Tawanda Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878

[2]Tawanda Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878 | Case summary | Zoe

[7]

[1] This decision concerns an application made by Mr Tawanda Gadzikwa for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act).

[2] Mr Gadzikwa commenced employment with the Australian Government Department of Human Services (DHS) on 13 January 2014 as a graduate. He was an 'ongoing APS employee' under the Public Service Act 1999 (Cth) (PS Act), and at the time of his dismissal was employed in the role of APS5 Information Governance Officer. In June 2016 he commenced a period of unpaid sick leave associated with a mental health condition. Save for three days in September 2016, he did not return to work.

[3] In late 2017, DHS advised Mr Gadzikwa that his authorised unpaid sick leave would end in January 2018, and that he would need to provide DHS with a medical clearance prior to returning to work. From 24 January 2018, Mr Gadzikwa's absence from work was unauthorised. On 15 February 2018, DHS sent Mr Gadzikwa a notice of intention to terminate his employment and sought his response. On 23 February 2018, Mr Gadzikwa provided DHS with a two-line medical certificate from his doctor stating that he was able to return to work on modified duties. DHS did not consider the medical certificate to be a satisfactory medical clearance. On 28 February 2018, Mr Gadzikwa submitted his response to the notice of intention to terminate his employment. On 1 March 2018, DHS dismissed Mr Gadzikwa for reason of non-performance of duties pursuant to s 29(3)(c) of the PS Act.

[4] Mr Gadzikwa claims that his dismissal was unfair and seeks an order for reinstatement. DHS contends that it terminated Mr Gadzikwa's employment for a valid reason and in accordance with the PS Act, and that the dismissal was not harsh, unjust or unreasonable.

[5] Prior to the substantive unfair dismissal proceeding, I conducted telephone mentions at which various interlocutory matters were addressed. In a mention on 5 July 2018, I decided to grant permission to DHS to be represented by legal counsel under s 596 of the Act. Later that day, Mr Gadzikwa advised that he would appeal this decision, and requested me to postpone the hearing of his unfair dismissal application pending the outcome of the appeal. I declined this request.[1]

[6] Also in the mention on 5 July 2018, having taken into account the views of the parties in accordance with s 399, I decided to conduct the unfair dismissal proceeding by way of hearing. I also decided to grant Mr Gadzikwa's request that he be allowed to participate in the hearing by telephone, on the basis that, for reasons associated with his mental health, he found it difficult to leave his home for extended periods. During the mention I encouraged the parties to participate in a conciliation conference facilitated by another member of the Commission. The parties expressed interest. A telephone-conciliation was then listed before a Commissioner who had not previously dealt with this matter or any other proceedings involving these parties. However, Mr Gadzikwa objected to the involvement of the Commissioner, and sought instead to have a different member of the Commission conduct the conference. The telephone-conciliation did not take place.

[7] At a further telephone mention on 11 July 2018, I heard from the parties concerning nine applications made by Mr Gadzikwa for the production of documents. Later that day I decided to order the production of some of the documents sought but not others.

[8] The hearing of Mr Gadzikwa's unfair dismissal application took place before me on 16, 17 and 18 July 2018. Mr Gadzikwa gave evidence on his own behalf. DHS led evidence from Margaret Cowan, Assistant Director Employee Relations, Jennifer Teece, General Manager People Services, Jason Reiner, Director in the Information Services Branch, Scott Beaton, Director of Human Resources, Mark Morrison, National Manager (acting) of the Information Services Branch, Paul Smith, Director HR Operations, Cranston Wilson, Director, and Kara Emerton, Director in the People Support Team. DHS also filed a witness statement of Sarah Chessor, Assistant Director HR Support.

[9] After the hearing had concluded, Mr Gadzikwa sent a number of email messages to my chambers concerning various matters, including requests that I comment on certain aspects of the proceeding, provide certain information, and issue orders to produce documents. On 9 August 2018, my associate advised Mr Gadzikwa and DHS that I would not respond to requests to comment on the proceedings, nor would I reopen the proceedings or issue orders for production of documents, and that I did not propose to correspond further with the parties, other than to issue a decision.

[10] Section 396 of the Act requires that I decide four matters before considering the merits of Mr Gadzikwa's application. There is no dispute between the parties, and I am satisfied, of the following matters. First, Mr Gadzikwa's application was made within the 21 day period required by s 394(2) of the Act. Secondly, Mr Gadzikwa was a person protected from unfair dismissal, as he earned less than the high income threshold (s 382). Thirdly, Mr Gadzikwa's dismissal was not a case of genuine redundancy. Finally, the Small Business Fair Dismissal Code is not relevant to these proceedings.

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[11] It is necessary to set out the background to this matter in some detail, particularly in relation to what occurred in the weeks leading up to Mr Gadzikwa's dismissal.

[12] On 6 June 2016, Mr Gadzikwa commenced a period of absence from work on unpaid personal leave, having earlier exhausted his accrued paid personal leave. Medical certificates from this period were not submitted in evidence however it appears that Mr Gadzikwa was suffering from mental health problems at this time. A fitness for duty assessment was conducted on 8 June 2016, which concluded that Mr Gadzikwa was fit to return to work.[2] On 8 September 2016, he returned to the workplace on a graduated return to work plan. However, three days later he provided a medical certificate stating that he was unfit for work. He recommenced unpaid personal leave and did not return to work thereafter.

[13] On 20 December 2016, Mr Gadzikwa underwent another fitness for duty assessment. It concluded that he was not fit for work. In February 2017, Mr Gadzikwa lodged a Comcare claim in respect of a psychological injury that he alleged had arisen at work in May 2016. Comcare rejected the claim on 4 August 2017. Mr Gadzikwa is appealing this decision.

[14] In May 2017, a further assessment of Mr Gadzikwa's fitness for duty was carried out by a Dr Hundertmark. It concluded that he was suffering from a moderate depressive condition, but one that did not prevent his returning to work. A report from Dr Hundertmark dated 19 June 2017 stated that Mr Gadzikwa was electing not to return to the workplace as a result of his various workplace complaints. DHS then commenced an assessment of how to facilitate Mr Gadzikwa's return to work.[3]

[15] However, in August 2017, DHS received a medical report from a Dr Grant, which stated that Mr Gadzikwa suffered from multiple psychiatric conditions, that he was not fit to return to work, and that his prospects of being able to return to work in the foreseeable future were negligible. Mr Gadzikwa remained on unpaid sick leave. Then in a medical report dated 11 September 2017, Mr Gadzikwa's medical practitioner, Dr Shumba, stated that in his opinion Mr Gadzikwa was not fit for work and that his condition should be reviewed every six months.

[16] On 30 November 2017, Ms Emerton wrote to Mr Gadzikwa and advised him that, in light of the latest medical evidence of Dr Shumba and Dr Grant, DHS did not consider it appropriate for him to undergo a fitness for duty assessment that had been planned for 11 December 2017. Ms Emerton stated that, in order for DHS to assess whether to grant him a further period of unpaid leave, Mr Gadzikwa should advise whether he envisaged being in a position to return to work within the next two months. She said that DHS would not be able to grant him unpaid personal leave indefinitely, and that, if he did intend to return to work, he would need to provide a medical clearance that he was fit to do so.[4] Mr Gadzikwa responded to Ms Emerton the same day, objecting to the cancellation of his fitness for duty assessment, and stating that he envisaged returning to work within the next two months.[5]

[17] On 15 December 2017, Ms Emerton sent an email to Mr Gadzikwa, stating that DHS would grant him further unpaid personal leave until 16 January 2018. She stated again that if he intended to return to work, he would need to provide a medical clearance, and that this clearance must be received by 16 January 2018. She also stated that the Department required any medical clearance to be provided at least two weeks prior to any return to work, in order to allow sufficient time for arrangements to be made.[6]

[18] On 20 December 2017, Mr Gadzikwa sent an email to Mr Morrison, copied to Ms Emerton and others, stating that he wished to obtain a medical clearance to return to work but seeking 'clarity' from DHS as to the required details of such a clearance. He requested a telephone discussion with Ms Emerton or another person regarding the medical clearance and related matters.[7] The following day, Ms Emerton sent an email to Mr Gadzikwa, stating that DHS required medical evidence from his treating doctor confirming that in the doctor's opinion he was fit to work as an APS5 Information Officer. She stated that the clearance must indicate the date Mr Gadzikwa would be fit to resume duties, and any reasonable adjustments that DHS would need to make on his return to work. She also stated: 'in the event that Dr Shumba does not (sic) provide the clearance, an explanation as to why your treating doctor now considers you to be fit for work as an APS5 Information Officer, when the report dated 11/09/17 from Dr Shumba advised that you were not fit to return to work with the Department of Human Services and suggested review in six months' time.' In her evidence, Ms Emerton said that the inclusion of the word 'not', where it first appears in this quoted text, was a typographical error.[8] Mr Gadzikwa appeared to indicate that this was not his reading of the email however in my view no other sensible interpretation is open. If Dr Shumba did not provide medical clearance, he would presumably not consider Mr Gadzikwa to be fit for work; he would not have changed his opinion, and would not need to explain any revised assessment. I return to this matter below.

[19] The final day of Mr Gadzikwa's authorised unpaid personal leave was 16 January 2018. On 17 January 2018, Mr Gadzikwa remained absent, and had not provided a medical clearance.

[20] On 18 January 2018, Ms Emerton sent Mr Gadzikwa an email, noting that DHS had authorised him to take unpaid personal leave only until 16 January 2018, and that he had not provided DHS with a medical clearance. She granted Mr Gadzikwa a further 5 days unpaid personal leave for the period up to and including 23 January 2018. She stated that DHS would cease to grant unpaid leave on and from 24 January 2018. She said that she would be away from the workplace from 25 January to 5 February 2018 and that in her absence Mr Gadzikwa could contact Sarah Chessor.[9]

[21] The revised final day of Mr Gadzikwa's authorised unpaid personal leave, 23 January 2018, passed by. On 24 January 2018, he remained absent and had not provided a medical clearance.

[22] On 25 January 2018, Ms Chessor sent an email to Mr Gadzikwa, stating that he had been on notice since 30 November 2017 of the requirement to provide a medical clearance for any return to work, that he had not provided a clearance, and that DHS had ceased granting him unpaid leave as of 24 January 2018. She said that DHS may reconsider the decision to cease granting unpaid personal leave if further information, such as a medical clearance, were provided.[10] She attached a letter, which stated that his absences on 24 and 25 January 2018 were unauthorised and that where an employee has been absent without authorisation for a total of 5 days in a 12 month period, the Agency delegate can consider terminating the employee's employment for non-performance of duties under s 29(3)(c) of the PS Act.[11] Still Mr Gadzikwa remained absent and had not provided a medical clearance.

[23] On 1 February 2018, Ms Chessor sent another email to Mr Gadzikwa, attaching a letter of the same date. It referred to the two earlier letters of 18 and 25 January 2018, and advised Mr Gadzikwa that his absences on 29, 30 and 31 January 2018 and 1 February 2018 were unauthorised and that as of 1 February 2018 he had been absent without authorisation for 6 days in the last 12 months. He was reminded that he could not attend the workplace prior to providing a medical clearance. He was also offered access to the Employee Assistance Program.[12]

[24] On 13 February 2018, Ms Emerton sent a letter to Mr Gadzikwa, stating that his absences on 2, 5-9 and 12-13 February 2018 were unauthorised, and reiterating that unauthorised absence for a period of 5 days in a 12 month period may result in dismissal under s 29(3)(c) of the PS Act for non-performance of duties. She stated that as of 13 February 2018 he had been absent without authorisation for 14 days in the last 12 months.[13]

[25] On 15 February 2018, Ms Emerton sent to Mr Gadzikwa a notice of proposed termination of employment, signed by Ms Teece, advising him that DHS was considering terminating his employment under s 29(3)(c) of the PS Act on the basis of non-performance of duties. It noted that he had been advised that his absences for the period 24 January to 13 February 2018 were unauthorised, and that where an employee is absent without authority for five or more days in 12 months, the delegate may consider termination. It stated that the medical evidence provided to DHS indicated that he had no capacity to return to work, that DHS could not grant unpaid personal leave indefinitely, and that no medical clearance had been received. It said that Mr Gadzikwa should provide any reasons as to why DHS should not dismiss him by 23 February 2018.[14]

[26] On 16 February 2018, Ms Alexandra Trezise, an employee of Konekt, a rehabilitation provider which had been assisting Mr Gadzikwa, sent an email to Ms Emerton in which she provided a summary of a 'doctor's case conference' she had attended with Dr Shumba and Mr Gadzikwa the previous day. In her email, Ms Trezise said that Dr Shumba had concluded that Mr Gadzikwa was fit to return to work five hours per day, three days a week.[15]

[27] On 20 February 2018, Ms Emerton sent Mr Gadzikwa an email stating that DHS had not received a medical clearance, and that any such clearance had to be provided by Dr Shumba or any other medical practitioner, not by a rehabilitation provider. Ms Emerton reiterated that Mr Gadzikwa's response to DHS's notice of intention to terminate was due by 23 February 2018.[16]

[28] On 21 February 2018, Mr Gadzikwa sent an email to Ms Emerton requesting a three day extension to respond to the notice of intention to terminate.[17] Ms Emerton granted him an extension of three working days, such that his response was now due on 28 February 2018.[18]

[29] On Friday 23 February 2018 at 4.41pm, Mr Gadzikwa sent an email to Ms Emerton attaching a medical certificate from Dr Shumba, dated 22 February 2018, which stated, in its totality: 'This is to certify that Mr Tawanda Gadzikwa is able to return to work from 01/03/2018 to perform light duties with the following restrictions: 5 hours per day, 3 days per week.'[19] In his covering email, Mr Gadzikwa asked Ms Emerton to outline what information was still outstanding, should the medicate clearance be insufficient.

[30] On Monday 26 February 2018, Ms Emerton responded to Mr Gadzikwa's email, stating that DHS did not consider Dr Shumba's medical certificate to be sufficient. She raised a number of questions for Dr Shumba. In particular, he was asked to provide an explanation as to why he now considered Mr Gadzikwa to be fit for work, when his report dated 11 September 2017 had advised that he was not fit for work and had suggested a review in six months' time. It will be noted that, if Mr Gadzikwa had been confused by the errant 'not' in Ms Emerton's message of 21 December 2017, the position was now crystal clear: Dr Shumba needed to explain why his assessment of Mr Gadzikwa had changed. Ms Emerton also stated that DHS required from Dr Shumba details of his diagnosis of Mr Gadzikwa, what Dr Shumba meant by 'light duties', how long light duties should be maintained for, whether the five hours of work per day were confined to any particular times of day, and how long the part-time arrangements were anticipated to be necessary.[20]

[31] On 27 February 2018, Mr Gadzikwa sent an email in reply to Ms Emerton. In relation to most of the questions Ms Emerton had raised for Dr Shumba to answer, Mr Gadzikwa referred to the information provided by Ms Trezise. In relation to Ms Emerton's question about Dr Shumba's diagnosis, Mr Gadzikwa asked why this information was only now being requested. He raised a large number of other questions, and allegations about the conduct of DHS.[21] Later that day, Ms Emerton replied, reiterating the position of DHS on various issues. She said that the additional information that had been requested, including confirmation of Dr Shumba's actual diagnosis, was needed in order to allow DHS to assess Mr Gadzikwa's capacity for work and whether any restrictions recommended by Dr Shumba were reasonable. Ms Emerton stated that any response to the notice of intention to terminate was due the following day, 28 February 2018. In particular, she noted that any information about Dr Shumba's assessment of Mr Gadzikwa had to come from directly Dr Shumba, not through Ms Trezise.[22]

[32] On 28 February 2018, Mr Gadzikwa emailed his response to the notice of proposed termination of employment to Ms Teece.[23] I return to his response below.

[33] On 1 March 2018, Ms Emerton sent an email to Mr Gadzikwa attaching a letter of termination of employment signed by Ms Teece. It referred to his unauthorised absences between 24 January and 13 February 2018, and stated that his employment with DHS was terminated, effective at the close of business that day, due to non-performance of duties, in accordance with s 29(3)(c) of the PS Act.[24]

[24]

[40] The evidence clearly establishes that from 24 January 2018, Mr Gadzikwa was absent from the workplace without authorisation. Mr Gadzikwa does not contend that his absences from this date were authorised, nor is there any proper basis for such a contention. During his unauthorised absence, Mr Gadzikwa was not performing his duties.

[41] Mr Gadzikwa contends, in effect, that DHS prevented or impeded him from returning to work. He says that it is not apt to speak of him not performing duties in these circumstances because he wanted to return to work. However, I find no basis in the evidence to conclude that DHS prevented or impeded his return to work. Further, by the time Mr Gadzikwa finally submitted his medical certificate as a notional 'clearance', he had already been absent without authorisation for more than 5 days. Section 29(3)(c) of the PS Act was directly engaged and provided a clear statutory foundation for the Department's decision to terminate Mr Gadzikwa's employment.

[42] Section 29 of the PS Act provides that an Agency Head may at any time terminate the employment of an APS employee in the Agency. Section 29(3) identifies what are the only grounds for termination of the employment of 'ongoing APS employees'. In my view, where an Agency Head terminates the employment of an ongoing employee for a reason identified in s 29(3), and the existence of the facts that make good the reason are substantiated, the dismissal will ipso facto be for a valid reason, because the reason is one expressly sanctioned by another Commonwealth enactment. In my view, 'Note 1' that appears under s 29(3)(1) does not point to a different conclusion. It refers to 'rules and entitlements' under the Fair Work Act 2009 concerning termination of employment. Among these are the rules concerning minimum notice of termination, and an entitlement to bring an unfair dismissal application if statutory conditions are satisfied. The question of whether there is a valid reason for dismissal is not a 'rule' or 'entitlement', but a consideration that the Commission must take into account in deciding whether it is satisfied that a dismissal was harsh, unjust or unreasonable.

[43] However, if I am wrong about this, and the Commission must determine whether in all the circumstances a dismissal for non-performance of duties (or any other reason identified in s 29(3)) constitutes a valid reason in the circumstances, I consider that in the present matter the reason for dismissal was plainly a valid reason. Mr Gadzikwa was absent without authorisation. He was not performing duties. The Department's policy was to consider dismissal in cases where an employee had been absent without authorisation for five days in a twelve month period. DHS acted in accordance with this policy. The unauthorised absences entailed non-performance of duties. This was the ground on which an Agency Head could terminate an ongoing APS employee in writing. Ms Teece, the delegate of the Agency Head, dismissed Mr Gadzikwa for this reason. The reason for dismissal was sound, defensible and well-founded.[28]

[44] Mr Gadzikwa advanced several other contentions as to why DHS did not have a valid reason to dismiss him. First, he contended that the Department was determined to get rid of him. He says this calls into question the legitimacy or genuineness of the reason relied on by DHS for his dismissal, and suggests an ulterior reason, perhaps that DHS found Mr Gadzikwa to be a difficult person to deal with. Given all that had transpired between Mr Gadzikwa and many of his co-workers (some of the details of which I will refer to further below), it is a plausible prima facie hypothesis that the employer might have sought out an opportunity to part ways with Mr Gadzikwa. But in my view, this is not what occurred. Ms Teece, who was the delegate and relevant decision-maker, gave evidence that the Department was not determined to end Mr Gadzikwa's employment, and that her decision was based on Mr Gadzikwa's non-performance of duties.[29] In my opinion, she was a witness of truth and I accept her evidence. Further, the evidence shows that DHS was lenient in its dealings with Mr Gadzikwa, for example by repeatedly reminding him that his continued absences were unauthorised, and allowing him extensions of time, both in relation to his authorised unpaid leave and the deadline for his response to the notice of intention to terminate.

[45] Mr Gadzikwa pointed to the evidence of various DHS witnesses who stated that in their opinion an order for his reinstatement would be inappropriate, and contended that this supported his argument that DHS was determined to dismiss him. However, none of this evidence established or suggested that the reason for which Mr Gadzikwa was dismissed was anything other than his non-performance of duties arising from his unauthorised absences.

[46] Mr Gadzikwa also contended that on 16 February 2017, DHS offered him a separation agreement, whereby he would release DHS from any legal liability associated with his two anti-bullying applications in the Commission.[30] He contends that this too demonstrates DHS's determination to have him leave the Department, and that it was even prepared to characterise his departure as a voluntary redundancy. However, it is very common for parties to a work-related dispute to discuss the possibility of an amicable separation, and in such instances for there to be consideration of the terms of a separation agreement and the basis upon which that separation might occur. There is nothing sinister or untoward about such discussions, as Mr Gadzikwa seems to apprehend.

[47] More broadly, to support his contention that the Department wanted rid of him, Mr Gadzikwa pointed to the long list of workplace problems and grievances raised by him between 2014 and 2017, including such matters as his allegedly being subjected to coercion and discrimination and denied medical care.[31] However, there is no evidentiary basis to conclude that Mr Gadzikwa was subjected to discrimination, and it is not clear what is meant by his claim of coercion and denial of medical care. Mr Gadzikwa also noted that, soon after his rejection of a separation agreement, a Code of Conduct investigation was instigated in relation to his behaviour. However, this does not establish any ulterior or improper motivation on the part of DHS in relation to the termination of his employment.

[48] I do not accept that DHS had an ulterior reason for dismissing Mr Gadzikwa. There is no basis for me to find or infer that DHS was determined to get rid of him. I find that the Department dismissed Mr Gadzikwa for the reason it stated, namely non-performance of duties arising from his unauthorised absences.

[49] Mr Gadzikwa further contended that he was in fact fit to return to work. He says that the reports of Dr Hundertmark and Dr Grant were conflicting, with one stating that he was fit to return to work, and the other stating that he was not fit. He says that DHS ignored the medical opinion that it found to be inconvenient and then declined to discuss what he considered to be the problematic details of the opinion it chose to rely on. He refers to the decision of Ambulance Victoria v Ms V, and contends that, as in that case, there was no clear medical evidence that he was unable to perform the inherent requirements of the position. Mr Gadzikwa submitted that DHS did not have up to date independent medical advice supporting its view that he was unable to meet the requirements of the job.[32]

[50] However, these submissions proceed on a misstatement of DHS's reason for dismissal. Mr Gadzikwa was dismissed for non-performance of duties under s 29(3)(c) of the PS Act, arising from his unauthorised absences. He was not dismissed for inability to perform duties because of physical or mental incapacity, which is a different ground of termination contemplated by s 29(3)(d). The latter might have provided an alternative basis for termination. If it had been invoked, it would be necessary for the Commission to consider whether this reason had a valid evidentiary foundation and was substantiated. But the potential availability of another ground of termination under s 29(3) does not affect the character of DHS's actual reason for terminating Mr Gadzikwa's employment. It is not necessary to deal with a counterfactual or hypothetical case. I appreciate that Mr Gadzikwa says that he wanted to return to work. But DHS told him what he had to do in order to return to work. He had to obtain a proper medical clearance two weeks before the proposed return date. He did not do this.

[51] Pursuant to directions I made at the conclusion of the hearing, Mr Gadzikwa and the Department each filed final written submissions, and Mr Gadzikwa lodged a submission in reply. Mr Gadzikwa's reply submission relied on a new medical report on his fitness for duty, prepared by a Dr Sahoo on 23 July 2018 for Mr Gadzikwa's insurer, AIA. This report concluded that Mr Gadzikwa was fit to work. The Department objected to the introduction of new evidentiary material. Leaving to one side whether the Commission should allow fresh evidence to be filed in a reply submission in this fashion, I do not consider the new medical evidence to be relevant to the question of whether Mr Gadzikwa was unfairly dismissed. As I have explained, Mr Gadzikwa was not dismissed on the ground that he was unfit for work. He was dismissed for non-performance of duties.

[52] Mr Gadzikwa also submits that he did in fact provide a medical clearance, in the form of Dr Shumba's medical certificate, which, he in effect contends, indicates that he was not refusing or failing to perform duties for the purposes of s 29(3)(c) of the PS Act. I do not accept this contention. First, the certificate he provided did not meet the Department's requirements. It was not provided two weeks before the proposed return to work. It did not specify that he was able to return to his particular position. And it did not contain an explanation of why Dr Shumba had now formed the view that Mr Gadzikwa was fit to work when previously he had concluded that Mr Gadzikwa was not fit. Further, Mr Gadzikwa persisted in relying on information provided by the rehabilitation provider, when DHS had made clear that all relevant information must come directly from Dr Shumba, not a third party.[33] In my view the Department's requirements in relation to the medical clearance were reasonable. Like every other employer or occupier of a workplace, the Department carries important responsibilities to ensure a safe working environment. It was reasonable for it to require Mr Gadzikwa to provide appropriately detailed medical evidence that he could safely return to work. As DHS explained to Mr Gadzikwa in the letters of 30 November and 21 December 2017, two doctors, including his own physician Dr Shumba, had previously concluded that he was not fit to return to work; if Dr Shumba now considered Mr Gadzikwa to be fit, it was reasonable to expect some explanation for this revised opinion as part of a medical clearance.

[53] Mr Gadzikwa knew what these requirements were and did not meet them. He was told of the requirements in Ms Emerton's letter of 21 December 2018. I find it difficult to believe that Mr Gadzikwa could have read the typographical 'not' in this message literally. In any event, what was in my view the obvious intention of Ms Emerton's email of 21 December was put beyond doubt in her message to Mr Gadzikwa on 26 February 2018, in which she explained why Dr Shumba's certificate did not constitute an acceptable medical clearance. Following receipt of this message, Mr Gadzikwa did not flag any misunderstanding about this matter.

[54] In any event, it is to be noted that Mr Gadzikwa did not provide medical clearance of any description by the end of his period of authorised unpaid leave. Only on 23 February 2018, after further extensions and reminders from DHS about his persisting unauthorised absences and after a period of well over 5 days of unauthorised absence had passed, did Mr Gadzikwa eventually provide a medical document in support of his claimed fitness to return to work. This document did not meet the relevant requirements, even leaving aside the point affected by the errant 'not'. It did not state that Mr Gadzikwa was fit for work as an Information Governance Officer. Importantly, Mr Gadzikwa failed to comply with the requirement that any medical clearance be provided at least two weeks prior to a return to work, a requirement he was clearly advised of in Ms Emerton's message to him of 15 December 2017.[34] Even if the medical clearance had contained sufficient detail, Mr Gadzikwa had put himself in a position where he would continue to be on unauthorised leave for a further period of 2 weeks. I note that the Department had told Mr Gadzikwa that it might reconsider its position on further unpaid leave if further information was provided such as a medical clearance. No proper medical clearance was provided, but even if it had been, the Department was under no obligation to grant Mr Gadzikwa yet further unpaid leave.

[55] None of Mr Gadzikwa's arguments casts doubt on my conclusion that DHS had a valid reason to terminate his employment. I now address the other statutory considerations that the Act directs me to take into account.

[33]

[65] Mr Gadzikwa contended that he wanted to return to work but that the Department did not afford him a reasonable opportunity to do so, and in fact prevented or impeded him from returning to work. As I noted earlier in concluding that there was a valid reason for dismissal, these contentions are not substantiated. However, it is appropriate that I have regard not only to Mr Gadzikwa's contentions, but also more generally to the circumstances surrounding Mr Gadzikwa's professed efforts to return to work and the conduct of the Department. In my view, the evidence establishes that the Department afforded Mr Gadzikwa more than a reasonable opportunity to return to work. I will briefly address this evidence, which will require some measure of recapitulation.

[66] Mr Gadzikwa was granted an extensive period of unpaid personal leave. On 30 November 2017, he was told that unpaid leave would not be extended indefinitely and that he would need to provide medical clearance before returning to work. On 15 December 2017, he was told that his unpaid personal leave would end on 16 January 2018, and DHS reminded him that he needed medical clearance prior to any return to work. On 20 December 2017, Mr Gadzikwa raised questions about the requirements for a valid medical clearance. He received a response the next day. 16 January 2018 came and went, but still Mr Gadzikwa remained absent, having provided no medical clearance. On 18 January 2018, DHS sent Mr Gadzikwa an email, noting that he had not provided medical clearance, but granting him a further 5 days unpaid personal leave, expiring on 23 January 2018. This deadline too passed by. On 25 January 2018, the Department contacted him again, noting that its policy is to consider dismissal after 5 days of unauthorised absence in a 12 month period, but also noting that it might reconsider its decision to not grant further unpaid absence if further information such as a medical clearance were provided. Further letters were then sent to Mr Gadzikwa on 1 February and 13 February 2018, then the notice of proposed termination of employment on 15 February 2018, to which he was required to respond by close of business on 23 February 2018. Mr Gadzikwa asked for an extension and received one. His response, as I will explain in a moment, did not present a persuasive case against termination. In all of these circumstances, it cannot seriously be contended that Mr Gadzikwa was not afforded a reasonable opportunity to return to work. He was not hurried out the door at the first opportunity. As well as granting him a period of over 19 months unpaid leave, the Department extended the end date of his authorised absence, of its own accord and after the expiry date, and then offered to consider granting further unpaid leave if only proper clearance were provided.

[67] Mr Gadzikwa points to the cancellation of his fitness for duty assessment on 11 December 2017 as proof of the Department's resistance to his return to work. I disagree. Cancelling this assessment was a logical and reasonable step following the receipt of the most recent medical reports.

[68] Mr Gadzikwa argued that the Department's refusal to accept Dr Shumba's medical certificate shows that the Department did not allow him to return to work or support him in his efforts to do so. I disagree. This two line un-particularised certificate did not meet the requirements of a medical clearance set by the Department. I intend no criticism of Dr Shumba by this. There is nothing to indicate that he was aware of those requirements at the time he wrote the certificate. But Mr Gadzikwa was aware of them.

[69] Mr Gadzikwa contended that shortly before and at the time of his dismissal, he was making efforts to have Dr Shumba address the outstanding questions raised by DHS. He says that his insurer AIA had faxed to Dr Shumba Ms Emerton's questions concerning the medical clearance. Mr Gadzikwa says that on the day the termination letter was sent, he was meeting with his rehabilitation case manager and Dr Shumba to obtain the relevant information sought by DHS.[40] However, by this late stage, there was no obligation on DHS to afford Mr Gadzikwa any further time to comply with its requirements. He had been given ample opportunity, and extensions of time, to provide a medical clearance. He could not return to work without it. He was not authorised to take further unpaid leave.

[70] Mr Gadzikwa's response to the notice of proposed termination was wide-ranging and desultory. He referred to his 'challenges' with the Department between 2014 and 2017, and previous complaints of coercion and discrimination to which he claimed to have been subjected. He referred to the Department's offer of a separation agreement in 2017 on the basis of a voluntary redundancy and questioned why it was now so urgent for the Department to fill his role if previously it was not required. He referred to the toxicity of the workplace. He referred to his requests for a telephone conversation with Ms Emerton which was refused (I return to this below). He stated that if the Department continued to decline to send him for a psychiatric assessment, he would assume that he was not fit for duty in which case he would ask DHS to complete paperwork for a total and permanent disability application. This appears to be contrary to his contention that he was in fact fit for work. He referred to the medical evidence concerning his fitness for duty, and noted that Dr Shumba's certificate said he was fit to work the next day, but does not address his failure to comply with the Department's requirement that any clearance be provided 2 weeks before a proposed return to work.

[71] What Mr Gadzikwa did not do in his reply to the Department's notice of proposed termination of employment was engage with the grounds on which the Department proposed to dismiss him, namely his non-performance of duties arising from his unauthorised absences. Mr Gadzikwa did not contest the factual basis on which DHS proposed to dismiss him. He did not explain his unauthorised absence and non-performance of duties. He did not contend that he had misunderstood the circumstances in which the Department might dismiss him for non-performance of duties. He did not submit that, because of some intervening or special circumstance, the Department should not dismiss him. Mr Gadzikwa did say that he was working 'tirelessly' with his insurer and rehabilitation provider to obtain the evidence sought by the Department. However, the time for him to work tirelessly on this matter was prior to the expiry of his authorised absence.

[72] In my opinion, the opportunity afforded by the Department to Mr Gadzikwa to return to work was reasonable. It repeatedly extended deadlines. It explained matters that had been explained before. The approach taken by DHS to Mr Gadzikwa was not hasty or peremptory, but patient and generous. He was afforded a reasonable opportunity to return to work, but did not use that opportunity.

[34]

[73] Mr Gadzikwa submits that the Department declined to communicate with his general practitioner and rehabilitation case manager in relation to the requested medical clearance it sought, and that this 'stifled' his ability to respond to the proposal to terminate his employment.[41] I do not accept this. DHS did not decline to communicate with his doctor, or with Ms Trezise. Rather, it said that it required particular information in respect of any medical clearance to be provided directly by Dr Shumba, not through another person.

[74] Mr Gadzikwa also submitted that the notice of proposed termination of employment indicated that he should contact Ms Emerton with any queries, but that she declined his requests for telephone conversations.[42] On several occasions, Mr Gadzikwa asked in email correspondence to have a telephone discussion with Ms Emerton. For example, on 20 February 2018, he said he would like to speak with her on 22 February 2018. She replied the same day, declining to speak with him on the telephone. She stated that given the concerns he had raised, and to reduce the risk of any misunderstandings, the Department considered it appropriate for all correspondence concerning the proposed termination to be in writing.

[75] Ms Cowan gave evidence that the Department preferred to communicate in writing with Mr Gadzikwa because he often had very different recollections from those of DHS staff of what had been discussed during telephone conversations, and there had previously been disputes about what was said during oral discussions.[43] Further, she said that Mr Gadzikwa often recorded conversations, despite being directed not to do so.[44] I accept this evidence.

[76] I note that many of the specific matters that Mr Gadzikwa wanted to discuss with the Department orally did not concern the question of whether his absences were unauthorised or whether he was medically fit to return to work, but related instead to apparently peripheral matters. On Friday 23 February 2018, shortly before his response to the notice of proposed termination of employment was due, and when the question of his unauthorised absence from work was squarely in issue, Mr Gadzikwa again requested a telephone discussion. Ms Emerton responded on Monday 26 February 2018, stating that DHS considered that he had sufficient information to respond to the proposed termination, and that it did not consider a telephone discussion to be necessary or appropriate. However, she also stated that Mr Gadzikwa had not provided an indication of the issues he wished to discuss, and that if he did wish to discuss other issues, he should advise what these were. In response, on 27 February 2018, Mr Gadzikwa said that he wanted to discuss the following:

[44]

[77] These do not appear to me to be matters of central importance that would warrant a telephone discussion. In my view Ms Emerton was correct to say that Mr Gadzikwa had sufficient information to enable him to respond to the notice of proposed termination of employment.

[78] In my view the Department's preference for communicating with Mr Gadzikwa in writing was reasonable. Mr Gadzikwa was a prolific communicator. The evidence of Mr Beaton, Director of Human Resources, was that from March 2016 to September 2017, approximately 55 DHS staff became involved in managing and responding to Mr Gadzikwa's various complaints. Although Mr Gadzikwa was not physically in the workplace, he continued to communicate with DHS by telephone and email, particularly with executive level employees. Mr Beaton said that at any given time, approximately five executives were involved in managing and assisting Mr Gadzikwa each day. Mr Beaton said that in his eighteen years working at DHS, this was unprecedented.[46] It is difficult to imagine how all of the matters and complaints raised by Mr Gadzikwa could have been properly attended to without a written record.

[79] I note that although the Department preferred to communicate with Mr Gadzikwa in writing, it did also communicate with him by telephone. One notable example is found in the evidence of Mr Smith, who said that he received and accepted a telephone call from Mr Gadzikwa while lying in his hospital bed following surgery.[47] Further, Ms Emerton did not refuse to speak with Mr Gadzikwa on the phone in the lead up to the dismissal; she sought rather to establish what the purpose of a call would be.

[80] In my assessment, there is nothing to suggest that a greater use of oral communication by the Department during Mr Gadzikwa's absence from the workplace, including in the lead up to his dismissal, would have been more efficient, fairer, or preferable. On the contrary, it would have left a morass of communications undocumented and unrecorded, save perhaps for Mr Gadzikwa's recordings of them, which I address below. It has not been established, nor is there any basis in the evidence for me to conclude, that oral communications between the Department and Mr Gadzikwa on any particular issue would have altered the course of events. Indeed, during the hearing, Mr Gadzikwa explained that he wished to have the opportunity to put his final submissions in writing, because, given what he described as his scattered thoughts, he was better able to present arguments in writing.[48] I do not consider that Mr Gadzikwa incurred any disadvantage as a result of the communications between him and DHS proceeding predominantly in writing.

[45]

[81] Mr Gadzikwa acknowledged that he had a practice of covertly recording his conversations with colleagues_._[49] In Victoria, where Mr Gadzikwa worked for most but not all of the period of his employment with the Department, the Surveillance Devices Act 1999 prohibits a person from using a listening device to record a private conversation to which the person is not party, without the express or implied consent of each party to the conversation.[50] I note that in other jurisdictions, the prohibition applies regardless of whether the person using the listening device is party to the relevant conversation.

[82] DHS did not contend that Mr Gadzikwa had breached the Surveillance Devices Act 1999 and it did not rely on his recordings of conversations as a ground for dismissal. It submitted rather that his conduct in secretly recording colleagues was inappropriate. For his part, Mr Gadzikwa said that he was justified in making covert recordings to 'protect' himself.[51]

[83] Unless there is a justification, I consider the secret recording of conversations with co-workers to be highly inappropriate, regardless of whether it may also constitute a criminal offence in the relevant jurisdiction. The reason it is inappropriate is because it is unfair to those who are secretly recorded. They are unaware that a record of their exact words is being made. They have no opportunity to choose their words carefully, be guarded about revealing confidences or sensitive information concerning themselves or others, or to put their best foot forward in presenting an argument or a point of view. The surreptitious recorder, however, can do all of these things, and unfairly put himself at an advantage. Moreover, once it is known that a person has secretly recorded a conversation, this is apt to produce a sense of foreboding in others, an apprehension that they must be cautious and vigilant. This is potentially corrosive of a healthy and productive workplace environment. Generally speaking, the secret recording of conversations with colleagues in the workplace is to be deprecated.

[84] What then of Mr Gadzikwa's explanation that he recorded conversations to protect himself? Mr Gadzikwa lodged multiple grievances and complaints and made numerous requests for information and documents, both internal and external, regarding his managers and others at DHS with whom he interacted in the course of his employment. He made a number of allegations of bullying against various colleagues. If an employee had been subjected to bullying in the course of employment, particularly in the lead up to its termination, this would be a circumstance relevant to the Commission's consideration of whether the dismissal was harsh, unjust or unreasonable. Save for three days, Mr Gadzikwa was absent from the workplace between June 2016 and his dismissal on 1 March 2018, but this does not preclude the possibility of bullying having taken place. I note that the proceedings before me did not focus particular attention on the various bullying claims made by Mr Gadzikwa, and the anti-bullying applications that Mr Gadzikwa lodged in the Commission have not been heard. Nevertheless, based on the evidence adduced before me, I cannot identify any basis to conclude that Mr Gadzikwa was subjected to bullying, by which I have in mind the concept defined in s 789FD(1) of the Act, namely repeated unreasonable behaviour towards a worker that poses a risk to health and safety.

[85] Clearly, Mr Gadzikwa harboured a level of suspicion toward the Department and its staff. He believed for example that within his work team there was a tendency to spread malicious rumours.[52] He thought the witness statement of Mark Morrison contained 'countless intentional fabrications and misrepresentations'.[53] He said that the Department was determined to dismiss him, even to the point of 'committing misconduct' and doing 'illegal' things.[54] He said there was a history of the Department 'lying', and that he considered the change in the name of his position to be a 'dishonest attempt to cover up the department's failings'.[55] He said his dismissal was 'contrived' and the 'culmination of unrelenting abuse' by the Department.[56] Of course, had these accusations been substantiated, they would have been relevant not only to his justification of secretly recording conversations with colleagues, but also to the consideration of the fairness or otherwise of his dismissal. However, I find no evidence to support any of these contentions. In particular, it is appropriate that I reject with emphasis the imputation against Mr Morrison, whom I found to be an open and honest witness, whose evidence I accept.

[86] There is nothing to suggest to me that the Department has acted improperly in its dealings with Mr Gadzikwa. In light of this, there is nothing that would warrant Mr Gadzikwa's secret recording of co-workers. Accordingly, this conduct was inappropriate. Clearly, this conclusion would have told strongly against reinstatement, had I found his dismissal to be harsh, unjust or unreasonable. Further, in a different setting, unconfined by the parameters of the PS Act, it would have been open for me to find this conduct to constitute a separate valid reason for dismissal (the Commission is not confined in its consideration of s 387(a) to valid reasons relied on by the employer).

[87] For present purposes, it is sufficient for me to reject the above accusations made by Mr Gadzikwa. In considering the overall fairness or otherwise of the dismissal, I take into account Mr Gadzikwa's inappropriate secret recordings of conversations with co-workers. I do so in the following way: in my consideration of 'other relevant matters' under s 387(h), I consider Mr Gadzikwa's unjustified secret recordings to detract from what might otherwise have counted in his favour, namely the positive dimensions of his employment record. In this regard I note that there were several remarks in the evidence of Department witnesses attesting to the good quality of Mr Gadzikwa's work. I should note however that my conclusion in relation to Mr Gadzikwa's secret recordings has not been a decisive consideration, and irrespective of this matter I would have reached the same conclusion as to my disposition of his application for an unfair dismissal remedy.

[48]

[91] In support of his contention that the dismissal was harsh, unjust or unreasonable, Mr Gadzikwa pointed to the personal impact of the dismissal, including the adverse economic consequences, and the fact that he believes it will be very challenging for him to find employment elsewhere.[59] I accept this, and acknowledge that the loss of his employment may be more significant for Mr Gadzikwa than for many other people who might be dismissed. However, I do not consider these factors to be such as to render the dismissal of Mr Gadzikwa unfair in the circumstances.

[92] Although the precise nature of Mr Gadzikwa's ailments during his employment with the Department remains unclear, it is evident that he suffered from poor mental health. I have taken this into account in my assessment of the circumstances of Mr Gadzikwa's dismissal.

[93] One would expect the Commonwealth public service to treat an employee with mental health difficulties with due sensitivity and ensure a fair and reasonable process in making decisions about that person's employment. In my view, the Department acted accordingly.

[94] In submissions primarily directed at resisting any order for reinstatement, the Department contended that Mr Gadzikwa interacted inappropriately and confrontationally with colleagues. It referred to the sheer volume of Mr Gadzikwa's emails, his many grievances and escalation of complaints, and the adverse effects of this on the wellbeing of some of his colleagues.[60] Mr Reiner gave evidence that his dealings with Mr Gadzikwa, whom he had supervised, had left him feeling pursued and threatened, and had been destructive of his career ambitions.[61] I accept his evidence. However, although not substantiated, Mr Gadzikwa's various concerns and grievances appear to have been genuinely held. I consider that Mr Gadzikwa lacks insight into the effect of his conduct on others, but I do not believe him to be malicious.

[95] Mr Gadzikwa is an intelligent and hard-working person. These qualities could, with the right focus, one day be put to good use in the workplace. However, he will not be reinstated to the Commonwealth Department of Human Services.

At a glance

Court

Decision date

Source

Judgment (103 paragraphs)

Tawanda Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878 (30 August 2018)

Parties

Legislation Cited (3)

Cases Cited (6)