Iyengar v Commonwealth of Australia

1. This is an application under the Fair Work Act 2009 (Cth) ('FW Act') in which the applicant claims the respondent has breached sections 340(1), 343(1) and 351 of the FW Act. The respondent denies any such breach.

1. The applicant was employed by the respondent from 1 December 2011 until his employment was terminated on 21 May 2020.[1] The applicant was at all material times engaged as an Executive Level 1 officer with the Australian Public Service. [2] The applicant was at the top of the salary band for an EL1 role.
2. At all material times, the applicant was employed as a Project Manager in the Satellite Communications Systems Project Office ('SATCOM SPO'). The applicant had various supervisors over the course of his employment.
3. Relevantly for present purposes, from early 2019 until 19 April 2020, Mr Randolf Albrecht became the applicant's first level supervisor.[3] Mr Guna Gounder was the applicant's second level supervisor from early 2016 until the applicant's employment came to an end.[4]
4. In the course of these proceedings the applicant has consistently maintained that at all times he performed his role to a high level, notwithstanding the lack of support provided to him by the respondent. In particular, the applicant points to the fact that he did not have a team reporting to him to assist him in his duties. In addition, the applicant also claims that since 2018, his managers not only failed to support him, but have actively undermined him, he says for proscribed reasons, ultimately resulting in the termination of his employment.
5. In opening his case, the applicant said:[5]

... this case basically centres on a troubling and unjust attempt to damage the professional standing of a highly competent senior EL1 employee, serving the department since 2011. My concerns arose from numerous instances of inequitable workload allocation and inappropriate management practises, which were left unaddressed. Despite my raising them with my manager, I was subjected to discrimination and harassment that the evidence clearly shows is reflective of a broader normalised pattern of racial prejudice within Australian institutions, as outlined in the Australian Human Rights Commission's recent report.

1. The applicant refers to and seeks to rely upon a report produced by the Australian Human Rights Commission which he says corroborates his experiences of discrimination on the basis not only of his race, but his race in combination with other factors such as his faith, disability and gender.[6] That report documents the results of various consultations with multicultural communities about a national anti-racism framework. Consequent upon these consultations, the report writers make various recommendations to deal with ongoing issues of racism in the Australian community. Whilst this document is relevant to the question of whether racism exists in the Australian community at large, it is not relevant to the specific question before me, namely whether the applicant has been subjected to adverse action in the context of his employment with the respondent. I accept that the applicant's perspective is that he has been unfairly treated and he has repeatedly asserted that this is because of his race, among other grounds. The applicant's perspective, however, is not determinative of the issues before this court.
2. The applicant maintains that he has sought to 'break the silence on racism' [7]and that in doing so he has suffered the ultimate consequence of having his employment terminated. The applicant further says that the decision to terminate his employment in the manner that the respondent did, was intended to besmirch his career and ensure that he would not get another job in the Commonwealth public sector, and that it has had this effect. The applicant says that since his employment was terminated, he has applied for a number of positions, has even been successful in obtaining one job but then when they found out about his termination, he was asked to leave.
3. According to the applicant, the unfairness of the termination of his employment is further evidenced by the fact that, not only was there no justification for the disciplinary process which was undertaken, but, in addition, it was open to the respondent in the circumstances to have imposed a lesser sanction, but it chose not to do so.
4. In this context, in opening, the applicant maintained that:[8]

For six years, there was no blot on my career. It all started from 2018. This new guy came, and then this whole thing - this saga started, and I stood up to it. I stood up to that process of PFADS, which they call, which is just a beating stick to ensure that the person is submissive. It happened that I was not. I fought for my rights, and this is where I've landed up in, in this mess. I have lost four and a half years of my earnings, and I have also mentally - yes, yes. Therefore, I respectfully urge the court to recognise this termination as wrongful and grant compensatory redress for the harm I have suffered, enabling me to contribute my skills for the benefit of this nation in an environment free from discrimination and injustice.

1. The respondent denies the applicant's claims. It maintains that its treatment of the applicant, including any adverse action taken against the applicant, was based solely on the applicant's performance and conduct and that it attempted, through various managers over a number of years, to assist the applicant to meet the standards required. The respondent submits that to the extent that the applicant raised concerns or complaints during his employment, they were appropriately investigated and actioned. Ultimately, the respondent denies that it took the adverse action alleged for the proscribed reasons alleged.
2. The respondent denies that the applicant had an unblemished record until 2018 when he says the adverse action commenced. The respondent's evidence is that concerns were raised with the applicant about his performance, his attendance and his record keeping through the respondent's performance management process prior to 2018.
3. It is not in dispute that the applicant received a 'partially effective' performance rating in 2018/2019 year as part of the Performance Feedback Assessment Development Scheme ('PFADS') and that he sought a Review of Actions in respect of that rating and the consequential recommendation that the applicant not receive a performance progression payment ('PFADS Assessment').
4. It is also not in dispute that the applicant suffered a fall in a carpark near work in May 2018 in respect of which he lodged a workers' compensation claim. That claim was declined by the insurer and the applicant filed an application for review with the Administrative Appeals Tribunal as it then was ('AAT'). It is not in dispute that the applicant asked for time off to attend a hearing at the AAT in respect of this matter on 17 September 2019. There is a dispute as to whether this request was granted ('AAT Leave Request').
5. It is common ground that the relationship between the applicant and his supervisors worsened in 2018 and 2019, although there is a dispute as to why that occurred. The applicant raised concerns about Mr Albrecht's leadership, the manner in which he allocated work and engineering inefficiencies in the SATCOM SPO ('First Complaint'). It is also not in dispute that on or about 3 September 2019, Mr Albrecht made a Code of Conduct referral in relation to his ongoing concerns about the applicant's behaviour and performance. That referral ultimately triggered a Code of Conduct investigation.
6. Ms Patterson conducted the Code of Conduct investigation and concluded that the applicant had engaged in misconduct. The applicant was advised of these findings on 26 November 2019 at which time he was also advised of the suspension of his employment pending the outcome of the misconduct process.
7. Ms Barbuto was the relevant Sanction Delegate to whom the power to determine an appropriate sanction for the misconduct was delegated. It is not in dispute that by letter dated 10 February 2019, the applicant was advised by Ms Barbuto that she intended to terminate his employment.[9] The applicant was provided with an opportunity to respond to the intention to sanction letter which he did.
8. Ultimately, Ms Barbuto advised the applicant by letter that she had determined to impose a sanction of termination ('Determination of Sanction Letter'), and his employment came to an end on 21 May 2020.[10]

1. In this context, the applicant claims that the respondent took adverse action against him by dismissing him. The respondent concedes that it dismissed the applicant and that this constitutes adverse action. The respondent maintains however, that the dismissal was not for a proscribed reason. The respondent says that the only reasons for the dismissal were those outlined in the Determination of Sanction Letter.
2. The applicant further claims that the respondent took adverse action against him by altering his position to his detriment by giving him a partially effective rating in the 2018/2019 year which caused him to be denied a performance progression payment for the 2018/2019 year. The respondent concedes that it gave the applicant a 'partially effective' rating for the 2018/2019 year and that this constitutes adverse action in that it altered the applicant's position to his detriment. It denies, however, that this was done for a proscribed reason and says that the only reason for giving the applicant a 'partially effective' rating in the 2018/2019 year was because of the applicant's poor performance.
3. The applicant further claims that in commencing the Code of Conduct investigation, continuing that investigation and requiring the applicant to participate in that investigation when it was aware that the applicant was at a disadvantage due to:
   • his mental and physical ill health or injury; and/or
   • the historical nature of the matters under investigation; and/or
   • having limited access to the work systems and records;

the respondent altered the applicant's position to his detriment and thereby took adverse action against him.

1. The respondent, whilst admitting that it commenced the Code of Conduct investigation, continued that investigation and required the applicant to participate, denies that the applicant was at a disadvantage as alleged and/or that this constitutes an alteration to the applicant's position to his prejudice. It therefore denies that in commencing, continuing and requiring the applicant to participate in the Code of Conduct investigation, that it engaged in adverse action as alleged.
2. The applicant further claims that the respondent altered the applicant's position to his detriment by denying his request for leave to attend the AAT hearing in relation to his workplace injury claim. The respondent denies that it refused the applicant's leave request as alleged and therefore denies that it took adverse action in this regard.
3. The applicant also claims that the respondent took adverse action against him by discriminating against him as compared to other employees by:
   • making requests of the applicant to substantiate his hours of work retrospectively;
   • in taskings, preferencing non-ongoing staff who attended the same Christian Church as Mr Albrecht, rather than relying on permanent ongoing staff such as the applicant;
   • deploying inequitable organisational practices across the team in which the applicant was placed, including but not limited to the lack of staff the applicant was required to supervise as against other EL officers at the same level;
   • failing to properly consider the applicant's responses to the Code of Conduct investigation because of the personal characteristics of the applicant;
   • denial of the applicant's request for leave to attend an AAT conciliation/hearing in relation to an ongoing workplace injury claim.
4. The respondent denies that it discriminated against the applicant in the manner alleged.
5. The applicant then claims that the respondent took adverse action against him for a proscribed reason, namely because the applicant exercised one or more of the following workplace rights.
6. First, that the applicant made a complaint or inquiry in relation to his employment, namely:
   • the applicant's complaint that under Mr Albrecht's leadership there was engineering inefficiencies within SATCOM SPO;
   • the applicant's complaint that in taskings, Mr Albrecht preferenced non-ongoing members of his church rather than permanent ongoing staff; and
   • the applicant's application for a Review of Action in relation to the denial of a performance progress payment in September 2019.
7. Secondly, that he participated in a process under a workplace instrument, namely
   • requesting leave to attend the AAT conciliation/hearing;
   • the applicant's denial of any wrongdoing in relation to the Code of Conduct investigation; and
   • the applicant's Review of Action application in September 2019.
8. Finally, the applicant asserts that the respondent took adverse action against the applicant to prevent the exercise by the applicant of a workplace right, namely the applicant's proper participation in the Code of Conduct investigation.
9. The respondent denies each of these allegations. It says the reason for the termination of the employee's employment, which it concedes amounts to adverse action, is as set out in the Determination of Sanction Letter and the reason for denying the applicant a performance progress payment was due to the applicant's poor performance. It expressly denies that either of these actions were taken for a proscribed reason or for a reason which included a proscribed reason.
10. As stated, the respondent denies that the applicant was refused leave to attend an AAT conciliation/hearing in relation to an ongoing workplace injury claim. The respondent further denies that the Code of Conduct investigation was undertaken or continued, for a proscribed reason or for a reason which included a proscribed reason. The respondent concedes that in requesting a Review of Action in September 2019, the applicant participated in a process under a workplace instrument, but denies that it took adverse action against the applicant for that reason or for a reason including that reason as alleged. Finally, it denies that it took adverse action against the applicant to prevent him fully participating in the Code of Conduct investigation. The respondent maintains that in fact the applicant did fully participate in that investigation.

1. The applicant also claims that the respondent took the said adverse action against him with the intent to cause the applicant not to exercise a workplace right, namely, not to make a complaint about:
   • Mr Albrecht;
   • the Code of Conduct investigation; and/or
   • participating in a process under a workplace instrument, namely attending an AAT hearing in relation to an ongoing workplace injury.
2. The applicant further claims that the respondent took adverse action against the applicant with the intent to cause the applicant to exercise a workplace right in a particular way, namely to detrimentally affect his ability to participate in the Code of Conduct investigation.
3. Each of these allegations is denied by the respondent.

1. Finally, the applicant claims that at all relevant times he had various protected characteristics, namely, race, colour, physical or mental disability, religion, national extraction or social origin, by virtue of being a member of the Indian Race, being a person of colour of Indian heritage, suffering from a lower back injury, as well as mental health issues and various other medical conditions. The applicant also identifies as a member of the Hindu religion and a member of the Indian diaspora and/or being of South Asian heritage.
2. The applicant claims that he was subjected to adverse action as earlier identified, because of one or more of these protected characteristics.
3. Again, whilst the respondent admits that the termination of the applicant's employment and the provision of a 'partially effective' rating in the 2018/2019 year constitutes adverse action, the respondent denies that any such adverse action was taken because of any protected characteristics that the applicant may have. Moreover, the respondent denies that the Code of Conduct investigation or any other decision regarding the applicant's employment which he claims constitutes adverse action, was taken because of the applicant's race, colour, physical or mental disability, religion, national extraction or social origin or for any reason which included such a proscribed reason.

1. Before turning to deal with these claims and the evidence in this matter, I make the following observations of the witnesses in this matter.
2. The applicant gave evidence in chief and reply by affidavits filed on 12 August 2024 and 31 October 2024 respectively. The applicant also relied upon a tender bundle of various documents. The applicant was subjected to extensive cross examination by counsel for the respondent over a number of hours. In responding to questions from counsel for the respondent, the applicant was often argumentative or non-responsive. He did not make concessions when they were reasonably open to him. His conduct in giving evidence in these proceedings, is consistent with the observations made by the respondent's witnesses who investigated his conduct and ultimately determined that the appropriate sanction for his failure to maintain attendance records as directed was the termination of his employment.
3. I accept that the applicant genuinely holds the view that he has been ill-treated in his employment. However, as has often been observed in claims under the General Protection provisions of the FW Act such as these, this is not a general inquiry into the fairness or otherwise of the employee's treatment in the workplace. Rather it is an inquiry into the reason for action taken against an applicant in their employment. Ultimately, it is for the court to determine on the evidence as a whole and applying the reverse onus of proof as required, what motivated the decision makers in circumstances where adverse action was taken.
4. The respondent relies on evidence given by Mr Albrecht, Mr Gounder, Ms Patterson and Ms Barbuto. Mr Gounder deposes to being a person of Fiji Indian origin who identifies as an Australian and being a person of colour.
5. I found each of the respondent's witnesses gave their evidence in a frank and open manner. They were careful and thoughtful in responding to questions from the applicant and it was evident that they sought to understand the question asked of them and to give a response to the best of their knowledge and belief. They were each credible and impressive witnesses.
6. I accept that Mr Albrecht and Mr Gounder each tried to assist the applicant to achieve his ultimate goal of obtaining a promotion to EL2 and/or to transfer to another area or department. However, I also find, for the reasons set out below, that these efforts were made all the more difficult by the applicant's combative approach.
7. Similarly, I find that both Ms Patterson and Ms Barbuto attended to their respective roles as fact finder and sanction delegate with care and responsibility. They both understood the consequences to the applicant of adverse findings and gave serious consideration to these consequences in discharging their duties. I reject absolutely the suggestion by the applicant that the processes undertaken by Ms Patterson and Ms Barbuto were no more than a 'tick the box' exercise to get rid of the applicant. Similarly, to the extent that this allegation is levelled at Mr Albrecht and Mr Gounder, I also reject it.
8. Where there is a dispute about a factual matter between the applicant applicant's evidence and that of one of the respondent's witnesses, I prefer the evidence given by the respondent's witnesses.

(1) A person must not take adverse action against another person:

(a) because the other person:

(i) has a workplace right: or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right: or

(b) to prevent the exercise of a workplace right by the other person.

1. Section 341 defines a workplace right as follows:

(1) A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c) is able to make a complaint or inquiry:

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee - in relation to his or her employment.

(2) Each of the following is a process or proceedings under a workplace law or workplace instrument:

...

(k) any other process or proceedings under a workplace law or workplace instrument.

1. Section 342 then defines adverse action which, relevant for present purposes, includes in the context of an employer/employee relationship:
   • if the employer dismisses the employee; or
   • if the employer alters the position of the employee to the employee's prejudice; or
   • discriminates between the employee and other employees of the employer.
2. Section 343 proscribes coercion and relevantly provides:

(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

(a) exercise or not exercise, or propose to exercise or not exercise, a workplace right;

(b) exercise or propose to exercise a workplace right in a particular way.

1. Section 351 deals with discrimination on certain proscribed grounds and relevantly for present purposes provides:

(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, ... physical or mental disability ... religion ... national extraction or social origin.

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

(1) If:

(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b) taking that action for that reason or with that intent would constitute a contravention of this Part:

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

1. The effect of section 361 is that once the applicant establishes that he has been subjected to adverse action and asserts that the reason for that action was a proscribed one, the onus shifts to the respondent to establish that the adverse action was not taken for that proscribed reason or for a reason which includes that proscribed reason.

1. In this proceeding, the following issues arise for determination:

(a) Did the applicant receive positive ratings in his PFADS until 2018 as claimed?

(b) Did the respondent deny the applicant's request for leave to attend an AAT conciliation/hearing in relation to an ongoing workplace injury claim?

(c) Was the applicant at a disadvantage in participating in the Code of Conduct investigation due to:

(i) any physical injury sustained in the workplace;

(ii) his mental health;

(iii) the historical nature of the matters under investigation;

(iv) the applicant's access (or lack thereof) to work records and systems and was the respondent aware of any such disadvantage?

(d) Did the commencement and continuation of the Code of Conduct investigation alter the applicant's position to his detriment such that it amounted to adverse action?

(e) Did the respondent discriminate against the applicant as alleged and therefore engage in adverse action for the purposes of section 342?

(f) Did the applicant exercise a workplace right as alleged?

(g) Did the applicant participate in a process under a workplace instrument?

(h) To the extent that the respondent did take adverse action against the applicant, was it because of a proscribed reason as alleged, namely because:

(i) the applicant exercised a workplace right?

(ii) the applicant participated in a process under a workplace instrument? Or

(iii) to prevent the applicant from exercising a workplace right?

(i) In relation to the coercion claim under section 343, did the respondent take action with the intent to coerce the applicant to:

(i) exercise or not exercise a workplace right, or propose to do so;

(ii) exercise or propose to exercise a workplace right in a particular way?

(j) In relation to the claim under section 351, to the extent that the respondent took adverse action, was it taken because of the applicant's race, colour, physical or mental disability, religion, national extraction or social origin?

1. The respondent has in place a Performance Feedback Assessment Development Scheme which applies to its employees. The PFADS process is outlined in:
   • the Defence Enterprise Agreement 2017-2020 ('Defence Enterprise Agreement');
   • APS Policy - Leading Employees to High Performance - Performance Management 29 August 2017;
   • APS Policy Guidance - Performance Cycle dated 29 August 2017; and
   • APS Policy - Improving Performance dated 1 August 2019.
2. Part D of the Defence Enterprise Agreement deals with Leading Employees to High Performance. That part of the Defence Enterprise Agreement relevantly provides:

D1.1 PFADS provides a framework for employees and their supervisors to discuss and establish expectations regarding performance and behaviour, to consistently achieve higher levels of performance and to address performance where it falls below the standards expected.

D1.2 Managing performance is the shared responsibility of employees and their supervisors. All employees and/or their supervisors are required to participate in PFADS. Employees and/or their supervisors who refuse to participate in PFADS are not eligible to receive performance progression or the pay rises listed at paragraph G2.1.

D1.3 The core elements of PFADS include the performance exchange, establishing performance and behaviour expectations, recording performance decisions, ongoing monitoring and feedback, recognising good performance and where relevant, managing poor performance. Performance expectations are to be achievable during the performance cycle and specify the standards expected. These performance expectations are to be appropriate for the employee's classification level.

D1.4 A refusal or failure to participate in PFADS may also constitute a beach of the APS Values, APS Employment Principles and APS Code of Conduct.

1. Clause 2.1 then provides that the performance cycle runs from 1 September to 31 August each year. Clause D4.1 in turn provides:

Following the end-cycle performance exchange between the employee and their first level supervisor, the Secretary is to determine a performance rating for each employee in accordance with the relevant policy as amended from time to time. Performance is assessed using a five-point rating scale: Outstanding, Superior, Fully Effective, Partially Effective and Not Effective.

1. Clause 5.1 then deals with steps to be taken to improve poor performance:

D5.1 If at any time, poor performance is identified, the supervisor and the employee are to work together through performance counselling, guidance and regular feedback to bring performance back to the standard expected. Where despite such efforts performance continues to fall below the standard expected a formal performance assessment process will commence. This will be managed under Defence's managing poor performance procedures and includes the requirement to formally notify the employee in writing of the following:

1. how the employee's performance is not meeting the standard expected;

b. that performance needs to improve;

c. how the employee's performance will be assessed;

1. the period of time over which performance will be assessed and factors under which

that period may be extended due to leave or other circumstances; and

1. the possible consequences if the employee has not attained and sustained the required standard by the end of the assessment period.

D5.2 An employee has the right to respond to a notice issued in accordance with paragraph D5.1 and be represented or have a support person present during performance discussions between the employee and their supervisor.

D5.3 The formal assessment period will usually be no less than 8 weeks, unless a shorter period would be of benefit to the employee. Where an employee's performance remains unsatisfactory following a formal assessment period, the Secretary may determine that the employee be reduced in classification, reassigned to other duties or have their employment terminated.

1. Further details about the PFADS system is contained in the APS Policy - 'Leading Employees to High Performance - Performance Management'. Relevantly, clause 10 of this policy states:[11]
   1. There are three defined checkpoint performance conversations that occur between employees and supervisors at distinct points within the performance cycle. These conversations discuss the standard of work performance and expectations of the employee ...
2. This includes setting expectations at the commencement of the cycle, a review mid-cycle performance conversation and then an assessment at the end. In relation to the mid-cycle conversations, the policy provides that it is:

... held to evaluate, assess and review the employee's performance and their progress towards achieving their KERs, as well as their behaviours, learning and development, and work and leave arrangements. This conversation is to be held in February for those employees who commenced the performance cycle in September or when deemed appropriate for those employees who commenced a new role or returned from an extended absence within the performance cycle.

1. This Policy also identifies how disputes or disagreements can be resolved.
2. Further information about how the PFADS process operates is contained in the - 'Policy Guidance - Performance Cycle' document. Relevantly, it explains that regular check-ins are part of the review process and whilst not necessary to document these regular discussions:[12]

... at times it may be valuable for the employee and/or supervisor to follow up and confirm the key points of the discussion in writing (e.g. an email). Where a supervisor has concerns that the employee's performance is not meeting the required standard, documenting conversations and how work is tasked, performed and assessed is very important. ...

1. The Policy document also provides that in assessing performance, the employee is required to undertake a self-assessment and then the first-level supervisor is to assess the employee's performance against various considerations. The second-level supervisor then determines the performance rating, again by reference to specific criteria. It further provides that if an employee is assigned a 'partially effective' rating, their performance is to be managed in accordance with the Policy - 'Improving Poor Performance'.[13]
2. The Improving Poor Performance Policy defines Performance as 'the effectiveness of an employee in achieving assigned work. It includes behaviour displayed by the employee in achieving the required standard, which is to be measured against the PFADS rating scale.'[14]
3. Mr Albrecht deposes to the applicant's PFADS ratings over the period of his employment by reference to the respondent's relevant records as follows:[15]
   • 2011/2012 - rating of 'fully effective';
   • 2013/2014 - rating of 'fully effective';
   • 2014/2015 - rating of 'partially effective';
   • 2015/2016 - rating 'fully effective';
   • 2016/2017 - did not receive a rating as the applicant refused to participate in the PFADS process;
   • 2017/2018 - rating of 'partially effective' - this assessment was undertaken by Mr Albrecht and Mr Gounder;
   • 2018/2019 - rating of 'partially effective' - this assessment was undertaken by Mr Albrecht and Mr Gounder; and
   • 2019/2020 - PFADS not completed.
4. As stated above, the applicant maintains that he had received positive ratings in his PFADS assessments until 2018. He says that when he started to raise concerns about Mr Donovan and then Mr Albrecht, that he was the subject of retaliation and poor PFADS assessments. For the following reasons, I do not accept this proposition.
5. I note that although the applicant had various first level supervisors over the course of his employment with the respondent, Mr Gounder was the applicant's second level supervisor from in or about February 2016.
6. In relation to the PFADS process, Mr Gounder gives evidence that as his second level supervisor at the relevant times, he was responsible for approving the applicant's PFADS assessments as follows:[16]
   • 2016/2017 assessment was undertaken by Mr Donovan and approved by Mr Gounder - Mr Gounder's evidence is that the applicant refused and did not participate in this PFADS process as required;
   • 2017/2018 assessment again undertaken by Mr Donovan and approved by Mr Gounder - Mr Gounder's evidence is that the applicant was given a rating of 'partially effective';
   • 2018/2019 assessment was undertaken by Mr Albrecht and approved by Mr Gounder - Mr Gounder's evidence is that the applicant again received a rating of partially effective, although ultimately, this rating was assigned without the applicant signing the agreement due to difficulties outlined earlier with the applicant working with Mr Albrecht and Mr Gounder to finalise the PFADS agreement;
   • 2019/2020 - this was not completed.
7. In addition, the applicant has annexed to his reply affidavit various emails in which the applicant's PFADS in 2014/2015 was initially assessed as 'partially effective'. It was ultimately adjusted to 'fully effective' after appropriate clarifying information was provided. The applicant suggests that this is evidence that he has had to 'fight' for his appropriate rating. The other way of looking at this, if it is in fact that the initial rating was made in error, is that when the error was brought to the attention of the relevant person, it was rectified.
8. In any event, leaving the 2014/2015 PFADS rating aside, the applicant did not receive a PFADS rating for 2016/2017 at all, as he refused to participate in the process for that period. As a consequence, in accordance with the PFADS provisions in the Defence Enterprise Agreement_,_ the applicant's performance progression was denied. For completeness I note that at Exhibit 3 to the applicant's reply affidavit, he has attached an email from himself to Mr Donovan dated 29 August 2017 on which in handwritten form are the words 'again had to fight' and 'securing fully effective 2016 - 2017'. In that email, the applicant sets out the projects that he has undertaken and the work he has done during the review period. The applicant then goes on to say:[17]

Given all of this I would fervently appeal to you to make a Fully effective recommendation as I have obtained in the five years ... that I have been here and help me in my career progression. As you would know I am also trying to get back to my original field of expertise with the Defence Department and have attained very partial success.

In the event that you are not inclined to do so (ie give me a fully effective or higher recommendation) for whatever reason I would like to withdraw from this PFADS process as it would only harm my career which I have so carefully nurtured. We have worked over this PFADS issue over a month and it would be good to have a positive outcome...

1. The applicant does not attach the reply, if any to this email. The remainder of Exhibit 3 relates to the deferred performance progression payment in the 2017/2018 which was approved in February 2019.[18]
2. However, at Court Book page 1888, is a further email from the applicant to an HR officer in the following terms:

Dear HR Officer

I belong to the CASG group and have/had differences with my supervisor Shaun Donovan over many issues including PFADS. My gut feeling is that I am not being treated fairly because of my diverse background/Tertiary Education background/achievements etc and would like to consult with an equity advisors. I have always excelled in my profession as an Engineer/Project Manager and this guy comes up and sullies my career after being with (sic) for only three to four months. My PFADS input is forced upon me and even without my ascent or agreement with the assessment, it is finalised within a day causing my career tremendous harm. In all the five years I have been here I have never got a rating that has been this disappointing having been doing the same kind of work over five years - Project Closures.

1. Having regard to this evidence, including that provided by the applicant, I prefer the evidence of Mr Gounder and find that the applicant did not complete the PFADS process for 2016/2017 and therefore did not receive any rating. It is evident from the emails attached to the applicant's affidavit that had this PFADS process been completed, Mr Donovan intended to give the applicant a 'partially effective' rating.
2. Further, for the 2017/2018 period, the applicant was rated as 'partially effective', and his performance progress payment was deferred.
3. For the 2018/2019 period, the applicant was again rated as 'partially effective' although this was done without the applicant ultimately signing off on the PFADS assessment as he ceased to engage.
4. Having regard to the totality of the evidence, therefore I find that at least from 2016/2017, onwards, concerns about the applicant's attendance and output were noted by various managers and raised with the applicant. This was reflected in the applicant's PFADS process from that time on. The applicant did not participate in the PFADS process in 2016/2017 and was rated 'partially effective' in the next two periods. Moreover, the applicant exercised his right in 2019 to seek a Review of Actions in respect of his PFADS assessment. That review ultimately concluded that the rating given to the applicant was appropriate.
5. The applicant has therefore not established that prior to 2018, he had received positive ratings in the PFADS process. On the contrary, I find that the applicant has had a history of being assessed at below 'fully effective' from at least 2016/2017.

1. At various points in his claim, the applicant asserts that the respondent denied his request for leave to attend an AAT conciliation/hearing in relation to an ongoing workplace injury claim.
2. On 17 September 2019 the applicant sent an email to Mr Gounder in which the applicant simply said:[19]

I may not be in tomorrow as I would need to attend to the ACAT proceedings.

1. Mr Gounder replied within 10 minutes in the following terms:[20]

Hari

Potential absence is noted. Please submit any leave requests on PMKEYS if the leave is required and taken.

Regards

Guna

1. The applicant then responded as follows:[21]

Will do it depending on the leave I have after the event. This is a matter involving the addition of leave to compensate for an injury that occurred on the premises and even the registrar of the Court advised that such days of Court attendance would be considered in the Public Service. I shall ask the Court to advise the Dept directly at the next hearing

1. In reply, Mr Gounder indicated he would seek advice from the HR about this issue. On 9 October 2019, Mr Gounder advised the applicant that:[22]

.... On the basis that the matter before the tribunal is between you and Comcare, your absence from the workplace is to be recorded as Annual Leave with an application to reflect as such. If there is no available annual leave then the absence is to be treated as Leave Without Pay (LWOP).

Please submit leave requests for the relevant periods on PMKEYS.

1. The applicant then sent the following three emails in quick succession, also on 9 October 2019:[23]

I had advice to the contrary when I spoke with the Registrar of the Tribunal the other day and I shall request the president of the Tribunal to issue suitable directions if need be when I go for a hearing the next time.

...

HR is aware of my paucity of leave and has assured me full cooperation in the matter so I am not financially penalised with a loss of pay. I do not have much rec leave at all to even accommodate an annual holiday of two weeks I have had losses in progress payments earlier on and would invite suggestions as to how best I can balance things out.

...

Was wondering if I can leverage my long service leave which would be 3 months duration. I would be eligible very soon for it. Also the tribunal verdict would add almost two months of leave at a minimum for rehabilitation warranted by a work place fall at the work place. Given all this I should not be put to financial hardship on account of current leave entitlements.

1. There was then a further exchange about whether the applicant could use long service leave. On 29 October 2019, the applicant sent the following email to Mr Gounder:[24]

Further to all those emails I have applied for leave in the PMSKEYS for the date in question. I shall however, seek to reverse it after obtaining suitable directions from the ACAT Tribunal.

1. At paragraph [149] - [153] of his affidavit, Mr Gounder deposes to the steps he took after receiving these emails to remind the applicant about his obligations in relation to attendance and leave and the steps he took to assist the applicant to properly enter his leave so that it could be approved. Relevantly, he deposes to sitting down with the applicant on 7 November 2019 and showing him how to correctly enter his leave requests. He further deposes that after assisting the applicant in this regard, the applicant correctly entered some outstanding leave requests, including a leave request in respect of his absence from work on 18 September 2019, being the day that he attended the AAT hearing.[25]
2. Based on the totality of the evidence, I therefore find that when the applicant indicated that he could not attend work on 18 September 2019 as he was required to attend a hearing at the AAT in respect of his application to review the decision to refuse his workers compensation claim, he was permitted to absent himself from work. There was then discussion about the nature of leave that he would need to apply for to cover this absence. And ultimately, when the applicant correctly applied for this leave, it was approved.
3. The applicant has therefore not established on the balance of probabilities that his request for leave to attend the AAT in respect of his workers compensation claim was rejected as alleged.

1. The applicant asserts that he was at a disadvantage in responding to the Code of Conduct investigation because of:

(a) his physical and/or mental health;

(b) the historical nature of the matters under investigation;

(c) the applicant's access (or lack thereof) to work records and systems.

1. As stated the respondent denies any such disadvantage.
2. When regard is had to the totality of the evidence, I do not accept that the applicant was at a disadvantage in the code of conduct investigation.
3. In relation to the physical injury, the respondent accepts that the applicant suffered a fall in a car park near work in May 2018, however, the applicant, after taking a few days of leave, did not seek any additional leave arising from this injury. Moreover, nor did the applicant produce any medical evidence suggesting that there were limitations on his ability to meet his work obligations, including recording his hours of attendance at work. Nor has the applicant produced any medical evidence which establishes that any condition from which he suffered had an impact on his ability to participate in and respond to the Code of Conduct investigation.
4. I accept that the applicant has consistently said that he has suffered from stress which he says has arisen due to the way he has been treated by the respondent from at least mid-2018. I also accept that at various times, the applicant has submitted medical certificates, but again, these certificates did not state that he was unfit to participate in or respond to the Code of Conduct investigation.
5. I accept that the performance discussions with the applicant would have been difficult and challenging. However, there is no evidence to support a finding that the applicant faced any greater disadvantage than any other person facing a disciplinary process such as this. In any event the applicant was repeatedly offered access to the respondent's support services and had the opportunity to have a support person at any meeting he attended as part of the disciplinary process.
6. An audit was conducted of the applicant's attendance by reference to his swipe card records for the period from 5 December 2017 to 15 May 2018 and then from 1 September 2018 to 19 March 2019. A review of his attendance by reference to these records indicated that the applicant had not physically attended his workplace for about 900 hours during these periods. At Court Book page 1620, is a record of the applicant's mid-cycle review undertaken with Mr Donovan and Mr Gounder. It appears to have been signed by each of the participants on 22 February 2018 and it contains the following notation:[26]

1. Notwithstanding this clear direction, the applicant's attendance at work and his record keeping about his attendance remained an issue throughout 2018. It is also apparent from the applicant's own emails that he understood that he had been asked to keep such records but effectively did not believe he should do so on the basis that he had formed the view that he was being unfairly targeted and that other EL1 employees in the Department were not required to keep attendance records in the same way.[27]
2. I do not propose setting out each of the communications with the applicant about his attendance issues, however, the email exchanges annexed to the affidavit of Mr Gounder for example, clearly demonstrate that the respondent was concerned about the applicant's attendance at work from at least 2018. The applicant was put on notice of the need to keep attendance records and was also advised that this was a requirement of all EL1's. This issue also arose in the context of the respondent having concerns about the applicant appropriately recording his leave.
3. Rather than engaging directly with the issue, the applicant continued to claim that he was being treated unfairly, that others were not being asked to substantiate their attendance at work and variously said that he maintained records of his attendance in his diary, completed attendance records for a limited period of time and/or refused to maintain records of his work hours at other times.
4. In those circumstances, there is a circularity to the applicant's claims that he was at a disadvantage because he was being asked to retrospectively substantiate his attendance. The respondent accepts that once the Code of Conduct investigation was underway, the issue of the applicant's attendance during the specified period, was a historical one. However, the fact that the applicant did not have records of his attendance was of the applicant's own making. The respondent had repeatedly asked the applicant to maintain records of his start and finish times for work in circumstances where there were concerns about his attendance and about the work output that he produced. Had the applicant complied with these lawful and reasonable directions, not only would he have had these records available when requested, but it may have avoided the very need for the Code of Conduct investigation.
5. Finally, to the extent that the applicant claims that he did not have access to the respondent's systems, documents and records and was consequently at a disadvantage in the Code of Conduct investigation, again, the facts do not support this proposition.
6. The applicant remained at work throughout the Code of Conduct investigation and therefore had access to the respondent's systems, documents and records as required. He was only suspended from his position on 26 November 2019 after the outcome of the Code of Conduct investigation was complete. Moreover, once the applicant was given Notice of the Intended Sanction, by which time he had been suspended from work, he was given access to the respondent's systems to access any other material that he might consider relevant to the decision to sanction.
7. For each of these reasons, the applicant has not established on the balance of probabilities that he was disadvantaged in the Code of Conduct investigation for the reasons claimed or otherwise.

Code of Conduct Investigation - adverse action?

1. On 3 September 2019, Mr Albrecht submitted his concerns regarding the applicant's performance and attendance issues to the Directorate of Conduct and Performance alleging contraventions by the applicant of the APS Code of Conduct.
2. Mr Albrecht deposes to being concerned about the applicant's continued failure to comply with directions given about his attendance and behaviour in the workplace which had been addressed with him on numerous occasions since 2018 and which the applicant had continued to fail to take action to address.
3. It was these concerns which led Mr Albrecht to conclude that it was appropriate to refer the applicant to the Department's Directorate of Conduct and Performance to determine whether he had breached the APS Code of Conduct.
4. Ms Patterson then became involved with the applicant on or about 3 September 2019. Ms Patterson was at the relevant time the Assistant Director, Directorate of Conduct and Performance within the Department ('DCP').[28] She states that the general role of DCP is to manage conduct, probation, underperformance, loss of essential qualifications and non-performance of duties referred to it from within the Department.[29]
5. It was Ms Patterson's responsibility, supported by a senior investigator in her team (Mr Walczko), to investigate the allegations in the Code of Conduct referral to determine whether the applicant had breached the Code of Conduct. The investigation was conducted in accordance with the Department's Code of Conduct Procedures in force at the time.
6. By the time Mr Albrecht made the Code of Conduct referral, there were a number of ongoing issues with the applicant's performance and behaviour including:[30]
   • management's concerns about his attendance and failure to provide attendance records as directed and ongoing failure to submit leave requests;
   • the applicant's failure to finalise his PFAD for 2018/2019; and
   • concerns about the applicant's performance, particularly in relation to an Obsolescence plan.
7. The applicant's lack of engagement with the substantive concerns raised about his performance is indicated in the email he sent to Mr Gounder on or about 10 September 2019, in the following terms:[31]

GM Guna

Pls find attached a draft I have written. I will not send it if it would make matters worse, but will definitely send if matters are not made to rest. I trust you would do the right thing by me.

1. Attached to that covering email was the following:

This is to place on record the following

A: The meeting you called on the 9th of May Monday at 9.30 AM vis an invite on Friday was clearly refused on grounds as made out in the reply email dated the same day. I was shocked and surprised that you suddenly landed on my desk and asked me to come in for the meeting for which I had not organised any counsel. It was my adaptability and flexibility and not wanting to waste Erins and Gunas time on this that I agreed and Steve was good enough to sit on it at short notice. That also goes to demonstrate my interpersonal skills and relationships I have nurtured here in the Organisation at all levels. Even Bruce was ready to help me with anything on an earlier occasion. This is a direct effect of the Community work and helpful nature of mine in any situation with the others. I could easily construe this as an act of bullying and intimidation causing anxiety and depression every time.

B: The act was repeated when you called in Michelle as a witness to our conversation again causing anxiety and depression to a CALO person whose communication is alien to you. I came in and stated my position and Michelle was very supportive and understanding. I was again the subject of false and unsubstantiated allegations

C: The act was repeated again when you called in a Conversation with Guna when I brought in Bruce Tunnah as a support person and I was again subject to the same old unsubstantiated allegations and diatribes

D: The same was done in the presence of Marin Dickens who also had a hearing and went away with her own picture of the situation and let it pass.

All this only consolidates the fact that you have used this PFADS process like a stick to beat me with and cause anxiety and depression all along. All this has lead to low self esteem, mental hurt and shame. Every day I come in I feel anxious about the happenings of the day and it is only my Hindu prayers that I do regularly in the morning that has helped me cope with the situation that you have intended for me. You have wasted many a constructive hour on targeting me and satiating your ego rather than doing actual work. You do not understand that for a person of CALD origin of my kind, the honour of the profession and career is the greatest thing and allegations against my knowledge and skills can even kill. Also we trust people by word and instead of supporting my career you have back stabbed me on many an occasion.

I pray to my God that good sense prevails on all.

1. Mr Gounder states that his response to the applicant was that whether he sent the draft email he had prepared was a matter for him, however, Mr Gounder also said that he did not agree with the applicant's account as noted in that draft email.
2. It is common ground that the applicant's name was incorrectly spelt in the barrier logs but Ms Patterson satisfied herself that the logs in fact did relate to the applicant by reference to his access card. Ms Patterson also obtained a copy of the applicant's leave records and undertook a comparison of the barrier log report and the leave records to determine the difference between the applicant expected hours of attendance and his actual hours of attendance during the relevant period. This analysis identified that there was a total of approximately 969 hours which were not recorded in the applicant's barrier log report. This represented about $57,000 gross salary that was paid to the applicant for periods that he was not at work and in respect of which he had not sought or obtained approved leave.
3. Ms Patterson says that she therefore formed a preliminary view that the applicant may have breached the Code of Conduct. Ms Patterson signed a Notification of Suspected Misconduct Letter on 16 October 2019 which was sent to the applicant together with relevant documents. In that letter, Ms Patterson set out the applicant's suspected misconduct. It also identified the potential sanctions that could be imposed in the allegations were substantiated, which included, the applicant's termination of employment. The applicant was also informed that he would have an opportunity to respond.[32]
4. Shortly after the Suspected Misconduct Letter was emailed to him, the applicant responded by email to Mr Wolsczko and cc'd various other people including Mr Gounder, in the following terms:[33]

I am shocked that I have been investigated like a criminal without even letting me know I was under investigation and for what attendance issues to pin me down. The fact that even my name was not got correctly demonstrates a clear bias toward people of CALD origin. I have been mentally harassed and not been included in any meetings or team activities by Randolph and when I brought this to the notice of people concerned he was irked. I have already had a talk with Ivan Zlabur the Division head and Gary Rawlins the Branch head of ISREW about it all and have kept the HR department continuously appraised about the happenings here. I was also encouraged to file a ROA against the performance appraisal done which I have done. I have been stressed about it since April 2019 and also requested for not working with Randolph a while ago which the SPO did not take seriously leading to my deterioration of mental health causing irreparable damage

We even had a meeting to the effect and he himself said that I could apply for leave when I had enough of it and I thought it was resolved. There is a huge communication gap between us and I did bring it to notice. I have even started working on new assignments here after making my case very clear. In fact last year too I maintained an attendance record when I was asked to do so and then discontinued as the person concerned never showed any interest in it.

I have diligently maintained my times to the best possible extent in my dairy which I said I would share if this requirement was made of all employees irrespective of caste creed religion or origin of birth. Given my state of depression and worthlessness caused by the SPO which almost drove me to commit suicide a couple of weeks ago. I have recorded the times to the best possible extent. I have used my own vehicle to move between Defence Offices and the investigation sheets may not accurately reflect my attendance at the Defence Offices. My frustration at work has driven me to look for work with other Defence Divisions and I have met with people in Coffee cafes on Defence Premises at various times. Many employees move between Offices go to gyms and never come back and they have not been investigated. This is clearly a case of discrimination against an employee based on his country of birth and origin. This is driven by malice perpetrated by Randolph about whom I did raise an alarm four months ago. I have never ever even thought of misconduct and have never engaged in any such activity ever. There are many who can vouch for my character in the SPO. These accusations are also very hurtful

This is my immediate reaction to your email

However, I would need more time to formalise a reply in consultation with legal counsel and officers of the Administrative Tribunals.

1. The applicant also forwarded this response to Mr Albrecht with the following additional message:[34]

Fyi. Never imagined you would go to this extent to satiate your ego. Anyways I am not giving up.

1. The applicant provided two further email responses to the Notification of Suspected Misconduct on 28 October 2019 and 29 October 2019 respectively. Although these responses were provided outside the specified timeframe for a response, Ms Patterson considered these responses in determining whether misconduct was found.
2. In the 28 October response, among other things, the applicant said:[35]

I again reiterate that I have never even indulged in any sort of misconduct consciously or unconsciously as alleged and accused of and this is only a method to harass me to bow down to Randolph Albrecht whose ego has been hurt by my intelligence and professional abilities and skills and qualifications. This is discrimination against a person of CALD Origin who are not treated as par with the majority in the Defence Department. The heritage I come from will never let me stoop this low and engage in attendance related acts of misconduct.

Pls treat this as my instant defence of the allegation and my right to a defence.

1. In his further response of 29 October, he further states:[36]

Noting that my relationship with my supervisor has so deteriorated since four months reaching to a stage where we don't even communicate. All he wants for me is to bow to him which I will never ever do. As put across in my correspondence it is a deep religious bias against me owing to his faith. He thinks Christ is the only God.

1. Also on 28 October 2019, the applicant sent an email to Mr Wolczko referring to material that he had provided to Ms Parker which DCP might also consider. Mr Wolczko advised the applicant that if there was material that he wanted DCP to consider, he should provide that to DCP directly.
2. On or about 26 November 2019, the applicant was advised that Ms Patterson had concluded that he had breached the APS Code of Conduct and as a result had incurred a debt of over $57,000. He was also advised of his rights to seek to have this determination reviewed. In addition, the applicant was advised that as a finding had been made that he had breached the APS Code of Conduct, the matter would be forwarded to the Sanction Delegate to determine whether and, if so, what sanction ought to be imposed. In her statement of reasons, Ms Patterson set out the basis of her findings. Relevantly, Ms Patterson noted the applicant's statement in his response that other employees had behaved inappropriately towards him. She noted that these matters did not form part of her investigation but repeated that if he had such concerns, he should raise them in the usual way so that they could properly be investigated.
3. On 21 December 2019, the applicant sent an email to Ms Paterson in the following terms:[37]

...

I would again reiterate that I have not consciously breached any code of conduct and it may have occurred as a result of the mental stress I was subjected to leading to complete demoralisation and loss of self esteem as a result of extreme depression and anxiety caused since abt (sic) two years. My medical records are evidence of it all. This is the price I have paid for being a CALD person who has stood up for his rights and against discrimination. I started in 2011 and am one of the oldest in the SPO and it is surprising that nothing came up in the first six years. It all started after I challenged the progression decision in 2018 and all that happened later is retribution and vindication to harm me permanently to ensure permanent damage to my EL2 career aspirations.

As stated earlier I have worked all my hours sincerely to the best possible extent in the SPO toxic atmosphere and have worked all alone without any team inspite (sic) of being an EL1 at the highest band. I brought this issue up many a time but was ignored leading to frustration and depression. The emotions and communications of CALD person (sic) are not comprehended adequately by the SPO Management leading to further WHS issues as has happened in my case. Nothing has been done inspite (sic) of telling them I cant sit continuously (sic) for too long in front of the computer and nothing has been done about it .1 have applied my mind to defence issues even while not being physically present and the allegation thay (sic) I owe the Commonwealth is erroneous whereby actually it may be the reverse case of being physically and mentally hurt whilst at work as evidenced by the medical practitioner ie increased blood pressure depression and depleting mental health.

Also I have been very rudely and dishonourably suspended since Nov 26th 2019 causing further pain and disadvantage

Given all of the above I would request you to take a holistic view of the circumstances under which the alleged breach took place and direct my reinstatemeny (sic) with full honour and glory and rescinsion (sic) of the alleged amount owed to the Commonwealth which has shocked me and increased my anxiety and depression further. Also pls consider this email as part of my defence along with the emails I have written since receipt of the Minute. I have spent a great amount of time thinking about this whole issue during my holidays and yhe (sic) SPO Director has succeeded in ruining my annual holidays.

1. Also on 21 December 2019, the applicant sent another email to Ms Patterson in the following terms:[38]

This is with reference to the letter of determination in the above subject.

I see that your goodself (sic) has determined that I have breached the code and would forward to the delegate for suitable sanction.

I would again reiterate that I have not consciously breached any code of conduct and it may have occurred as a result of the mental stress I was subjected to leading to complete demoralisation and loss of self esteem as a result of exyreme (sic) depression and anxiety caused since abt (sic) two years. My medical records are evidence of it all. This is the price I have paid for being a CALD person who has stood up for this rights and against discrimination. I started in 2011 and am one of the oldest in the SPO and it is surprising that nothing came up in the first six years. It all started after I challenged the progression decision in 2018 and all that happened later is the retribution and vindication to harm me permanently to ensure permanent damage to my EL2 career aspirations.

As earlier stated I have worked all my hours sincerely to the best possible extent in the SPO toxic atmosphere and have worked all alone without any team inspite (sic) of being an EL1 at the highest band. I brought this issue up many a time but was ignored leading to frustration and depression. The emotions and communications of CALD person are not comprehended adequately by the SPO Management leading to further WHS issues as has happened in my case. Nothing has been done inspite (sic) of telling them I cant sit continuously for too long in front of the computer and nothing has been done about it. I have applied my mind to defence issues even while not being physically present and the allegation thay (sic) I owe the Commonwealth is erroneous whereby actually it may be the reverse case of being physically and mentally hurt whilst at work as evidenced by the medical practitioner ie increased blood pressure depression and depleting mental health.

Also I have been very rudely and dishonourably suspended since Nov 26th 2019 causing further pain and disadvantage.

Given all of the above I would request you to take a holistic view of the circumstances under which the alleged breach took place and direct my reinstatemeny (sic) with full honour and glory and rescinsion (sic) of the alleged amount owed to the Commonwealth which has shocked me and increased my anxiety and depression further. Also pls consider this email as part of my defence along with the emails I have written since receipt of the Minute. I have spent a great amount of time thinking about this whole issue during my holidays and yhe (sic) SPO Director has succeeded in ruining my annual holidays.

1. The underpayment amount was reviewed and amended. The applicant was advised of the updated figure by letter from Ms Patterson date 7 January 2020.[39]
2. As stated, once Ms Patterson made a finding that the applicant had breached the APS Code of Conduct, the matter was referred to Ms Barbuto as the Sanction Delegate to consider what if any sanction ought to be imposed. Ms Barbuto has been employed by the Department of Defence for about 36 years largely in Human Resource and Personnel management.[40] Relevantly at the time of these matters, she was employed as the Director, Conduct and Performance for the Department.[41] In this role, she held the necessary delegation to make sanction decisions under the Defence's Code of Conduct Procedures established under section 15(3) of the Public Service Act 1999 (Cth).
3. In determining a sanction for a breach of the Code of Conduct, Ms Barbuto had the power to take a range of actions, ranging from a reprimand, to a fine, reduction in classification or salary, a reassignment or termination of employment. Ultimately, the sanction imposed in a particular circumstance depends on the evidence provided to her.
4. Ms Barbuto says that in any 12 month period, she makes quite a large number of sanction decisions. Before making a final decision as to an appropriate sanction, Ms Barbuto meets with the relevant employee and provides them with an opportunity to provide any additional evidence and make submissions.
5. On 10 February 2020, Ms Barbuto signed an Intent to Sanction Letter in which she advised the applicant that she was considering the termination of his employment as the appropriate sanction for the breach of the Code of Conduct. In coming to a preliminary view that termination of his employment was appropriate in the circumstances, Ms Barbuto had regard to the documents sent to the applicant as part of the investigation conducted by Ms Patterson (and Mr Albrecht) and the applicant's responses. She also had regard to the applicant's further correspondence provided on 21 December 2019, 1 January 2020 and 7 February 2020. In addition, Ms Barbuto says that she had regard to:[42]
   • the Workplace Impact Statement prepared by Mr Albrecht dated 13 December 2019;
   • emails from the applicant's workplace which appear at pages 102 - 159 of Exhibit 'VB-1';
   • the Attendance and Acceptable Behaviour Expectations Letter from Mr Gounder dated 15 November 2019 (at pages 160- 165 of Exhibit 'VB-1');
   • an email from Ms Rossi to the applicant dated 2 December 2019 providing the applicant with a Determination of Breach and Suspension notice; and
   • the Australia Public Service Commission Handling Misconduct Guidelines - Ch 7 'Determination and Sanction'.
6. Ms Barbuto set out the basis of her reasoning for considering the termination of the applicant's employment in the Intent to Sanction Letter. Relevantly, she referred to the significant period in respect of which the applicant had failed to accurately record his attendance, resulting in an overpayment to him for work not performed. In addition, Ms Barbuto noted that she had considered but discounted the reasons given by the applicant as to his failure to record his work attendance. Ms Barbuto gave consideration to the claims made by the applicant that other employees who do not maintain regular attendance are not investigated and that he is being treated differently because of his CALD origin.
7. Ultimately, Ms Barbuto concluded that the applicant's allegations of discrimination were unfounded. Importantly, she concluded that notwithstanding having been given numerous opportunities to present evidence of the alleged discrimination he had not done so. Importantly, the services of the Department's Diversity team had been offered to the applicant by email dated 2 December 2019 and notwithstanding this, no evidence had been presented to Ms Barbuto which supported the applicant's assertion that he had been discriminated against. In addition, Ms Barbuto noted that the applicant's claim that Mr Albrecht had been harassing him, had been found to be unsubstantiated by Ms Parker.
8. In her affidavit, Ms Barbuto states:[43]

I considered that an aggravating factor in my determination was that of Mr Iyengar's misconduct and his failure to rectify his behaviour which had escalated to the point where he had been suspended from the workplace to ensure the safety and wellbeing of other employees. I took into account Mr Albrecht's Workplace Impact Statement which reported that 'all managers had been subjected to aggressive abusive and disrespectful behaviour, both verbally and via emails' and 'there has been concern within the workplace that Mr Iyengar's behaviour may escalate and he may physically assault someone who disagrees with him'

1. In addition, Ms Barbuto formed the view that there was a likelihood of the applicant's behaviour recurring. Particularly in circumstances where the applicant demonstrated a lack of remorse for his conduct and his expressed view that he did not consider this to be a very serious matter and that he considered his conduct 'normal'. Ms Barbuto considered the applicant's response to lack any accountability and a lack of understanding of his obligations as an APS employee.
2. Ms Barbuto deposes to not giving consideration to the performance related issues raised with the applicant on the basis that at the time of making her decision, those matters had not yet been determined or substantiated.
3. In addition, Ms Barbuto considered that the applicant's senior position compounded the gravity of the situation in that his conduct was not only a failure to comply with Defence Department's standards, but he also failed to set the standard for other more junior employees, who were said to feel demoralised by observing him 'openly abusing his role'. [44]
4. Having regard to all of these matters, Ms Barbuto states that she formed the view that the most appropriate sanction in all the circumstances was the termination of the applicant's employment on the basis that the applicant had irreparably broken the Department's trust necessary for the employment relationship to continue. Ms Barbuto further deposes to considering lesser sanctions but discounting them as being appropriate in this case for the reasons set out earlier, in particular, that she could not be satisfied that the applicant would act in accordance with the Code of Conduct in the future.
5. After considering the applicant's response to the Intention to Sanction letter and various emails provided on various dates in February 2020 and April 2020 and other relevant material, Ms Barbuto determined to impose a sanction of termination of employment and advised the applicant accordingly. The reasons for reaching this conclusion are set out in the Determination of Sanction letter.

Alteration of the applicant's position to his prejudice

1. The applicant claims that by commencing and continuing the Code of Conduct Investigation, the respondent altered his position to the applicant's prejudice and therefore engaged in adverse action. The respondent denies that the commencement or continuation of the Code of Conduct investigation amounts to an alteration of the applicant's employment to his prejudice.
2. In making this submission, the respondent relies upon the reasoning of the court in Police Federation of Australia v Nixon [2008] FCA 467 ('Nixon') at [46] where Ryan J said:
   1. ... in my view, "alteration" in this context requires a substantive change in, or reduction of, the advantages enjoyed by the employee in that capacity. Merely to be subject to a disciplinary inquiry or investigation does not, without more, constitute such a substantive change. Examples of relevant substantive changes include reduction of salary, deprivation of overtime, diversion to a less congenial shift, forced taking of leave, transfer to lower duties or suspension from duties. ...
3. However, Ryan J noted at [47] that the 'tentative' view he had come to diverges from that of Goldberg J in United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board [2003] FCA 480 where his Honour observed at [89]:
   1. I am satisfied that there is a serious question to be tried on this integer of contravention of s 298K. The laying of the charges imposes a burden on the persons charged to respond to allegations relating to their conduct as employees of the board. I do not consider that one can separate out the effect and consequence of the charges from the fact that they occurred because of the employee's employment by the board. I do not accept that a person charged is not affected in his or her employment until the charge has been proven. The expressions found in s 298K(1)(b) and (c) encompass a wide range of conduct both direct and indirect. The laying of charges exposes an employee of the board to a potential disadvantage in his or her employment if the charges are ultimately proven.' (emphasis added)
4. Ryan J then went on to conclude at [48]:
   1. I consider, with respect, that amenability to a disciplinary charge brought in good faith and on a proper prima facie evidentiary basis is a normal incident of employment and does not of itself, before the laying of the charge, constitute "an adverse affection of, or deterioration in, the advantages enjoyed by the employee" in the sense used by the High Court in the passage from Patrick Stevedores quoted at [14] above. Of course, it is otherwise where the charge is made out and some deleterious consequence is visited on the employee. That is the significance of the words to which I have added emphasis on in the extract from Goldberg J's reasons reproduced at [47] above. Until the charge has been proved, the disadvantage to the employee, as his Honour acknowledged, remains merely "potential".
5. In The Environmental Group Ltd v Bowd [2019] FCA 951, Steward J noted that there were some conflicting authorities on what constituted adverse action falling short of injury to employment. Relevantly, in the case before his Honour, the applicant relied upon the reasoning of Collier J in Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 339 ('Jones') at [81] for the proposition that the commencement of an investigation could constitute the taking of adverse action within the meaning of section 342 of the FW Act. Moreover, at [82] Collier J did not accept that disciplinary action was a 'normal' incident of employment, even when commenced in good faith and with a proper prima facie evidentiary basis.
6. Steward J then referred to the view taken by Ryan J in Nixon. He observed that Collier J's reasoning in Jones found favour with Murphy J in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525 in which his Honour said that an investigation which threatened the possibility of dismissal reduced the security of future employment and therefore constituted adverse action.
7. In this context, Steward J went on to say at [163]:
   1. For my part, and if it matters, I respectfully prefer the reasoning of Ryan J in Nixon, at least with respect to CEOs of publicly listed companies. The very great responsibilities and duties which fall upon the shoulders of such senior officers, ordinarily reflected in the size of their salary, make both public (regulatory) and private investigation of their conduct a likely incident of their employment. That includes ongoing scrutiny of a CEO by the board of directors. Such scrutiny is an ordinary incident of the fiduciary duty each director owes to the company and its shareholders. When appointed, every CEO should know this and welcome such scrutiny. Ultimately, of course, whether an investigation does or does not constitute an injury or a prejudicial alteration in an employee's position will depend upon the facts and the type of investigation. ...
8. Ultimately, it was not necessary for Steward J to finally determine whether the initiation of the investigation in that case amounted to adverse action.
9. Having regard to the state of the authorities, whether requiring an employee to participate in an investigation into the employee's conduct constitutes adverse action will depend on the circumstances of each case. On balance, and having regard to the authorities, I find that the Code of Conduct investigation in this instance was initiated in good faith and on a proper basis and did not, of itself, amount to a substantive change or prejudicial alteration to the applicant's employment.
10. If I am wrong in concluding that undertaking the Code of Conduct investigation or requiring the applicant to participate in the Code of Conduct investigation did not constitute adverse action, I find that Ms Patterson, who conducted the code of conduct investigation, or Ms Barbuto who imposed the sanction, did not do so for a proscribed reason or for reasons which included a proscribed reason. Nor do I accept that Ms Patterson required the applicant to participate in the Code of Conduct investigation for a proscribed reason or for reasons which include a proscribed reason.

Did the respondent discriminate against the applicant as alleged and therefore engage in adverse action for the purposes of s 342?

1. The applicant has consistently maintained that he has been discriminated against by the respondent and by his various supervisors in particular since 2018. He variously has said that he has been discriminated against in being asked to maintain attendance records when other EL employees are not required to do so. He says that he has been discriminated against variously because of his race and cultural origin and also because he has raised complaints about the way that the SATCOM SPO is run. In relation to Mr Albrecht, he also has said that he has been discriminated against because of complaints that he has raised about the basis on which Mr Albrecht has allocated work, in particular that he has favoured people who belong to his religion and his church.
2. The evidence shows that on various occasions when the applicant has raised these concerns, he has been invited to pursue these claims by providing evidence to support them or at least to provide further information that might allow his claims to be investigated.
3. For example, as discussed, the applicant's attendance and performance had been in issue since at least 2016/2017. The applicant has at all times been resistant to requests to maintain records of his attendance on the basis that he claimed that he was being singled out , including because of his race. At Court Book page 1620, is an excerpt from the applicant's Mid Cycle performance review which appears to have been completed in February/March 2018 by the applicant's then first level supervisor, Mr Shaun Donovan and Mr Gounder, as the applicant's second level supervisor. Relevantly, that mid-cycle review noted:[45]

Limited time since Performance Agreement with Xmas and Leave - but some progress is being made.

Need to record attendance time.

1. Also annexed to Mr Gounder's affidavit, at Court Book page 1621 - 1622 is an email exchange between Mr Donovan and the applicant on 6 July 2018 in which Mr Donovan said:

I want to have a meeting on Monday to discuss some concerns I have with your attendance and leave applications. The key topics I want to discuss are:

Requirement to record attendance. (sic) and

Requirement to complete leave applications including unplanned personal leave.

1. In his response, the applicant queried whether:[46]

... all permanent employees in Defence fill out a PA 018 Form and have their diaries checked regularly. I found out this isn't so. I do not agree with you insisting on checking diaries.

... Do you insist on others who work to you to do so regularly. The answer is no.

... Has the administration sent out an email to all to comply with this requirement if it is a requirement. The answer is again a no.

... I am being targeted by you specifically for this. This same issue caused a WHS incident when I was in emergency hospital the other day for which you are to blame directly. I am being discriminated by you because I have raised these issues and in spite of my not wanting to not indulge in conflict you are egging this on and want it to go on thus hurting me psychologically.

I have no problem complying with any rule in the Department provided everybody else also does so. I would accuse you of nepotism and favouritism in the work place.

1. In response to this email, Ms Marin Dickens, the Director of Business Management, within the Department's Communication Systems Branch wrote to the applicant in the following terms:[47]

After reading your email ... the commentary has highlighted a number of potential issues in which you raise concerns regarding the way in which you are being managed within our organisation. In order for me to address these concerns with a matter of urgency, I would ask that you please provide me with any additional information and/or evidence that you may have in support of these issues.

I would request that you provide this information to me by COB NLT Wednesday 11 July 2018, or alternatively contact me and we can discuss the timeframe.

1. The applicant replied to Ms Dickens by email dated 11 July 2018. In that email, the applicant said, among other things:

Since 2011 I worked with various officers including ... and was never pursued about an attendance diary or PA 018. This was how it was for almost five years. ...

...

It is only Shaun who is making a mount of a mole hill now with me only to distract attention from project failures. There is a total lack of support regarding the Project Closures that I am pursuing single handed ever since 2011 ... and is all very frustrating. ...

... Also not all employees are being asked to comply with all that Shaun wants me to do. (Evidence would be the absence of any such email to other subordinates your good self can ask for or talk discretely to other Defence employees across the board). This is clearly discrimination based on extraneous factors (race, country of origin, religion). He lacks an appreciation of diversity and multiculturalism in the work place.

...

In a recent WHS incident, I hurt my back in the BP Car Park and was put on Mobic which is a drug that alleviates pain and also causes drowsiness. I had pain on a particular day and woke up late that day and was accused of not letting him know first thing in the morning. In fact my mobile was also not charged that day and it was a lousy dreary morning. We are all adults and don't need to be on each other's backs.

As stated earlier, I reiterate that this discriminatory attitude is very hurting and conflict arising and WHS unfriendly.

1. Mr Gounder says that he was briefed by Ms Dickens as to the outcome of this process and refers to an email that is consistent with that briefing in which on 27 July 2018, Ms Dickens advised various people within the Department that the applicant had not provided sufficient evidence to warrant the commencement of a fact-finding exercise into the allegations he made. Ms Dickens' email also records that Ms Dickens had offered mediation to the applicant, who declined on the basis that the situation was improving/being managed.[48]
2. Mr Albrecht also gives evidence that when the applicant raised allegations that he felt he was being discriminated against, that Mr Albrecht offered him support to have these matters addressed. I accept Mr Albrecht's evidence in this regard.
3. As stated, if the applicant establishes that he has been discriminated against for the purposes of section 342, that would constitute adverse action. Section 342 does not define 'discrimination', it simply says that an employer engages in adverse action if the employer:

discriminates between the employee and other employees

1. The term 'discriminate' is defined in the Oxford English Dictionary to mean:

distinguished from others; perceived as distinct; differentiated

1. Having regard to the terms of section 342(1)(d), the applicant must show that the employer treated the applicant differently to how it treated other employees. It is implicit in the concept of treating a person differently to another, that the nature of the treatment must be assessed in the same or similar circumstances, a concept well known to anti-discrimination law, in the context direct discrimination.[49]
2. In this instance, the applicant claims that he was discriminated against by the respondent in the following ways:
   • making requests for the applicant to substantiate his hours of work retrospectively; and
   • in taskings, preference non-ongoing staff who attended the same Christian Church as Mr Albrecht, rather than relying on permanent ongoing staff such as the applicant;
   • deploying inequitable organisational practices across the team in which the applicant was required to supervise as against other EL officers at the same level;
   • failing to properly consider the applicant's responses to the Code of Conduct investigation because of the complaints he had raised;
   • failing to properly consider the applicant's responses to the Code of Conduct investigation because of the personal characteristics of the applicant;
   • denial of the applicant's request to attend an AAT conciliation/hearing in relation to an ongoing workplace injury claim.
3. For the reasons discussed above, the applicant has not established that on the balance of probabilities he was treated differently from other employees in relation to any of these matters. The only exception to this is the concession made by the respondent that the applicant was not responsible for any lower-level staff members in circumstances where it was common for employees at the EL1 level to have supervisory responsibilities for such staff. However, I accept the evidence of Mr Albrecht that there were from time-to-time other EL1 employees who did not supervise staff depending on the nature of the work that they were required to undertake. I accept that in the applicant's case, the decision not to allocate him staff to supervise was based on organisation requirements and was not in any based on his particular characteristics or because of any complaints that he had made.
4. For the reasons discussed above, I also accept the respondent's evidence that the applicant was not treated differently in relation to:
   • being required to substantiate his hours of attendance, in circumstances where there was documented concern over a number of years about his attendance at work, his work performance and his work output - in so far as the applicant refers to a request for him to substantiate his hours retrospectively, I refer to and repeat my reasoning above - I do not accept that he was asked to justify his hours retrospectively;
   • Mr Albrecht did not allocate work on the basis that individuals attended his place of worship or otherwise based on his religious beliefs, there is simply no evidence to support this allegation;
   • the Code of Conduct investigation - I accept the evidence of Ms Patterson and Ms Barbuto that the applicant's responses were considered and taken into account in determining whether to find that the applicant had acted in breach of the Code of Conduct and as to the appropriate sanction - the applicant has not established that he was treated any differently to any other employee facing allegations of a breach of the Code of Conduct;
   • the applicant's request for leave to attend the AAT hearing in relation to his workers compensation claim - for reasons set out earlier, the applicant was given time off and once he submitted his leave request for this time off, it was processed and accepted immediately.
5. For each of these reasons, I therefore find that the applicant was not subjected to adverse action by being discriminated against as alleged. As stated, to the extent that the applicant was treated differently to other employees by not being allocated a team to supervise, I accept the respondent's evidence that this was due to the work the applicant was engaged in and not for a proscribed reason.

Did the applicant exercise a workplace right as alleged?

1. The applicant relies upon three complaints or inquiries in relation to his employment as set out in paragraph 84 of his revised Statement of Claim as the basis of his claim that he exercised a workplace right.
2. The respondent accepts that the applicant complained about Mr Albrecht's leadership, that there were engineering inefficiencies within SATCOM SPO, and also that Mr Albrecht allocated work to members of his church rather than to existing permanent ongoing staff. The respondent also accepts that the applicant lodged a Review of Action in relation to the denial of his performance progression payment.
3. The respondent does not appear to take issue with the proposition that in making these complaints and in lodging the Review of Action application the applicant exercised a workplace right. To the extent that it is necessary, I am satisfied that in making these complaints and in making the Review of Action application, the applicant exercised a workplace right for the purposes of section 341.
4. Finally, whilst the respondent denies that the applicant was not able to fully participate in the Code of Conduct investigation and therefore disputes that any adverse action taken against the applicant was taken for the purpose of preventing the applicant from so participating, the respondent does not appear to take issue with the applicant's participation in the Code of Conduct investigation was a workplace right for the purpose of section 341.

Did the applicant participate in a process under a workplace instrument?

1. The respondent also accepts that in requesting leave to attend the AAT hearing and in participating in the Code of Conduct investigation, the applicant exercised workplace rights within the meaning of section 341(1)(b).

**To the extent that the respondent did take adverse action against the applicant, was it because of a proscribed reason or for a reason which included a proscribed reason as alleged, namely because:

b. the applicant participated in a process under a workplace instrument? or

c. to prevent the applicant from exercising a workplace right?**

1. Having regard to the above, the applicant has established that the respondent took adverse action against him by:
   • dismissing him; and
   • giving him a 'partially effective' rating on his 2018/2019 PFADS assessment.
2. For completeness I note that I have found that the applicant has not otherwise established on the balance of probabilities that he was subjected to adverse action as alleged.
3. Having established that he was subjected to adverse action in relation to his dismissal and his 'partially effective' rating, the onus shifts to the respondent to establish that the reason for each of these actions, was not, and did not include, a proscribed reason.
4. As discussed above, the decision to terminate the applicant's employment was made by Ms Barbuto as the sanction delegate. In coming to that decision, Ms Barbuto relied upon the findings made by Ms Paterson that the applicant had been found to have breached the Code of Conduct.
5. The Code of Conduct procedure was initiated following receipt of a Code of Conduct referral by Mr Albrecht on 3 September 2019.
6. The applicant claims that the Code of Conduct referral was retaliatory action against him for reasons a proscribed reason or for reasons which included a proscribed reason. Having regard to the totality of the evidence, I find on the balance of probabilities, that in making the Code of Conduct referral, Mr Albrecht was not in any way motivated by the applicant's workplace rights, the applicant's exercise of any workplace right or to prevent the applicant from exercising any workplace right.
7. Mr Gounder states that he did not initiate the Code of Conduct investigation although he supported that investigation. He says that he did so, not because of any personal characteristic of the applicant, the First Complaint, the Second Complaint or the request for leave to attend the AAT hearing. I accept that evidence.
8. I also accept Mr Albrecht's evidence and that of Ms Patterson, that once Mr Albrecht made the Code of Conduct referral, he was not involved in the decision to proceed with a Code of Conduct investigation, or the ultimate outcome of that investigation.
9. As stated at [112] and following, Ms Patterson deposes to forming a preliminary view, on the basis of this analysis, that the applicant may have breached the Code of Conduct. Ms Patterson therefore signed a letter to the applicant being a Notification of Suspected Misconduct Letter on or about 16 October 2019.[50]
10. In that letter, Ms Patterson, referred to the fact that a Code of Conduct referral was received and that a preliminary review of the referral and material obtained in the preliminary review, led her to believe that the applicant may have breached the Code and that she has therefore initiated a formal inquiry under section 15 of the Public Service Act.
11. Ms Patterson, then goes on to say:[51]
    1. My review of the available information has led me to identify the following alleged breaches of the Code.

Allegation A

You may have breached the Code as defined by Section 13(5) of the Act (An APS employee must comply with any lawful and reasonable direction given by someone in the employee's Agency who has authority to give the direction) by:

1. Failing to work a 37.5 hour week and record your attendance during the period from 14 December 2017 to 15 May 2018 and 1 September 2018 to 19 March 2019 which resulted in you gaining a financial benefit of $57,001.80 gross salary to which you were not entitled ... Contrary to your obligations as outlined in:

i. APS People Policy - Recording Attendance ...

ii. Policy - Flexible Working Arrangements ...

1. Policy Guidance - Working arrangements for Executive Level employees ... and

   1. Failing to follow multiple directions from your management to relocate work stations on the following dates ...

i. 8 May 2019

ii. 21 May 2019.

Allegation B

As a result of your actions as outlined in Allegation A you may have breached the Code as defined by Section 13(2) of the Act (An APS employee must act with care and diligence in connection with APS employment)

Allegation C

As a result of your actions at Allegation A and/or B, you may have breached the Code as defined by Section 13(11) of the Act (An APS employee, must at all times behave in a way that upholds:

(a) the APS Values and APS Employment Principles; and

(b) the integrity and good reputation of the employee's Agency and the APS

Specifically the following values:

1. s 10 (2) Ethical - The APS demonstrates leadership, is trustworthy and acts with integrity, in all that it does.

1. Ms Patterson then set out the potential sanctions that might be applied by the sanction delegate if the applicant were found to have breached the Code of Conduct, including the termination of his employment. Also attached to the Notification were the supporting documents relied upon.
2. Ms Patterson then set out the way in which the applicant could respond to the Notification of Suspected Misconduct which provided for a written response to be provided by COB 23 October 2019. The Notification letter also referred the applicant to support available to him through the Employee Assistance Program.
3. Ms Patterson deposes to the various responses provided to the Notification letter by the applicant including one within the time frame specified and two outside the specified time frame. Ms Patterson deposes to having considered all three responses, notwithstanding the applicant's late provision of two of those responses.
4. On 28 October 2019, Ms Patterson's colleague who was assisting with this investigation, emailed the applicant requesting whether he intended to provide a further response to the Notification letter.[52] The applicant responded referring to further information that Ms Suzie Parker had access to which he wanted provided to the delegate. Ms Patterson's colleague replied indicating that this is a separate investigation (Ms Parker was the person who considered the RoA application) and if there was information he wanted Ms Patterson to consider.[53]
5. On 29 October 2019, the applicant provided a further response in the following terms:

Dear Andrew

A:The Policy code clearly says that it aims to protect the integrity of the Defence and I have not done anything to sully that, in fact added to the prestige of the ADF through my community and project work and as a very good citizen of Australia

B:The policy clearly says that it it (sic) aims not to harm an employee but this process and the stigma associated with it in my culture can even lead a person to commit suicide. Also knowing the intricate details of my medical conditions it is being used to drive me to death

C:Also, this investigation is to malign me and is conducted by malice by a supervisor who wants to harm me and who really would care less for the Defence Department

D:lt is being done to threaten and intimidate the others into submission which did not happen in my case because of my Cultural background

e: This attendance investigation if done against all defence employees would result in almost all of them breaching the code to various extents. This has been done vindictively based on extraneous issues

f: Surprising that this is the way a honest professional is treated here without even understanding where he is coming from and his Cultural background

g: There has been a history of harassment and when everything else failed this has been resorted to permanently ensure my life and career are ruined for good

h: The policy clearly savs that not all breaches would end up in investigations. In mv understanding and from a CALD persons perspective this is not a very serious matter given that in the Defence Department it is very normal. I have not committed a crime by engaging in Community activities. In fact in all our conversations I was never given to understand that I would be investigated and watched like a criminal

i: Noting that my relationship with my supervisor has so deteriorated since four months reaching to a stage where we don't even communicate. All he wants for me is to bow to him which I will never ever do. As put across in my correspondence it is a deep religious bias against me owing to his faith. He thinks Christ is the only God

j; I brought this to the notice of SPO management a while ago that it was leading to OHS issues and there was no action

k: Even today my PMSKEYS Supervisor on the system is the same person who has caused me immense mental harm. I have been intimating the SPO Director about all my movements and even sending leave applications to him.

l: He has used all my personal medical issues to harm me further leading to a further deterioration of my health. My health has suffered a lot in the last two years and deteriorated rapidly since May.

M: Also given my condition I would need a support person for any further conversation on this subject. As discussed I have all the records of attendance to the best possible extent that I have maintained given my medical condition of depression caused here in the Defence premises and a back injury caused at the premises.

It is a major communication and differences of opinion issue and not something that would call

for processes to be set in to further intimidate and cause harm to a person with excellent skills and loyalty to Australia.

1. Having considered the applicant's responses, Ms Patterson concluded that the applicant had breached the APS Code of Conduct. Ms Patterson's reasoning is set out in the Statement of Reasons attached to her 26 November 2019 letter. Relevantly, Ms Patterson found that the applicant did not accurately record his attendance during the specified periods and that this had led him to obtaining a financial advantage of about $57,000.
2. In her statement of reasons, Ms Patterson note and acknowledged:[54]

... that you have raised concerns about the impact this process has had on your mental health. I have contacted your work place to confirm that the existing support that has already been provided to you throughout the matter is ongoing. This includes the allocation of a support person to assist you through this process as per your request and ongoing welfare checks. I would also like to reiterate that you can contact the Employee Assistance Program at any time on the contact details above.

1. Ms Patterson states that she was the sole decision maker in relation to the Determination of Breach and that the reasons set out in the statement of reasons at Annexure A to the Determination of Breach letter are the reasons for her conclusion that the applicant had breached the APS Code of Conduct.
2. On 7 January 2020, Ms Patterson signed a minute of revised debt setting out the amount that the applicant owed to the Commonwealth as a result of not working his required hours. The revision of the amount, which reduced from $57,001.80 to $56,039.92 resulted from a review by the Pay Administration Centre, who undertook a quality assurance review of the amount claimed. Ms Patterson's involvement with the applicant ceased after this communication. [55]
3. Ms Patterson has given evidence that the reasons for concluding that the applicant had breached the Code of Conduct are those set out in her Determination of Breach letter. She deposes to having regard to the applicant's submissions in reaching these conclusions and findings. She further says that the applicant's 'CALD background, religion, complaints, requests for leave, medical conditions or other personal characteristics' did not influence her decision.[56]
4. In the context of how Ms Patterson reached her decisions, the following exchange occurred:[57]

Mr Iyengar: Okay. You would generally base your - you would base your decision based on the feedback that is given by the superior, the so-called supervisor 1 and supervisor 2. Is that right?---

Ms Patterson: Personally, no, my decisions are independent.

1. I accept Ms Patterson's evidence about the manner in which she conducted the Code of Conduct investigation and, importantly, the reasons for reaching the conclusions and findings she did. Her evidence in this regard was not swayed in any way in the course of cross examination by the applicant.
2. Once Ms Patterson made the finding that he had breached the APS Code of Conduct, it fell to Ms Barbuto to consider whether and if so, what, sanction ought to be imposed. I accept Ms Barbuto's evidence as to the reason why she found that termination was appropriate in these circumstances.
3. I accept that she formed the view, that the applicant did not express any remorse for his failure to record his attendances, that this had been an issue which had been ongoing for quite some time and that it was not likely that he would change his behaviour in the future. Indeed, in the proceedings before me, the applicant effectively maintained that in his view, the attendance recording issue was a minor one.
4. Ms Barbuto gave compelling evidence about the approach that she takes to her function as a sanction delegate. She gave evidence about the number of matters requiring her to make a decision as a sanction delegate and the fact that she takes into account the impact on the individual as well as all other matters. I accept that she approached her task in this regard with diligence and care. She impressed me as a witness who took her responsibility in this regard seriously.
5. Ms Barbuto also had regard to the Workplace Impact statement by Mr Albrecht. Relevantly, in that impact statement, Mr Albrecht referred to the fact that the applicant's attendance had been the subject of management action for over two years, had been highly visible and that there were concerns about the prospect of the applicant's behaviour in the workplace escalating. Whilst there are references in the impact statement to inappropriate communications from the applicant which have had an impact on other staff, there is no reference to the applicant's exercise or intention to exercise any workplace right.
6. Relevantly, at paragraph 32 sub-paragraphs (f) - (h) of her affidavit, in setting out the basis of her preliminary view that termination was warranted, Ms Barbuto relevantly said:

(f) I considered that an aggravating factor in my determination was that of Mr Iyengar's misconduct and his failure to rectify his behaviour which had escalated to the point where he had been suspended from the workplace to ensure the safety and wellbeing of other employees. I took into account Mr Albrech's Workplace impact Statement which reported that 'all managers have been subjected to aggressive abusive and disrespectful behaviour, both verbally and via emails' and 'there has been concern within the workplace that Mr Iyengar's behaviour may escalate and he may physically assault someone who disagrees with him.'

(g) I also considered that Mr Iyengar's misconduct was likely to recur based on the information presented in the Determination of Breach Letter, the Notification of Suspected Misconduct and Mr Iyengar's NoSM Responses. I considered this was likely for a multitude of reasons, including because Mr Iyengar had demonstrated a lack of remorse for his conduct, expressed by his view that 'this is not a very serious matter' and that he considered his conduct as 'normal';

(h) I excluded Mr Iyengar's performance related issues from my consideration of an appropriate sanction as such performance related issues were unsubstantiated at that time. Those performance related issues were those mentioned in the Workplace Impact Statement, under the 'productivity' heading (section 2). ...

1. Moreover, Ms Barbuto said that she did consider the lesser sanctions available to her but ultimately did not consider they were appropriate having regard to the matters set out in paragraph 32 of her affidavit above. This included the applicant's seniority, lack of accountability and the view that had been expressed in the Workplace Impact Statement about the impact of his behaviour on more junior staff. Importantly, Ms Barbuto was not convinced that the Department could have faith in the applicant to act in accordance with the Code of Conduct in future.
2. Ms Barbuto's evidence, which I accept, is that in coming to the view that termination was the appropriate sanction, did not have regard to any evidence other than that referred to in the Determination of Sanction letter, did not taken into account any other fact or matter other than those set out in the Intent to Sanction and the Determination of Sanction letters.
3. In cross examination, the applicant raised with Ms Barbuto why she concluded that termination was an appropriate sanction. In this context the following exchange occurred:[58]

Mr Iyengar: After what happened and what you did. Yes. My first question to you - yourself would be, on what basis did you really make that judgment about me, that I needed to be terminated, which was the harshest of punishments out of the seven there? You decided to terminate. What was your decision? Why? -

Ms Barbuto: My decision was based on the evidence that was presented at the time, including your evidence. And the conclusion that I came to was that, based on the evidence, there was an erosion of trust in your ability to abide by the APS code of conduct.

Mr Iyengar: By erosion of trust, you mean - what specifically do you mean by erosion of trust?---

Ms Barbuto: The factors that I considered were there was a - the misconduct that you had been found in breach was significant, and it was over a period of time. Your workplace had advised that that behaviour was continuing, and there were no improvements in relation to that. In your response that you provided to me, both in the oral hearing and the various pieces of correspondence that I viewed at the time, I could see that there was no comprehension of the impact that your misconduct had on other people or the severity that was associated with that. And on that basis, I could not find that there was any accountability, and I was of the view, at the end of the process, that there was no - your ability to abide with the APS code of conduct hadn't been demonstrated to me, which is a core responsibility of all APS officers.

1. Mr Iyengar also asked Ms Barbuto about the training that she had in CALD specifically and her ability to make the decision in this matter on the basis of one meeting with him. In that context, the following exchange occurred:[59]

Mr Iyengar: Do you have culturally and linguistically diverse training that enables you to comprehend what the - what a person of colour origin would be trying to say?---

Ms Barbuto: I do not have specific qualifications in relation to culturally and diverse training, if that's what you're asking me.

Mr Iyengar: Yes. Yes ... So given this background of yours, how was it appropriate to sentence me to death?---

Ms Barbuto: Okay. Firstly, for the record, I take decisions on termination and I consider them very, very carefully. I'm well aware of the impact on other individuals, and I don't take them lightly. In relation to your matter, going back to what you said, that it was based on one oral hearing, I disagree. Throughout the process, you were offered numerous opportunities to provide information that was relevant to me in relation to your misconduct. In addition to that, during that period, I provided you, from memory, a significant period of time to provide a response to my proposed intent to sanction, which, from memory, was about approximately two months and that was at your request.

During the oral hearing, I was very clear in terms of what specific types of evidence you needed to provide to assist you in focusing those in relation to your misconduct. From memory, we also provided you the opportunity to come into the office whilst you were suspended and access the defence network to obtain hard data in relation to your attendance, which you did. From that data, I think you submitted a number of attendance diaries and, on review of those attendance diaries, I noted that there were some that weren't endorsed by yourself or your supervisor but, in good faith, I accepted those and reduced the debt to the department. In addition, my recollection is that, throughout the process, it was difficult for you, and we organised - sorry. Support from the diversity team and a support person. So in my view, a significant was - support was provided to you to enable you to provide as much information to me to demonstrate that mitigating circumstances existed.

Mr Iyengar: Did you realise what a termination to a person, a very senior professional engineer at the end of his career would mean to him?---

Ms Barbuto: As I said before, I don't take decisions on termination lightly at all. I've been doing this role for a number of years, and I am very well aware there is an individual with a lifestyle at the end of that process, and I have to balance those decisions with the requirements of the organisation and the employment obligations, which are core obligations, against the APS code of conduct and the risks to the organisation.

1. In relation to the applicant's back injury, in cross examination, Ms Barbuto stated that she was aware that the applicant had suffered a back injury, but her recollection was that there was no medical evidence that the back injury led to the applicant's inability to maintain his attendance records as directed. I accept that evidence.
2. It was also put to Ms Barbuto that the failure to maintain attendance records was not a serious matter that warranted termination of his employment. In this context the following exchange occurred:[60]

Mr Iyengar: I think there was also a response from you that you took the decision to terminate based on my response to - that showed that I didn't think this was a very serious misdemeanor, right, recording attendance?---

Ms Barbuto: As - as - as I said, there were a number of factors I reviewed, not just one factor. Right? And those factors included that, in your responses, the mitigating factors that you provided to me to explain the reasons that you had not recorded your attendance appropriately, I discounted, and from memory - and, again, this is my recollection. Those included advising that you were having coffee breaks with other people, there was work that you were doing that was not required to be in the office, entry and exit barrier logs were incorrect, and also advising that there were other employees that would go to the gym and we should be looking at that. My response to that initially was there was no evidence to support your claims that you were on duty at the time you were having the coffee breaks or doing work that wasn't in the office, and as I said to you at the oral hearing, please provide me as much information to support the fact that during the periods of time where it was stated that you are not recording your attendance appropriately - please provide me as much information as you can to 25 demonstrate that you were. So it wasn't one aspect I - I - I reviewed, for the record.

Mr Iyengar: Now, one of those - so basically you made a call to terminate me - to terminate my services, which it was a glorious service from 2011 to - 35 years as a professional in the - you made that decision based on the way you thought that it was a misdemeanour. I would think that there are many other serious things that happen in the Defence, like credit card fraud and recently embezzlement of funds. There are superiors in the office who have tie-ups with contractors. That was one of the things that I raised in the office which got me in a bad suit - because there were contractor - there was a contractor mob that was not doing too much work, and I was a senior 35 EL1, and I requested - I told them, but the senior supported them. He said, "Hari, don't - stay away from them."

...

Mr Iyengar: How did you think I was - I became mistrustworthy after serving - giving years of my blood to the Defence?---

Ms Barbuto As I stated before, a core obligation - there's a number of obligations that apply to all APS employees as part of the code of conduct. In relation to your matter, one of those is accurately recording attendance. Over a period of time, it was found and determined that you were non-compliant in that regard, okay. There were no mitigating factors that was presented to me throughout the whole process to demonstrate that there was any restrictions in your ability to do so. In addition, I wasn't satisfied that you comprehended the severity of your misconduct or that there was any evidence demonstrated to me that that behaviour would not continue.

1. At the core of the applicant's claim is that he was being singled out for unfair attention in relation to his attendance records. In this context, the following exchange occurred:[61]

Mr Iyengar: ... How many people's attendance is checked in the Defence? It's not about winning and losing now.

...

Yes. How - yes, do - is everybody's attendance checked?---

Ms Barbuto: I'm - I am unable to answer that question. What I can advise is that through the period of time I've been doing this role, there have been - there have been a number of referrals from various groups and services in relation to employees that have not accurately recorded their attendance, and when those matters are referred to me, that's when my role is to look at those on a case-by-case basis and make a determination in relation to a sanction if a breach decision has been found.

Mr Iyengar: Yes. So you get - you have that with many such cases, but in my case, you found it very appropriate to sanction the termination when there were many other options available?---

Ms Barbuto: With every decision that I make in relation to a sanction, of course I look at the sanctions available to me. And you are correct; there are a number of sanctions that are available to me. In your particular case, based on the evidence that was provided to me, I did not consider that any of the alternate sanctions were 15 appropriate for a number of reasons, which I have articulated in the decision: the severity of the misconduct, lack of accountability, lack of remorse and, as I said, the erosion of trust in your ability to abide by the APS code of conduct.

1. In re-examination, Ms Barbuto clarified her experience in relation to the issue of dealing with people from culturally and linguistically diverse backgrounds in the following terms:[62]

... My qualifications in relation to the role I've performed are not only the extensive experience I've had in this role over a six-year period, I've been employed with the Department of Defence for 33 years. The majority of that employment history has been in the HR field, dealing with complaints, dealing with performance issues, but more recently in the code of conduct space. Within the last six years we've had - so during the last six years, code of conduct decisions that I've made, on an average, each year - which demonstrates my experience - are about 50, 40 to 50. I consider each case on a case-by-case basis. I have a Bachelor of Arts in Sociology, I have a Diploma of Business and Human Resources, and have a Cert IV in Government Investigations.

...

In addition ... every decision that I make is based on the processes and procedures the Department provides us, ensuring procedural fairness in the Code of Conduct policy and procedures, and I ensure I abide by those and procedural fairness is applied to all respondents and parties as part of that process.

1. I find that the applicant's workplace rights, his exercise of workplace rights or his potential exercise of a workplace right, as claimed, did not play any part in the decision to terminate his employment.
2. In coming to this conclusion, I also have had regard to the way in which the applicant's complaints were in fact dealt with.
3. A fact finding investigation was conducted in relation to the applicant's complaint against Mr Albrecht, ultimately a finding was made that the applicant's complaints were not substantiated. In addition, the applicant filed a Review of Action application in relation to the decision to give him a partially effective rating. That was also investigated and the initial decision was affirmed. I do not accept that these inquiries were, as suggested by the applicant, simply box ticking exercises. They were independently investigated and conclusions were reached which were reasonably open on the evidence. The fact that the applicant does not agree with those findings does not detract from the fact that they were conducted appropriately.
4. In addition, Ms Barbuto gave the applicant additional time to provide his response to the Intent to Sanction letter, extending the initial 7 days for a further 2 months and 12 days. Ms Barbuto also gave the applicant an opportunity to access any evidence that might assist him in preparing his response, including by allowing him to attend the Department premises and access the Department's systems, whilst suspended. Ms Barbuto also conducted an oral hearing with the applicant at which she again gave him an opportunity to provide information that might be relevant to his claim.
5. Having regard to the totality of the evidence, I accept the evidence given by Ms Barbuto and by Ms Patterson that the finding that there had been a breach of the Code of Conduct and the decision to impose a sanction of termination, were not in any way based on a proscribed reason. Each of those decisions were based on the evidence before the relevant decision maker and were made for the reasons specified in the Determination of Breach letter and the Sanction letter respectively.
6. I therefore find that the applicant's dismissal was not for a proscribed reason and therefore was not in breach of section 340 of the FW Act.

PFADS 'partially effective' rating for 2018/2019

1. The applicant asserts that the 'partially effective' rating given to him in respect of the 2018/2019 year was retaliation due to the various complaints he had made about Mr Albrecht and because of his personal characteristics.
2. In considering this rating it is appropriate to have regard to the applicant's earlier PFADS assessments. As stated, the applicant had received a 'partially effective' rating in 2017/2018.
3. Mr Gounder deposes that on 3 September 2018, he received an email from the applicant in which the applicant objected to the recommendation by Mr Donovan to give him a 'partially effective' rating in his 2017/2018 PFADS assessment and to defer the applicant's performance progression. In that email, the applicant made various allegations against Mr Donovan, including that he was a 'biased individual' who engages in 'discriminatory practices at work'.[63] The applicant further claimed that Mr Donovan was: [64]

'finding fault with [him] to deflect his failings ... and is a frustrated individual who has no regard for the work [the applicant does] to make a change to people's lives ... with [his] involvement in issues like CALD. Gender Diversity, Disability and related Community issues...'

1. In relation to the attendance issue, the applicant went on to say:[65]

As regards attendance issues, we had a conversation in the presence of Marin Dicken and Randolph and am following every bit of the requirements in terms of attendance reporting. I had contested this as a discriminatory practice as not all employees comply with the requirement for which I even have the required evidence but did not want to push it further as I agreed with Marins and Randolphs advice and moved on. I said I didn't have any issues complying with anything or ruling as per DECA if every body did it as zealously as I was required to do. I do not believe in Conflict and unnecessary impediments and have always demonstrated that I would like to just move on without major controversies. He has again referred to that going only to show that in spite of my wanting to put things behind and move forward he is only keen on conflicts. I have brought it on record that I have fallen sick many more times during this year with Shaun and that it is a WHS issue that I be brought under another Supervisor in PMS KEYS. I interact with many in the organisation and can be put under any other understanding person.

1. In relation to the performance issues which were raised in the PFADS, the applicant claimed that the delays in the projects he was working on were not his fault but rather were due to administrative and management issues which he says he raised with Mr Donovan.
2. The applicant also rejected the suggestion that there was a problem with the quality of the work he produced.
3. On 14 September 2018, Mr Gounder met with the applicant together with Ms Dickens (to whom he had sent the applicant's email of 3 September 2018) and Mr Albrecht (as the applicant's support person). Mr Gounder deposes to telling the applicant in this meeting, that he supported Mr Donovan's position regarding the decision to defer the applicant's career progression to February 2019. Mr Albrecht deposes to attending a further meeting with the applicant, again as his support person on 14 September 2018. This meeting was with Mr Gounder in which the applicant was told that his performance progression had been deferred due to him being graded as 'partially effective'. At Court Book page 2060, is Mr Gounder's 'Minute' to the applicant setting out reasons why the applicant was rated at 'partially effective' and therefore why the progression decision in relation to the applicant was deferred for 6 months. Mr Gounder went on to state in this 'Minute':

... I will support your first-level supervisor to implement a Performance Improvement Plan to assist you to attain and sustain fully effective performance.

1. Mr Gounder also discussed the fact that as he and Mr Donovan agreed to a 'partially effective' rating, a performance improvement plan would be put in place in accordance with the PFADS process and that he was also made aware by Mr Donovan that the applicant was not meeting his required 37.5 hours of work per week.
2. Mr Gounder deposes that he advised the applicant that, to date, he had not provided any evidence to substantiate his allegation that Mr Donovan was discriminating against him and invited the applicant to provide any such evidence.
3. On 14 September 2018, the applicant sent Mr Gounder an email in which he indicated that he did not agree with the decision to defer his performance progression and that he would fight this decision and 'escalate the matter to all the relevant forums in the Department.' [66]
4. Later that same day, the applicant sent Mr Gounder a further email in which he said that he decision to defer his progression was 'based on a biased opinion by a biased supervisor. ... This seems to be a conspiracy to brand me as inefficient and get rid of me because I stand up against discrimination and unfair practices.' [67]
5. Mr Gounder deposes to the reason for deferring the applicant's performance progression, which he agreed with, was the applicant's failure to achieve project closure on a particular project within a specified time frame, that his attendance did not meet the minimum weekly requirements and the quality and timeliness of his work was below that expected of an EL1.
6. On 26 October 2018, the applicant sent Mr Donovan a number of emails, which were copied to Mr Gounder, in which he continued to make allegations against Mr Donovan about Mr Donovan's decision not to recommend a performance progression. In the course of this email, the applicant continued to make claims that Mr Donovan was biased, acting and unfairly discriminating against him on the basis of his 'place of origin and cultural background and the fact that [the applicant was] more professionally qualified than [him].'[68]
7. Mr Gounder says that over the following weeks, the applicant sent emails to various people in the Department in which he continued to make assertions of bias, cultural and racial discrimination and harassment against Mr Donovan and the Department generally. Mr Gounder says that although repeated requests had been made by management that the applicant provide evidence to substantiate his allegations, the applicant was unwilling or unable to provide any such evidence.
8. On 31 October 2018, a meeting was scheduled to discuss the applicant's PFADS rating, which the applicant refused to attend unless his rating was changed.
9. In or about February 2019, Mr Albrecht took over from Mr Donovan as the applicant's first level supervisor. On 26 February 2019, Mr Albrecht sent the applicant a draft PFADS form for his review. In March 2019, Mr Albrecht continued to raise his increasing concerns with the applicant about the applicant's attendance. Also, at about this time, the applicant raises concerns with Mr Albrecht about his leadership skills, his alleged proselytising and discrimination.
10. On 19 March 2019, Mr Albrecht sent a further draft PFADS assessment to applicant for his review. The applicant disagreed with Mr Albrecht's assessment and claimed in an email to Mr Gounder that 'culturally and linguistically diverse employees of the Respondent feel depressed and discriminated against.' [69] At that time, a request was also made for the applicant's barrier logs for the period from 1 September 2018 to 18 March 2019 to try and address concerns about the applicant's ongoing attendance issues the applicant's continued refusal to maintain attendance records and his assertion that he was attending work as required.
11. Mr Albrecht deposes to meeting with the applicant on 21 March 2019 to discuss the Obsolescence Plan that the applicant was then working on. In this meeting, Mr Albrecht says that he discussed his concerns regarding the applicant's attendance and time management. An email in which Mr Albrecht summarised that meeting sent on 21 March 2019, is at Court Book page 2063. It is apparent from that email that Mr Albrecht was trying to address the matters that the applicant had raised, whilst at the same time trying to help the applicant to acknowledge and remedy the issues raised by management. The tone of the email sent by Mr Albrecht on 21 March 2019 is consistent with my observations of him in giving evidence, namely that he was respectful and focussed on the issues and, importantly, that he was trying to help the applicant.
12. On 8 May 2019, there was a meeting between the applicant and Mr Albrecht and Michell Liu-Alves, who was the then acting SPO Director, in relation to:[70]
    • the applicant's outstanding PFADS documentation;
    • the applicant's level of engagement with Mr Albrecht's direction to move work station;
    • the applicant's level of engagement with the work on the Obsolescence Plan;
    • the applicant's unwillingness to take direction and feedback from Mr Albrecht; and
    • Mr Albrecht's proposed referral of the applicant to the Directorate of Conduct and Performance.
13. On 12 May 2019, Mr Albrecht reminded the applicant by email that his PFADS is outstanding.
14. Mr Albrecht again met with the applicant on 21 May 2019 to follow up on these concerns. The applicant was accompanied at this meeting by a support person, Mr Bruce Tunnah. This meeting was also attended by Mr Gounder. A summary of this meeting is included as part of an email from Mr Albrecht to Mr Gounder (and others) on 30 September 2019 as part of a summary of the various times when he tried to raise his concerns with the applicant over the period from May to the end of September. Relevantly, Mr Albrecht raised with the applicant the fact that the applicant continued to fail to comply with a direction to move workstations, that his attendance remained a significant concern and that as a consequence, Mr Albrecht formed the view that he had no option but to implement a Performance Improvement Plan. Mr Albrecht's summary of the 21 May meeting also noted that the applicant had closed one project and noted his appreciation for same. He also noted that the applicant rejected the concerns raised about his performance and that he should not have to work with Mr Albrecht. Relevantly, Mr Albrecht noted the following:[71]

[the applicant] asked [Mr Gounder] to provide him with a project and staff so that he could prove himself as he has done many times in the past. [Mr Gounder] advised that there were limited opportunities, and he needed to focus on his current role and prove himself and build management's confidence first.

1. Mr Gounder deposes to having a meeting with the applicant and Mr Albrecht on 21 May 2019, to discuss various matters. In this meeting, Mr Gounder states that Mr Albrecht acknowledged the completion of a project by the applicant, that subject to some minor wording, the 2018/2019 PFADS could now be signed off and noted that the Department valued the applicant's work in CALD activities but that this needed to be undertaken around core activities and outcomes.
2. On 5 September 2019, Mr Gounder sent an email to the applicant reminding him that there is still no PFADS in place. Mr Gounder further states that as the applicant's 2018-2019 PFADS was not finalised by September 2019, notwithstanding various attempts to do so in consultation with the applicant since February 2019, Mr Gounder was advised by HR to assign a PFADS rating to the applicant so that this process could be finalised. On this advice, the applicant was given a 'partially effective' rating for the 2018-2019 assessment period and this was formalised in the PMKeyS on or about 13 September 2019 by Mr Gounder.
3. Shortly after this, Mr Gounder recalls meeting with the applicant confirming that he could not change the PFADS rating and that the best way for him to improve the situation was to address the issues that had been raised with him.
4. On 9 September 2019, Mr Gounder advised the applicant that he will be given a 'partially effective' rating for the 2018/2019 assessment period for his PFADS. A meeting was then held with the applicant and a support person - Steve Moore, as well as Mr Albrecht, Mr Gounder and Ms Ashley in relation to the issues of concern regarding the applicant's:
   • failure to provide attendance records;
   • failure to complete the PFADS process;
   • performance and output;
   • outstanding leave taken on 26 July 2019 and possibility also 6 September 2019; and
   • possible misuse of the ICT system to send personal photos and emails to senior officials.
5. The applicant applied for a Review of Action on or about 17 September 2019 in relation to the denial of his performance progression payment and in the context of that Review of Action application, the applicant raised his concerns about Mr Albrecht's conduct and statements towards him in the PFADS meeting.
6. As stated, Ms Parker conducted a fact finding in relation to the applicant's allegations about Mr Albrecht and did not find that they were substantiated. On 30 October 2019, Ms Parker concluded her findings in relation to the Review of Actions application and concluded that there was no evidence of discrimination, harassment, bullying or other unacceptable behaviour by Mr Albrecht and that the 'partially effective' rating was reasonable.
7. I accept that Mr Albrecht genuinely formed the view that the applicant's performance in 2018/2019 was consistent with a 'partially effective' rating. I also accept Mr Albrecht's evidence that he did not give the applicant a 'partially effective' rating for any proscribed reason, or for a reason which included a proscribed reason.
8. Having regard to the totality of the evidence before me, including the applicant's PFADS rating history, I find that the decision to give the applicant a 'partially effective' rating in the 2018/2019 year, which was made by both Mr Albrecht and Mr Gounder, was not made for a proscribed reason, or for any reason including a proscribed reason, but rather was based on the assessment made by Mr Albrecht and Mr Gounder of the applicant's performance.
9. For each of these reasons, I find that the respondent has not breached section 340 of the FW Act.

**_In relation to the coercion claim under s 343, did the respondent take action with the intent to coerce the applicant to:

a. exercise or not exercise a workplace right, or propose to do so;

b. exercise or propose to exercise a workplace right in a particular way?_**

1. The applicant's coercion claim is set out at paragraphs 86 - 88 of his revised Statement of Claim:

86. The Respondent took adverse action against the Applicant.

a. Dismissing the Applicant.

1. Further and in the alternative, altering the position of the Applicant to the Applicant's prejudice by:

   1. Rating the Applicant's performance in the 2018/2019 year as being "partially effective", when this was not a true reflection of the Applicant's performance for that year, and causing the Applicant to be denied a performance progression payment for the 2018/2019 year;

   2. Commencing a Code of Conduct investigation for an inappropriate (retaliatory) reason; and/or

   3. Continuing and completing the Code of Conduct investigation knowing and/or after being made aware it was commenced for an inappropriate reason; and/or

   4. Requiring the Applicant to participate in the Code of Conduct investigation when the Respondent was aware that the Applicant was a disadvantage due to physical injury sustained in the workplace; and/or

   5. Requiring the Applicant to participate in the Code of Conduct investigation when the Respondent was aware that the Applicant was a disadvantage due to his mental health; and/or

   6. Requiring the Applicant to participate in the Code of Conduct investigation when the Respondent was aware that the Applicant was a disadvantage due to the historical nature of the matters under investigation; and/or

   7. Requiring the Applicant to participate in the Code of Conduct investigation when the Respondent was aware that the Applicant was a disadvantage due to the Respondent having limited the Applicant's access to work records and systems as part of its investigation; and/or

   8. Denial of the Applicant's request for leave to attend an AAT conciliation/hearing in relation to an ongoing workplace injury claim

   9. Further and in the alternative, discriminating between the Applicant and other employees of the Respondent by:

      1. Making requests for the Applicant to substantiate his hours of work retrospectively; and/or
      2. Failing to properly consider the Applicant's responses to the Code of Conduct investigation because of the complaints that he had raised; and/or
      3. Failing to properly consider the Applicant's responses to the Code of Conduct investigation because of the personal characteristics of the Applicant; and/or
      4. Denial of the Applicant's request for leave to attend an AAT conciliation/hearing in relation to an ongoing workplace injury claim.

2. Further and in the alternative, the Respondent took adverse action against the Applicant with intent to cause the Applicant to not exercise a workplace right.

a. Making complaints about his supervisor Mr Albrecht; and/or

1. Making complaints about the conduct of the Code of Conduct investigation; and/or

2. Participating in a process under a workplace instrument, namely attending an AAT conciliation/hearing in relation to an ongoing workplace injury claim.

3. Further and in the alternative, the Respondent took adverse action against the Applicant with intent to cause the Applicant to exercise a workplace right in a particular way.

Particulars of exercise of workplace rights

a. Participating in a process under a workplace instrument, namely:

1. Detrimentally affecting the Applicant's ability to participate in the Code of Conduct investigation by limiting his access to official records; and/or
2. Detrimentally affecting the Applicant's ability to participate in the Code of Conduct investigation by conducting the process while it knew the Applicant was physically impaired; and/or
3. Detrimentally affecting the Applicant's ability to participate in the Code of Conduct investigation by conducting the process while it knew the Applicant was mentally impaired; and/or
4. Detrimentally affecting the Applicant's ability to participate in the Code of Conduct investigation by conducting the process while it knew the Applicant was under time pressures; and/or
5. Detrimentally affecting the Applicant's ability to participate in the Code of Conduct investigation by conducting the process while it knew the Applicant was under cost pressures while suspended without pay; and/or
6. Detrimentally affecting the Applicant's ability to participate in the Code of Conduct investigation by conducting the process while it knew the Applicant had lost confidence in the Respondent to treat him fairly.

1. It is well settled that to make out a claim under section 343 of the FW Act, an applicant must establish two elements. First, that there is an intention to negate choice and secondly that in doing so, the respondent has used unlawful, illegitimate or unconscionable means to exert pressure. Although the applicant had the assistance of counsel in preparing the revised Statement of Claim, he appeared at the trial without representation.
2. Putting the applicant's case at its highest, it would seem that he is claiming that the adverse action was the unlawful, illegitimate or unconscionable conduct that was used to with an intention to negate the applicant's choice to exercise a workplace right.
3. For the following reasons, the applicant has not established a breach of section 343. First, for the reasons set out above, I find that in conducting the Code of Conduct investigation which ultimately lead to the termination of his employment and in the manner in which the applicant's performance was assessed for the purpose of the PFADS process, the respondent was not motivated by anything other than the reasons given by the respondent's witnesses in respect of each of those processes and decisions.
4. Leaving aside whether the respondent has used unlawful, illegitimate or unconscionable means to exert pressure on the applicant, there is no evidence to support a finding that the respondent took any action against the applicant with a view to negating his choice about whether and, if so, how he would exercise any of his workplace rights.
5. The applicant has not therefore made out a breach of section 343.

Section 351 claim - to the extent that the respondent took adverse action, was it taken because of the applicant's race, colour, physical or mental disability, religion, national extraction or social origin.

1. For reasons set out above, I have found that the respondent took adverse action in that it:
   • gave the applicant a 'partially effective' rating for the 2018/2019 PFADS period; and
   • terminated the applicant's employment in May 2020.
2. The applicant claims that the respondent took this adverse action against him because of these protected attributes. The respondent takes issue with whether the applicant has established that he had a mental or physical disability at the relevant time.
3. Moreover, the respondent submits that 'national extraction or social origin' are not protected attributes under the Racial Discrimination Act 1975 and therefore are not grounds caught by section 351 because of section 352(1)(a).
4. Section 352(2) relevantly provides that:

However, subsection (1) does not apply to action that is:

(a) not unlawful under any anti-discrimination law in force in the place where the action is taken ...

1. The allegedly discriminatory act occurred in the Australian Capital Territory.
2. The applicant did not make any specific submissions in relation to the extent to which the attributes of national extraction or social origin are covered by either the Racial Discrimination Act 1975 (Cth) or the Discrimination Act 1991 (ACT).
3. The Discrimination Act 1991 (ACT) identifies as a protected attribute 'race'. At section 7(2) it goes on to provide:

(a) a characteristic that people with the attribute generally have; and

(b) a characteristic that people with the attribute are generally presumed to have; and

(c) the attribute that a person has; and

(d) the attribute that a person has had in the past, whether or not the person still has the attribute; and

(e) the attribute that a person is thought to have, whether or not the person has had the attribute in the past.

1. Race is defined in the Discrimination Act 1991 (ACT) as follows:

(a) colour, descent, ethnic and national origin and nationality; and

...

1. The Racial Discrimination Act 1975 (Cth) prohibits discrimination in the following terms:

9(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, descent or national or ethnic origin which has the purpose of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

1. It is not clear how the concept of 'social origin' would fall within any of these definitions. However, it is arguable that the concept of 'national extraction' would fall within the common understanding of the term 'ethnic and national origin' and therefore be covered by both the Racial Discrimination Act and the ACT Discrimination Act.
2. As such, having established that adverse action was taken, and having asserted that it was taken for a proscribed reason, the onus shifts to the respondent to establish that the reason for the adverse action was not, and did not include a proscribed reason for the purposes of section 351.
3. For the reasons set out above, however, I find that the adverse action taken was taken for the reasons given by Mr Albrecht, Mr Gounder, Ms Patterson and Ms Barbuto and that they did not take any adverse action for a reason proscribed by section 351.
4. For this reason the applicant's claim under section 351 is not established.

1. As the applicant has not made out any of his claims, I order that his application be dismissed.

I certify that the preceding two hundred and fifty-seven (257) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.

[1] Statement of Claim filed 21 April 2023.

[3] Another employee was the applicant's direct report supervisor from 20 April 2020 until the applicant's employment came to an end.

[6] See Aide Memoire 3, 'An Anti-Racism Framework: Experiences and Perspectives of Multicultural Australia' Australian Human Rights Commission (2024).

[9] Court book pages 2401 and following.

[10] Court book pages 2405 and following.

[14] Court book at page 2249 (emphasis in original).

[16] Court book at page 1594 and following.

[49] See also Construction, Forestry Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697, [43] (Katzmann J).

[51] Court book at pages 1957 and following.

[56] See Affidavit of Caitlin Patterson affirmed and filed on 26 July 2024, paragraph 95.

[60] Court transcript at pages 122 and following.