Daniel Krcho [2019] FWC 5278 (31 July 2019)

Fair Work Act 2009

s 789FC - Application for an order to stop bullying

Application for an FWC order to stop bullying - application for urgent interim relief - urgent listing and ex tempore decision - applicant directed to obtain medical evidence of fitness to work - no threat of dismissal - interaction of disciplinary action and stop bullying applications - orders refused or otherwise adjourned - recommendation that the applicant cooperate and comply with process of establishing his fitness for work.

[1] Given the urgency of this application, I have not set out all of the submissions of the parties in the usual way. However, the parties' submissions have all been considered in my determination of the matter. When I delivered the decision ex tempore on 26 July 2019, I reserved the right to make editorial and stylistic changes in the published decision. This is that decision.

[2] Mr Daniel Krcho (the applicant) has filed an application with the Fair Work Commission (the 'Commission') for urgent interim relief and other orders in respect to his belief that his employment with the University of New South Wales ('UNSW', the 'University' or the 'respondent') is to be terminated at 4pm on Friday 26 July 2019 (having previously been extended from 19 July 2019 and now extended for a further 7 days). The order he seeks is as follows:

'Application for Interim Order to Prevent Dismissal as Imminent Dismissal has been notified by the employer to occur at 4.00 PM on Friday 26/07/2019.'

[3] The second order sought is to confirm my decision of 24 December 2018 issused to the parties via an email from my Chambers that these substantive stop bullying proceedings are adjourned until Mr Krcho advises that he has been certified fit to prepare for, and conduct his case. There is no need to confirm this decision. It stands unless otherwise sought to be varied, or it is ultimately complied with.

[4] There are three other orders sought which relate to various matters associated with the applicant's substantive application for stop bullying orders which was filed on 11 October 2018. There have been various listings, conferences and interlocutory applications filed over the almost ten months since the application was filed (including two earlier applications for urgent interim relief).

[5] Given the nature of the orders sought above, I do not consider these other matters to be urgent. In any event, they must be dealt with in an orderly and procedurally fair fashion. Seeking such other orders with one or two days' notice to the respondent does not provide a fair or reasonable opportunity to properly consider what is being sought by the applicant, and how to respond to his often confusing and jurisdictionally doubtful claims.

[6] The programming of this matter has been, and continues to be complicated by the applicant's insistence that the only communication he will have with, and receive from the Commission and the University, is to be by post, and he only checks his PO Box twice a week. It is unclear why someone else cannot access his PO Box. Obviously, this requirement leads to extra delays, particularly when the applicant seeks urgent interim relief and notices of listing must be posted to him (which is done by express post). I note that neither the University, nor its lawyers, were served with this urgent application and its accompanying ~60 pages of submission documents until 3pm on Wednesday 24 July 2019. The respondent had relied on the Commission to send the application after it was received by my Chambers on Tuesday 23 July 2019.

[7] It bemuses me that the applicant has no email contact or phone message bank and frequently does not answer his phone. I know of no other example of where a person, in this age of instant communication, who has filed a matter in this Commission, insists on postal communication. I note the applicant's submission that he cannot afford to set up and maintain an email account. It must be noted that there are thousands of online providers who provide such email services for free; Gmail, Hotmail, and Outlook, just to name a few.

[8] The applicant claims that a letter dated 27 June 2019, directing him to obtain an updated medical status from his own doctor by 4pm 19 July 2019, is a 'new threat of termination'. I set out that letter in full below:

Your current absence from work and other matters

You have now been absent from work on paid sick leave for some nine months, since 25 September 2018.

On 11 June 2019 James Mattson of Bartier Perry wrote to the Fair Work Commission on behalf of UNSW, and Lucian Hiss, Phil Allen and Karen Scott, requesting a further conference to discuss the potential resolution of your anti-bullying application. Bartier Perry also sent a copy of the letter to your postal address. Your application was adjourned on 24 December 2018, based on a medical certificate which stated that you were not fit to prepare for or conduct your application.

This conference was requested by the respondents in the interests of all parties, as UNSW remains open to exploring a reasonable resolution to your application, and to your return to work, subject to your being fit to do so.

The matter was listed for further conference on 24 June 2019. You did not attend. Instead, on 24 June 2019, you provided a lengthy response to the Commission which, among other things, indicated that you are still unable to pursue your application. You say this is because you are unwell, and because you do not have access to UNSW information and communication resources including your email, records, and HR policy resources.

You also made clear in your response that you have lost all trust in UNSW. You say that, despite the position you took in your 15 April 2019 correspondence, you are now not prepared to accept an independent external investigation into your claims. Instead, it appears that you wish to continue with your application in the Fair Work Commission, subject to your fitness to do so and access to materials you may need to prepare your case. You do not provide any indication or medical evidence about when you may be fit to progress your case.

With your 24 June 2019 response, you provided a further letter from your treating General Practitioner, Dr Graham Brierley. In that letter Dr Brierley stated he considered you fit to return to work with emotional support (preferably your wife, Ms Andrea Krcho) during an unspecified 'adjustment period', and that a support person would need to be present for any meetings with management. Dr Brierley also stated that UNSW's refusal to allow you to return to work further exacerbated your anxiety to the point that you felt you were unable to prepare for, or participate in, legal proceedings.

Dr Brierley's view that you are unable to prepare for, or participate in, legal proceedings, appears to contradict his advice that you are fit to return to work, albeit with emotional support. If you were to return to work, you would be required to directly report to, and work with, individuals you had named in your application as 'mob bullies'. You would also have to be able to engage with UNSW support departments, including Human Resources, who you have also labelled as bullies. Further, you would not be permitted to bring your wife to work with you to provide support on a day to day basis.

A further difficulty, from UNSW's perspective, is that Dr Deepinder Miller, a specialist psychiatrist, has provided medical advice which states that you are suffering from Delusional Disorder, and this diagnosis causes UNSW considerable concern for your health and safety, and the health and safety of others, in the workplace.

Direction to obtain medical information from Dr Graham Brierley

We have enclosed a letter addressed to Dr Brierley seeking clarification about your current medical status. In the letter, UNSW asks Dr Brierley to answer further questions regarding your health and fitness to work. UNSW will bear the reasonable costs of Dr Brierley's time in preparing his response.

You are directed to take this letter (and its attachments) to Dr Brierley and ask that he review the letter and provide a response to UNSW by no later than 4.00 pm Friday 19 July 2019.

If you do not comply with UNSW's direction, or Dr Brierley's response does not answer the identified questions to UNSW's reasonable satisfaction, UNSW may direct you to attend a further Independent Medical Examination with an independent, specialist psychiatrist. Any such independent assessment would be at UNSW's expense.

You should also understand that a failure to follow a reasonable and lawful direction of your employer may result in disciplinary action up to and including the termination of your employment.

Subject to your fitness for work, UNSW remains ready to engage Career Capital (organisational psychologists) to assist with your return to work and re-establishing working relationships. UNSW considers that such assistance is necessary to ensure that all parties - including you, Mr Hiss, Mr Allen and Ms Scott - can work safely and effectively together, particularly noting the serious allegations you have raised in your application and correspondence.

UNSW also remains willing to attend a further conference with Deputy President Sams of the Fair Work Commission to discuss resolution or progress of this matter. We suggest that a date be set in mid-August 2019 for this to occur.

UNSW is not, however, prepared to reinstate your employment immediately, particularly given the contradictory medical information available to it. Nor is UNSW prepared to contemplate reclassifying your Senior Professional Officer role to an Adjunct Lecturer, noting that an Adjunct Lecturer is an honorary title conferred by UNSW on those who are eligible, it is not a position held by an employee. If you would like to discuss a transition to retirement, as suggested in your 24 June 2019 response, we can have those conversations once you are fit to return to work.

UNSW also does not agree to the other suggestions you make to resolve matters at page 27 of your 24 June 2019 response. For the avoidance of doubt, where UNSW has not responded to a matter set out in the 24 June 2019 (or prior) correspondence, this does not mean that UNSW has accepted the truth or otherwise of that matter.

For your information, I set out below your current leave balance as at 30 June 2019:

[9] After setting out much of the same material Mr Krcho has previously provided to the Commission and referring to an entirely unrelated ABC 'Four Corners' program transcript about fee paying foreign students, and making insulting and unsubstantiated allegations of corruption, and breaches of various State legislation, the applicant put:

'17. Considering the employer's proposals in its letters dated 11/06/19, 27/06/19 & 05/07/19 disclosing its continued denials of existence of bullying, unwillingness to apologise, to make any reasonable and necessary concessions (including return to work assisting arrangements), while rejecting all Dr. Krcho's reasonable and cost-free proposals able to solve the employer's issues (as per Attachment 06), instead advising of its determination that it has a right to continue in its non-consultative dictatorial victimization and bullying of the Applicant, the Applicant has therefore regrettably nothing to discuss with the employer, other than to run the Stop-Bullying Application after he is able to do so.

(a) According to the employer's letter dated 27/06/2019 (in Attachment 03: p.6 - DK-PD20160616.pdf) Dr. Krcho is [a] highly educated and intelligent person, employed at UNSW to perform intellectually demanding and complex duties, as per the UNSW's Position Description document pertaining to Dr. Krcho's role at the UNSW.

(b) Similar would be suggested by the generalized descriptions pertaining to Dr. Krcho's Level 8 position as per the UNSW (Professional Staff) Enterprise Agreement which tasks Level 8 Senior Professional Officers to (quoting):

"Perform tasks requiring the integration of substantial theoretical (or policy) and technical knowledge to manage programs, or develop, review or evaluate significant policies, programs or initiatives, or develop or apply new principles and technology, or provide professional or consultancy services with recognised standing across or outside of the University. Tasks may span a range of activities in a complex, specialised environment."

"Responsible for developing or implementing systems, or programs (including priorities, policies and procedures) within closely defined statements of role objectives, that may include a requirement to draw together the interests of several functional or specialist areas. May provide strategic advice at Faculty level or equivalent. Will advise on and have substantial influence over the establishment of priorities, programs and/or budgets (formulation and expenditure) for a major area or specialised project. Will have scope to reset priorities or resources within overall program objectives or between positions or sections for which the position has line management responsibility."

(c) This employer delivered evidence (on 27/06/19) [which] is in serious conflict with the Sworn Statements provided earlier by the bullies (under oath) for the purpose of denial (as per its S.74 Notice) of the employer's liability for causing Dr. Krcho's Anxiety (Psychological Injury), and also for the purpose of providing false data/instruction for the commission of Dr. Miller's misdiagnosis (as per Appendix 05).' (emphasis in original)

[10] Mr Krcho said at para 20 of his submissions:

'20. The employer's overwhelming desire for Dr. Krcho to be considered (by its carefully selected and commissioned experts) as just enough mentally fit to run (and loose) (sic) his anti-bullying case (due to prevented access to his vital evidence stored in his workplace office), but not enough to return back to his office, back to his work (and to get access to his essential evidence);

quoting Dr. Miller's diagnostic opinion dated 27/11/18: "This is to inform Mr Daniel Krcho is unfit for duties and hence is not (sic) return to work for the foreseeable future"; & "...if he does not [agree to take antipsychotic medication] he should not return to UNSW as there may be a risk of an escalation of symptoms the consequence of which is unknown.";

is able to shed clear light on the employer's real motive (and the usual modus operandi employed consistently since May 2018) to create a false illusion of Dr. Krcho's noncompliance with the employer's direction and hence its process (which if it was correct would be inappropriate conduct and disrespectful behavior in breach of [the] employer's Code of Conduct) - which in turn would provide the grounds for termination.

This is clear (sic) unfair, frivolous and vexatious conduct, and [an] abuse of power, and of the existing legal process and relevant policies (including WHS HSE, WorkComp, FairWork NSW, Privacy legislation, including UNSW's Code of Conduct) for inappropriate and unintended purposes, as well as [a] serious denial of procedural fairness, and of nature justice.

Under due procedural fairness Dr. Krcho should have the right to decide himself, without any pressure from the employer, whether and when to resume or withdraw his Stop-Bullying Application, after his return back to work and enabled access to his evidence and records (locked in his office), and also after due implementation of the SafeWork NSW directions to the UNSW regarding bullying, which had been found inadequate - such as for example the nonexistence of a stand-alone Anti-bullying Policy (as per the Attachment 07). Privacy Information Commission NSW has also made recent adverse finding[s] on 05/07/19 that the UNSW has breached Dr. Krcho's privacy, recommending staff training to remind them of the importance to check the accuracy of personal information before its use (Attachment 09).

Denial of Procedural Fairness and of Natural Justice should not be permitted to occur by the Commission.' (emphasis in original)

[11] Mr Krcho relied on the Full Bench decision in Lee v Superior Wood Pty Ltd [2019] FWCFB 2946 ('Lee v Superior Wood') as authority for the proposition that any direction to an employee to submit to the collection of his sensitive personal information ('PI') (presumably doctors' reports) which he does not consent to, is not a lawful or reasonable direction.

[12] Mr Krcho then submitted:

'Imminent Dismissal notified by the Employer to occur at 4.00 PM on Friday 26/07/2019:

24. Given the employer's track record of its latest horrendous abuses of Dr. Krcho's PI (such as the dissemination of false rumors and false accusations since May 2018, including the misdiagnosis - as per the Attachment 05) - Dr. Krcho is unable to give consent to the employer's latest direction, and specifically to its desire for collection of additional sensitive PI through additional employer controlled medical examinations, which means that he may be automatically dismissed on 4.00 pm on Friday 26 July 2019 (as per the employer's letter dated 27/06/2019, as quoted above, as per Attachment 01).' (emphasis in original)

[13] Although he and his wife were present today, Mr Krcho originally sought to have the orders made in his absence, as he asserted the Commission has all the relevant information before it. He also foreshadowed a s 772 Unlawful Termination application. The applicant also seeks interim orders cancelling all training proposed by Career Capital, as he claims it targets the victim and not the perpetrators. He equated this to re-education camps in Russia and other former Eastern Bloc countries, from which he fled, presumably over 30 years ago.

[14] Finally, Mr Krcho said:

'Given the exceptional circumstances created by the vexatious and frivolous conduct of the employer, which represent a profound failure of the state system on a local level, which is well outside the power and resources of the ordinary people to resolve, it would appear that conditions for such state run inquiry (under s. 590(1)(2)(b)(f)(g) (sic); s.591; s.593) may have already been satisfied.

[15] Mr Mattson opposed the making of any of the orders sought by the applicant. By reference to various communications from the University, he submitted that rather than threatening the applicant's employment, the University has, for months, been encouraging him to seek treatment for a return to work when he is fit to do so.

[16] Mr Mattson said that the letter of 27 June 2019 was a lawful and reasonable direction, which requires Mr Krcho's cooperation and compliance. The Courts and the Commission have made this clear; see: Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603; 118 FCR 395 at 411 ('Blackadder'). Mr Mattson sought a recommendation from the Commission that the applicant cooperate in the process to establish whether he is fit to return to work.

Principles in respect to interim decisions and/or orders

[17] Section 589 of the Act provides as follows:

(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.

(2) The FWC may make an interim decision in relation to a matter before it.

(3) The FWC may make a decision under this section:

(4) This section does not limit the FWC's power to make decisions.'

[18] As s 589(2) does not limit the Commission's powers to make an interim decision to particular species of applications or exclude others, it may be safely assumed that the making of interim orders in a stop bullying application is a power available to the Commission. Put another way, there is no express or inferred statutory provision which would exclude the Commission from exercising such a power in s 789FC applications; see: Worker A, Worker B, Worker C, Worker D and Worker E v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and others listed in Schedule A [2016] FWC 5848 and Application by Bayly ('Bayly') [2017] FWC 1886.

[19] The Commission is frequently called upon, in all of its areas of jurisdiction under the Act, to make interim decisions and/or orders. The principles to be applied in such circumstances are well established and are often referred to as the tests of whether prima facie firstly, there is a serious question to be tried, and secondly, whether the balance of convenience favours the order for interim relief. In Quinn v Overland [2010] FCA 799, Bromberg J set out at [45] and [46] the two main considerations as follows:

'[45] In determining an application for interlocutory relief, the Court addresses two main inquiries. First, whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the applicant will be held entitled to relief. Second, whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted: Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [65], [19].

[46] The requirement of a "prima facie case" does not mean that the applicant must show that it is more probable than not that the applicant will succeed at trial. It is sufficient that the applicant show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the applicant asserts and the practical consequences likely to flow from the order the applicant seeks. In that context there is no objection to the use of the phrase "serious question" to convey the strength of the probability_: Australian Broadcasting Corp v O'Neill_ per Gummow and Hayne JJ at [65]-[72], Gleeson CJ and Crennan J agreeing at [19].'

[20] For the following reasons, I am not satisfied that the applicant has a serious issue to be tried; nor am I satisfied that the balance of convenience falls in the applicant's favour.

[21] It cannot seriously be disputed that an employer is able to direct an employee to attend a medical examination to establish whether the employee is fit to continue, or resume their duties, and perform the inherent requirements of their role. In Blackadder, Madgwick J said at 68-69:

'68. It is, in my opinion, essential for compliance with the above duties, that an employer be able, where necessary, to require an employee to furnish particulars and/or medical evidence affirming the employee's continuing fitness to undertake duties. Likewise, an employer should, where there is a genuine indication of a need for it, also be able to require an employee, on reasonable terms, to attend a medical examination to confirm his or her fitness. This is likely to be particularly pertinent in dangerous work environments. Abattoirs entail obvious risks, among other things, of injuries from the repetitive use of knives at speed, and to the spinal column from the necessity to twist, bend and/or lift.

69. The question whether it is reasonable for an employer to request an employee to attend a medical examination will always be a question of fact as will the question of what are reasonable terms for the undertaking of the medical examination. The matters will generally require a sensitive approach including, as far as possible, respect for privacy. Nevertheless, I assume that there now should be implied by law into contracts of employment terms such as those set out in the first two sentences of the preceding paragraph, on the basis that such terms pass the test of "necessity" accepted by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 450.

This is particularly so where there is conflicting medical opinions or, as is the case in this instance, the applicant rather unusually claims he is fit to return to work; albeit, under specific conditions acceptable only to the applicant and not to the University, and where the University has a specialist psychiatrist's (Dr Miller) opinion that the applicant is unfit for work, with no prospective date for a return. The applicant disputes this opinion and asserts - entirely inappropriately in my view - that the Doctor's report is a 'malicious misdiagnosis'.

[22] It is also curious and difficult to reconcile that the applicant claims he is fit to work, yet he says he is unfit to conduct proceedings in his stop bullying application. This is why I have adjourned these proceedings generally until he can demonstrate he is fit to conduct his case.

[23] It is equally unarguable that an unreasonable refusal to attend a medical examination may be a valid reason for an employee's dismissal under s 387 of the Act. It is patently clear that the applicant has refused to attend his own doctor for an updated assessment on his capacity to attend work, except on his own terms.

[24] The fact the applicant has a large pool of accumulated leave entitlements which he has accessed, with the University's approval, during this period (55 days' annual leave, 34 days' sick leave and 194 days' long service leave as at 30 June 2019, total 283 days' leave), is not the point; the University is entitled to take disciplinary action where the applicant refuses to attend a medical examination including an independent medical examination ('IME'), which is a lawful and reasonable direction of the employer.

[25] This is not the first occasion the applicant has sought interim orders to prevent disciplinary action, where he has perceived his dismissal was likely; see: D.K. [2018] FWC 6691, and my email to parties on 18 December 2018 where I refused such interim orders). Neither of those applications succeeded, primarily because the University gave an earlier undertaking that the applicant would not be dismissed while these substantive proceedings remained on foot, without due notice; see: D.K. [2018] FWC 6691 at [15]. This was likely given in the mistaken belief these substantive proceedings would be heard and determined within a reasonable timeframe. The applicant can no longer be 'cloaked' by the protection of that undertaking and accordingly, to the extent necessary, I determine that the University is released from the undertaking.

[26] I have previously penned my concern that the important and beneficial purpose of the stop bullying jurisdiction of the Commission is being used for a purpose for which Parliament never intended. This has been as a strategy to use the stop bullying jurisdiction as a means of hampering, or even stopping justified disciplinary action, implemented by an employer, as a reasonable management response to an employee's poor performance or misconduct. The applicant is mistaken if he believes an interim order to prevent justified disciplinary action will be made where, on his own case, he has not, and will not comply with a direction of the University.

[27] The applicant's reliance on Lee v Superior Wood as representing an analogous set of circumstances to his own, is entirely misconceived. Lee v Superior Wood had nothing to do with a direction to attend a medical examination, including an IME as to fitness for work; a long-held right of employers recognised by the Commission and the Courts. The decision dealt with breaches of the Australian Privacy Principles which the University is arguably not bound by, and it was an unfair dismissal case in any event. Notwithstanding this, I note the conduct of the applicant directed at Commissioner Simpson in the recent remittal decision of Lee v Superior Wood Pty Ltd t/a Superior Wood [2019] FWC 5095, and recommend the applicant think very carefully about his utilisation of, and interaction with the Commission in future proceedings in respect to this application.

[28] I also note that it is rather curious that Mr Krcho submitted he has always cooperated with the University; yet he and his wife's constant interruptions of both Mr Mattson and myself in the proceedings, did not demonstrate a willingness to civilly cooperate; let alone behave appropriately. There is an inherent irony associated with taking an argumentative and assertive stance in demonstrating one's willingness to cooperate.

[29] In any event, even if the applicant's substantive stop bullying application is dismissed, he will have other rights to challenge that decision in the Commission and/or the Courts. In the event he is successful in challenging his dismissal, it may result in orders of reinstatement. Moreover, even if the applicant is dismissed, it does not automatically follow that his stop bullying application must be dismissed, as there is no longer a risk of him being bullied at work, which is a jurisdictional prerequisite for any stop bullying application to succeed: s 789FF(1)(b)(ii). See also: Shaw v Australia and New Zealand Banking Group Limited t/a ANZ Bank; Bianca Haines [2014] FWC 3408 and Alley Renee Hamilton [2019] FWC 1816. Although rare, stop bullying applications have been stayed in such circumstances; see: Bayly, G.C. [2014] FWC 6988 and Applications by Hien, Le; Sankey, Joseph; Soy, Bora [2019] FWC 4274 (although stayed by consent).

[30] I do not accept that the direction to the applicant and the letter to the applicant's doctor on 27 June 2019 requiring certain assurances as to the applicant's fitness, is an unreasonable or unlawful direction. It most certainly is not unlawful, and given the circumstances, the request for a medical report from the applicant's own doctor with over four weeks' notice, it is hardly onerous, oppressive or unreasonable.

[31] The fact the applicant has attended previous medical examinations (notwithstanding his views of Dr Miller) tells against the balance of convenience favouring him. If he believes the legal obligation on him to do so has been negated, or otherwise altered by Lee v Superior Wood, as I said earlier, he is mistaken. More importantly, there is no threat to the applicant's employment. The University has a comprehensive disciplinary process, including the ordinary procedure of issuing a 'show cause' letter. That step has not been taken. On any objective view, the letter of 27 June 2019 is not a threat of dismissal; it is stating the correct legal and industrial position.

[32] Given my knowledge of the history of this matter, I am not satisfied that the applicant has a serious issue to be tried, which would be lost if the interim order was not granted. Further, the employer's right to direct an employee to attend a medical examination, and the applicant's subsequent refusal to do so, must weigh against the balance of convenience telling in favour of the applicant. The application for an interim order is dismissed.

[33] Although I have already decided that the three remaining orders are not urgent, I do not intend to further program any hearing of them, consistent with my email to the parties of 24 December 2018. They are stood over generally.

[34] I strongly recommend the applicant participate and cooperate in the process proposed by the University in order to establish whether or not he is fit to return to work.

Mr D Krcho, and Ms A Krcho, on behalf of the applicant

Mr J Mattson, Solicitor, Bartier Perry, Ms R Christmann, Senior Legal Counsel, UNSW and Ms K Thomas, Senior Employee Relations Business Partner, UNSW on behalf of the respondents

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