AustLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Federal Magistrates Court of Australia
You are here:  AustLII >> Databases >> Federal Magistrates Court of Australia >> 2011 >> [2011] FMCA 35

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Help]

Keys v Dept of Disability, Housing & Community Services & Ors [2011] FMCA 35 (31 January 2011)

[AustLII] Federal Magistrates Court of Australia

[Index] [Search] [Download] [Help]

Keys v Dept of Disability, Housing & Community Services & Ors [2011] FMCA 35 (31 January 2011)

Last Updated: 2 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KEYS & DEPARTMENT OF DISABILITY, HOUSING & COMMUNITY SERVICES & ORS

INDUSTRIAL LAW – Unfair dismissal – Protracted absences from work – attendance at work to provide care for persons with disabilities an inherent requirement of position – barrister acting as solicitor – risk of barrister becoming witness in proceedings.

Workplace Relations Act 1996 (Cth) ss.651, 659(2)(e), (f) & (3), 663, 664(b), 666, 712(3), 728, 792(1), 793(1)(j) & (k), 807, 809, 824
Public Interest Disclosure Act 1994 (ACT)
Safety, Rehabilitation and Compensation Act 1988 (ACT) s.14, 26(1), 36, 38
Federal Magistrates Court Rules 2001, rr.2.01, 15.25

AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
CSR Viridian Ltd v Claveria [2008] FCAFC 177; (2008) 171 FCR 554
Dowling v Fairfax Media Publications Pty Ltd [2008] FCA 1470; (2008) 172 FCR 96
Harman v Secretary of State for the Home Department [1983] AC 280
Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34
Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92
Qantas Airways Limited v Christie (1998) 193 CLR 280
Stevenson v Murdoch Community Services Inc [2010] FCA 648
X v Commonwealth of Australia [1999] HCA 63; (1999) 200 CLR 177

The Australian Capital Territory Barristers’ Rules, rr.75, 91 & 115
G.E. Dal Pont, Lawyers’ Professional Responsibility, Fourth Edition (Sydney: Lawbook Co., 2010)

Applicant:
STEPHEN KEYS

First Respondent:
DEPARTMENT OF DISABILITY, HOUSING & COMMUNITY SERVICES

Second Respondent:
PATRICIA GOTOVAC

Third Respondent:
MICHAEL JOHN BEARDSLEY

File Number:
CAG 32 of 2009

Judgment of:
Neville FM

Hearing date:
24, 25 & 26 March 2010

Date of Last Submission:
19 July 2010

Delivered at:
Canberra

Delivered on:
31 January 2011

REPRESENTATION

Counsel for the Applicant:
Ms J Keys

Solicitors for the Applicant:
N/A

Counsel for all Respondents:
Dr D R Jarvis

Solicitors for all Respondents:
ACT Government Solicitor

ORDERS


(1) The Application filed on 4th June 2009 be dismissed.
(2) Each party pay their own costs.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CANBERRA

CAG 32 of 2009

STEPHEN KEYS

Applicant


And


DEPARTMENT OF DISABILITY, HOUSING & COMMUNITY SERVICES (ACT)

First Respondent


PATRICIA GOTOVAC

Second Respondent


MICHAEL JOHN BEARDSLEY

Third Respondent


REASONS FOR JUDGMENT

Introduction

  1. The Applicant, Mr Keys, and his employer, the Department of Disability, Housing and Community Services (ACT) (“the Department”) have been at loggerheads for a significant number of years. They have jousted in a number of fora – the Australian Industrial Relations Commission, the Administrative Appeals Tribunal,[1] very briefly in the Federal Court of Australia, and now this Court.
  2. Mr Keys confirmed in his affidavit material that he had also made complaints to the ACT Ombudsman under the Public Interest Disclosure Act 1994 (ACT) and to the Workplace Ombudsman,[2] and that he was in some dispute with ‘his Union.’
  3. At all relevant times, Mr Keys was employed by the Department as a Disability Services Officer grade 1 (“DSO 1”), being the base grade level of DSO. He was employed by the Department in a division known as Disability ACT. He had been so employed since January 2002. He is aged 55 years.
  4. It was not disputed that Mr Keys’ employment was to care for significantly disabled persons in residential homes. In these homes, the Department provided (and provides) 24 hour care for residents. According to Mr Keys (and it seemed not to be challenged) the “residents” of such homes could include children.[3] Both Mr Beardsley (the Third Respondent) and Mr Keys outlined in their affidavit material the various duties and responsibilities of officers who worked in such houses.[4]
  5. Subject to more detailed consideration and discussion later in these reasons (a) in the light of relevant High Court authority,[5] (b) the detail set out in the ‘duty statement’ (set out below), and (c) the evidence of Mr Keys and Mr Beardsley, in my view it may reasonably be inferred that employment of the kind undertaken by Mr Keys demands one’s physical presence or attendance at the residence where supervision of persons with severe disabilities is/was required. Moreover, in one of his affidavits, Mr Keys confirmed that he worked shifts in a 7-day roster, which included “sleepovers” at various disability group houses. As an observation only, and one which is not intended to be trite: it is difficult to see, for example, how something such as a ‘sleepover’, as part of one’s employment, could take place other than by a person’s attendance at the place of work where the personal care of persons with disabilities was/is provided. It is no less patent, it seems to me, that a government department with the responsibility to provide 24 hour care cannot do it, as it were, by remote control: personal attendance by carers is essential.
  6. By letter dated 22nd April 2009 the Executive Director of Disability ACT, Ms Lois Ford, terminated Mr Keys’ employment with the Department. Among other places, a copy of that letter is attached to his Form 5A “Claim of unlawful termination of employment.” That Form was before the Court.
  7. A copy of that same letter is annexed to Mr Beardsley’s affidavit, filed 11th August 2009. Part of that annexure (“MB 1”) is an earlier letter from Ms Ford, dated 30th March 2009. This March letter from Ms Ford informed Mr Keys that (i) the Department was proposing to consider terminating his employment, (ii) he was invited to a meeting to be held on 3rd April to ‘make any representation he might wish to make about the Department’s deliberations’, and that he could have an adviser with him at the meeting, and (iii) if he chose not to attend the meeting he could lodge a written submission by 9th April. Mr Keys did not attend the meeting and provided a written submission, which he forwarded to Mrs Gotovac by email on 9th April 2009.[6]
  8. The March 2009 letter from Ms Ford went on to note that in the light of his frequent and lengthy absences from work “the Department considers you therefore unable to fulfil the inherent requirements of the position for which you are employed....”
  9. More formally, the grounds for Mr Keys’ termination, as set out in Ms Ford’s letter of termination, dated 22nd April, were: (a) his prolonged and repeated periods of absence from work in 2008-2009, and (b) his frequent and prolonged inability since 2006 due to illness or injury (namely, adjustment disorder) to carry out any work in his particular position. Significant correspondence between Mr Keys and Ms Ford, and other correspondence between Mr Keys and Mrs Gotovac (the HR Business Partner at Disability ACT, and Second Respondent in the current proceedings), which preceded the letter of termination, is relevantly referred to.
  10. Mr Keys contends that his employment was terminated for one or more “prohibited reasons” as proscribed by s.659 of the Workplace Relations Act 1996 (Cth) (“the Act”).
  11. Following unsuccessful proceedings in the Australian Industrial Relations Commission (“the AIRC”) in May 2009, Mr Keys elected, under s.651 of the Act, to commence proceedings in the Federal Court of Australia on 4th June 2009. He sought relief under s.663 the Act.
  12. More particularly, on the basis of [the alleged] contravention of s.807 of the Act, Mr Keys sought orders in the following terms [typographical errors have been corrected]:
  13. In essence, Mr Keys claimed that his employment was terminated because he had undertaken a range of proceedings against his employer, in different jurisdictions and before different forums. As such, this was a “prohibited reason” under s.659(2)(e) of the Workplace Relations Act 1996. Mr Keys also relied upon the [alleged] breach of s.659(2)(f) because, he said, his employment was terminated because of his “physical or mental disability.”
  14. For its part, the Department said that (a) each of the Respondents denied on oath that each or any of them took into account any of the alleged prohibited reasons proscribed by legislation; (b) the primary decision-maker, Ms Ford, was in fact quarantined from any of the matters complained of by Mr Keys, thus she could not have had any ‘prohibited reason’ for terminating his employment; and (c) in any event, because of his significant absences from work over a significant period of time, Mr Keys was unable to fulfil the inherent requirements of his position (s.659(3) of the Act), namely physical attendance at work to care for persons with disabilities.
  15. More formally, in a Response filed on 30th September 2009 on behalf of all Respondents, the grounds for opposing the orders sought by Mr Keys relevantly provided that:
  16. The Response further particularised the grounds of opposition to the orders sought by Mr Keys, and other relevant matters, in the following terms:

Procedural History

  1. Leaving aside earlier procedural orders regarding the filing of documents, on 9th July 2009 Rares J ordered that the proceedings be transferred from the Federal Court of Australia to this Court for determination.
  2. The first time the matter came before me was on 19th August 2009 at which time orders were made that provided, among other things, for the parties to attend mediation and, in the absence of the matter resolving, for a trial commencing on 14th October 2009.
  3. An Application in a Case was filed by Mr Keys on 19th August. Following a brief hearing, orders were subsequently made on 17th September whereby the third respondent, Mr Beardsley, was joined to the proceedings.
  4. Following a further application, orders were made on 17th September which vacated the October trial dates and a new hearing was fixed for 24th – 26th March 2010.[8]
  5. Also pursuant to the 17th September orders Mr Keys was ordered to file and serve a statement of points of claim. That statement was filed on 21st September. Other consequential orders for the filing of material by the respondents were also made.
  6. The Applicant’s Statement of Points of Claim detailed further grounds upon which Mr Keys sought relief against the Respondents.[9] In effect, the Statement of Points of Claim constituted an Amended Response.
  7. Before proceeding, some brief, preliminary comments should be made.
  8. First, save for the written submissions (in relation to which directions were given by the Court as to layout and presentation, which should have been unnecessary had the Rules of this Court been complied with[10]), the Applicant’s material was often needlessly prolix.[11] It was densely typed, often-times poorly presented, and very poorly ‘paragraphed’,[12] all of which made its digestion and appreciation more arduous than it should have been or needed to be. In other courts, there is every likelihood that the materials filed in this Court on behalf of the Applicant (save for the submissions) would have been rejected. If materials are intended (as they should be) to assist the Court, and to aid clients in the prosecution of their cases, unfortunately much of the material presented on behalf of the Applicant did little of either.
  9. Secondly, although no formal objection was taken by any of the Respondents, the Applicant was represented throughout the proceedings by his sister, of Counsel. There are sufficient Bar Rules which confirm and warn of the difficulties that come from acting for a member of one’s family.[13] I had the impression at different times during the trial (specific reference is given later in these reasons) that the degree of objectivity properly expected of Counsel was not always present. And, as I note below, I had very significant concerns at the genuine risk that Counsel for Mr Keys could easily have become a witness in the proceedings on the basis that, among other things, she attended a not insignificant number of meetings with her brother. However, notwithstanding my own disquiet, because no objection was taken by any of the Respondents to Mr Keys’ familial Counsel, and because it seemed to me that he suffered no undue prejudice as a result of his relational proximity to Counsel, I say nothing more about this matter.
  10. Thirdly, by way of general observation, whatever else might be said and evidence accepted or rejected, and wherever the responsibility falls, it is alarming in the extreme the number of people who have been involved in, and the amount of time consumed by, matters relating to the Applicant, Mr Keys. I fear that a ‘cost-benefit’ analysis would not produce a very positive picture – for anyone.
  11. As noted later in these reasons, the number of times attempts were made, for example, to attend to errors or corrections to Mr Keys’ pay, borders on the astonishing. Accepting that there were many changes and contentions about pay, payslips and related matters, such difficulties are but one small instance, with others noted later, of practices or circumstances which can only have exacerbated the inordinate and disproportionate consumption of time and other resources by all involved in this unfortunate matter. Indeed, the narrative of events, described in detail later in these reasons, presents a sad and sorry tale, doubtless for everyone who has been involved, but particularly for the Applicant, Mr Keys. On any version of the various events, it should have been resolved long before these proceedings, not to mention the number of other contests that have occupied everyone.
  12. These reasons proceed as follows: (a) documentary evidence; (b) medical evidence; (c) oral evidence of witnesses; (d) legal principle; (e) resolution.

A. Documentary Evidence

  1. Background Facts: There were two “primary incidents” which form the factual backbone to these proceedings. There was an earlier incident, in October 2004, which is relevant primarily as background. However, in terms of Mr Keys’ claims for “injury”, the primary incidents in October 2005 and July 2008 are the main focus. For ease of reference, the first primary incident will be referred to as “the computer incident’; the second will be referred to as “the car incident.”
  2. Documentary Evidence: According to Mr Keys, on 26th October 2004 he attended a meeting at which there was a confrontation with Mr Gumm. Mr Keys said that he was distressed by the incident and was sent home by his ‘network co-ordinator.’ Following the confrontation, Mr Keys lodged a formal report about the incident. It would appear that Mr Gumm (unsurprisingly) had also lodged a report.
  3. Mr Keys said that he lodged a written complaint in December 2004, and that it was a further ‘3 to 4 months before anything was done about investigating his complaints.’
  4. Mr Beardsley wrote to Mr Keys on 22nd March 2005 to advise that the Workplace Relations unit was seeking to engage an individual from the Chief Minister’s Department List of Independent Persons for Panels to investigate the matter. A Mr Lee was subsequently appointed to investigate.
  5. I pause here to observe that, for whatever reason, despatch has not been a regular hallmark of the Department’s response to Mr Keys. Had it been possible for speedier responses, at least one consistent area of, or cause for, complaint would have been obviated or at least alleviated.
  6. Mr Keys complained that the terms of reference of the inquiry into the 2004 incident were ‘prejudiced against him.’[14] In the light of the result of the inquiry, it is difficult to see what prejudice there was or could have been. As will become apparent through these reasons, often, it seems to me, a signal difficulty has been the regular misunderstanding and or misperception that Mr Keys takes of events and persons. Other instances are given later in these reasons. Thus here: Mr Keys perceived that the terms of reference were prejudiced against him. There is no evidence to support either that perception or conclusion.
  7. Mr Lee produced an interim report, dated 6th June 2005. Unfortunately, although recommended to be provided to Mr Keys, it was not provided to him until early August. I do not need to traverse the detail of Mr Lee’s Report (it was before the Court, at “SK4” (without attachments) in the materials exhibited to Mr Keys’ November affidavit), save to note the following: Mr Lee said (at par.20) (a) that he “cannot find that Mr Keys failed to obey a reasonable direction when he did not attend the November 5 [2004] meeting”; and (b) in relation to the incident complained of by Mr Keys (at par.44) that Mr Keys behaved inappropriately in the foyer of [the building]. Mr Lee recommended that no further action be taken.
  8. In his final report, dated 26th November 2005 (SK34), Mr Lee recommended (at par.42) that the Department provide Mr Keys with a copy of the Report and, if necessary, discuss any outstanding concerns with him. He also recommended (at par.43) that the Department needed to make an assessment of the current complaint processes and the awareness of staff about them. It would appear that, to some extent, this recommendation was not heeded.
  9. Significantly in my view, Mr Lee said, at par.35: “At the Department level I do not observe bias or malice towards Mr Keys. I am more inclined to the view that the Department was somewhat confused about how to deal with the multi-facetted nature and complex elements of Mr Keys’ documents.” Respectfully, I agree with Mr Lee’s assessment, which also holds true for much of what was put before the Court in the current proceedings.
  10. The first primary incident, which Mr Keys said caused his “mental injury”, occurred on 21st October 2005. It involved Mr Keys accessing information on a computer that was located at one of the Department’s residential houses, namely Finniss [sic] Group House.
  11. Mr Keys stated that he accessed, through a random search of the Department’s intranet, a significant volume of correspondence and other material that referred to him.[15] He contended that the correspondence which he saw included a draft, unsigned and undated letter, addressed to him, indicating that as a result of a number of [alleged] breaches of conduct – all of which related to the initial incident that led to the Lee investigation and report – and in the event that certain things did not happen, the writer of the letter would recommend that his employment be terminated. A copy of this draft letter is “SK1” in the materials exhibited to Mr Keys’ November 2009 affidavit.[16]
  12. Mr Keys said that he accessed these materials, including the offending letter on the Department’s “G Drive.” It was consistently argued by the Department that the material to which Mr Keys referred was located on the “C Drive” or “hard drive” of the computer.
  13. For example, in a memorandum from Joanne Rosewarne of Workplace Relations in the Department, dated 13th October 2005, she sought approval for an inquiry into “the extent and origin of confidential information inappropriately stored on the hard drive (C drive.)” The memorandum went on to state:
  14. Understandably, Mr Keys said that he was “shocked” by his discovery. He contacted Mr Lee, and later spoke also with Ms Rosewarne. Mr Keys said that there was a contest between him and Ms Rosewarne about her taking the computer to be investigated. She confirmed that she was authorised to do so. He averred further that there were various emails and other correspondence, after his discovery, which warned staff about improper access of data and materials on computers. I need not deal with the intricacies of this general correspondence, which was also before the Court, courtesy of Mr Keys’ detailed materials.[17]
  15. On 17th October 2005, Mr Keys made a written complaint to Mr Lee about what might be described, in a short-hand manner, as ‘the computer incident.’
  16. In response, by letter dated 19th October 2005, Mr Hitchick (a Manager within Disability ACT) wrote to Mr Keys to thank him for bringing the “matter of confidential information which appears to be inadvertently left on the hard drive of the Finnis Group House computer to the attention of the Department.” The letter went on to confirm that the investigation that had been initiated was on his (Mr Keys’) behalf and was not an investigation of him.[18]
  17. I should also mention that, at this same time, part of Mr Keys’ complaint involved Mrs Emery, who features prominently in the second, later car incident. Mr Keys complained that she had, to some degree, manipulated the investigation. He was assured by Mr Hitchick that this was not the case. Similarly, Mr Hitchick confirmed that Mr Keys’ complaint about Mrs Emery and an [alleged] reference by her about an inquiry of him was incorrect.[19]
  18. In the same letter, Mr Hitchick raised two other matters: (a) according to information supplied by Mrs Emery, who said that she was informed by Mr Keys, Mr Keys had advised of his knowledge of the availability of ‘sensitive information’ on more than twenty other computers in group houses, and (b) because Mr Keys had not obtained the relevant authorisation, he was officially on ‘unauthorised absence’ from duty for shifts on 15th and 16th October 2005. In relation to the former, Mr Keys was directed not to access computers in group houses where he was not employed; in relation to the latter, in the circumstances of his discovery, the ‘technical breach’ in relation to his ‘unauthorised absence’ was over-looked. He was advised, however, that any such further absences “will lead to disciplinary action.”
  19. By letter dated 20th October, Mr Keys detailed at length his objections to and disagreement with a significant number of the statements made in Mr Hitchick’s letter. I do not propose noting or commenting on such detail, save that Mr Keys averred that he had told Mrs Emery that he was aware of twenty people (not 20 computers) who had accessed sensitive information on the Departmental intranet.[20] By letter dated 26th October, Mr Keys was directed to provide Mr Hitchick with the names of the ‘twenty people’ who had accessed sensitive information on the intranet.
  20. Again without traversing every piece of correspondence that passed between the parties (and others), the following may be noted summarily at this stage in relation to the computer incident:

Such a blithe response would have made Sir Humphry Appleby, of Yes Minister fame, proud. Given the Department’s significant history of involvement with Mr Keys, apart from abject courtesy and common-sense, one would have thought that something more than an anodyne letter couched in language that bordered the best bureaucratic boundaries of either naivety and or provocation was required in the circumstances.

  1. Pausing here, at one level I understand Mr Beardsley’s observations and comments that, from a Departmental perspective, the issue was about the security of sensitive information on computers. Undoubtedly that was the case. However, it is not clear that there was sufficient, or always sufficient, appreciation about the negative personal and emotional impact on Mr Keys by his discovery of the information about himself on the computer. True it is that its impact may be regarded as either over-stated or too prolonged. Nonetheless, from Mr Keys’ perspective it had a significant, negative impact on him. Presumably the Department took the view that in this regard Mr Keys had other avenues of redress, which he took. To these I now turn.
  2. Between the Department’s receipt of the DHCS Report in December 2005 and its provision to Mr Keys late in 2006, Mr Keys and Mr Hitchick participated in mediation. A copy of the Confidential Agreement Outcomes, signed by the persons mentioned and dated 16th March 2006, is located in the materials before the Court at SK51.
  3. Following the mediation, Mr Hitchick wrote to Mr Keys on 18th April 2006 in which he addressed the following matters: Mr Keys’ unauthorised leave; confirmation that the investigation into the discovery of ‘sensitive material’ on a computer was not an investigation into Mr Keys (and the Department accepted that Mr Keys’ computer search was done in good faith); confirmation that electronic ‘staff-in-confidence’ documents relating to Mr Keys had been deleted from the G-Drive; detail regarding security of the G-Drive; unauthorised access to group houses; and communication.
  4. In my view, it is significant that the final matter addressed in Mr Hitchick’s letter to Mr Keys of 18th April 2006 related to Mr Keys’ return to work. Mr Hitchick said:
  5. Returning to the DHCS Report, in response to a letter from Mr Keys dated 10th October 2006, Mrs Gotovac confirmed that Mr Keys was at liberty to meet with Mr Lee to discuss the DHCS Report, and that when Mr Lee’s availability became known, the Department would arrange a mutually convenient meeting.
  6. By letter of 18th October, Mrs Gotovac notified Mr Keys of a range of times that were suitable to meet with Mr Lee. That same letter indicated to Mr Keys that the computer matter was finalised and asked Mr Keys to provide in writing any other concerns he had. A meeting was set up with Mr Lee and Mr Keys for 26th October 2006 at 10am. A Mr McDonnell was also scheduled to attend the meeting. Mrs Gotovac advised Mr Keys that the purpose of the meeting was to discuss pars.42 & 43 of Mr Lee’s Final Report, to which I have previously referred.
  7. The meeting on 26th October was attended by Mr Keys and by Mr Lee and Mr McDonnell. Mr Keys confirmed that he gave Mr McDonnell a copy of a document (SK63), prepared by Mr Keys and dated 26th October, entitled “Investigation Outcomes”.
  8. By letter dated 27th October 2006 (SK64), addressed to Mr McDonnell, Mr Keys expressed his dissatisfaction with the advice provided at, and the conduct of, the meeting held the previous day. Again, I need not canvass those details, save to note that Mr Keys received a response from the ACT Government Solicitor (still Dr Jarvis) in relation to his letter to Mr McDonnell (SK66). In my view, the only immediately relevant matter to note is that Mr Keys [again] received a detailed direction regarding the chain of correspondence, which confirmed that everything was to go to the Department via the ACT Government Solicitor, and further that no documents produced or received by Mr Keys were to be disseminated to anyone except his legal advisers, as authorised by law, or as directed formally by the Department.
  9. Further correspondence ensued (SK67-72). I will not address the minutiae of it.
  10. On 20th December 2006, Mr Brown, from the Department’s Injury Prevention Unit wrote to Mr Keys and provided him with a copy of a ‘Return to Work Assessment Referral Form.’ The form attached to Mr Brown’s letter (SK74) was entitled “Referral for Rehabilitation.” In that form, Mr Keys’ injury is simply described as “anxiety.” I should also mention that Mr Keys’ claim for workers’ compensation had been rejected earlier in the year (May 2006) by Comcare.[22]
  11. For a short period of time Mr Keys was receiving rehabilitation assistance through an organisation, Advanced Personnel Management (“APM”). Those services ceased in February 2007.[23]
  12. In April 2007 a ‘staff-in-confidence’ Minute (SK89) was sent to the Chief Executive (and others) which sought authorisation to send a letter to Mr Keys, a copy of which is at SK90. Among other things, the letter, dated 5th April, dealt with the on-going overpayment of salary issue, various directions from Mr Whale (Director: Disability ACT), continued questions from Mr Keys in relation to the 2004 incident (the confrontation between Mr Keys and another member of staff [Mr Gumm]) and the 2005 computer incident. The letter confirmed that the Department had nothing to say about Mr Keys’ public interest disclosure to the Ombudsman, but that it required him to attend for a medical examination. The direction to attend this “medical” was confirmed pursuant to a formal direction from the Chief Executive, Ms Lambert, dated 4th April.
  13. The medical appointment was ultimately confirmed to be with a psychiatrist, Dr George, on 9th May 2007 (SK92). I deal with medical reports, including those by Dr George, later in these reasons.
  14. Following receipt of Dr George’s Report, which recommended that Mr Keys was fit to return to work, Mr Whale wrote to Mr Keys on 10th October (SK98) to advise that a position had been found for him at Murchison Group House. It was proposed that there would be a graduated return to work for three days per week at five hours per day, and building up to full time employment within four to six weeks.
  15. Mr Keys then wrote to Mrs Emery by email dated 15th October 2007 (SK99) expressing concern about a number of matters, and confirmed to her that her “conduct/actions on about 7 to 14 October 2005 were the reason for me sustaining the injury on 14 October 2005, and by instructing me to contact you about my return to work, the Department is acting in complete contravention of Dr George’s opinion.” He then set out a number of conditions on which he insisted that related to his on-going pay dispute and his on-going communication with Mrs Emery.
  16. Somewhat bizarrely, it turned out that the Network Co-ordinator for the Murchison Group House was Mr Gumm. Understandably, Mr Keys remonstrated with Mrs Emery and provided her with a two page “potted history” of his concerns, including those that involved his earlier contest with Mr Gumm.
  17. Further correspondence passed between relevant persons for the remainder of 2007 and early 2008 in relation to Mr Keys’ return to work and his ongoing battles to secure pay and payslips (SK 104 – SK115).
  18. On 6th February 2008, there was what might be described as a brief incident in relation to which there were, again, significantly conflicting versions of events. For current purposes, it will be sufficient simply to recount Mr Keys’ version.
  19. In essence, he said that he confirmed with Ms Motbey on that date that, because he did not trust ‘some administrative staff’, he would not be answering the telephone at Ruwoldt House. He confirmed in his November 2009 affidavit (par.46) that [in addition to not trusting some administrative staff] the real reason why he would not answer the telephone was because he wanted a witness to anything that was said, and such a person would not be possible in any telephone conversation.
  20. In early February 2008 Mr Keys was notified that he was required to attend a further medical examination with Dr George on 27th February 2008.[24]
  21. Mr Whale, the director of Disability ACT, wrote to Mr Keys on 28th March 2008 in which he confirmed that the Department received Mr Key’s further report on 4th March and by the Injury Prevention Unit on 12th March 2008. Mr Whale said: “Dr George has determined that you are fit to return to work. Attached is the report for your information.” The letter continued, directing Mr Keys to return to work at Ruwoldt Group House. He was to contact his network manager, Ms Nicol, for details of his roster.
  22. By email dated 31st March 2008 (curiously headed “Judith Keys”) Mr Keys wrote to Ms Nicol. Among many things noted in that correspondence, Mr Keys stated that he did not agree that Dr George expressed an opinion that he was “fit to return to work.” He also requested that all contact with him should be by email only; he requested Ms Nicol to send him details of his roster, which Ms Nicol did on 1st April 2008.
  23. On 9th April 2008, the Shared Services Centre from the ACT Department of Treasury (Payroll and Personnel) provided Mr Keys with copies of his leave history and payments since he commenced with the Department on 31st January 2002.
  24. By letter to Mr Hogben (the manager of the Injury Prevention and Management Unit), Mr Keys provided a “consolidated list of questions...” (SK 134).
  25. By letter dated 13th May 2008 Mr Hogben set out the periods for which the Department was awaiting to hear from Comcare in relation to his claim for compensation.
  26. Mr Keys had previously asked Mr Hogben that he be provided with “alternate [sic – alternative] duties.” Mr Hogben advised Mr Keys that in view of Dr George’s recommendations the Department took the view that no further action was required because “[T]he Department has and continues to provide you with duties.” Unsurprisingly Mr Keys followed up the correspondence with Mr Hogben (SK137; 138 and 140).
  27. Mr Hogben and Mr Keys then engaged in significant correspondence for the next few months in relation to Mr Keys’ fitness for duty and for Mr Keys’ request for an assessment to be made under the SRC Act.
  28. On 23rd June 2008 Mr Keys requested Comcare to review a determination which it issued on 13th June 2008, which determination had refused Mr Keys’ request for rehabilitation assessment under s.26(1) of the SRC Act (SK146). The Department provided its own comments to Comcare in relation to Mr Keys’ reconsideration request. The Department’s letter to Comcare, from Mr Hogben, is dated 23rd July 2008.
  29. By letter (with reasons) dated 1st August 2008 Comcare advised Mr Keys that it affirmed its earlier determination of 13th June 2008 as correct. Amongst other things, in the section of Comcare’s reasons headed “A Discussion / finding” Comcare stated: “I[]n the employees’ case it is clear that at the time of his request in May 2008 for an assessment he does not suffer from an incapacity of work or impairment. In this respect I note the agency stated that the employee had successfully reached his full hours. This is also evident in Comcare’s record which shows that no further incapacity claims has [sic] been received from the employee after 22nd March 2006.” Comcare’s reasons, in the same section, go on to state; “whilst the employee contends that his return to work was contrary to the medical opinions provided by Dr Grundel and Dr George in 2007 the employee had clearly demonstrated a sustained or durable return to work to his pre-injury work status.”
  30. By letter from Mr Hogben to Mr Keys dated 12th August 2008 a further appointment with Dr George was notified. The questions in relation to which the Department sought answers from Dr George are set out in a letter from Mr Hogben to Dr George which, although undated, bears a ‘fax date’ of 13th August 2008.
  31. At or around the same time as Mr Keys was scheduled to see Dr George, APM was retained to assess and facilitate Mr Keys’ “[V]ocational rehabilitation services” (SK 157).
  32. Also at this time, the claims services branch of Comcare advised Mr Keys of yet another medical appointment but this time with a different consultant/psychiatrist, Dr Zsadanyi. The appointment with this psychiatrist was to take place on 30th September 2008. The questions to Dr Zsadanyi were provided under cover of a letter also of 14th August 2008 (SK 195).
  33. The correspondence between Mr Keys and Mr Hogben in particular continued unabated in the latter part of 2008: thus - Mr Keys’ 5 page fax to Mr Hogben on 27th August 2008 (SK162); his 10 page fax of 15th September 2008; and a further 3 page fax to Mr Hogben of questions and comments on 22nd September 2008.
  34. On 1st October 2008 Mr Hogben advised Mr Keys that Ms Johnson would now be the person responsible for managing his arrangements within the Injury Prevention and Management Unit. This would occur in consultation with Ms Collard of APM.
  35. The remainder of the documentary evidence may be summarised as follows:

B. Medical Evidence

  1. The following medical reports were before the Court (as annexures to affidavits and or as exhibits to affidavits):
  2. Each of the Reports noted was requested pursuant to either a request/direction from the Department or from Comcare. No one sought to call any of the medical experts. By and large it was unnecessary to do so since the Reports speak for themselves.
  3. Because they were the most recent, in my view the Reports of Drs Zsadanyi and George are the most relevant. Summarily, I note the following.[30]
  4. In his first report of May 2007, Dr George noted (p.3) Dr Matias’ view (in October 2005) that Mr Keys was not suffering any sort of mental illness or disorder but was “angry.” Dr George considered (p.6) that Mr Keys appears “persistently aggrieved and unable to “move on” as a result of these circumstances. He considered that Mr Keys did not qualify for psychiatric diagnosis; rather, he was suffering an emotional reaction.
  5. In his formal conclusions, Dr George said: “I believe that he is capable of undertaking a rehabilitation program, but probably only if it was recognized that he would work in a different area.” He also stated: “I believe that he is fit to return to work, so he could undertake a graduated return to work program at any time.”
  6. In his second report of February 2008, Dr George noted, among other things, Mr Keys’ increased depression, as well as some form of gambling addiction which had cost him (then) about $30,000 from playing the poker machines. He told Dr George that he would lose between $300 - $500 per week on them. Mr Keys told Dr George that he thought he could only go back to work if he was transferred to another department, and that he remained aggrieved about the 2005 computer incident.
  7. Dr George concluded his second report thus (p.3): “Mr Keys again presents on this occasion without a DSM IV psychiatric diagnosis. Mr Keys appears to be unable to move on from his sense of aggrievement related to the incidences of 2005.” Dr George continued (pp.3-4): “Mr Keys has adopted a certain position. This appears to have degenerated into an industrial issue as far as he is concerned. He does not appear motivated to return to work under current conditions and does not wish to compromise.”
  8. In his third and final report, in August 2008, Dr George noted the following:
  9. In relation to the subsequent report by Dr Zsadanyi in October 2008, I note the following:
  10. Save for the following comments or observations, in my view, the summaries of the medical evidence, and of course the respective reports themselves, are sufficient for the current purposes of the Court and that nothing further needs to be said or done in relation to them until after consideration of the rest of the evidence.
  11. What is rather surprising (or perhaps simply a curiosity) is that in all the professional comments from four different psychiatrists in relation to Mr Keys, not to mention the assessment by a personnel company retained by the Department,[31] there has never been a suggestion or recommendation that he seek (a) any counselling to deal with his depression or anxiety, (b) professional assistance to find strategies to deal with conflict situations and or to aid him in personal development, or (c) further training to broaden his employment skills.[32] All of the medical reports noted Mr Keys’ lack of motivation due to his adjustment disorder and anxiety, his lengthy TV watching, his gambling, and his general torpor.
  12. Also somewhat curiously, the medical specialists did not question the consistency between Mr Keys’ languid disposition (for the reasons already noted) and his inability to work, on the one hand, and on the other, his insistence that he wanted to return to work, albeit on the specific terms of either having no possible or likely engagement with any person with whom he had had any disagreement in the past, or that he be transferred to another department. Only Dr George seemed to offer some questioning in this regard when he posed the problems as to (a) whether a transfer was possible, and (b) whether Mr Keys’ claims in relation to the car incident with Mrs Emery were credible, and therefore able to support his claim for compensation.
  13. No less relevant is the somewhat oblique comment by Dr Zsadanyi, to which I have previously referred, where he said that there “are issues with Mr Keys’ perception of an external locus of control.” I return to this issue of Mr Keys’ “perception” shortly when dealing with his oral evidence.
  14. For completeness, there was a plethora of medical certificates before the Court in relation to Mr Keys’ absences from work. They are located at SK20, 23, 26, 32, 33, 35, 36, 39, 43, 178, 181, 193, together with the medical certificates formally tendered at trial: Exhibits A (which certificates relate primarily to 2005 – 2006), C (which certificates relate to 2008), and G (which certificates also relate to 2006.[33]

C. Oral Evidence

  1. Evidence of Mr Keys: The essential features of Mr Keys’ oral evidence, which was of relatively narrow compass, might be summarised as follows.
  2. At the outset, Mr Keys was asked about his state of ‘health’ generally and his inquiries into working in other areas, that is, away from the disability sector in which he had worked for some years. He confirmed that (a) prior to joining the Department in 2002 he had worked for private health care providers for approximately 18 months, and (b) as a result of his anxiety, even now when he sees a vehicle that provides, deals with or advertises disability services, he ‘becomes anxious.’[34] As a result, he no longer sought employment in the disability sector. He had inquired into labouring jobs. He has had prior experience driving a taxi. Because of his restriction of five hours per day, he said that he had had no luck in his employment search and had become disillusioned.
  3. His straight-forward account of ‘the computer incident’ was canvassed at a little length. In my view, it differed little from his account in the affidavit material and, therefore, it need not be repeated here except to confirm that, following what he described as doing a basic search on the computer 187 documents came up. He repeated his contention that Mrs Emery had stated that he had incorrectly (perhaps more accurately, improperly) used the group house computer and that he wanted a letter of explanation from Mrs Emery confirming that he had done no such thing.
  4. Mr Keys also confirmed that, but for the computer incident and its ongoing fall-out, he would still be working, and readily so, in the Department.[35] Mr Keys also confirmed that ever since the computer incident in 2005 his condition had invariably been described as “adjustment disorder.”[36] The amount of time Mr Keys had off work immediately after the computer incident was set out in his affidavit, filed on 4th June 2009 (p.3).[37]
  5. Mr Keys also confirmed that, following what he regarded as an unsatisfactory mediation, he took further leave (beginning on 24th April 2006), which he regarded as arising from an aggravation of his earlier medical condition from 2005 and the computer incident.[38] He was absent from work thereafter for approximately four months.
  6. Mr Keys confirmed that a medical practitioner, Dr Grundel, had declared him unfit for work until February 2007. And by virtue of another medical certificate, dated 6th February 2007, Dr Grundel declared Mr Keys unfit for work but could work in a different position in a different department;[39] Mr Keys did not then go back to work until October 2007.[40]
  7. Again, I need not, and will not, traverse each of the intervening steps (e.g. Dr George’s May 2007 Report), or even the circumstances surrounding Mr Keys’ difficulties in conversations with Mrs Emery.[41] It is sufficient to note that following what might be described as ‘the phone incident’, where Mr Keys said that he refused to answer or use the telephone in his group house because he wanted to ensure there was always a witness present, he was away from work for a further two months.[42]
  8. It is sufficient to note further that, next in sequence in his cross-examination (at least for present purposes) was a discussion with Mr Keys following his resumption at work in February 2008. He confirmed that he was back at work for approximately two weeks when he went on annual leave for one month. He said that he was “struggling at work” and feeling ‘very unhappy.’[43] He returned to work until late May 2008. He remained at work until the car incident, which involved Mrs Emery on 17th July 2008. Following that incident, Mr Keys obtained further medical certificates, all of led to him having time off work until 17th December 2008.[44]
  9. Mr Keys was asked a series of questions about an apparent dissonance between him obtaining medical certificates that gave him significant leave due to “injury” of the kind previously described, and the recommendations from Dr George, for example, that he could return to work.[45] For my part, I do not necessarily see a complete dissonance. Mr Keys insisted that he could return to work on certain conditions, not least that there was an appropriate rehabilitation program.
  10. In relation to the three alternative positions that were said to be available to him, Mr Keys confirmed that two of the positions were not offered to him, and the third he did not wish to accept for pay and other reasons. Moreover, in a matter of some significance, there is a section of the ACT Treasury Department that is responsible for providing payroll services to a range of government departments. It is called “Shared Services”, to which I have already referred. It is relevant because, even in the event that Mr Keys was able to be transferred to another department, he would still be required to have dealings with persons in Shared Services with whom he has been in contest over payroll and payslips for quite some time.[46]
  11. The final matters addressed in his cross-examination were as follows.
  12. First, in relation to the various offers, and in particular the last offer made by the Department for a “supernumery position” as a “DSO 1” which was communicated to him by Mrs Gotovac via email dated 9th April 2009 (SK238), Mr Keys said that he did not regard them (or it) as a “genuine offer.” He said that he was advised, in the course of proceedings in the AIRC, that he was going to be sacked, and further, he said that he had been told on several occasions that the Department could not put him back into a position in a disability house in accordance with the recommendations of Dr George.[47]
  13. While I can understand his wariness (and weariness) in relation to his dealings with the Department, nonetheless, in my view, there is nothing in the evidence before the Court to indicate or to suggest that the last offer to Mr Keys about a DSO position was not genuine. I accept it as such.
  14. Surprisingly in a number of respects, Mr Keys’ comments as to what he said he was told by Commissioner Deegan in the course of proceedings in the AIRC about him being “sacked”, were not explored or tested. As an observation only, I find it remarkable that the Department, which had undertaken, perhaps somewhat falteringly, different steps over such a long period of time, to deal with Mr Keys and his concerns, would, according to Mr Keys’ evidence, apparently make some disclosure or comment about what its intentions were in proceedings before the AIRC, and seemingly in private discussions at the Commission. No less remarkable, in my view, is that such a disclosure or comment was made in the course of AIRC proceedings (formal or otherwise) that, as Mr Keys alleged, a Commissioner would, seemingly without any notice to the Department, convey such information to Mr Keys.[48] Indeed, how or why would a Commissioner make such a “disclosure” and not inform the other party to the proceedings? It would be, in my view, astonishing for such a comment to have been made and not reported to the Department. If that had occurred, I am certain that this Court would have been advised of it by one or more of the Respondents.
  15. For my part, I have some concern about the veracity of the evidence to which I have just referred. It may be part and parcel of a number of “perceptions” (or understandings) that either Mr Keys (or indeed his sister) had about what was said or done on any given occasion. I come back to such matters shortly.
  16. I should also mention that Mr Keys seemed to qualify one part of his evidence in re-examination. This related to his capacity for work in the disability sector. On the first day of the trial he was, in my view, clear and quite spontaneous in his answers, notably in relation to him being so anxious [now] when he even sees a vehicle related to disability services. In re-examination on the second day of the trial, I had the impression that he had perhaps been ‘coached’ or it had been suggested to him (I will not venture to suggest by whom) that his anxiety was not as bad as he had previously indicated. Thus, in answer to questions from Ms Keys, working for private companies that provide services in the disability sector were ‘realistic options.’[49]
  17. He further qualified his responses from the previous evidence by indicating that his concern was essentially with management in the disability sector. He affirmed that management “has always been my only problem” and that “... it’s only been with middle and upper management that I’ve had issues.”[50] If that be the case, one might ask, not unreasonably, how he could work in any department because, of necessity, management of one kind or another must, at some stage, be encountered? On Mr Keys’ evidence, he must either be completely quarantined against coming into contact with any person from or associated with any level of management, or his working days may well be over, or at least severely circumscribed. Such a drastic level of quarantining is, in this instance, in my view, untenable.
  18. At the conclusion of his oral evidence I asked Mr Keys whether, in relation to any of the incidents, and notably in relation to the car incident that involved Mrs Emery, he (and or the others involved) could simply have misunderstood what had occurred. He was adamant that there was no misunderstanding on his part of events. They had occurred as he recorded them in his affidavit material.[51]
  19. I will comment further on Mr Key’s evidence after dealing with the oral evidence of the other witnesses.
  20. Evidence of Ms Ford: Ms Ford is the Executive Director of the ACT Department of Disability, Housing and Community Services. She confirmed that she was the person who signed letters to Mr Keys that formally put him on notice of possible termination of employment and the actual letter of termination. In this regard, she confirmed also that she took advice solely from Mr Beardsley.[52]
  21. Ms Ford does not, as a matter of course, have regular dealings with staffing matters in the Department on a day to day basis. She advised that, from time to time however, she had experience with ‘individual group houses’ – that is, of the kind in which Mr Keys worked, and in relation to certain, limited staffing matters.
  22. Given the number of matters to which a departmental head must routinely attend, unsurprisingly, Ms Ford had limited detailed recollection of events involving Mr Keys. She was clear, however, as she said, that in relation to Mr Keys, “Mr Beardsley was the person that was providing ... me [with] advice. I would have no reason to talk to anyone else.”[53] She consistently gave evidence to this effect on a number of occasions.[54] I have no reason to doubt Ms Ford’s evidence, and accept it.
  23. Likewise, I accept Ms Ford’s evidence that Mr Keys had (and has) a “perfect right to dispute” matters, that he was exercising that right, and that his actions in this regard did not influence her decision to terminate his employment in any way.[55]
  24. In relation to the offer to Mr Keys of a supernumery position, Ms Ford indicated that the Department would often, on a ‘return-to-work basis’, make such positions available.
  25. In relation to a significant number of matters, such as those set out in correspondence sent by Mr Keys to the Department, Ms Ford confirmed that she was not aware of them.[56] Nor, for example, did she know the identity of the solicitor who [now] had the carriage of the matter on behalf of the Act Government Solicitor, Ms Knox. These and similar matters go, in my view, to confirmation (if such be needed) that Ms Ford was, to a significant degree ‘quarantined’ from the day-to-day detail of matters involving Mr Keys.
  26. Ms Ford confirmed that it was her understanding, which was in accordance with the advice she received from Mr Beardsley, that Mr Keys’ employment was terminated because he was unable to perform the duties of his position and that those duties were an inherent requirement of the position. She said, in my view unsurprisingly, that being “able to attend work is an inherent requirement of the job.”[57] In a different but related vein, she confirmed that a person could not and would not be dismissed because they had taken personal leave.
  27. Ms Ford confirmed that she regarded Mr Keys’ ‘response’, for example, to the supernumery position that he was offered simply as a ‘response’ and not an acceptance of the position.[58]
  28. For reasons already indicated, I accept Ms Ford’s evidence. I have no reason to doubt her evidence. While seniority is no guarantee either of infallibility or truthfulness, to the degree that I can observe and assess, I accept Ms Ford’s evidence as truthful, accurate and reliable.
  29. Evidence of Mrs Gotovac: Mrs Gotovac confirmed that her immediate supervisor in the Department is Mr Beardsley. She does not work in the compensation section of the Department. She works in ‘organisational services and human resources.’
  30. Respectfully, much of Mrs Gotovac’s cross-examination by Counsel for Mr Keys was unhelpful. It traversed material which, in my view, was unrelated (or only very distantly so) to the matters formally before the Court – such as how many Disability Service Officers there were in the Department.
  31. Somewhat similar to Ms Ford’s evidence, Mrs Gotovac could not recall much of the precise detail of matters involving Mr Keys. I do not say that in any negative way. Indeed, in my view, Mrs Gotovac endeavoured to be as helpful as she possibly could. She was an impressive, reflective witness who, in my view, gave her evidence willingly and without reservation or qualification. I have no difficulty in accepting her evidence in its entirety.
  32. Mrs Gotovac confirmed that she attended to matters involving Mr Keys under the direction of Mr Beardsley. Thus, for example, Mrs Gotovac had cause to pass material on to the ACT Government Solicitor from time to time, but did so only on instruction from Mr Beardsley.[59] She also confirmed that he was responsible for the proceedings on behalf of the Department before the AIRC. This is also to say that Mrs Gotovac confirmed that she was not part of the ‘resolution process’ before the AIRC.
  33. She also confirmed that it was her recollection that, in relation to one aspect of the non-payment of Mr Keys, it was due to an omission or oversight by Shared Services.[60]
  34. One particular matter should be noted and highlighted from Mrs Gotovac’s cross-examination. In the course of questioning about a letter that she sent to Mr Keys and the ‘Action Plan,’ Counsel for Mr Keys thought that Mrs Gotovac laughed. In response to such a remarkable suggestion, I indicated that I did not see the witness laugh. Ms Keys immediately turned to her brother and inquired if he had seen Mrs Gotovac laugh. The transcript does not record this question but it does record Mr Keys stating (he was seated behind his Counsel) that it was quite clear that Mrs Gotovac laughed.[61]
  35. I was sufficiently troubled by this event that I returned to it the following morning on the resumption of Mrs Gotovac’s cross-examination. In answer to a question from the Bench, she confirmed that she did not laugh, or smile in response to any question being asked of her. She confirmed (unsurprisingly) that she found the matters before the Court and about which she was being asked “very serious.”[62]
  36. My concerns are twofold. First, it highlighted the understandably close, if not symbiotic, relationship between the siblings – one of whom is an Applicant in these proceedings, while the other is his Counsel – and, as I have said, who could also have been a witness in the proceedings.[63]
  37. Secondly, and more immediately relevant, is the fact that Ms Keys and her brother perceived that a witness (who is also a respondent) was laughing in the middle of highly contested proceedings, yet others, notably the presiding judicial officer, saw no such thing, and the witness flatly denied doing so. Without putting undue weight on such an event in Court, to some degree it tended to reinforce or add weight to (a) my question to Mr Keys about ‘misunderstanding’ or misconstruing certain events, and (b) my interest in Dr Zsadanyi’s reference to “Mr Keys’ perception of an external locus of control in terms of his current situation.”[64]
  38. To a significant degree, Mrs Gotovac’s responsibility was, in my view, to be a conduit of information between Mr Keys and Mr Beardsley. Certainly, it is clear that she had no, and did not exercise any, relevant independent responsibility in relation to the matters involving Mr Keys. That responsibility rested with Mr Beardsley who, from time to time, gave instruction to Mrs Gotovac in relation to those matters, such as offering the supernumery position to Mr Keys (to which I have previously referred).
  39. In this respect, and although it is treated later in these reasons, I observe that Ms Keys’ submission in relation to Mrs Gotovac was to the effect that by her unquestioning compliance with directions from Mr Beardsley, she was ‘aiding and abetting’ she may have been in breach of the ‘freedom of association’ provisions of the Act.[65] For reasons set out later, I reject such a proposition generally, and in relation to Mrs Gotovac specifically. And as I have indicated, I accept Mrs Gotovac’s evidence without qualification.
  40. Evidence of Mrs Emery: Mrs Emery’s evidence was in three parts or forms: (a) her affidavit filed on 11th August 2009; (b) her ‘witness statement’ from proceedings before the AAT (SK243); and (c) her oral evidence. It was no surprise that her evidence in all three forms was consistent, which was to the effect that she disagreed clearly and cogently with the account of events as described by Mr Keys, particularly in relation to the car incident in July 2008. In short, she denied that she was in any way rude or abrupt to Mr Keys on the occasion of handing over a car at a group house in July 2008. She said that in the course of her very brief conversation with Mr Keys on that occasion, she thought his tone seemed a little abrupt and rude, but that his voice was not raised, and he gave no indication suggesting that he was upset.
  41. Mrs Emery is a supervising manager of five networks of group houses. She also confirmed that, as a matter of course or practice, she makes file notes, and did so the next day in relation to the car incident in July 2008.[66] As with a similar question to Mr Keys, Mrs Emery confirmed that there was no mistake in her account of events.[67] In my view, this takes on extra weight in circumstances where, as here, a witness has made a relatively contemporaneous note of the event, and which then forms the basis of affidavit evidence before the Court.
  42. For my part, Mrs Emery, like Mrs Gotovac, was a clear, uncomplicated witness. In the light of her evidence, which is obviously of some special significance in relation to the car incident of July 2008, for the reasons already noted (not least the contemporaneous file note), I prefer and accept her account of it to that given by Mr Keys. I have no doubt that he believes the accuracy of his version of events. I do not share his certainty.
  43. Evidence of Mr Beardsley: As with other witnesses, much of Mr Beardsley’s cross-examination was, respectfully, somewhat awry in the sense that it canvassed matters that were not as directly germane to the narrow scope of the issues that were before the Court as one would have hoped or liked.
  44. For example, on a number of occasions there was discussion about the voluminous correspondence from or on behalf of Mr Keys to the Department and the latter’s attempt to have a central point of contact.[68] In my view, nothing turned on such matters. What was relevant in this context, however, was Mr Beardsley’s evidence that the ACT Government Solicitor was retained to assist the Department deal with Mr Keys’ large level of correspondence. The engagement of that office was not, Mr Beardsley confirmed, to assist the Department to deal – at that time – with his workers’ compensation claim.[69]
  45. Perhaps the first helpful matters addressed in relation to Mr Beardsley’s cross-examination came in the discussion about various “views” which he formed in relation to Mr Keys. For example, in answer to some questions concerning the Department’s attempts, through its Mr Cleary, to negotiate a return to work with Mr Keys. This was in 2007. Mr Beardsley said that he formed a view then that Mr Keys was not interested in co-operating in the rehabilitation process.[70]
  46. For my part, in addition to the documentary evidence to which I have referred earlier, the most relevant parts of Mr Beardsley’s evidence related to those matters that concerned Ms Fords’ two letters to Mr Keys in March and April 2009.
  47. Mr Beardsley confirmed that from approximately mid-March 2009 “[w]e were thinking of a strategy” in relation to Mr Keys. He said that the “we” referred to himself and his advisors. He declined to name his advisors.[71] The timing of these discussions, according to Mr Beardsley, began shortly before the proceedings in the AIRC. He confirmed later that it was ‘the Department’ that was considering ‘strategies in dealing with Mr Keys.’ He confirmed that in mid-March 2009 termination of Mr Keys’ employment was a “possibility.”[72]
  48. Mr Beardsley confirmed that the Action Plan that was sent to Mr Keys was drafted in consultation with his legal advisors, but that he took responsibility for that plan. He did not agree with Counsel for Mr Keys’ contention that the Action Plan did not comply with the procedures and requirements of clause 89 of the Collective Agreement.[73]
  49. Mr Beardsley said that he ultimately formed a view in relation to the termination of Mr Keys’ employment towards the end of April 2009, ‘sometime around the 22nd, after receipt of Mr Keys’ latest communication.’
  50. He stated firmly that it was coincidental that these discussions and the decision to terminate was taken around the time of proceedings in the AIRC. He confirmed that those proceedings “never formed part of the reasoning at all” to terminate Mr Key’s employment.[74]
  51. Contrary to Counsel for Mr Keys, who submitted that Mr Beardsley was “evasive” and not “forthright” in his answers,[75] in my view Mr Beardsley was a firm, thoughtful and truthful witness. I have no reason to doubt his account of any of the events set out in either of his affidavits, or in his oral evidence. I accept the truth of his evidence. Indeed, and perhaps unsurprisingly, his version of events corresponds with those given by Ms Ford and Mrs Gotovac whose evidence I have accepted. Tellingly, amongst the documentary evidence to which I have referred earlier, his correspondence with Mr Keys exhibited, in my view, patience, courtesy and attention to detail. Moreover, there is no suggestion, even (or particularly) in the internal correspondence within the Department and or with the ACT Government Solicitor, that Mr Beardsley, as the primary advisor to Ms Ford, and the person responsible for the conduct of proceedings on behalf of the Department, had any pre-determined or settled view regarding the employment of Mr Keys.
  52. General Comments on the Evidence: As is regularly the case, the Court must decide where the truth and the most accurate account of the evidence rests and do so amidst competing if not diametrically opposed versions of events. For my part, for the reasons I have given, and having regard to the requisite standard of the balance of probabilities, the most accurate and reliable account of the evidence was given by the Respondents and others called on the Department’s behalf, such as Ms Ford and Mrs Emery. Wherever there is a direct inconsistency between their evidence and that of Mr Keys, I prefer and accept the evidence of, or on behalf of, the Respondents.
  53. While firmly believed and held by him in every respect, and not doubting the anxiety his on-going circumstances have caused, and also not doubting that there have been significant delays, errors and difficulties at times caused by the Department in dealing with his pay and pay-slips, I have already indicated that, in my view, Mr Keys’ evidence seemed often to be founded on either a mis-understanding or mis-perception of an event or events.[76] This is especially the case in relation to the car incident that involved Mrs Emery in July 2008. That said, there is no doubt that the computer incident in 2005 was understandably troubling for him. Nonetheless, it was, over time (but perhaps not as expeditiously as possible) attended to by the Department (albeit not in the manner sought by Mr Keys), and Mr Keys was assured, on more than one occasion and in writing, that there was no inquiry into him.
  54. As I have said, I agree with Dr George’s assessment, noted earlier in these reasons (at [90]), that “Mr Keys again presents on this occasion without a DSM IV psychiatric diagnosis. Mr Keys appears to be unable to move on from his sense of aggrievement related to the incidences of 2005.” Dr George continued (pp.3-4): “Mr Keys has adopted a certain position. This appears to have degenerated into an industrial issue as far as he is concerned. He does not appear motivated to return to work under current conditions and does not wish to compromise.”
  55. In written submissions filed on 19th April 2010, Counsel for Mr Keys submitted (p.3:par.3.3) (emphasis added): “it is presumed that the Applicant’s employment was terminated for reason of his participation in AIRC proceedings under the WR Act and the DHCS Collective Agreement [in contravention of s.792(1) WR Act because of s.793(1)(k) and (j)] unless the Respondents prove otherwise [refer s.809].” Respectfully, in my view, as a finding of fact, the “presumption” referred to is mis-placed.[77]
  56. In my view, as a matter of fact, I do not consider that it has been established that the Department terminated Mr Keys’ employment for a ‘prohibited reason.’ More relevantly, having regard to the terms of ss. 664 and 809 of the Act, in my view, the Department has established to my satisfaction that Mr Keys’ employment was terminated solely for the reason of his inability to attend at his workplace, and not because he was involved in any proceedings against the Department, including those before the AIRC, or indeed for any proscribed reason under the Act.[78]
  57. Among other things, Counsel focused particularly on the ‘coincidence’ of the timing between the AIRC proceedings and the letters to Mr Keys in late March and April from Ms Ford. However, given how many other litigious ventures (to speak in the most general terms) Mr Keys has been engaged in, in my view it is extremely difficult, as it were, to light particularly on the AIRC proceedings and then to draw a conclusion (or, as put in written submissions, a ‘presumption’) that it was precisely because of his initiation of those proceedings that the Department decided to terminate his employment. One does not ineluctably or inevitably follow the other.
  58. I turn to consider legal principle, and in particular ‘the inherent requirements of Mr Keys’ position’ for the purposes of s.659(3) of the Act.

D. Legal Principle

  1. First, although there has been reference to them already, it is important to set out in more thorough-going detail relevant principle in relation to evidence and “onus”.
  2. A convenient and (respectfully) helpful summary, which I gratefully adopt, is provided by Gordon J in Stevenson v Murdoch Community Services Inc.[79] Beginning at [99] of that judgment, her Honour said:
  3. For the reasons I have already given, in my view, I am not altogether certain that, in accordance with Gordon J’s comments in Stevenson, Mr Keys has established let alone proved “the existence of objective facts” which provided a basis for the contention that his employment was terminated because of a prohibited reason. As his Counsel set out in her submissions, his application is predicated upon the “presumption” that the Department ended his employment for a prohibited reason and that this presumption itself is predicated upon the coincidence of the AIRC proceedings and the letters of Ms Ford of March and April 2009.
  4. Be that as it may, and allowing some evidentiary latitude in Mr Keys’ favour, in my view, as I have already said more than once, the Department has discharged its onus in establishing to my satisfaction that the termination of employment was not for a reason proscribed by the Act.
  5. Secondly, in my view, the two critical judgments that guide the further disposition of the current proceedings are the High Court decisions in Qantas Airways Limited v Christie and X v The Commonwealth.[80] This is so particularly because of the discussion in relation to “inherent requirements of a job or position.”
  6. In Qantas Airways Limited v Christie, Brennan CJ said, at p.284 [1]:
  7. For her part, Gaudron J (with whom Brennan CJ relevantly agreed) referred, at p.294 [34], to an “inherent requirement” as “something that is essential to the position.” Gummow J made similar observations, at p.318 [114], where his Honour noted that “the term “inherent” suggests an essential element of that spoken of rather than something inessential or accidental.”[81]
  8. Later, Gaudron J observed, at [35], that “inherent requirements” in the legislation there under consideration (the Industrial Relations Act 1988 (Cth) s.170DF(2)) [should] be considered in its “natural and ordinary meaning.” Perhaps most immediately relevant is the following observation of Gaudron J, at [36]:
  9. Pausing here and applying her Honour’s straight-forward test to the present matter, in my view, the [physical] attendance at a group house to care for persons with disabilities would seem to me, as I have previously observed, to be an inherent requirement. Measured against Gaudron J’s test, and equally so the comments by Gummow and Kirby JJ to which I have referred, if there was no requirement to attend the group house, no care could be provided to those who lived there. In such circumstances, it must be the case that attendance at a group house was/is an “essential” part of the job and the responsibilities of a position designated “DSO.”[82]
  10. I note the following further discussion from X v Commonwealth.[83]
  11. First, McHugh J, although disagreeing in the result, and relying on the comments of Gaudron J in Christie in relation to principle, observed (internal citations omitted):[84]
  12. A little later his Honour said, at [33]:
  13. Although stated in the context and discussion of “safety factors”, in my respectful view, McHugh J’s comments have wider import and application. Thus, in my view, his Honour’s comments in relation to the relevant ‘social, legal and economic’ context of this particular matter must be relevant considerations here.
  14. No less relevantly, McHugh J also stated, at [35], that the following proposition was to be drawn from Christie, namely, “in determining what the inherent requirements of a particular employment are, it is necessary to take into account the surrounding context of the employment and not merely the physical capability of the employee to perform a task unless by statute or agreement that context is to be excluded.”[85]
  15. Remembering the legislative context that was before the High Court in X v Commonwealth, it is sufficient to note the following longer discussion in the joint judgment of Gummow and Hayne JJ (with whom Gleeson CJ agreed, at [8]). Their Honours said (emphasis in original):[86]

E. Resolution & Conclusion

  1. I emphasise from the above passages from the High Court the insistence on the need to have regard to the inherent requirements of the “particular” position, in this case, a ‘disability support officer.’ As I noted earlier in these reasons, the duties of a person who fills such a position are set out in the relevant duty statement, which is found at Annexure MB2 to Mr Beardsley’s affidavit filed 11th August 2009. Among other things, the duties there specified refer to ‘identifying people’s needs from individual plans, files, direct observation and in consultation with the individual.’ The duties also provide that, “under general direction” a DSO will “plan and participate in individual skill development activities within the home and community setting, which include activities of daily living and organising recreation and leisure.”
  2. The Duty Statement also confirmed that a DSO will “assist and perform the necessary tasks to ensure that the environment for the individual is safe and homely and that the place is safe and suitable.” To this end, the statement confirms that the duties can/will include “internal and external domestic responsibilities, personal care, food preparation and support with meals, organising possessions and assisting with transportation, and carrying out administrative tasks.”
  3. Having regard to these “particular duties” of this “particular job”, in my view, physical attendance at a group house is an inherent requirement of the position of a disability support officer (“DSO1”). As such, the terms of s.659(3) apply in this case. Consistently, and for long periods of time, Mr Keys has not attended, and has not been able to attend, at his usual or required place of employment. In my view, the inherent requirements of his particular job require his attendance at work.
  4. Consistently, Mr Keys has been diagnosed by medical specialists and other medical practitioners as having an “adjustment disorder with mixed anxiety and depressive symptoms.”
  5. Having regard to the case as pleaded by the Respondents, and the evidence put before the Court by all parties, in my view, according to the requisite standard the Respondents have established (a) that Mr Keys’ employment was not terminated for any prohibited reason, and (b) to the degree necessary, s.659(3) has been shown to apply.
  6. For the above reasons, the application must be dismissed. It is so ordered.
  7. Regarding costs, in my view, notwithstanding some submissions to the contrary, particularly (and understandably) in relation to the Second Respondent, Mrs Gotovac, the statutory regime should apply.[87] Thus, by way of further order, each party should be responsible for their own costs. It is also so ordered.

I certify that the preceding 177177one hundred177177seventy-sevenninety-sixone hundred and seventy-seven (177) paragraphs are a true copy of the reasons for judgment of Neville FM


Associate:


Date: 31 January 2011

[1] The appeal to the Administrative Appeals Tribunal arose out of an application lodged by Mr Keys with Comcare to review his ‘incapacity entitlements.’ See Mr Keys’ affidavit, filed 18th November 2009, pars.44(e), 50(a) – (n) & 65(c).
[2] The complaints to the Workplace Ombudsman related to the [alleged] failure of the Department to provide payslips and an [alleged] unauthorised recovery of overpayment of wages. See Mr Keys’ affidavit, filed 18th November 2009, par.36. I note again that the failure to provide payslips, and issues concerning pay generally, was clearly a regular and understandable source of discontent and complaint for Mr Keys. For example, see his 18th November affidavit, pars.38, 39, 43, 44, 47(a), 47(e)(ii), 48(e), 57(l), 57(v), 60(a) – (f), 61, 62, 72(a) & (b) and the “exhibits” there referred to. See also the Applicant’s Statement of Points of Claim, pars.7(a)-(d) & 8(h) – (j). Mr Keys’ 18th November 2009 affidavit had exhibited to it two folders which contained 243 documents, which totalled more than 600 pages.
[3] Transcript (24th March 2010) p.47. In his affidavit of 18th November 2009 (par.3), he confirmed that the disabled clients for whom he cared often had “severe behavioural problems.”
[4] See, for example, Mr Beardsley’s affidavit, filed on 11th August 2009, pars.16-21; Mr Keys’ affidavit, filed on 18th November 2009, pars.3-6. Mr Beardsley’s affidavit also contained a general duty statement (annexure “MB2”) for a position classified as “DSO 1”. Mr Keys disputed the relevance of the duty statement because it was, in his view, a ‘generic description.’ In my view, a ‘duty statement’ issued by an employer must be a significant statement of duties and responsibilities of the position/job in question. Among other things, the duties there specified refer to ‘identifying people’s needs from individual plans, files, direct observation and in consultation with the individual.’ The duties also provide that, “under general direction” a DSO will “plan and participate in individual skill development activities within the home and community setting, which include activities of daily living and organising recreation and leisure.” The statement also confirms that the duties can/will include “internal and external domestic responsibilities, personal care, food preparation and support with meals, organising possessions and assisting with transportation, and carrying out administrative tasks.”
[5] See Qantas Airways Limited v Christie (1998) 193 CLR 280; X v Commonwealth of Australia (1999) 200 CLR 177.
[6] See the exhibits to Mr Keys’ November 2009 affidavit, SK237.
[7] The Respondents contend that Mr Keys’ absences from work between October 2005 and April 2009 “totalled over two and a half years. [And that] [i]n between these absences, the Applicant’s attendances at work were as brief as 1 or 2 weeks.” See Respondents’ Submissions, filed 10th May 2010, par.10. At the request of the Court, in mid June 2010 the Applicant and the Respondents provided separately “Tables of [Mr Keys’] Absences and Attendances (since October 2005).” The respective tables also provided the reasons for those periods not agreed.
[8] I was conscious at the time, and remain so, of the High Court’s very blunt cautions to trial (and other) courts in relation to appropriate ‘case management.’ See, for example, among many instances, the comments of French CJ in AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at pp.181-182 [4]: “Save for the dissenting judgment of Lander J in the Court of Appeal, the history of these proceedings reveals an unduly permissive approach at both trial and appellate level to an application which was made late in the day, was inadequately explained, necessitated the vacation or adjournment of the dates set down for trial, and raised new claims not previously agitated apparently because of a deliberate tactical decision not to do so. In such circumstances, the party making the application bears a heavy burden to show why, under a proper reading of the applicable Rules of Court, leave should be granted.” And at [5]: “...the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.” In the current case, it was explained that the Applicant was in no position to proceed on the original trial dates precisely because the Respondents had not filed, or filed completely, the material on which they intended to rely at trial, and in consequence of that, the Applicant could not file material in reply.
[9] See pars.6, 7(b) & 8(i). In par.6, there is an obvious, but significant typographical error; it refers to the Second Respondent when the reference should clearly be to the Third Respondent.
[10] See Federal Magistrates Court Rules 2001, rr.2.01 & 15.25; Transcript (26th March 2010) p.264.
[11] Not by way of formal “admission”, Counsel for Mr Keys specifically referred (in my view, with much understatement) to his affidavit of November 2009 as “a bit prolix.” See Transcript (24th March 2010) p.87.
[12] It was lamentably complicated, not infrequently with paragraphs containing more than twenty sub-paragraphs. Likewise, the “Applicant’s ‘Statement of Points of Claim’” was similarly very poorly presented and difficult to read for similar reasons. Concerns about the nature and form of the Applicant’s material were raised at the commencement of the trial. See Transcript (24th March 2010) pp.7-8 & 12.
[13] See, for example, The Australian Capital Territory Barristers’ Rules, rr.75, 91 & 115; and generally, G.E. Dal Pont, Lawyers’ Professional Responsibility, Fourth Edition (Sydney: Lawbook Co., 2010) pp.376-77 [17.65]. Among other places, see Ms Keys’ attendance at a meeting with her brother, Mr Keys, as his “legal representative”, on 26th November 2008, and again in correspondence on behalf of Mr Keys, dated 29th January 2009. See Mr Keys’ affidavit filed on 18th November 2009, par.57(q) & 57 (ee) respectively. Further correspondence, dated 21st April 2009 from Ms Keys to Commissioner Deegan of the AIRC, is referred to in the Applicant’s Statement of Points of Claim, par.8(f). See also par.8(i). The attendance and correspondence seem more like solicitors’ work than that of Counsel, contrary to the ACT Barristers Rules. More troubling still is that, given Ms Keys’ seemingly quite frequent attendance at meetings with and on behalf of her brother, she could well have found herself as a witness in the litigation. For the sake of completeness, I note that Counsel for the Respondents, Dr Jarvis, was formerly a solicitor with the ACT Government Solicitor and had had, so it would seem, reasonably extensive experience in dealing with this particular matter involving the current Applicant, Mr Keys prior to his move to the Bar. Mr Keys had complained formally to the ACT Ombudsman about “management in the First Respondent, and the involvement of the ACT Government Solicitor (specifically the conduct of Doug Jarvis and Rebekah Knox).” See the Applicant’s Statement of Points of Claim, par.4(a) and Mr Key’s (9 page) letter addressed to Ms Knox at ACT Government Solicitor dated 20th February 2007, par.12, where he alleges dishonesty, intimidation harassment and/or adverse treatment against him for having made public interest disclosures. Such conduct, he asserted, amounted to “unlawful reprisals.” These are very serious accusations. At some appropriate stage, it may be that Ms Keys’ conduct in relation to this matter, and the accusations made, will need to be considered by relevant authorities.
[14] See par.8 of his November 2009 affidavit.
[15] Mr Keys said that he saw, in total, 187 files on the Department intranet.
[16] Hereafter, I will abbreviate references to material, where-ever possible and where that material is found exhibited to Mr Keys’ November 2005 affidavit, as “SK” followed by the appropriate number.
[17] Further internal correspondence from the Department, also dated 13th October 2005, confirmed that the investigation of the computer issue would involve the “G drive.” See SK8.
[18] See SK17.
[19] Indeed, Mr Keys confirmed in his November 2009 affidavit, par.35 (SK99), that in large measure he held Mrs Emery responsible for him suffering his original injury in October 2007. In his words, it was her “conduct/actions on about 7 to 14 October 2005 [that] were the reason for me sustaining the injury.” If this statement is correct as to Mrs Emery’s conduct being the cause of his injury, it is quite at odds with Mr Keys’ regular claims that it was the discovery of sensitive material on a computer that was the cause of his October 2005 injury. Certainly, Mrs Emery seems to feature prominently as something of a bête-noir for Mr Keys. For example, in his Report, dated 10th October 2008, Dr Zsadanyi stated (p.5): “There are issues with Mr Keys’ perception of an external locus of control in terms of his current situation, as well as his future. ... He [Mr Keys] has noted feeling insulted and harassed specifically from Pam Emery, but also from many different people in his current department.”
[20] Again by way of observation only, Mr Keys’ responses to the Department in 2005, and since, can rightly be described as prodigious. To give but two examples: (a) in response to Mr Hitchick’s single page letter of 26th October, Mr Keys replied with an eight page, densely-typed letter (SK24); (b) in response to Ms Overton-Clarke’s three-paragraph letter of 8th November, she received a four page faxed response. (SK28)
[21] This Report is located at SK42. For ease of reference it will be referred to as the “DHCS Report.”
[22] Among other places, see Mr Key’s five page letter to the ACT Government Solicitor of 4th January 2007 (SK75), and Comcare’s letter to Mr Keys, dated 8th May 2006, which included the Statement of Reasons for the rejection of Mr Keys’ claim (SK53). After a review of its earlier decision, Comcare confirmed its rejection of Mr Keys’ claim by letter (with reasons attached) dated 20th March 2007 (SK86). The rejection by Comcare of Mr Keys’ claim for compensation was challenged in the AAT. The ACT sought to be joined in those proceedings. That application was rejected by the AAT. By agreement between Comcare and Mr Keys, on 5th May 2008 the AAT confirmed that (i) the determination made by Comcare on 20th March 2007 should be set aside, and (ii) Comcare accepted liability under s.14 of the Safety, Rehabilitation & Compensation Act 1988 (the “SRC Act”) in relation to “an adjustment reaction with mixed emotional features with deemed date of injury as 21 October 2005 contributed to a material degree by the Applicant’s employment with the ACT Department of Disability, Housing and Community Services.” See SK135.
[23] In the course of correspondence and dealings with APM, Mr Keys confirmed that his sister (Ms Keys of Counsel) attended a meeting with him; the correspondence also confirmed that Ms Keys had called APM on a number of occasions on behalf of Mr Keys. See SK 83 & 84. APM came back onto the scene in August 2008. See SK157 & 163. See also Ms Keys’ (of Counsel) detailed letter to Ms Collard (SK219) dated 29th January 2009 in which she described herself as “Stephen Keys’ legal representative.”
[24] The questions to be asked of Dr George are set out in a letter from the Department to Health Services Australia dated 26th February 2008 (SK121). A copy of a statement from Ms Lynch was attached to those questions; Ms Motbey’s statement, dated 18th February 2008 is Annexure ‘8’ to the Affidavit of Mr Beardsley filed 11th August 2009. Mr Keys helpfully provided a 16 page commentary on the statements of Ms Lynch and Ms Motbey in which he set out his version and /or commentary on facts and events. See SK128.
[25] See, for example, (SK185 – SK202).
[26] See, for example, Mr Keys’ email to Ms Collard, dated 9th December 2008 for something of an overview of his concerns in relation to some of the positions (SK207). See also (SK215 - 220).
[27] See the copy documents at SK212 - 214.
[28] Ultimately, in proceedings in the AAT, the parties again reached agreement whereby Comcare’s determination was set aside and Comcare accepted liability “in respect of ‘aggravation of adjustment reaction with mixed emotional features’ (‘the accepted condition’), with a date of injury of 17 July 2008.” The AAT’s “decision”, dated 11th December 2009, which reflects the agreement between the parties, became Exhibit D. Very late in the current proceedings I learnt of yet other matters before the AAT in relation to a “neutral evaluation” of Mr Keys’ rehabilitation. See Transcript (26th March 2010) pp.242-243. So far as I am aware, no decision has yet been reached in these later proceedings.
[29] Clause 89 of the Collective Agreement also provided for ‘termination of employment.’
[30] As I understand it, all of the reports were dependent for information on what Mr Keys advised each of the psychiatrists. I do not say this to cast doubt on what the specialists were told, but rather to note that there would appear to have been no “third party” corroboration of any of the details. That said, there was no objection taken to any of the reports being before this Court.
[31] See (APM) Ms Collard’s Initial Rehabilitation Assessment Report of 27th August 2008 (SK163).
[32] In relation to this last point, I note that in relation to the possible position for Mr Keys working on the upkeep of ACT ‘public parks and gardens’, he raised the possibility of undertaking an occupational health and safety course at TAFE to ensure that he could use various power tools and equipment safely.
[33] There is some overlap in the medical certificates, but to no ill effect.
[34] Transcript (24th March 2010) p.48.
[35] Transcript (24th March 2010) pp.54-56.
[36] Transcript (24th March 2010) p.58. He confirmed that he remained “just extremely angry.” Transcript (24th March 2010) p.62.
[37] That page was formally tendered: Exhibit B.
[38] In this regard, see Mr Keys’ 10 page letter to Ms Knox of the ACT Government Solicitor, dated 20th February 2007, which is annexure B to Mr Beardsley’s affidavit, filed 4th September 2009. See especially p.7 of that letter where Mr Keys speaks about “an ineffective return to work program.”
[39] This medical certificate from Dr Grundel is annexure 3 to Mr Beardsley’s affidavit, filed 11th August 2009.
[40] Transcript (24th March 2010) pp.68-69.
[41] See, for example, Transcript (24th March 2010) p.73.
[42] Ibid.
[43] Transcript (24th March 2010) p.75.
[44] The relevant medical certificates in this regard became Exhibit C.
[45] See Transcript (24th March 2010) pp.78-79.
[46] On the matters described in this paragraph, see generally, among other places, Transcript (24th March 2010) pp.80-83.
[47] See Transcript (24th March 2010) pp.84 & 85.
[48] I should also note here that at the beginning of the trial there was some discussion with both Counsel about the admissibility of matters (and discussions that had taken place) before the AIRC, which would otherwise be covered by s.712(3) of the Workplace Relations Act 1996 and or by virtue of the operation of the principle discussed in Harman v Secretary of State for the Home Department [1983] AC 280. Generally, see the discussion at Transcript (24th March 2010) pp.19-23.
[49] See Transcript (25th March 2010) p.100 cf. p.101 where Mr Keys confirmed that if he worked with private providers he would still have to deal with Disability ACT. In his view, this was “unavoidable.”
[50] Ibid.
[51] Transcript (25th March 2010) p.116.
[52] Transcript (25th March 2010) p.119.
[53] Transcript (25th March 2010) p.126.
[54] See Transcript (25th March 2010) pp.128, 130, 136, 138, 139 & 142. For example, in answer to a question as to whether she readily or totally accepted ‘everything Mr Beardsley told her’, Ms Ford said (at p.136): “I accept advice from the departmental advisors; they provide me with the advice upon which I make my decisions.”
[55] Transcript (25th March 2010) p.129.
[56] See Transcript (25th March 2010) p.132. Likewise, Ms Ford confirmed (at p.139) that she was unaware that Mr Keys had proceedings in the AAT.
[57] Transcript (25th March 2010) pp.133, 137 & 138.
[58] Transcript (25th March 2010) p.142.
[59] See Transcript (25th March 2010) pp.153 & 161. I might mention here that Counsel for the Respondents questioned how and why Mrs Gotovac was and remained a respondent to the proceedings, given her position and responsibilities in the Department. See Transcript (26th March 2010) p.186.
[60] Transcript (25th March 2010) p.154. She confirmed that all matters pertaining to Mr Key’s payslips and reconciliation of his pay was done by Shared Services. (25th March 2010) pp.163 & 164.
[61] See Transcript (25th March 2010) p.166.
[62] Transcript (26th March 2010) p.178.
[63] In a later exchange with the Bench, Ms Keys said that “... I can get too involved in a particular point.” See the brief discussion at Transcript (26th March 2010) p.234.
[64] Emphasis added.
[65] See Transcript (26th March 2010) p.186 and s.728 of the Act.
[66] Transcript (26th March 2010) p.192.
[67] Transcript (26th March 2010) p.197.
[68] See Transcript (26th March 2010) pp.201-202 & 217.
[69] Transcript (26th March 2010) p.218.
[70] Transcript (26th March 2010) p.230.
[71] Transcript (26th March 2010) p.259.
[72] See Transcript (26th March 2010) p.262.
[73] See the detail of these matters in Mr Beardsley’s affidavit, filed 11th August 2009, pars.73-74.
[74] It was submitted that, contrary to an agreement in the AIRC, Mr Beardsley had failed to proceed with an independent audit in relation to Mr Keys’ pay matters. This submission, made by Counsel for Mr Keys (see Transcript (26th March 2010) p.256) was incorrect. See Mr Beardsley’s affidavit, filed 11th August 2009, pars.110-112, and his denial in cross-examination: Transcript (26th March 2010) p.256.
[75] See Transcript (26th March 2010) p.221.
[76] As I understand it, and as I have recorded in these reasons, Dr Zsadanyi adverts to this same phenomenon in his Report of October 2008, p.5.
[77] See the clear statement by R.D. Nicholson J in Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34 at p.83 [295]: “Whether an employer was actuated by a prohibited reason or reasons which included a prohibited reason is a question of fact.”
[78] Cf. s.664(b) of the Act, which provides: “it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 659(3) or (4) applies). Because of the factual conclusion I have reached, I do not need to address the discussion raised in submissions, and in the case-law there set out, in relation to whether proceedings in either the AIRC and or the AAT formally come within the statutory terms of s.659(2)(e) or s.793(1)(j). Generally, see for example, the discussion by Goldberg & Jessup JJ in CSR Viridian Ltd v Claveria [2008] FCAFC 177; (2008) 171 FCR 554 at pp.567-572 [37] – [46], and by Jagot J in Dowling v Fairfax Media Publications Pty Ltd [2008] FCA 1470; (2008) 172 FCR 96 at pp.120-124 [75] – [96].
[79] [2010] FCA 648.
[80] (1998) 193 CLR 280 and [1999] HCA 63; (1999) 200 CLR 177 respectively.
[81] See also Kirby J, at p.340 [164], where his Honour observed, among other things: “The requirements are not those which are transient, subject to change, geographically limited or otherwise temporary. The word “inherent” imports those features of the requirements for the particular position as are essential to its very nature.”
[82] See also the discussion by McHugh J, at p.304 [72], in relation to the distinction between a person’s “job” and a person’s “position.”
[83] I note too that the legislative context for Qantas Airways Limited v Christie was industrial relations legislation, as I have earlier recorded, whereas in X v Commonwealth the statutory context was disability discrimination legislation.
[84] 200 CLR at pp.187-188 [31].
[85] McHugh J later observed, at [38], that in Christie, Qantas had no obligation to restructure its roster and bidding system and other work systems to accommodate Mr Christie. Yet, in a number of respects in this case, the insistence by Mr Keys on being transferred to another department, and perhaps even more so the recommendation that he not come into contact effectively with anyone in middle or upper management – that is, those with whom he has had previous grievances or difficulty – would have the effect of doing the very thing which McHugh J said Qantas had no obligation to do in Christie.
[86] 200 CLR at p.208 [101] – [102]. The only internal citation, which has been omitted, is to Christie.
[87] See ss.666 & 824 of the Act.

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FMCA/2011/35.html