Millar v Bornholt [2009] FCA 637 | Case summary

Annexure "A" Redress of Grievance Determination by BRIG Bornholt (as per memorandum of 6 February 2009 directed to CPL Millar) 1. Your application for Redress of Grievance (ROG), concerning a decision by the Soldier Career Management Agency (SCMA) on 4 August 2007, under the terms of the Defence (Personnel) Regulations 2002 (D(P)R) 87(1)(e) 'Not suited to be an enlisted member of the Defence Force' on psychological grounds, has been independently reviewed in accordance with the provisions of DI(G) PERS 34-1. Having regarding to the report of that review, your submissions and other supporting documentation, I have determined, on behalf of the Chief of Army (CA), that your redress should not be upheld. The reasons for my decision are set out below. 2. I note that as part of your Statement of Reasons (SOR) for retention, your ROG and your referral to CA, you stated that your Termination Notice (TN) advised that the reason for your proposed termination was that you were 'medically unfit'. However, this is incorrect in that your termination is proposed pursuant to D(P)R 87(1)(e) "not suited to be an enlisted member of the Defence Force". Accordingly, your circumstances have been reviewed with this in mind. 3. Defence Instruction (Army) Personnel (DI(A) PERS) 116-5 - Separation of Regular Army Soldiers, Army Reserve Soldiers and Soldier on Full-Time Service - Policy and Procedures particulars the Army specific procedures and management of soldier voluntary discharges, transfers from ARA to the Reserves, transfer from ARA to other services, automatic separations, involuntary separations and medical separations. In particular, Part Four of this instruction details the requirements when a Commanding Officer (CO) considers that a soldier's unsatisfactory service may be due to psychological reasons. In your case, I note your discharge process has accorded with these instructions. 4. You refuted the assessment made by CAPT Brown that you were not suitable for retention and contended that CAPT Brown's report and opinions were premised upon an insufficient assessment of your suitability for retention; relied upon inadequate and inaccurate information; and failed to take account of the events that occurred in the Middle East Area of Operations that precipitated your involuntary return to Australia (RTA). To support your contention, you argued that you had served for more than 12 years during which time you had undertaken and completed all necessary courses enabling you to be promoted to Corporal. While this is acknowledged, it is not this aspect of your service that is under review rather it is whether you are psychologically suitable for service in the Australian Defence Force. 5. You also referred to two previous occasions when you had successfully challenged your termination on psychological grounds. In so doing, you argued that the opinion expressed by CAPT Brown was similar to those of two previous psychologists who had determined that you were unsuitable for continued service in that CAPT Brown's report was without foundation or failed to properly assess your suitability. In particular, you criticised CAPT Brown for not referring to the two "supportive" assessments (from other psychologists who supported your retention at the time albeit without access to your complete psychological file) and explaining why your current circumstances now differed and thus justified your discharge. It is acknowledged that CAPT Brown did not specifically refer to either of these two "supportive" assessments in her report of 15 November 2006. Rather her assessment did not focus on isolated incidents but it encapsulated your entire psychological history and thus she was able to determine that 'this member presents with a pervasive history of interpersonal difficulties within the workplace and personality issues … [and that] the retention of this member is likely to result in ongoing workplace conflict and extensive use of military resources'. As such, CAPT Brown determined that you were permanently unsuitable for future deployments or retention. 6. I note, however, that the two independent psychological reports provided by Mr Zemaitis (commissioned by you in support of your retention) similarly make no mention of the two previous psychological reports that assessed you as unsuitable for continued service. Rather he relied solely upon the two contrary reports that supported your retention; copies which were provided to Mr Zemaitis by you. 7. You argued that the view expressed by your Squadron Sergeant Major (SSM) to CAPT Brown was contrary to those expressed in your several character references. On 15 November 2006, CAPT Brown contacted your SSM regarding your return to work. His opinion was also sought regarding your performance. He advised that you were experiencing interpersonal difficulties with a Private (PTE) and a CPL there were likely to resolve with the posting of the PTE at the end of the year. He also provided other qualifying remarks about your performance. While it is acknowledged that his remarks are contrary to those expressed in your references, this is not unexpected given that character references generally emphasise the positive attributes of the member. Nevertheless, this does not mean that the SSM's remarks should be disregarded because they provide a contrary view particularly given that his remarks were a further illustration of your history of an inability to maintain effective workplace relationships and were current at the time that CAPT Brown prepared her report. 8. You submitted two independent psychological assessment reports as a consequence of having been assessed by Mr Zemaitis, a consultant psychologist to the ADF and compared the assessment process undertaken with CAPT Brown with that conducted by Mr Zemaitis. While CAPT Brown relied largely on your recorded psychological history and her discussions with you, Mr Zemaitis relied on your self-reports and the utilisation of two well accepted personality tests. Thus you appeared to infer that Mr Zemaitis' tests were more stringent and greater weight should therefore be given to his conclusion that you should continue to serve in the Australian Regular Army (ARA). 9. While it is acknowledged that, on paper, Mr Zemaitis appears to have conducted a more thorough one-on-one psychological assessment of you than CAPT Brown, it is unclear as to whether he was provided with your 'complete psych file' and thus your entire psychological history upon which to formulate his diagnosis. As such, it would appear that Mr Zemaitis may have relied heavily on your self-report, the documentation you provided and the two personality tests he conducted to support his findings. In this regard, it is notable that both Mr Zemaitis' reports repudiated those provided by MAJ Hadfield and CAPT Brown and in some part appeared to reflect opposite character attributes and assessments. In particular, I noted some discrepancies with Mr Zemaitis' report, that he had access to your complete psychological history, may not have arisen or his observations may have been reported differently. These were: a. Mr Zemaitis advised that you had been recommended by Army psychologists as unsuitable for service however, he only discussed the "supportive" reports (provided by you) rather than reviewing and discussing all the relevant documents. b. Mr Zemaitis advised that you stated 'that it was never explained to her by the Army psychologists the purpose of the interview', however, CAPT Brown's report noted that you advised 'that she was unaware that she was being assessed for suitability for retention'. This would suggest that CAPT Brown had informed you of the purpose during your first interview on 30 October 2006. c. Mr Zemaitis advised that you had indicated that generally you had never been asked to explain your situation in Iraq, however, MAJ Hadfield's notes indicated that your situation had been discussed in some detail. d. Mr Zemaitis noted some of your characteristics as being 'resilient and adaptive in the face of most stressors', and 'seldom feels frustrated, irritable, and angry at others … able to cope well with stress'. He also noted that 'she has performed quite positively particularly in the past 7 years of her military service'. While these conclusions are clearly inconsistent with your psychological history, Mr Zemaitis' report makes no attempt to explain these differences. 10. Accordingly, it is concluded that Mr Zemaitis either did not have access to your complete psychology file as you claimed, that he failed to recognise discrepancies between the two accounts, or that he disregarded the significance of the discrepancies identified. Therefore, I consider that Mr Zemaitis' reports should be viewed with these caveats in mind. 11. You argued that your RTA was a consequence of a 'one-off' workplace disagreement with a peer and that CAPT Brown had failed to give due regard to these circumstances when assessing you. However, your psychological file indicates that you have a history of interpersonal relationship difficulties with your earliest referral in 1996 (about 18 months after joining the ARA). In this regard, MAJ Hadfield noted that, 'when confronted with a list of previous clashes, she stated that she was simply unlucky to have come across one person in each new environment that had it in for her' and, as such, you saw his recommendation 'as stemming from an isolated 1-on-1 battle with a more popular adversary rather than a continuation of a pattern with her as a common factor'. Thus, you continuedto see your problems as being external to yourself. Similarly, CAPT Brown's assessment also took account of your circumstances in Iraq since the issue was raised during your discussions at your first interview on 30 October 2006. CAPT Brown's review of your entire psychological file also enabled her to determine that you had a 'pervasive history of interpersonal difficulties within the workplace and personality issues'. Accordingly, it is considered that this aspect of your ROG cannot be sustained. 12. You argued that the SCMA decision-maker gave insufficient weighting to the content of Mr Zemaitis' report preferring to rely on the reports and opinions provided by MAJ Hadfield and CAPT Brown. As part of the SOR of the TSD, the decision-maker advised that high weight had been afforded to the reports of MAJ Hadfield and CAPT Brown and salient points from each report were noted in the SOR. Similarly, your response to the TN (which included Mr Zemaitis' report) was afforded very high weight. However, the decision-maker determined that Mr Zemaitis' report should not be given precedence over the other two reports since 'these two reports were conducted specifically to assess suitability for service on deployment, and continued service in the ADF and not generic personality/psychological assessments'. This was a conclusion open to the decision-maker to reach after having taken into account each report. 13. You provided a supplementary report from Mr Zemaitis following your receipt of the SOR for the TSD advising that his experience in assessing ADF personnel was extensive and lengthy and that his testing regime was not "generic". Accordingly, you argued that his opinion should be preferred to that 'of a far less experienced and junior psychologist who failed to carry out the proper testing necessary to form a proper opinion as to my suitability'. It is acknowledged that the methodologies used to asses you by CAPT Brown and Mr Zemaitis were different. However, CAPT Brown's course of action is supported given that she advised that your inability or unwillingness to participate cooperatively in the retention assessment process was likely to produce invalid results (your psychological file also provided ample support for this view). Importantly, CAPT Brown was able to access your entire psychological file when formulating her opinion while some doubt exists as to whether Mr Zemaitis had similar access. 14. Nevertheless, you appear to have placed great store in Mr Zemaitis' opinion that you were not suffering from a psychological or psychiatric disorder and therefore considers you were suitable for retention in the ADF. However, DI(A) PERS 159-1 - PULHEEMS Employment Standards advises that many people are temperamentally unsuited to Army life and that this unsuitability may not be directly related to psychotic condition. In such cases, they will not become effective soldiers and should be recommended for administrative discharge. In this regard, some personality traits, attitudes, values, and the like exist that would make assimilation into the military problematic, including those mentioned by the psychologists and psychiatrists you have seen throughout your career to date. Thus, your reliance upon the lack of a formal diagnosis as a defence against discharge is not supported. 15. You provided several character references as part of your response to the TN and your ROG arguing that they supported your retention thus contradicting CAPT Brown's recommendation that should be given great weight. The decision-maker noted that your character references enclosed with your response to your TN were supportive of your performance and retention. However, it was also noted that the references were provided by personnel from your previous chain of command and supportive elements in Baghdad. As such, the decision-maker considered that these reports need to be weighted against the absence of support from your current chain of command and the non-recommendation for retention from your CO. Furthermore, I have also weighted these character references against the determination of your CO that you should RTA early. 16. You have provided two additional character references as part of your ROG' both are supportive of you and your retention. These are acknowledged. However, your psychological file indicates that you have the capacity to maintain appropriate standards of workplace behaviour for a period of time. Similarly, you have a long history of interpersonal difficulties, alleged harassment and equity-type complaints with evidence to suggest that these behaviours are more likely to manifest in situations where you are under pressure or are feeling stressed, for example where your everyday stress coping mechanisms become overwhelmed. In this regard, with the current operational tempo and general conditions of service, these stress-free periods may remain the exception rather than the rule for the foreseeable future. Further, I consider that your propensity to externalise blame, and your associated unwillingness or inability to adopt change strategies recommended by psychology and others, suggests that you may continue to experience these problems. 17. You submitted a copy of your most recent Soldier Performance Appraisal Report (PAR) contending that it confirmed your suitability for continued service in the ADF. However, since this PAR was incomplete, a completed PAR was provided by SCMA. It indicated that you were performing at a satisfactory level across each of the performance dimensions. Nevertheless, as previously noted, you are capable of maintaining appropriate standards of workplace behaviour for a period of time and it is when you are under pressure or feeling stressed that your adverse behaviours are more likely to appear. Accordingly, I have taken these aspects into consideration when reviewing your PAR. 18. You argued that the decision-maker had taken into account an irrelevant consideration by referring to your assessment of non-deployability to East Timor in 2002 which you contended had been overturned by the "supportive" report written by Ms Detering to support your retention in the ARA at that time. As part of the SOR for the TSD, the decision-maker afforded very high weight to the inherent service requirements (DI(A) PERS36-3 - Inherent requirements of service in the ADF refers) and considered that you were incapable of meeting these requirements. This conclusion appears to have been drawn from MAJ Hadfield's report where he recommended that you were not suitable to remain on deployment and also noted a previous recommendation of non-deployability in 2002 (ie to East Timor). While you have referred to Ms Detering's report, this was not available to either MAJ Hadfield or the decision-maker since you did not provide a copy until 8 November 2006. In any event, having now received this report, it did not specifically address your deployability rather it could not account for another psychologist's findings regarding your psychological condition and supported your continued service. In any event, your level of deployability is a matter for the Army rather than an assessment given by a civilian psychologist. As such, it is not considered that the decision-maker considered irrelevant material. 19. As part of your CO's response to your ROG, you were provided a copy of the Initial Review Advice by the Directorate of Complaint Resolution (CR). Subsequently, you contended that your CO had failed to consider Mr Zemaitis' supplementary report and provide reasons as to why his opinion that supported your retention was not preferred to those of the two Army psychologists. Thus, given CR's concerns regarding the CO's proposed course of action, you argued that 'a fair minded observer appraised of the matter might entertain a reasonable apprehension [of bias] that my unit had already made up its mind to reject my redress of grievance regardless of the merit of the matters raised by me. In these circumstances I submit that the decision is wrong at law'. 20. The CR document is not usually provided to the complainant except through a Freedom of Information (FOI) application. Nevertheless, the advice provided by CR related to the CO's proposed course of action; that is, she was waiting for legal advice from CR, determining that a formal investigation was not required, and that your ROG was not upheld. Given the latter statement, and based on the information available to CR at that time, CR considered that all relevant material may not have been considered before that decision and advised CO 10 FSB to obtain a SOR from the decision-maker if it was considered that there was insufficient evidence to support the termination decision. Subsequently, the CO was then required to determine whether the ROG had merit according to the guidelines provided by CR. 21. Accordingly, on 14 November 2007, CO 10 FSB sought a SOR from SCMA, and the TSD was provided to you on 12 February 2008. As such, and notwithstanding your contention of bias (based on CR's initial advice), it is considered that CO 10 FSB was able to demonstrate her impartiality by her preparedness to seek further information from SCMA prior to making a decision on the ROG. While CR initially held some doubts about the appropriateness of CO 10 FSB's proposed course of action regarding your ROG, these were resolved with the actions taken subsequent to CR's advice. Accordingly, it is not considered that a contention of bias (whether real or apprehended) can be sustained. 22. As part of your CO's response to your ROG, you were provided with a copy of the Quick Assessment (QA) conducted on 17 September 2007. This indicated that (former) CO 10 FSB had sought the expert opinion of the Officer Commanding Psychology Support Service - Northern Queensland (OC PSS-NQ) prior to responding to your SOR for retention. Subsequently, you argued that you had been denied natural justice since you had not had opportunity to comment on the expert advice provided to your former CO by the senior psychologist PSS-NQ as part of the ROG process. The QA report is not normally provided to the complainant unless requested under a FOI application. However, in regards to the expert advice, you were first advised by (former) CO 10 FSB on 20 April 2007, as part of his response to your SOR for retention, that he had sought advice from the OC PSS-NQ prior to making his recommendation to SCMA on your retention since he did not have expertise on psychological behaviours and assessments. On 26 April 2007, you acknowledged receipt of (former) CO 10 FSB's response to your SOR and indicated that you had read and understood the contents; this included the advice that your CO had sought expert opinion. I note that no request for, or challenge to, the advice was made by you at that time. 23. Nevertheless, it is considered that the advice sought from OC PSS-NQ was provided to (former) CO 10 FSB for his consideration prior to making a recommendation to SCMA in regard to your retention or otherwise. As such, OC PSS-NQ's advice was not provided to, or considered by the original decision-maker prior to him determining that you should be discharged. As such, and given there was no new adverse material provided by (former) CO 10 FSB in his recommendation to SCMA, it is considered that there has not been a breach of procedural fairness. 24. Pursuant to D(P)R 87(1)(e), a member's service may be terminated if that member is not suited to be an enlisted member of the Defence Force. In this regard, SO2 SEPARATIONS is an authorised delegate of CA and is therefore able to make determinations regarding the suitability of a member for retention in the Defence Force. Given your TN and its supporting evidence, it is considered reasonable for SO2 SEPARATIONS to have determined that you should be discharged. In reaching this decision, SO2 SEPARATIONS had given due consideration to the merits of your case and to your submissions, and it was in accordance with the policy provisions and the principles of natural justice. Furthermore, there were no procedural irregularities that would require the decision to discharge you to be overturned. Accordingly, I have advised SCMA to initiate discharge action as soon as administratively possible. 25. If you have a complainant about the administrative processes associated with my decision, or the handling of your ROG, or if you consider that the process has been too slow, you can request the Defence Force Ombudsman (DFO) to investigate the matter. A brochure explaining the role of the DFO is enclosed. If you decide to pursue this option, you should contact the DFO personally, informing your OC in writing of your actions.

Millar v Bornholt

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