly concerned to search for material—most notably in the form of “Jabber” conversations such as the one to which reference is made above—that would (or might) have implicated Mr Serpanos in the wrongdoing of which he stood accused.
263 Fifth, it was said that the investigation concerned a “stale” complaint (or complaints) that, according to ATO policy, ought not to have been investigated.
264 Sixth, it was said that Ms Kotronakis’s conclusion that Mr Serpanos had, in fact, made the Even Wendy Comment concerned an issue that, by that stage, was the subject of court proceedings, and so ought not to have been drawn until they were resolved.
265 All of those matters (and others) were explored in great detail during Ms Kotronakis’s lengthy cross-examination. They accumulate in the service of Mr Serpanos’s central submission that “the job that [Ms Kotronakis] did was woefully inept and…she appreciated that it was unfair as she was doing it”. That, in turn, is said to warrant the court’s concluding that the reasons that Ms Kotronakis said were the reasons that animated her conclusions were, in fact, not the real reasons that animated her conclusions; in other words, that Ms Kotronakis’s evidence about why she formed the views that she communicated in her Determination Report ought not to be accepted.
266 Although not impossible, it is difficult to see how Ms Kotronakis’s evidence about why she did what she did might be rejected otherwise than as deliberate falsity. If it is to be rejected, it must be rejected either on that basis or because it was the product of faulty recall. Rejection on the latter basis would require that the court have some reason to think that, when she gave her evidence, Ms Kotronakis’s recollection of why she drew the conclusions that she drew—in other words, what it was that animated her at the time to find and communicate as she did—was lacking in some way. Rejection on the former basis would require that the court be satisfied that her evidence was not truthful. If the court were to reject her evidence at all, it would seem more likely than not that it would do so on grounds of deliberate falsity.
267 Regardless, I am not drawn to either conclusion. As has been said, Ms Kotronakis impressed throughout her time giving evidence as confident and conscientious. When she had reason to doubt the accuracy of her memory, she said so. In the face of persistent and skilful cross-examination, she maintained that she did what she did for the reasons that she set out in her Determination Report. At times, it was apparent that she did so with some discomfort; but that struck more as recognition, on her part, that her investigation was open to legitimate criticism than that her true motive had been deftly exposed. I accept that her “true motive” in concluding as she did in her Determination Report was that she was genuinely of the view that Mr Serpanos had conducted himself in contravention of the APS Code of Conduct.
268 Whether she should have been is not here dispositive. Nonetheless, the failings that attended Ms Kotronakis’s investigation should be remarked upon. Although there might be some varnish to it, Mr Serpanos’s contention that Ms Kotronakis did a “terrible” and “unfair” and “woeful” job investigating the complaints that were levelled against him is not without foundation. The ATO made no attempt to defend what was done (or, more accurately, not done) as any kind of model process. It was accepted, for example, that Ms Kotronakis ought to have put elements of Mr Serpanos’s 2 September Response to the relevant complainants and ought to have canvassed evidence from a wider field of witnesses than she did. The court needn’t make findings consistent with those concessions. It suffices to say that they appear to be well-founded: Mr Serpanos appears to have good reason to complain, as he does, about the integrity of the investigation that was conducted and the findings that were made at the end of it.
269 Nonetheless, I do not accept that any of that affords the court reason to find that, when she gave evidence as to why she did as she did, Ms Kotronakis was either not telling the truth or was otherwise afflicted by poor recollection. Clumsiness—a descriptor to which I am drawn in preference to less polite alternatives—is a far more likely and plausible explanation for the failings that attended Ms Kotronakis’s investigation. But regardless, I accept Ms Kotronakis’s evidence that the conclusions to which she was drawn (and which found expression in her Determination Report) were conclusions that she drew genuinely believing that they were true. They were not conclusions that she drew because (or for reasons that included that) Mr Serpanos had complained about having been defamed.
270 Attention should return to the legal processes through which Mr Serpanos agitated his defamation complaint (specifically, the First Concerns Notices, the Second Concerns Notices and the Defamation Filings). On any view, there is at least some connection between those processes and Ms Kotronakis’s finding that Mr Serpanos harassed Ms Cavanagh, Ms Peeters and Ms Kim (and, thereby, breached the APS Code of Conduct).
271 I have already concluded that, insofar as concerns s 340(1)(a) of the FW Act, Mr Serpanos did not exercise a “workplace right” by prosecuting any of those processes. Even if it were the case that Ms Kotronakis’s findings were actuated or partly actuated by his having done so, the adverse action subsequently visited upon him by the ATO (through Ms Boyd) could not be said thereby to have contravened s 340(1)(a).
272 But let it be supposed, contrary to my conclusion, that the making or maintaining of the complaint by means of each of the First Concerns Notices, the Second Concerns Notices and the Defamation Filings did, in each case, amount to the exercise of a workplace right. Ms Kotronakis’s evidence was that she was not drawn to the conclusions that she drew because of those complaints. She accepted that it was Mr Serpanos’s right to threaten and prosecute court proceedings if he felt it appropriate or necessary to do so. Her conclusion that his doing so contravened the APS Code of Conduct was not a function of the fact that he had complained; but, rather, of the facts (as she had determined them) that he had done so knowing that he had, in truth, made the Even Wendy Comment and that he had sought, by way of damages, amounts for which there was no reasonable foundation. Those circumstances, she said, led her to conclude that Mr Serpanos’s conduct in threatening and then commencing legal action was dishonest, lacking in integrity, disrespectful, discourteous, tantamount to bullying and harassing, inconsistent with “APS Values and the good reputation of the ATO and the APS,” and otherwise contrary to the requirements of the APS Code of Conduct (see above, [52]).
273 Ms Kotronakis was cross-examined at length about how it was that she came to consider that Mr Serpanos’s threatened and then actual legal action was vexatious; and how it was that she came to consider that the damages thereby sought were excessive or lacked a reasonable foundation. What was put to her was that neither conclusion was open to her to draw. Although she disagreed, the court is nonetheless invited to reject her evidence and to conclude that she was, in fact, relevantly motivated by other considerations (that is to say, not because she thought that the legal action was vexatious and not because she thought that the sum that Mr Serpanos demanded lacked a reasonable foundation). At the least, the court is invited to conclude that the ATO has failed to rebut the statutory presumption established by s 361(1) of the FW Act.
274 Two observations are warranted.
275 First, there might well be something to the substantive propositions that Mr Serpanos advanced. It is not necessary that the court should conclude, either way, that Mr Serpanos did or did not threaten or commence his action vexatiously, or that he had or did not have a reasonable basis upon which to seek the amount that he sought in damages. It suffices to observe that such objective evidence as there is could well warrant conclusions on those fronts contrary to those that Ms Kotronakis identified as the reasons for which she relevantly acted.
276 Nonetheless, the court’s task presently is not to assess whether Ms Kotronakis’s reasons were well-founded or justified or even fair; the court’s task presently is to assess whether they were, in fact, the reasons that actuated her to make and communicate the findings that she made. If there were simply no basis upon which Ms Kotronakis could credibly have formed the views that she said that she formed, then I would be more inclined to accept that she was not actuated by the reasons that she identified. But it could not be said that her conclusions were wholly beyond what might reasonably have formed in her mind (or that of anybody in her situation). Having accepted, as plainly she did (and as I accept that she did), that Mr Serpanos did, in fact, make the Even Wendy Comment, it is hardly difficult to see why she might then have formed the view that his defamation action (threatened and then commenced) was vexatious. Furthermore, the $1.1 million that he sought from Ms Cavanagh, Ms Peeters and Ms Kim was, on any view, a very significant sum of money. In the absence of some fairly extraordinary circumstances, one might very easily be led to the view that that amount was well in excess of anything that Mr Serpanos could seriously expect his co-workers to pay. Ms Kotronakis’s conclusions on those matters, whether justified or fair, were not so improbable as might give the court reason to doubt the truth of her evidence.
277 That leads conveniently to the second observation. Rejection of Ms Kotronakis’s evidence about the reasons that led her to conclude that Mr Serpanos had contravened the APS Code of Conduct “…by threatening and then commencing defamation proceedings” would require that the court should regard it either as deliberately false or as the product of reconstruction based upon impaired memory. For the reasons already explored, I do not accept that Ms Kotronakis lied to the court about anything, nor that any part of her evidence was unreliable for want of proper recall.
278 Ms Kotronakis told the court (and, indeed, recorded in her Determination Report) that she formed the view that Mr Serpanos’s defamation action (threatened and then commenced) was vexatious because Mr Serpanos had, in fact, made the Even Wendy Comment. She told the court (and, again, recorded in her Determination Report) that she considered the amount he sought thereby to recover was excessive or beyond what was reasonable. She told the court that it was those considerations that led her to conclude that Mr Serpanos had contravened the APS Code of Conduct by threatening and then commencing his defamation action. I accept that evidence.
279 Although relevant contextually, Mr Serpanos’s defamation action (at first threatened, then commenced) was not what led Ms Kotronakis to conclude that he was guilty of having contravened the APS Code of Conduct. His misconduct lay not in the making (or maintaining) of his complaint; but in what Ms Kotronakis perceived was his nefarious objective in doing so.
280 The distinction is not always easy to recognise; but the authorities acknowledge it nonetheless. In BHP Coal, for example, it was not Mr Doevendans’ advancement of union views, claims or interests that got him into trouble; what got him into trouble was that the way that he advanced them was offensive. In Endeavour Coal, Mr McDermott was not moved from his weekend roster because he took sick leave; he was moved because of his unreliable attendance record. That was so even though the latter was very clearly a product of the former.
281 There are many other like authorities in which context was similarly distinguished from the reasons for which adverse action (or its statutory predecessors) was taken. In Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 (Branson J), an employer was charged with having dismissed the crew members of a vessel that it sold to a related company; and having done so because they were entitled to the benefit of an award. The purpose of the sale was to permit the vessel to be re-flagged and integrated into the group’s international fleet. Doing so meant that the group would be freed from award burdens imposed in respect of Australian crew members; and that it would, thereby, be able to realise additional profits. Branson J found that the employer was motivated by its desire to reduce costs; and not, as the applicant union had alleged, by the crew’s entitlement to the benefit of the award. That was so notwithstanding the impact that the application of the award had on the cost-effectiveness of the Australian crew.
282 Similar reasoning was adopted in Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34, 83 [295] (R D Nicholson J). In Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union (2001) 112 FCR 232, Finkelstein J (dissenting in the result but with whom, on this point, Merkel J agreed) noted (at 286 [199]) that:
…to decide whether an employee has been unlawfully dismissed, it is necessary to ascertain the true motive for, or purpose of, the dismissal. If there is some legitimate reason for the dismissal, such as the desire to avoid bankruptcy or the need to maintain a profitable operation, the dismissal will be lawful. It matters not that the cause of the impending bankruptcy or the unprofitable trading is the high rate of wages payable under an award or certified agreement. That is to say, although the benefits produced by an award or certified agreement have caused the problem which the employer seeks to address, that does not necessarily make those benefits the “reason” or motive for his act.
283 Likewise in Australian Workers’ Union v John Holland Pty Ltd (2001) 103 IR 205 (Goldberg J), an employer that dismissed a union member in order to facilitate the end of industrial action that a rival union had organised to protest his employment was, nonetheless, held not to have done so because of his union membership. That was so despite the fact that the industrial action had been organised because the employee was a member of the applicant union. Equivalent reasoning was employed more than two decades earlier in Wood v City of Melbourne Corporation (1979) 26 ALR 430 (Smithers J).
284 A similar distinction applies here. Mr Serpanos’s threatened and then actual defamation proceeding was relevant insofar as Ms Kotronakis considered that it was a vehicle through which he had wrongly harassed Ms Cavanagh, Ms Peeters and Ms Kim; but it was that harassing character, rather than his conduct in threatening and commencing his action, that led Ms Kotronakis to make the findings that she relevantly made. She did not make (and then communicate) those findings because Mr Serpanos had threatened or commenced his defamation action.
285 It follows that I am satisfied that nothing that Ms Kotronakis did in the course of her investigation into the allegations that were levelled against Mr Serpanos, or in the course of her preparing and sending of the Determination Report, was done because Mr Serpanos made or maintained the complaint articulated and particularised in his pleading.
8.2.2 Ms Boyd
286 Ms Boyd told the court that she was appointed as the “sanction delegate” in or around early December 2019. It was Mr Sheil who made that appointment. Ms Boyd explained that he contacted her and told her that, because he had had “some involvement” in discussing Mr Serpanos’s fate, he considered that there might be a perceived conflict of interest were he to fulfil the role. Until her appointment as “sanction delegate”, Ms Boyd and Mr Serpanos had never before crossed paths.
287 The first correspondence that Ms Boyd received in relation to Mr Serpanos was the Determination Report and draft consideration letter that Ms Kotronakis emailed to her on 6 December 2019. Ms Boyd told the court that it was “usual practice” for the author of a determination report to provide a draft consideration (or sanction) letter. It is, she explained, provided “…for the sanctioning delegate to amend, change and review as required or as appropriate”. Upon receipt of Ms Kotronakis’s email, Ms Boyd proceeded to review various internal ATO guides or policies concerning the investigation of alleged breaches of the APS Code of Conduct.
288 History records that, on 9 December 2019, Ms Boyd sent to Mr Serpanos her “Sanction Consideration” letter (above, [57]). She did so, so she told the court, because she had considered that what Mr Serpanos had done was “serious in nature” and warranted “a sanction at the higher end”.
289 Mr Serpanos responded to that through his lawyers, then McDonald Murholme Barristers & Solicitors. After considering that response, Ms Boyd resolved to dismiss Mr Serpanos and did so in writing on 16 December 2019 (above, [62]). She outlined in her letter of that day her reasons for proceeding with his dismissal and she told the court that that outline was an accurate account of the reasons for which she so proceeded.
290 As with Ms Kotronakis, Ms Boyd’s evidence was that, when she made her decision to dismiss Mr Serpanos, she was not aware that several—indeed, most—of the ten relevant communications had been made. In that category were the 18 July Email, the 22 July Email, the 8 August Email, the 20 August Letter, the 2 September Response, the 4 September Email and the 5 September Email. That evidence was not challenged and I accept it. Given that she was not aware of those communications at the time that she terminated Mr Serpanos’s employment, it could not be said that any of them operated upon her state of mind when she did so.
291 Of the ten communications upon which Mr Serpanos relies, the ones that are listed in the preceding paragraph were the only ones by the making of which he exercised workplace rights. It necessarily follows—and I find—that Ms Boyd did not resolve to terminate Mr Serpanos’s employment because, or for reasons that included that, he had exercised the workplace rights that I accept that he exercised.
292 Tempting though it may be to leave the analysis there, I should nonetheless consider Mr Serpanos’s wider contention: namely, that Ms Boyd was actuated to dismiss him because, or for reasons that included that, he had threatened to and then did commence defamation proceedings against Ms Cavanagh, Ms Peeters and Ms Kim. Ms Boyd accepted that she understood, from the point that she reviewed the Determination Report, that “the issue of defamation was in play”. Mr Serpanos posits that her decision to dismiss him was, at least in part, occasioned by that reality; or, at the very least, that the ATO has failed to prove that it wasn’t.
293 Ms Boyd’s evidence was that she agreed with the findings that Ms Kotronakis had recorded in her Determination Report. She told the court that it was her view that Mr Serpanos had contravened the APS Code of Conduct in the ways that were alleged against him (and that Ms Kotronakis identified); and that she resolved to terminate his employment because of those contraventions.
294 Just as Ms Kotronakis did, Ms Boyd distinguished the defamation action that Mr Serpanos had threatened and commenced from the objective that she attributed to his pursuit of it. She told the court that she considered that the action (at first threatened and then commenced) was vexatious because Mr Serpanos had, in fact, made the Even Wendy Comment that Ms Cavanagh, Ms Peeters and Ms Kim had attributed to him; and also that the amount that he sought to recover from them was excessive.
295 As with Ms Kotronakis, Mr Serpanos invites the court not to accept that evidence. As with Ms Kotronakis, that attack fixes squarely upon the investigation processes that led to the conclusions contained in the Determination Report (namely, that Mr Serpanos had acted contrary to the requirements of the APS Code of Conduct). As has already been considered in the context of Ms Kotronakis’s evidence, those processes were said to have been so obviously and comprehensively flawed (in ways already summarised) that one could only reasonably conclude that Ms Boyd was motivated by something else when she decided to dismiss Mr Serpanos. It was suggested that Ms Boyd simply “waved…through” the findings that Ms Kotronakis had made because she (Ms Boyd) wanted Mr Serpanos gone; and that the reason that she wanted him gone was because he had “dared to complain about defamation”.
296 Ms Boyd denied all of those suggestions. She denied that the flaws in the investigation process to which she was persistently taken during cross-examination were matters that were obvious or significant to her at the time that she made her decision. She consistently defended (or did not agree with the criticisms levelled at) the processes that had culminated in the Determination Report (and the findings that it contained)—or, at the least, insisted that the procedural (and perhaps substantive) flaws that had attended it had neither operated upon nor entered into her state of mind. As with Ms Kotronakis, it was plain that there was a degree of discomfort associated with some of that evidence; but, again, that very much appeared to reflect an acknowledgment that what had been done had not been done as well as it could (and probably should) have been, rather than that Ms Boyd’s sinister motives had been skilfully prised from her.
297 Ms Boyd agreed that, despite the matter escalating to the point that Mr Serpanos had brought in his lawyers (from whom she received correspondence on 12 December 2019), she had not seen fit to get advice of her own before proceeding to terminate his employment, nor to discuss Mr Serpanos’s predicament with any of her senior colleagues. It was put to her that her haste was reflective of her desire to see Mr Serpanos gone and to avoid subjecting her motives to scrutiny. She denied that that was so. It was put to her that, at least from that point (when she received the letter from McDonald Murholme Barristers & Solicitors), it was clear to her that the Determination Report (and/or the processes that had culminated in it) were flawed to a point that she could not reasonably proceed to dismiss Mr Serpanos; but that she did so, again, for reasons related to his defamation complaint. Again, she denied that that was so.
298 It was also put to Ms Boyd that Mr Serpanos’s dismissal was a sanction that was disproportionately harsh in all of the circumstances. It was suggested that Ms Boyd ought to have given consideration (or greater consideration) to:
(1) Mr Serpanos’s lengthy career as an ATO employee—a career that had involved successive promotion and high performance;
(2) the fact that Mr Serpanos had already been suspended without pay;
(3) the unlikely prospect that Mr Serpanos, having been subjected to a process of investigation that culminated in the Determination Report, would repeat his transgressions; and
(4) moving Mr Serpanos into a role that didn’t interact with any of those who had made complaints against him.
It was put to Ms Boyd that the circumstances warranted a lesser sanction than dismissal, and that she had resolved to proceed with dismissal nonetheless because she was displeased about his having complained about being defamed. Again, those suggestions were denied.
299 On all fronts, the court was invited to reject Ms Boyd’s denials. It was not put to her that, in making them (or any of them), her evidence to the court was untruthful; rather, it was put simply that it ought not to be accepted.
300 As with Ms Kotronakis, I am not persuaded that I should reject any of Ms Boyd’s evidence (whether as the product of deliberate mistruth or impaired recall). I accept that she was, as she said, moved to dismiss Mr Serpanos because she was satisfied that he had contravened the APS Code of Conduct in the ways that the Determination Report and her letter of termination recorded, and because she took the view that those contraventions were sufficiently serious to warrant his dismissal. I accept that she was not moved to dismiss Mr Serpanos because, or for reasons that included that, he had exercised workplace rights (or had otherwise made complaints about having been defamed).
301 As with Ms Kotronakis, rejection of Ms Boyd’s evidence about why it was that she was minded to dismiss Mr Serpanos would require that I regard it as more likely untrue than true. Such a finding would require that I have some basis to think that what she told the court was either deliberately false, or was affected by impaired or degraded memory. True it is that evidence of that kind might be rejected more readily than others: Pascoe v Federal Commissioner of Taxation (1956) 30 ALJR 402, 403 (Fullagar J). But Ms Boyd, like Ms Kotronakis, presented as an obliging and frank witness, whose evidence held together logically and substantively throughout. I see no reason to reject what she said.
302 Plainly, Mr Serpanos’s defamation action was not wholly irrelevant to Ms Boyd. As with the findings to which Ms Kotronakis was drawn, the threatening and commencement of his defamation action was relevant contextually to the reasons that formed in Ms Boyd’s mind (and upon which she acted), in that it was the means by which Ms Boyd considered that he had harassed Ms Cavanagh, Ms Peeters and Ms Kim (and, thereby, contravened the standards expected of him). But Ms Boyd was not moved to dismiss Mr Serpanos by reason of his having threatened and then commenced that action.
303 Ms Boyd did not dismiss Mr Serpanos because he had made or maintained the complaint articulated in his pleading. She dismissed him because she considered that he had contravened the APS Code of Conduct in ways that warranted his dismissal.
8.2.3 Conclusions—dismissal not because of complaints
304 It can readily be accepted—indeed, the ATO did not dispute—that the investigation that Ms Kotronakis conducted and that Ms Boyd followed was open to legitimate criticism. The decision to proceed without interviewing potentially relevant witnesses was unorthodox. Ms Kotronakis’s conclusion that what Mr Serpanos had demanded in the Second Concerns Notices was unreasonable (and the reliance that she placed to that end upon what Mr Sheil had said to her) was similarly unorthodox. Ms Boyd’s unquestioned acceptance of Ms Kotronakis’s findings—and her failure to inquire about or query what perhaps ought to have been the shortcomings apparent in the investigation process that led to them—was regrettable.
305 In inviting the court to reject the evidence that Ms Kotronakis and Ms Boyd gave about why they each did (and did not) do what they relevantly did, Mr Serpanos’s submission reduces to this: that the investigation that led to the findings that were made against him was defective to a point so obvious that Ms Boyd and Ms Kotronakis simply must have been conscious of it. From their collective failure to address the defects of which each should be presumed to have been aware, it is said that the court should infer that what Ms Kotronakis and Ms Boyd told the court about the reasons that animated their conduct at the time was wrong (whether because it was deliberately untrue or otherwise). That submission requires successive inferences, each of which lacks a proper foundation.
306 First, the court is invited to infer from the nature of the defects that attended the investigation, and from Ms Kotronakis’s and Ms Boyd’s seniority and experience, an awareness on the part of Ms Kotronakis and Ms Boyd that the findings that Mr Serpanos had contravened the APS Code of Conduct were unsound or ought not to be acted upon. Second, the court is invited to infer, from the fact that Ms Kotronakis and Ms Boyd proceeded, despite that presumed awareness, to do as they did, that the reasons that each gave for their conduct were in fact not the reasons for which that conduct was engaged in.
307 There is a healthy degree of speculation in what Mr Serpanos posits. I mean no disrespect in saying so—it must, of course, be borne in mind that Mr Serpanos was hardly in a position to lead evidence of his own about why others did things. Nonetheless, the ultimate inference that the court is asked to draw—namely, that the reasons that Ms Kotronakis and Ms Boyd identified for the conduct in which they relevantly engaged were, in fact, not the reasons for which they engaged in it—cannot safely be drawn. It cannot safely be drawn because the inference that underpins it—namely, that Ms Kotronakis and Ms Boyd were both aware that the findings made against Mr Serpanos were unsound or unreliable—also cannot safely be drawn. The decisions to make and then act upon those findings in the circumstances that prevailed were just as likely products of carelessness, inattention, misjudgment or oversight as of calculated impropriety.
308 I accept the evidence that both witnesses gave as to what did—and, more importantly, did not—factor as reasons for their relevant conduct. I find that:
(1) Ms Kotronakis did not make the findings recorded in her Determination Report (namely, that Mr Serpanos had conducted himself contrary to the requirements of the APS Code of Conduct) because, or for reasons that included that, Mr Serpanos had made or maintained the complaint inherent in any of the ten communications upon which he relies; and
(2) Ms Boyd was not moved to terminate Mr Serpanos’s employment because, or for reasons that included that, he had made or maintained the complaint inherent in any of the ten communications upon which he relies.
8.3 Conclusion—no unlawful adverse action
309 The evidence suffices to displace the presumption established by s 361(1) of the FW Act. The ATO has established—and I find—that it did not terminate Mr Serpanos’s employment because, or for reasons that included that, he had made the complaint inherent in any of the ten communications upon which he relies (including those by which he must be understood to have exercised a “workplace right”). He was dismissed because he was adjudged to be guilty of having conducted himself contrary to the requirements of the APS Code of Conduct and because those contraventions were considered sufficiently serious as to warrant his dismissal.
310 It follows from what is stated above that the ATO’s termination of Mr Serpanos’s employment was not effected in contravention of s 340(1)(a) of the FW Act. Mr Serpanos is, therefore, not entitled to any compensation as claimed, and there is no occasion to consider the imposition of any pecuniary penalty (or, indeed, any remedy) in connection with his dismissal.
311 In light of those conclusions, the application must and will be dismissed. Section 570(1) of the FW Act serves generally to preclude the making of any order as to costs and, in any event, the respondent does not seek one.
I certify that the preceding three hundred and eleven (311) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. |
Associate:
