Peters v Commonwealth of Australia CaseBase | [2021] FCA 1624 | BC202113875 PETERS v COMMONWEALTH (AS REPRESENTED BY THE AUSTRALIAN TAXATION OFFICE) BC202113875 Unreported Judgments Federal Court of Australia · 433 Paragraphs Federal Court of Australia — Victoria District Registry Anderson J VID 1061 of 2017 30 November, 2, 9, 22 December 2021 Peters v Commonwealth of Australia [2021] FCA 1624 Headnotes INDUSTRIAL LAW — Employment — Adverse action — Whether the applicant was subjected to adverse action by the respondent in contravention of s 340 of the Fair Work Act 2009 (Cth) — Whether adverse action was taken because the applicant had exercised workplace rights — Operation of statutory presumption in s 361 of the Fair Work Act 2009 (Cth) — Application dismissed. HUMAN RIGHTS — Discrimination — Allegation of unlawful discrimination in contravention of the Disability Discrimination Act 1992 (Cth) — Allegation of unlawful discrimination in contravention of the Age Discrimination Act 2004 (Cth) — Where the alleged complaint of discrimination was not made to the Australian Human Rights Commission under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) — Application dismissed. (CTH) Age Discrimination Act 2004 (CTH) Australian Human Rights Commission Act 1986 (CTH) Disability Discrimination Act 1992 (CTH) Fair Work Act 2009 (CTH) Federal Court Rules 2011 (CTH) Public Service Act 1999 Page 2 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 Australian Building and Construction Commissioner v Hall (2018) 261 FCR ; Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215 ; Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500 ; Clarke v Nursing & Midwifery Council New South Wales [2019] FCA 1782 ; Construction, Forestry, Mining and Energy Union v Anglo Coal [2015] FCAFC 157; 238 FCR 273 ; Construction, Forestry, Mining and Energy Union v Clermont Coal [2015] FCA 1014 ; Elliott v Kodak Australasia [2001] FCA 1804 ; National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139 ; Quinn v Overland [2010] FCA 799; 199 IR 40 ; Tattsbet v Morrow [2015] FCAFC 62; (2015) 233 FCR 46 ; Voxson Pty Ltd v Telstra Corp Ltd (No 7) [2017] FCA 267 ; Wong v National Australia Bank [2021] FCA 671 ; Wood v Lord Mayor Councillors and Citizens of the City of Melbourne (1979) 41 FLR 1 at 1 , cited Anderson J. INTRODUCTION [1] The applicant, Ms Cheryl Peters, was employed by the Commonwealth of Australia in the Australian Taxation Office (ATO) from 2004 until 5 May 2014 when her employment was terminated after she accepted an offer of voluntary redundancy. Ms Peters, prior to January 2007, worked at the ATO on a contract basis. In January 2007, Ms Peters commenced full-time employment with the ATO in the position of Facilities Management Officer (APS Level 3). Ms Peters was employed under s 22(a) of the Public Service Act 1999 (Cth) as an ongoing Australian Public Service employee until the termination of her employment on the ground of redundancy on 5 May 2014. [2] During the period of her employment, Ms Peters was covered by and entitled to the benefits of enterprise agreements to which the ATO was the employer party. Those enterprise agreements were the ATO (General Employees) Enterprise Agreement 2009(2009 Agreement) which commenced operation on 8 July 2009 and continued in operation until 30 November 2011, and the ATO Enterprise Agreement 2011 (2011 Agreement), which commenced operation on 30 November 2011 with a nominal expiry date of 30 June 2014, and continued to apply to the parties until termination of Ms Peters’ employment with the ATO. [3] Ms Peters performed work as a Facilities Management Officer within the ATO business service line known as Property Operations, Property, Security and Environmental Services and ATO Finance. [4] Ms Peters predominantly performed work providing facilities management services for a number of ATO sites within the Melbourne Central Business District (Melbourne CBD). Ms Peters was primarily based at 414 La Trobe Street, Melbourne which was within the set of ATO sites which comprised the Victoria Market Precinct. [5] By her Amended Statement of Claim dated 30 August 2019 (ASOC), Ms Peters makes numerous allegations which can be summarised into three principal allegations as follows: (1) that the ATO contravened s 351(1) of theFair Work Act 2009(Cth) (FW Act) by taking unlawful adverse action against Ms Peters because of her age (Age Discrimination Claim); (2) that the ATO contravened s 340(1) of the FW Act by taking the following adverse action against Ms Peters: Page 3 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 (a) by Assistant Commissioner Smillie issuing a “direction” in an email on 14 October 2011 about “charging” Ms Peters with a breach of the Australian Public Service Code of Conduct in relation to voicemail messages Ms Peters left on Maria Krassaris’ mobile phone; (b) directing Ms Peters to relocate to the ATO’s Queen Street premises on 18 October 2011; (c) making misrepresentations to Ms Peters, and to medical advisers and rehabilitation providers, to the effect that misconduct proceedings were on foot against Ms Peters and that she could not return to work until she was medically fit to face the misconduct charges; (d) failing to provide Ms Peters with a return to work plan (RTW), or suitable duties or any duties and thereby excluding her from returning to the workplace; (e) failing or refusing to pay Ms Peters remuneration for the period during which Ms Peters alleges that she was ready, willing and able to work; in each case, because Ms Peters had a workplace right, proposed to exercise a workplace right, or in order to prevent her from exercising a workplace right, or because Ms Peters possessed a protected attribute (Adverse Action Claims); and (3) that the ATO discriminated against Ms Peters in contravention of s 15 of theDisability Discrimination Act 1992 (Cth) (DD Act) and s 351(1) of the FW Act by refusing to admit her to her employment, or pay her any remuneration after she had suffered an episode of disability due to psychological illness (Disability Discrimination Claim). [6] At the trial of the proceeding, Ms Peters represented herself. Ms Peters gave oral testimony and tendered the following affidavits: (a) Affidavit of Cheryl Peters dated 6 November 2017. (b) Affidavit of Cheryl Peters dated 12 October 2018. (c) Affidavit of Cheryl Peters dated 1 December 2019. (d) Affidavit of Cheryl Peters dated 21 January 2020. (e) Affidavit of Cheryl Peters dated 1 June 2020. (f) Affidavit of Cheryl Peters dated 16 July 2020. (g) Affidavit of Cheryl Peters dated 15 September 2020. (h) Affidavit of Cheryl Peters dated 23 November 2020. Page 4 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 (i) Affidavit of Cheryl Peters dated 1 December 2020. [7] The above affidavits collectively formed exhibit A-1. MS PETERS’ EVIDENCE IN CHIEF [8] Ms Peters gave the following evidence in chief. [9] Ms Peters commenced full time employment with the ATO in January 2007. Ms Peters’ position at the ATO was as an APS 3 Facilities Management Officer. Ms Peters was employed in that position until her employment was terminated on 5 May 2014 on the grounds that Ms Peters had become excess to requirements at the ATO. [10] Ms Peters’ last day in the workplace was 17 October 2011. [11] Ms Peters’ evidence was that her difficulties were known when she lodged a claim with Comcare for compensation in relation to a psychological injury described as “stress and anxiety”. [12] Ms Peters’ evidence was that the ATO conceded that her injury arose out of, or in the course of, her employment. However, the ATO relied on the exclusionary provision in s 5A of the Safety Rehabilitation and Compensation Act 1988 (Cth) for “reasonable administrative action” to avoid incurring liability in respect of Ms Peters’ injury. [13] Ms Peters applied for reconsideration of Comcare’s decision but that decision was subsequently affirmed on 17 September 2010. Ms Peters then applied to the Administrative Appeals Tribunal (AAT) to review her reconsideration decision. That review was heard by the AAT on 13–15 February 2012. The AAT handed down its decision, affirming the decision on review on 21 September 2012: Re Cheryl Peters and Comcare [2012] AATA 636 . [14] Ms Peters’ evidence was that in the AAT proceedings she attributed her physical injury to the way in which she was treated at work, which included an excessive workload, being micromanaged and required to walk between inner city sites several times a day while recovering from a painful fracture to the foot which was not work- related. [15] Ms Peters’ evidence was that on 7 October 2011, she attended a regional team meeting in her workplace at the ATO at 390 Latrobe Street, Melbourne. That meeting was chaired by Ms Maria Krassaris (Ms Krassaris), Ms Peters’ team leader. One of the topics discussed at the meeting was an awareness of the prohibition of inappropriate use of the mobile phone devices issued by the ATO to its staff. [16] Ms Peters’ evidence was that she was aware that a team member, Mr Christopher Gautier, had covertly filmed Ms Peters in the confines of the ATO, in a secure area, without Ms Peters’ knowledge or consent and produced what she described as a “humiliating” video clip under the title “Elderlies in the ATO” which was edited to appear grainy and in black and white, ultimately resembling a Chaplinesque film clip. Ms Peters’ evidence was that the film clip was prohibited for security reasons by the ATO in accordance with its practice statement PS72004/4. [17] Ms Peters’ evidence was that in the course of the discussion about the appropriate use of mobile devices, she raised her concerns over Mr Gautier’s behaviour. Mr Gautier defended his behaviour towards Ms Peters saying words to the effect that Ms Peters was in fact “old” and therefore he could say or do whatever he liked. Ms Peters’ Page 5 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 evidence was that Mr Gautier had, for some time prior to the meeting, been making ageist remarks about her and his behaviour caused Ms Peters stress and embarrassment. Ms Peters’ evidence was that she believed that by raising it with the team leader, Ms Krassaris, at the meeting she would not need to make a formal complaint. Ms Peters believed that Ms Krassaris would make it clear to him in the meeting that ageist behaviour was inappropriate and unlawful in the workplace and would not be tolerated. [18] Ms Peters’ evidence was that Ms Krassaris merely appeared amused and did not intervene in the discussion which was taking place between Ms Gautier and Ms Peters which was becoming heated. Ms Peters’ colleagues, who were also present at the meeting, interjected to tell Mr Gautier that he could not make remarks of that kind in the workplace. Ms Peters’ evidence was that because of the attitude of Ms Krassaris, Mr Gautier was not receptive to her calls for him back down. [19] Ms Peters’ evidence was that she was taken aback when Ms Krassaris appeared not to take the matter seriously. She suddenly understood that without her intervention as team leader, Mr Gautier would have a free reign to persist with his ageist comments and Ms Peters could not expect any support from Ms Krassaris. Ms Peters said that she was especially shocked and disappointed because in her experience Ms Krassaris was assiduous in promoting adherence with ATO policies and procedures to her staff. [20] Ms Peters’ evidence was that, on this occasion and despite Ms Peters’ distress, Ms Krassaris made no attempt to address the issue of age discrimination or schedule a topic for a future meeting. Ms Peters said in the absence of her (Ms Krassaris’) support, in some desperation she stated at the meeting that she would raise the issue with an internal ATO helpline called People Concern. Ms Peters’ evidence was that after the meeting on 7 October 2011 she felt deeply distressed. Ms Peters’ evidence was that there was an entire sequence of events comprising: (a) constant daily sniping about Ms Peters being old; (b) the filming without her knowledge or permission resulting in what Ms Peters considered to be a humiliating film clip; (c) being ridiculed and humiliated in front of her colleagues at the team meeting; (d) concern that the video clip might be uploaded onto YouTube and also shown on screens within the ATO; and (e) breaching Ms Peters’ privacy. [21] These events have hit a raw nerve with Ms Peters. She warned Mr Gautier on several occasions in the presence of managers, that he had crossed the line and was being insulting and discriminatory. Unfortunately, this was to no avail. [22] Ms Peters said she felt a strong desire to speak up for herself and decided to telephone Ms Krassaris which she did on 8 October 2011 and left an emotional message saying she would not be at work on Monday on Ms Krassaris’ voicemail. That voicemail was as follows: Yes Maria it’s Cheryl here I won’t be in on Monday. Maria I intend to take that matter that happened at Friday’s meeting further. I think you as a manager sitting there hysterically laughing is a sad indictment on the management of the ATO. You know that was clear discrimination. I will be taking it to Danielle. I’m hoping, and I intend, no I don’t hope, I intend to take it Page 6 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 to Andrew and get it sorted out and don’t feel spared Maria, because next on this list will be the fat arses of the ATO and you may be starring in it. [23] Ms Peters called Ms Krassaris again on 9 October 2011 and left another message saying that she would not be in for the week as she was going to her general practitioner to seek medical attention: Oh it’s me Maria. I think I’ve made it clear, I won’t be in for the week due to the bad behaviour of the tax office. I’m terrified of being left alone with you and Christophe because I’ll hit. You’re both badly spoilt little children that should grow up. Badly behaved and I want it escalated, and I want it dealt with. And I mean it. [24] Ms Peters, at the hearing said that she regretted leaving the voicemail messages. Ms Peters later also denied leaving those messages and claimed that the voicemail messages were recorded by an actor. [25] Ms Peters was very disturbed about being the focus of the negative treatment because of her age and intended to ask Ms Krassaris how she might feel if she were to be filmed, without her knowledge or consent, in a humiliating manner. Ms Peters wanted to remind Ms Krassaris that workplace discrimination can lead to regrettable consequences like the circumstances which led to the enactment of Brodie’s law on 7 June 2011. After what Ms Peters claimed to be months of harassment by Mr Gautier, and no intervention from management, Ms Peters says that she was exhausted and emotional and this caused her to leave the voicemail messages in the manner and language that she did. [26] Ms Peters’ evidence was that on 12 October 2011, Ms Danielle Andrews (Ms Andrews) telephoned her to ask about her return to work. Ms Peters told Ms Andrews that she was still feeling fragile and intended to return to work on Monday, 17 October 2011. Ms Andrews said to Ms Peters that when she returned to the office Ms Andrews would need to sit down with the relevant person or persons and discuss what had happened and why she had reacted as she did. [27] Ms Peters tendered an email dated 14 October 2011 from ATO Assistant Commissioner Mr Stewart Smillie (Mr Smillie) to Ms Lauren Sloan (Ms Sloan) seeking advice in regard to executing his intentions to remove Ms Peters from her position and from the Australian Public Service altogether. Mr Smillie added that he intended to formally charge Ms Peters under the ATO Code of Conduct immediately upon her return to work and that he would be “seeking the maximum sanction available for what [he] considered to be bullying and harassment of a manager who [was] simply doing her job”. [28] Ms Peters’ evidence was that on 17 October 2011, when she arrived at work at 7.15 am, Ms Andrews called Ms Peters into the meeting room and told her that Ms Krassaris had lodged a formal complaint against Ms Peters. Ms Andrews told Ms Peters not to open her computer or unpack her bag and that she was to immediately go down to the Queen Street site and stay there in isolation until further notice. Ms Peters said that she found it extremely distressing and humiliating to be placed in what she described as “solitary confinement”. Ms Peters remained at the Queen Street site until she had done her standard day work of 7.21 hours. Ms Peters said she then left work in a distraught state and had to seek medical attention. [29] Ms Peters’ evidence was that on 20 October 2011, a medical certificate was issued by her treating doctor, Dr Angela Roche, certifying that Ms Peters was unfit for work due to anxiety and depressive symptoms. Page 7 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 [30] On 8 November 2011, Ms Peters received a copy of a letter from Mr Andrew Osborne entitled “Suspected breach of ATO Code of Conduct”. [31] On 5 December 2011, Ms Peters wrote to Mr Osborne in response to his letter dated 8 November 2011 and stated in part “I am aware of Christophe’s obnoxious, rude and insensitive behaviour has caused other staff at the ATO to react in a manner that I am sure they regret as much as I do”. [32] Ms Peters tendered a medical report from Dr Dielle Felman (Dr Felman), an independent psychiatrist, provided by the ATO. In that report, Dr Felman said in part: I consider that Ms Peters has increasing ability to return to work and with HR intervention should be fit to return to work by mid-January on a mid-graduated return to work program but with a full range of duties. … Furthermore, Ms Peters is keen for the issue of age discrimination to be more comprehensively addressed in the workplace. [33] Ms Peters tendered in evidence correspondence in relation to the process followed by the ATO when conducting the Code of Conduct investigation. [34] Ms Peters also tendered in evidence medical certificates from her treating doctors certifying Ms Peters unfit to return to work. [35] Ms Peters also tendered in evidence correspondence and emails between ATO employees and Ms Peters regarding potential redeployment in an ATO site not within the Melbourne CBD. [36] I have read each of the documents exhibited to each of Ms Peters’ affidavits and have had regard to her content in making the findings which I make later in these Reasons for Judgment. [37] The chronology of correspondence concludes on 2 May 2014 with Ms Peters being given a notice of termination of employment signed by Mr Stewart Smillie, delegate of the Commissioner of Taxation. MS PETERS’ EVIDENCE IN CROSS-EXAMINATION [38] Ms Peters was cross-examined during the first two days of the trial. Ms Peters made a number of concessions during her cross-examination which were fatal to her claims and detrimental to the credibility of her story and the version of events which she claimed took place. [39] Ms Peters was played the voicemail recordings that she left on Ms Krassaris’ telephone on 8 October and 9 October 2011. Ms Peters initially denied leaving those voicemail recordings. But when it was put to her that she intended to elicit fear in Ms Krassaris that she would be the subject of a complaint made by Ms Peters to the ATO, Page 8 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 Ms Peters conceded that this was indeed her intention, claiming that she indeed “threatened to escalate” (T24 lines 43 to 45). [40] In terms of the incident with respect to the video recording which was made by Mr Gautier, Ms Peters initially claimed that this video was recorded without her knowledge or consent. Ms Peters also claimed that the video was made with the intention of humiliating her with respect to her age due to the grainy, black and white, Chaplinesque style of the footage in conjunction with the title “Elderlies in the ATO”. [41] It was put to Ms Peters that Mr Gautier was merely creating a film clip in the style of a different era to demonstrate what the application on the phone was capable of doing, and that he showed the film clip to her shortly after it was taken. It was also put to Ms Peters that the title which she alleged the film clip to have been labelled was a mere fabrication. Ms Peters did not agree. [42] It was put to Ms Peters that another employee at the ATO, Gina Suarez Parra (Ms Parra), who was in her mid-30s at the time, was also in the film and that the title “Elderlies in the ATO” did not make sense given that context. [43] Ms Peters gave convoluted answers to these questions, many of which did not make sense and involved purely hypothetical scenarios, which did not occur in fact. Ms Peters ultimately conceded that a video filmed in the style of Charlie Chaplin does not, on its own, equate to an insinuation that Ms Peters is old, given that Charlie Chaplin, in his films was young. [44] In terms of the team meeting which took place on 7 October 2011, which was convened to discuss the ATO’s policy with respect to the use of mobile phones. It was put that during the meeting, Ms Peters referred to the fact that Mr Gautier made a video recording of her and Ms Parra. It was also put that during the meeting Mr Gautier made a comment about Ms Peters’ age, Mr Gautier’s words were something to the effect that she was “an elder” or that she was “old”. Ms Peters agreed that all he said was that she was “old” and agreed that she said that “if [he kept] it up, [that she] will not hesitate to take it to [ATO People]”. [45] It was put to Ms Peters that once she told Mr Gautier that she would go to ATO People if he did not stop, then he ceased from making any comments. Ms Peters did not agree with this, and asserted that Mr Gautier did not stop making comments. [46] It was put to Ms Peters that when she raised the issue of the video recording in the 7 October 2011 meeting, the only concerns that she raised related to the fact that she was filmed on the ATO premises in breach of ATO policy, as distinct from her claim that she had been filmed in a way that subjected her to age discrimination. Ms Peters gave a series of confusing answers to this question and ultimately stated that she “would have” done so. It was put to Ms Peters that her answer suggested that she was merely guessing the answer to this question. [47] It was also put to Ms Peters that she did not make any mention of the alleged title of the film clip. Ms Peters said that she had no recollection whether she had or had not done so. [48] When it was put to Ms Peters that she made up the title of the film clip, she said that she did not make it up. [49] Ms Peters was taken to a document entitled “Report of Suspected Misconduct” which detailed what occurred at the meeting of 7 October 2011. The document was drafted by Ms Peters and stated that she raised concerns over Mr Gautier’s use of his iPad or iPhone, in particular that he would “Make a demeaning and humiliating film clip of a colleague and hawk it around to his friends for his own amusement”. It was put to Ms Peters that nothing in the contemporaneous document said anything about the alleged title of the film clip. Page 9 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 [50] It was suggested that Ms Peters developed a narrative that the film clip was humiliating for reasons of her age because she thought that it was a reason that would assist Ms Peters in excusing the voicemail messages that she left on Ms Krassaris’ telephone. [51] Ms Peters was taken to an email sent by Ms Andrews on 12 October 2011 to Ms Krassaris and Ms Sloan. The email was a summary of what Ms Peters discussed with Ms Andrews in relation to the events that had taken place previously (the film clip incident, the subsequent meeting and the voicemail messages that she left on Ms Krassaris’ telephone). Ms Peters agreed that she made it clear to Ms Andrews that Mr Gautier’s behaviour was inappropriate during that meeting, and that he was being inappropriate by calling her “old”. [52] It was suggested to Ms Peters that in her conversation with Ms Andrews she stated that she did not have an issue with Ms Krassaris and was taken to the following part of the email: I asked Cheryl to clarify who her grievance was with — and [I] explained that the content of her messages indicated to me that her anger was directed at Maria. I explained that she only mentioned Christophe once briefly in her messages. Cheryl responded that ‘none of it was about Maria’ … [emphasis added] [53] It was put to Ms Peters that she said to Ms Andrews that when she left the voicemail messages that she was not thinking clearly. Ms Peters agreed with that assertion. It was then put to Ms Peters that given she agreed with that assertion that she did in fact leave those messages. Ms Peters said that it was not her voice and that the voice was that of an actor because the tone is quite menacing. [54] It was put to Ms Peters again, that when she left those voicemail messages she was not thinking clearly, to which Ms Peters agreed. [55] It was put to Ms Peters that given she was not thinking clearly when she left the voicemail messages, that she could not recall what occurred at the meeting on 7 October 2011 and was mistaken about the course of events that took place, such as Ms Krassaris “laughing hysterically” at the meeting. Ms Peters agreed that it was possible. [56] When it was put to Ms Peters again that she could not recall how Ms Krassaris reacted during the meeting, Ms Peters contradicted her previous statement, and asserted that she did laugh, and said that Ms Krassaris “enjoyed it” and “found it quite funny”. [57] It was put to Ms Peters again that she did not raise the title of the film clip when she spoke to Ms Andrews, as this was absent from her 12 October 2011 email. Ms Peters agreed that it was possible that she did not mention it. Ms Peters then said that she did not recall if she did. Ms Peters then said she is sure that she would have mentioned it. Ms Peters then said that she did raise it, definitively. [58] It was put to Ms Peters that she did not mention the title of the film clip in either of the voicemail messages that she left on Ms Krassaris’ telephone. Ms Peters said she would have raised it on the voicemail messages. When it Page 10 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 was put to Ms Peters that she was taken to those recordings and was shown that she in fact did not raise it, Ms Peters said she did do so. [59] It was put to Ms Peters that when she first came back to work, which occurred on either 17 October 2011 or 18 October 2011, that Ms Andrews and her spoke in a conference room, and Ms Andrews asked her to base herself at the Queen Street site for the day, and Ms Peters was advised by Ms Andrews that a formal complaint had been made against her by Ms Krassaris in relation to the voicemail messages that she left on her phone. Ms Peters agreed that a formal complaint had been made. [60] It was put to Ms Peters that she did not raise any complaint about going to the Queen Street site. Ms Peters said that, in her view, she had no choice as it was a directive. Ms Peters described her time at the Queen Street site as being in “solitary confinement”. [61] It was put to Ms Peters that at no point, during that time, did she raise the issue of being in “solitary confinement”. [62] Ms Peters was asked about her first occupational health assessment with Dr Felman on 13 December 2011. It was put to Ms Peters that during her assessment she told Dr Felman that her mental health had deteriorated as a result of a colleague filming her in the workplace without her consent, and that she had difficulty attending work due to the stress and paper work involved in preparing for her Comcare claim. It was put to Ms Peters that Dr Felman considered that a return to work date of 23 January 2012, on an incremental basis was appropriate, but that Ms Peters disagreed with those findings. Ms Peters said that it was her doctor that disagreed with that assessment, not her. [63] It was put to Ms Peters that she did not want to return to work until her Comcare claim was resolved and her hearing, which she had been preparing for every day during this time, was over. Ms Peters disagreed with this. Ms Peters said that preparing for her Comcare claim did not take up much time. [64] Ms Peters was taken to a medical certificate which she submitted on 20 January 2012, indicating that she was not fit for work, with an accompanying note from her doctor, Dr Roche indicating that Ms Peters would be able to “aim for a graduated return to work plan … starting 20 February [2012]”. [65] Ms Peters was taken to a series of correspondence between her and Ms Anderson in January 2012, the substance of which dealt with Ms Peters seeking to challenge the expert opinion of Dr Felman and asking when the misconduct claim against her would be determined. [66] Ms Peters was taken to a letter sent to her by Ms Anderson dated 25 January 2012. The letter set out Dr Felman’s formal findings in respect of Ms Peters’ occupational health assessment. The letter recommended that Ms Peters was fit to return to work with the assistance of a rehabilitation provider. The letter indicated that Ms Peters could challenge the findings made and was entitled to submit evidence to this effect within 14 days. [67] Ms Peters was taken to a letter that she received from Mr Osborne which indicated that the voicemail matter would be formally investigated under the APS Code of Conduct procedures. It was put to Ms Peters that she was not willing to return to work to face the misconduct procedures. Ms Peters denied this. [68] Ms Peters was taken to a telephone call log made by Ms Anderson on 30 January 2012. The log indicated that Ms Peters told Ms Anderson that she would see her doctor. It was also discussed that if Ms Peters’ doctor had any challenges to the findings of Dr Felman, these would be put forward. It was also discussed that an authorised rehabilitation provider would be engaged to assist Ms Peters in her return to work process. Page 11 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 [69] It was put to Ms Peters that from around February 2012, she was not responding to emails sent to her by Ms Anderson. [70] It was put to Ms Peters that she contacted a rehabilitation provider, Ms Joh Shembrey (Ms Shembrey) on 6 March 2012 and made an appointment to see her on 13 March 2012. [71] Ms Peters was taken to a medical certificate that she provided to Ms Anderson on 7 March 2012 indicating that she was not fit for work until 30 March 2012. [72] It was put to Ms Peters that she did not attend her appointment with Ms Shembrey on 13 March 2012. Ms Peters was taken to an email sent by Ms Anderson to Ms Andrews, Mr Osborne and Ms Sloan which indicated this, and said that Ms Shembrey would “keep trying to contact her to reschedule the appointment”. [73] It was put to Ms Peters that Ms Shembrey called her and left a message on her answering machine, but Ms Peters did not return her call. Ms Peters was then taken to an email sent from Ms Shembrey to Ms Anderson dated 16 March 2012. Ms Shembrey indicated in that email that Ms Peters called her and she booked an appointment for 29 March 2012. Ms Peters agreed that this occurred. [74] The email from Ms Shembrey to Ms Anderson dated 16 March 2012 also stated that Ms Peters told Ms Shembrey that she sent her an email on 9 March 2012 requesting that the appointment time be changed, but that Ms Shembrey never received such an email. It was put to Ms Peters that she never sent that email. It was also put that it was lax for Ms Peters to not be in touch with Ms Shembrey, and that this reflected that she was not ready and willing to return to work at this stage. Ms Peters disagreed. [75] Ms Peters was taken to Ms Shembrey’s initial assessment report dated 4 April 2012. It was put to Ms Peters that she told Ms Shembrey that she had ceased work because of her ongoing Comcare claim process and because of an incident with her colleague. Ms Peters agreed. [76] It was put to Ms Peters that she told Ms Shembrey that she had become distressed when she learnt that the facilities management site manager for the new single site would be Mr Mitvalski. Ms Peters agreed. [77] It was put to Ms Peters that the first time that she had told anyone about the alleged name of the film clip, being “Elderlies in the ATO” was during the assessment with Ms Shembrey. It was put to Ms Peters that at no point prior to the initial assessment did she raise the name of the alleged film clip title. Ms Peters agreed. [78] It was then put to Ms Peters that she did not raise the name of the title because it was a fabrication. Ms Peters did not agree. [79] It was put to Ms Peters that she told Ms Shembrey that when she met with Ms Andrews on 18 October 2011, and was advised by her that she would be relocated to the Queen Street site, that this decision was made in order to separate her from Ms Krassaris. Ms Peters agreed. [80] It was put to Ms Peters that she did not use the term “solitary confinement” when discussing the Queen Street relocation with Ms Shembrey. Ms Peters said that she would have said this. Page 12 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 [81] It was put to Ms Peters that she told Ms Shembrey that she believed that the ATO management, from the Commissioner down, were angry because of her Comcare claim and her decision to take the claim to the AAT. Ms Peters agreed. [82] It was put to Ms Peters that she was not prepared to return to work because she thought the “cards were stacked against her”. Ms Peters disagreed. [83] It was put to Ms Peters that she told Ms Shembrey that the return to work hours, as outlined by Dr Felman, were not appropriate. Ms Peters agreed. [84] It was put to Ms Peters that on 5 April 2012, she had a further appointment with Dr Felman, and in that appointment she told Dr Felman that she was having a difficult time between December 2011 and April 2012, and that she was experiencing an incredible amount of stress regarding her AAT hearing. Ms Peters agreed. [85] It was put to Ms Peters that she told Dr Felman that the hearing was traumatic and that it was difficult for her to be unrepresented at the hearing and that she felt outnumbered by the ATO and numb during the process. Ms Peters agreed. [86] It was put to Ms Peters that she told Dr Felman that the hearing was like a full-time job. Ms Peters agreed. [87] It was put to Ms Peters that she was not willing to go back to work before she had handed in the submissions because that would have prejudiced her ability to put together her case. Ms Peters said that she had to follow her doctor’s recommendations and she was told that she was not fit to return to work. [88] It was then put to Ms Peters that Dr Felman had recommended that she was fit to return to work from 23 January 2012, on a graduated basis. Ms Peters agreed. [89] It was put to Ms Peters that she did not agree that Dr Felman’s recommendations were appropriate. Ms Peters disagreed and said that she believed Dr Felman to be an excellent doctor. [90] It was put to Ms Peters that the ATO arranged a further appointment for her to see Dr Felman in 2013, and Ms Peters refused to go to the assessment. It was put that the only assessment that Ms Peters attended in 2012 was on 5 April 2012 with Dr Katz. [91] It was put to Ms Peters that she had not been in the workforce since October 2011 and that she was struggling financially. Ms Peters agreed. [92] Ms Peters was taken to an email from Ms Anderson dated 1 May 2012 in which Ms Anderson asked her for an update on the recommendations following her appointment with Dr Katz which took place on 5 April 2012. Ms Peters was taken to her reply email dated 2 May 2012 in which she did not provide the ATO with approval to access Dr Katz’s recommendations and only provided access to Ms Shembrey. [93] Ms Peters was then taken to an email exchange between her and Ms Anderson in 2013 which shows that Ms Peters did not attend a number of medical appointments and refused to attend medical appointments. It was put to Ms Peters that she knew that by this time Dr Felman’s previous report and recommendations were out of date and that Ms Peters knew that by not attending the appointments, it delayed her ability to return to work. Page 13 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 [94] Ms Peters was then taken to a notice of direction and formal warning dated 21 May 2012 sent to her by Mr Osborne requiring her to attend an appointment with Dr Felman. It was put to Ms Peters that she understood that if she failed to attend, this would be a breach of the APS Code of Conduct. Ms Peters agreed. [95] Ms Peters was taken to an email dated 1 August 2012 in which Mr Osborne informed Ms Peters that she was in excess, as the ATO had more APS Level 3 staff in the Melbourne CBD than was required. [96] Ms Peters was taken to a number of emails from May to September 2013 in which Ms Peters was afforded opportunity to apply for APS Level 3 positions in the ATO. On each of these occasions it was shown that Ms Peters either failed to apply for any of these roles or failed to take any meaningful steps to submit applications for these positions despite being afforded many opportunities to do so. It was put to Ms Peters that she did not apply for these roles because she was not willing to return to work. Ms Peters did not agree. [97] Ms Peters was then taken to a referral made to a psychologist, Ms Claire Dennis on 8 August 2013. It was put to Ms Peters that the ATO asked Ms Dennis to assist her in creating a CV and that Ms Dennis provided her with that assistance. [98] Ms Peters was taken to a job seeking plan dated 9 October 2013 which was formalised by Ms Dennis. It was put to Ms Peters that in the “workers reported level of dependence” section, Ms Peters rated herself as 5/5 on all criteria including “resume development”, “writing cover/application letter”, “interview skills” and “independently applying for employment”. Ms Peters agrees she made this self-assessment. [99] It was put to Ms Peters that her self-assessment as set out in Ms Dennis’ report is inconsistent with the assertions that she previously made to the ATO that she was unable to apply for roles because her interview preparation and application was not ready. [100] Ms Peters was taken to a number of emails in October and November 2013 in which she was informed of a number of available positions in the ATO that she could have applied for. It was put to Ms Peters that on some of these occasions she provided incorrect contact details or did not apply for the jobs at all. It was put to Ms Peters that this is not the kind of behaviour that would be expected of someone that was desperate to find work. [101] Ms Peters did not impress me as a witness. Ms Peters was prone to making long and convoluted statements rather than stating her recollection of the events that had transpired, albeit many years ago. Ms Peters’ recollection of the events that are the subject of her claims was poor and given in such a general way that the impression I was left with was that Ms Peters did not in fact have an actual recollection of the events to which she deposed but rather recounted a rehearsed and in certain circumstances, an imagined version of those events. [102] Ms Peters also gave evidence which was not credible. When the voicemail recordings made on 8 and 9 October 2011 were played to Ms Peters she denied the recordings were of her voice and said that the recording was the voice of a paid actor because it sounded “menacing”. That evidence was simply not credible. RESPONDENT’S EVIDENCE [103] At the trial of the proceeding, the respondent was represented by Ms Sweet of counsel and Mr Crocker of counsel. [104] The respondent read the following affidavits which were tendered as evidence in chief: Page 14 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 (a) Affidavit of Carol Maria Anderson (Health Management Consultant, ATO People), filed on 19 June 2020. (b) Affidavit of Danielle Lee Andrews (Regional Manager — Property Operations, Property, Security and Environmental Services, for Victoria and Tasmania), filed on 5 June 2020. (c) Affidavit of Mimma Maria Rosa Fazio (Senior Health Consultant, ATO People), filed on 5 June 2020. (d) Affidavit of Maria Krassaris (Site Manager, Facilities Management — Victoria Market Precinct), filed on 5 June 2020. (e) Affidavit of Tanya Maree Lane (Senior Consultant, Health Case Management, ATO People), filed on 1 September 2020. (f) Affidavit of Grace Maria Milograd (Senior Case Manager, Issues Resolution, Employment, Policy and Health, ATO People), filed on 5 June 2020. (g) Affidavit of Andrew Ronald Osborne (National Director, Property Operations, Property, Security and Environmental Services, ATO Finance) filed on 5 June 2020. (h) Affidavit of Susan Hazel Rynhart (Case Manager, Enterprise Agreement and Employment Framework), filed on 5 June 2020. (i) Affidavit of Lauren Ann Sloan (Specialist People Advisor / People Consultant, ATO People), filed on 5 June 2020. (j) Affidavit of Stewart Taylor Smillie (Assistant Commissioner, Property, Security and Environmental Services), filed on 5 June 2020. (k) Affidavit of Steven Sofronoff (Director — Health Case Management, ATO People), filed on 1 September 2020. (l) Affidavit of Duncan John Stewart (Regional Manager, Facilities Management (Victoria and Tasmania)), filed on 5 June 2020. [105] The respondent tendered numerous documents from the Court Book which were identified in a list and collectively formed exhibit R — 5. [106] Ms Peters required three deponents to attend for cross-examination. Mr Steven Sofronoff, Mr Stewart Smillie and Ms Mimma Fazio. [107] I set out below a summary of the respondent’s evidence. Andrew Ronald Osborne [108] Andrew Ronald Osborne (Mr Osborne) is a Property Project Director at the ATO in the ATO Finance Business Service Line. As National Director, one of Mr Osborne’s duties was to oversee the restructure of the facilities management function at the ATO. This included the reclassification of facilities management positions and consolidating the ATO’s facilities management workforce in the Melbourne CBD where five ATO locations were consolidated into a single new location in Collins Street, Docklands. Page 15 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 [109] Mr Osborne had very few interactions with Ms Peters given that he was located in Canberra. [110] On 17 October 2011, Mr Osborne received an email from Ms Andrews about Ms Peters’ conduct. Ms Andrews’ email attached a copy of an email from Ms Krassaris in which Ms Krassaris complained about voicemail messages Ms Peters had left on her mobile phone on 8 and 9 October 2011. Ms Andrews stated that she had sought advice from Ms Sloan, the responsible ATO People case manager. Ms Krassaris said that she would speak to Ms Peters in the morning to ask her to relocate to the ATO’s Queen Street site for the day. The Queen Street site was one of three sites that Ms Krassaris managed in the Melbourne CBD and which was serviced by the facilities management staff in Ms Krassaris’ team. Ms Andrews also stated that she was escalating Ms Krassaris’ complaint to Mr Osborne for his consideration. [111] Mr Osborne said that after the complaint had been escalated to him, he sought advice from Ms Sloan as to how to proceed with the complaint. [112] On 20 October 2011, Mr Osborne sent an email to Ms Peters about a suspected breach of the APS Code of Conduct. The email informed Ms Peters that: (a) Mr Osborne was aware that she had left voice mail messages on Ms Krassaris’ mobile phone on 8 and 9 October 2011; (b) by leaving these messages, Ms Peters had allegedly not acted with respect or courtesy or behaved in a way that upheld the APS Values; (c) having received the report, Mr Osborne had to make a decision as to whether he should take further action, deal with the matter through general management processes such as counselling or investigate the matter in accordance with the ATO Procedures for determining whether an employee has breached the APS Code of Conduct; and (d) Ms Peters could put forward any information she wished for Mr Osborne to consider before making his decision by 31 October 2011 or to otherwise contact him if Ms Peters wished to provide oral submissions. [113] Mr Osborne did not receive any response from Ms Peters by the deadline of 31 October 2011. [114] On 5 December 2011, Mr Osborne received an email from Ms Peters which provided her response to the suspected breach of the APS Code of Conduct. In her response, Ms Peters: (a) stated that at a team meeting on 7 October 2011 she raised concerns about Mr Gautier using his iPad or iPhone to film colleagues and that he called her “old”; (b) stated that Ms Krassaris was present at the meeting and that Ms Peters was disappointed that Ms Krassaris did not inform Mr Gautier as to the possible consequences of discrimination in the workplace; (c) stated that she was distressed and uncertain about how she was going to cope and tolerate what she perceived to be age discrimination in the workplace; Page 16 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 (d) stated that she regretted her ‘clumsy’ attempt to express her concerns in the voicemail messages that she left and her attempt to provide Ms Krassaris with examples of how she might feel if she was filmed without her knowledge or permission in a humiliating manner; (e) denied that she misused her ATO mobile telephone as she contacted Ms Krassaris about a workplace matter and what she considered to be a serious workplace incident; and (f) stated that, except for this matter, she always upheld the APS Code of Conduct and tried at all times to act in a professional manner and treat everyone with respect, courtesy and dignity. [115] Mr Osborne considered Ms Peter’s response, sought advice from Ms Sloan and formed the view that the matter should be investigated in accordance with the ATO Procedures for determining whether an employee has breached the APS Code of Conduct. Mr Osborne said that he had formed this view because he considered that the circumstances were serious enough to warrant an investigation. Mr Osborne was particularly concerned that the voicemail messages involved the threat of physical violence. [116] Mr Osborne, in his role as National Director, was asked to approve funding for Ms Peters’ health assessments. As a result, Mr Osborne was aware that Ms Peters was referred to a number of occupational health assessments (OHA) by health consultants at ATO People with Dr Felman, a psychiatrist. Mr Osborne was also aware that Ms Peters had been referred to a workplace rehabilitation consultant, Ms Shembrey, who was engaged by the ATO to assist with Ms Peters’ return to work. [117] Mr Osborne in or around January 2012, had a number of discussions with Ms Andrews about Ms Peters return to work. Mr Osborne was concerned about Ms Peters returning to work in an environment where she would be working under Ms Krassaris and in close proximity to Mr Gautier. [118] On 25 January 2012, Mr Osborne sent a letter to Ms Peters informing her that: (a) he had considered her response and decided that the matter should be formally investigated under the Misconduct Procedures; (b) a Notice of Suspected Breach of the APS Code of Conduct would be issued to her; and (c) she would have an opportunity to make a written oral statement about the matter before any determination is made. [119] Mr Osborne delayed commencing a formal investigation into Ms Peters’ conduct until she returned to work. This was because Ms Peters was away from work on sick leave and Mr Osborne wanted to allow her time to return to, and settle back in to work before commencing the Code of Conduct Procedure. [120] The Code of Conduct Procedure was not commenced against Ms Peters as she remained on sick leave. [121] In early June 2012, all ATO teams located in Melbourne CBD, including Ms Peters’ team, were preparing to move to a new building in Docklands. On 3 June 2012, Mr Osborne received an email from Ms Andrews with a request from Ms Peters to attend her work site on the weekend to pack her belongings and clear out her work station in preparation for the move to Docklands. Mr Osborne did not consider it was appropriate for Ms Peters to attend the site on the weekend in the circumstances that then existed. Mr Osborne was concerned not to place Ms Page 17 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 Peters or other staff in a position where they could be accused of any wrongdoing. As a consequence, Mr Osborne suggested that Ms Peters may wish to nominate a colleague to pack up her desk for her, or to make an appointment during business hours where she could be met by someone she was comfortable with as an escort to help her make the process as smooth as possible. Mr Osborne said that he was cautious to avoid any further allegations being made against Ms Peters and to avoid any potential nastiness directed towards her. Mr Osborne believes that these arrangements were put in place to enable Ms Peters to collect her belongings. [122] On 1 August 2012, Mr Osborne sent an email to eight APS 3 facilities management staff, including Ms Peters, about what was to occur with the facilities management positions they occupied. In particular, Mr Osborne informed them that: (a) following consolidation of the five sites, Property, Security and Environmental Services had more APS 3 staff in the Melbourne CBD than were required; (b) due to the reduction in the number of ATO sites, the ATO was required to reduce number of APS 3 staff; (c) the ATO proposed to implement a process where the affected Melbourne CBD staff would be given an opportunity to apply for four positions within the new Collins Street building; (d) the opportunity to apply for the positions would only be open to the current APS 3 staff who occupied positions in the Melbourne CBD and the selection of APS 3 staff for the remaining roles would be based on merit; and (e) an independent selection committee would be appointed to run the process and any staff not successful would be supported by the ATO in accordance with the 2011 Agreement. [123] Around August 2012, the Australian Services Union (ASU) took the ATO to Fair Work Australia (FWA), as it then was, over the proposed selection process. The dispute continued until late April 2013 when the FWA handed down its decision, which was supportive of the ATO’s proposed selection process. [124] The proposed selection process for the four facilities management positions did not play a part in the decisions Mr Osborne made in relation to the circumstances surrounding Ms Peters’ health case. Mr Osborne wanted Ms Peters to return to work when declared fit to do so. [125] On 24 September 2012, Mr Osborne telephoned Chris Shepherd (Mr Shepherd), a Health Consultant, who was managing Ms Peters’ health case when Ms Anderson was away. Mr Shepherd told Mr Osborne that Ms Peters had not applied through the selection process for a facilities management position and would be deemed excess and that the excess provisions of the ATO Enterprise Agreement would apply to Ms Peters. [126] Between November 2012 and June 2013, Mr Osborne was informed from time to time of Ms Peter’s progress in returning to work. Dr Felman was of the opinion that: (a) Ms Peters had capacity to return to work if she did not have to report to Mr Mitvalsky in any way; (b) Ms Peters would return to work on a gradual basis with the assistance of a rehabilitation provider and that Ms Peters was expected to return to full-time work in three months; Page 18 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 (c) Dr Felman would speak to Ms Peters about returning to her position in facilities management under a different manager and that otherwise the only other work available for an APS 3 was in a call centre. [127] By June 2013, Mr Mitvalski was the Site Manager for the ATO’s consolidated site at Docklands and had direct responsibility for the APS 3 facilities management staff. Mr Osborne wanted to ensure that Ms Peters understood the ramifications of Dr Felman’s recommendation that she not report to Mr Mitvalski in any way. If Ms Peters was not medically able to return to work under Mr Mitvalski, she would not be able to return to work in a facilities management position in the Melbourne CBD. [128] By mid-2013, an independent selection panel was appointed to implement the selection process for the four APS 3 facilities management positions. Mr Osborne was not involved in this process. The panel consisted of John Lennox (Mr Lennox) from ATO People and Caitlin Beesley (Ms Beesley) from Debt Workforce Implementation. Mr Lennox and Ms Beesley facilitated the selection process, assessed each employee’s expression of interest application and provided Mr Osborne with their recommendations. [129] On 12 July 2013, Ms Beesley provided Mr Osborne with an update on the assessment of applications to that date. Ms Beesley advised Mr Osborne that seven of the eight applicants had been rated as suitable to progress to interview. Ms Beesley informed Mr Osborne that as Ms Peters had failed to respond to the outlined selection criteria, she had been assessed as “not competitive” and would not progress to the interview stage. Mr Osborne decided that Ms Peters should, in any event, be provided with an opportunity to attend an interview. [130] Ms Beesley had attempted to make contact with Ms Peters for the purposes of an interview. On 22 July 2013, Mr Osborne was provided with an email from Ms Peters in which she indicated that she would not be able to attend for an interview for an APS 3 position in facilities management. Ms Peters also raised a number of other matters in her email, including: (a) that she had been absent from the workplace for a considerable time and despite her treating doctor’s repeated advice that she was fit to undertake a return to work program, the ATO had not facilitated the process; (b) she had not been provided with any opportunities to maintain her capabilities to be in a position to demonstrate her competitiveness for available positions and to develop the varied and transportable capabilities necessary for the advancement of her career; (c) that she was doubtful whether the interview was consistent with the ATO’s duty to provide a safe environment for her as an employee; and (d) requesting that the interview be postponed until such time as she had undertaken a return to work program and was confirmed to be fit for full-time duties. [131] Mr Osborne informed Mr Lennox that he agreed to rescheduling Ms Peters’ interview with the panel. On 22 July 2013, Mr Osborne asked Mr Lennox to reschedule the interview with Ms Peters for the following week and inform her that she was able to enter the building if she wished to attend a face to face interview. On 31 July 2013, Mr Lennox sent Mr Osborne an email in which he confirmed that the panel would proceed with a telephone interview with Ms Peters on 1 August 2013. [132] On 1 August 2013, Mr Osborne received an email from Ms Beesley attaching a finalised Candidate Page 19 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 Assessment Recruitment Template (CART) in which the eight APS 3 facilities management employees were ranked. Ms Peters was ranked 7 on the CART. [133] On 5 August 2013, Mr Osborne received an email from Wendy Buntine (Ms Buntine), a Senior Consultant with ATO People. Ms Buntine informed Mr Osborne that an integrity check had been conducted on the proposed order of merit for the APS 3 facilities management positions and that Ms Peters had a pending misconduct matter involving the voicemail messages. Mr Osborne told Ms Buntine that he was already aware of Ms Peters’ outstanding Code of Conduct matter and asked Ms Buntine to keep Ms Peters on the proposed order of merit register. The ATO keeps a 12 month “order of merit register”. It is a register of applicants who were found to be suitable for a role but were not otherwise successful in obtaining a position. This meant that where there was a potential vacancy at the ATO in a similar role, any business area can consult the order of merit register for the purposes of finding a suitable candidate before embarking on a selection process. Mr Osborne said he decided to keep Ms Peters on the order of merit register because the ongoing Code of Conduct matter had not been concluded. [134] On 16 August 2013, Mr Osborne sent an email to Ms Peters to inform her that she was in a likely excess situation as a result of the consolidation of the Melbourne CBD sites and the reduction in facilities management positions. Mr Osborne informed Ms Peters that the ATO was trying to find another position for her under clauses 118.5 and 118.7 of the ATO Enterprise Agreement. Mr Osborne was not involved in locating any ongoing vacancies for Ms Peters in other groups or business lines within the ATO. [135] In or around August 2013, Mr Osborne became aware of a complaint made by Ms Peters about the conduct of Ms Krassaris and Mr Gautier arising from a team meeting on 7 October 2011. [136] On 5 September 2013, Mr Osborne received an email from Ms Krassaris about Ms Peters’ complaint. Ms Krassaris stated that she had received a call from Ms Milograd, an ATO investigator, about the 7 October 2011 meeting and that she was worried and unhappy about the matter and that the conduct matters had not been finalised. [137] On 10 September 2013, Mr Osborne replied to Ms Krassaris’ email and explained that the purpose of Ms Milograd’s call was part of a process to ascertain the facts that were the basis of Ms Peters’ claim and not to attribute blame. [138] Mr Osborne gave unchallenged evidence in his affidavit that to the extent that any of his conduct towards Ms Peters could be seen as an adverse action against Ms Peters he denies that it was actuated by Ms Peters claiming workplace rights. [139] I accept the unchallenged affidavit evidence of Mr Osborne. Maria Krassaris [140] Maria Krassaris filed an affidavit on 5 June 2020. Ms Krassaris was not cross-examined by Ms Peters. By her affidavit, Ms Krassaris, in summary, gave the following evidence. [141] Ms Krassaris is presently an Event Coordinator and Client Engagement Officer at the ATO. Prior to holding this position, Ms Krassaris had been employed in various roles with the ATO. Between January and December 2011, Ms Krassaris was responsible for the management of three ATO sites in the Victoria Market Precinct namely 414 Latrobe Street, 390 Latrobe Street, and 350 Queen Street. Page 20 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 [142] There were two other sites in the Melbourne CBD, namely at Lonsdale Street and World Trade Centre. These two locations were managed by Mr Mitvalski. [143] As Site Manager, Ms Krassaris was involved in ensuring that the three ATO sites in the Victoria Market Precinct were functional and well-equipped so that they could deliver the business of the government of the day. Ms Krassaris managed a team of five staff members across the three sites and liaised with internal ATO staff at each of the three sites as to their premises’ needs. Ms Krassaris reported to Ms Andrews. [144] Ms Peters was one of five staff members who reported to Ms Krassaris as Site Manager. Ms Peters was employed as a property operations officer and was responsible for attending the various requirements of facilities management, such as responding to staff enquiries about the ATO’s facilities, undertaking inspections of the premises for any maintenance issues, security programming of ATO swipe cards, taking photographs of new staff, organising ATO identification cards and setting up ATO meeting rooms. [145] On 7 October 2011, Ms Krassaris chaired a team meeting at the ATO site at 390 La Trobe Street Melbourne (Friday Team Meeting). Ms Krassaris convened the Friday Team Meeting to discuss a number of topics relating to the ATO’s various policies. It was attended by Ms Peters and the other four members of Ms Krassaris’ team: Ms Cummaudo, Mr Gautier, De’arn Olsen and Ms Parra. [146] Ms Krassaris deposed to not having a very clear recollection about the Friday Team Meeting however after the meeting she sent an email to Ms Andrews which recorded a summary of what occurred at the Friday Team Meeting. Ms Krassaris also provided in 2013, a written statement in response to Ms Peters’ Comcare compensation claim which set out her recollection of the events that occurred at the Friday Team Meeting. Based on those records, Ms Krassaris gave evidence that one of the topics discussed with the team at the Friday Team Meeting was the proper use of ATO mobile phones and the capacity of ATO managers to obtain mobile phone message reports to monitor mobile phone use. At the Friday Team Meeting, discussion took place of the ATO policy which prohibited staff from videotaping or taking photos on ATO premises. Ms Krassaris’ evidence was that the mood at the Friday Team Meeting was light-hearted and that the team discussed how the policy appeared to be at odds with the fact that staff were provided with ATO mobile phones and that these phones had video capabilities. [147] During the discussion at the Friday Team Meeting, Ms Peters referred to Mr Gautier having previously filmed her with his iPad or iPhone a few weeks prior. Mr Gautier explained at the Friday Team Meeting that he had recorded Ms Peters and Ms Parra a few weeks ago and showed them what he had recorded. Mr Gautier then used words to the effect that Ms Peters was an “elder”. Ms Peters then informed Mr Gautier that she did not appreciate his comment and Mr Gautier immediately ceased the discussion. Ms Krassaris’ evidence was that she did not recall Mr Gautier referring to Ms Peters as “elderly” or otherwise making any other comments about Ms Peters or her age. Ms Krassaris’ evidence was that she had never seen the video alleged to have been made by Mr Gautier. [148] Ms Krassaris’ evidence was that she did not hear Mr Gautier utter the words attributed to him at paragraphs [7] to [12] of the Amended Statement of Claim. Ms Krassaris’ evidence was that the discussion between Ms Peters and Mr Gautier was not a heated exchange. Ms Peters and Mr Gautier did not speak with raised voices during the discussion. Ms Krassaris could not recall any other staff members at the Friday Team Meeting telling Mr Gautier “he could not make remarks of that kind in the workplace”. [149] Ms Krassaris’ evidence was that she had no reason to intervene as it appeared to her that Ms Peters had expressed her opinion about Mr Gautier’s comment and Mr Gautier had taken her opinion on board, in that he immediately stopped discussing the topic after Ms Peters informed him that she did not like what he had said and that she would go to ATO Concern if he continued. Ms Krassaris’ evidence was that she did not consider that it was necessary for her to intervene as it appeared to have been resolved between Mr Gautier and Ms Peters. Page 21 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 [150] Ms Krassaris’ evidence was that she could not recall laughing hysterically during Mr Gautier’s exchange with Ms Peters. [151] On Saturday, 8 October 2011 at approximately 3.23pm, Ms Krassaris received the first voicemail message from Ms Peters. [152] Ms Krassaris was on her day off and was sitting at home when she first heard Ms Peters’ voicemail message. Ms Krassaris said that she was initially taken aback and thrown by Ms Peters’ comments. Ms Krassaris was very shocked and dismayed by Ms Peters’ voicemail message as she thought that Ms Peters and she had a good working relationship. [153] On Sunday, 9 October 2011 at approximately 3.30pm, Ms Krassaris received the second voicemail message from Ms Peters. [154] Ms Krassaris said that the tone of Ms Peters’ voicemail messages was angry and aggressive. Ms Krassaris was particularly concerned and worried by the physical threat Ms Peters had made in her second voicemail message. [155] The next day, 10 October 2011, Ms Krassaris spoke with Ms Andrews about Ms Peters’ voicemail messages and played the voicemail messages to Ms Andrews. [156] At approximately 12.32pm on 10 October 2011, Ms Krassaris sent an email to ATO People and requested that a case manager be assigned to investigate the voicemail messages left by Ms Peters. [157] A few days later, Ms Krassaris met with both Ms Andrews and Mr Smillie. During the meeting, Ms Andrews explained to Mr Smillie that Ms Peters had left voicemail messages on Ms Krassaris’ ATO mobile phone and played the voicemail messages to him. Mr Smillie said that he would contact Ms Sloan to discuss the matter. [158] Ms Krassaris’ evidence was that after she reported Ms Peters’ voicemail messages to ATO People and discussed the voicemail messages with Ms Andrews and Mr Smillie she did not have any further involvement in the management of her complaint against Ms Peters. [159] 59 In or around December 2011, Ms Krassaris finished her role as Site Manager of the Victoria Market Precinct and started a new role managing the ATO’s Moonee Ponds premises. After that point, Ms Krassaris did not have any further involvement with Ms Peters or matters concerning the Victoria Market Precinct. [160] Ms Krassaris, in her affidavit denies that her conduct towards Ms Peters was actuated by Ms Peters’ alleged workplace rights or any other prohibited reason. Ms Krassaris’ evidence is that, to the extent that it is alleged that her failure to intervene in Ms Peters and Mr Gautier’s discussion at the Friday Team Meeting was discriminatory, then that is denied by Ms Krassaris. [161] Ms Krassaris’ affidavit was tendered without Ms Krassaris being cross-examined by Ms Peters. Ms Krassaris’ evidence was unchallenged and I accept it. Danielle Lee Andrews Page 22 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 [162] Ms Andrews filed her affidavit on 5 June 2020 which was not the subject of any cross-examination by Ms Peters. Ms Andrews, by her affidavit gave, in summary, the following evidence. [163] Ms Andrews deposed to being employed by the ATO between 2002 and 2014. Between February 2010 and December 2012, Ms Andrews was the Regional Manager — Property Operations (Property, Security and Environmental Services) for Victoria and Tasmania. [164] As Regional Manager, Ms Andrews was responsible for the operational management of all ATO sites across Victoria and Tasmania. This involved ensuring that all sites were appropriately maintained and were appropriately equipped for any facilities requirements. Ms Andrews’ role also involved human resources functions, such as overseeing performance management of members of her team and dealing with conduct issues if they arose. [165] Ms Andrews had limited interaction with Ms Peters who directly reported to Ms Krassaris. [166] On Monday, 10 October 2011, Ms Krassaris informed Ms Andrews that Ms Peters had left voicemail messages on her mobile phone on 8 and 9 October 2011. Ms Krassaris played the messages to Ms Andrews from her phone. Ms Andrews recognised Ms Peters’ voice in the voicemail messages. [167] In the first message on 8 October 2011, Ms Peters said that she would not be coming into work on Monday and referred to something that had occurred at a meeting on the previous Friday. In the voicemail message, Ms Peters accused Ms Krassaris of “hysterically laughing”, and said that she would take matters further. Ms Peters also said that Ms Krassaris “shouldn’t feel spared”. [168] In the second voicemail message on 9 October 2011, Ms Peters reiterated she would not attend work on Monday and stated that if she was in a room with Ms Krassaris and Mr Gautier that she would “hit”. [169] Ms Krassaris told Ms Andrews that she was surprised by the tone of the messages and Ms Peters’ reaction. Ms Krassaris told Ms Andrews that she did not know how to take the intention behind Ms Peters’ messages and whether she should be worried by it. Ms Krassaris also said to Ms Andrews that she had not thought that there was an issue between Mr Gautier and Ms Peters in the first place. [170] Ms Andrews was surprised to hear the voicemail messages from Ms Peters. Ms Andrews had not previously been made aware of any interpersonal issues between Ms Krassaris and Ms Peters or between Ms Peters and Mr Gautier. Ms Andrews was also surprised to hear Mr Gautier’s name mentioned in the voicemail messages. Ms Andrews had seen Mr Gautier and Ms Peters working closely together at the 414 Latrobe Street site and it was her impression that they had a positive working relationship. Ms Andrews made a transcription of the voicemail messages which she forwarded to Ms Krassaris. On 10 October 2011, Ms Krassaris reported the voicemail messages to ATO People. [171] At or about this time, Ms Andrews informed her manager, Mr Osborne, of the voicemail messages and discussed the matter with Ms Sloan, People Consultant from ATO People. [172] On 12 October 2011, Ms Andrews telephoned Ms Peters. During this telephone conversation: Page 23 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 (a) Ms Peters told Ms Andrews that Mr Gautier had acted inappropriately towards her during a meeting on 7 October 2011 and made a comment about her age; (b) Ms Peters informed Ms Andrews that she had not sought to escalate the issue with Ms Krassaris; (c) Ms Andrews encouraged Ms Peters to escalate matters to Ms Krassaris, or to her, so that they could provide appropriate support and management as necessary; (d) Ms Peters informed Ms Andrews that she would probably be returning to work the following Monday; and (e) Ms Andrews informed Ms Peters that when she returned to the office, she would need to sit down with Ms Krassaris and Ms Andrews to discuss the matter and Ms Peters’ reaction to it. [173] Later on 12 October 2011, Ms Andrews received an email from Ms Krassaris in which she set out a summary of the events which led to Ms Peters leaving the voicemail messages on her phone. Amongst other things, Ms Krassaris informed Ms Andrews that: (a) there was a team meeting the previous Friday when Ms Peters mentioned that she had been recorded by Mr Gautier on his iPad or iPhone a few weeks prior; (b) during the conversation, Mr Gautier said something along the lines of Ms Peters being an “elder”; (c) Ms Peters did not like what Mr Gautier had said and stated that she would go to ATO Concern if he continued and Mr Gautier ceased the discussion immediately; (d) Ms Krassaris said that she did not intervene in the discussion as she felt Ms Peters had clearly stated her thoughts to Mr Gautier; and (e) as a result of the voicemail messages, Ms Krassaris was unsure if it was suitable for her and Ms Peters to be working in the same environment as it may also impact on her team members. [174] On about 14 October 2011, Ms Krassaris and Ms Andrews had a conversation with Mr Smillie, Assistant Commissioner of Property, Security and Environmental Services, about the voicemail messages. Mr Smillie told Ms Krassaris and Ms Andrews that they had his full support and he did not condone any kind of threatening behaviour from staff. [175] On 17 October 2011, Ms Andrews sent an email to Mr Osborne with a copy of Ms Krassaris’ complaint about Ms Peters’ voicemail messages and that she was formally escalating the matter to him. After Ms Andrews had escalated Ms Krassaris’ complaint to Mr Osborne, she had no further involvement in managing Ms Krassaris’ complaint. Ms Peters returned to work at the ATO on Tuesday, 18 October 2011. Ms Andrews met with Ms Peters at approximately 7.15 am in the morning in the conference room at the 414 Latrobe Street site. Ms Andrews asked Ms Peters to base herself at the ATO’s Queen Street site for the day and for the next few days. Ms Andrews informed Ms Peters that Ms Krassaris had made a formal complaint about the voicemail messages that Ms Peters had left on her phone and that the matter had been escalated to Mr Osborne. [176] Ms Andrews’ evidence was that she asked Ms Peters to base herself at the Queen Street site as she was concerned to ensure that Ms Peters was not working closely with Ms Krassaris or Mr Gautier in light of Ms Peters’ voicemail messages. Ms Andrews said that she intended Ms Peters’ relocation to the Queen Street site to be a temporary measure on an interim basis only until Mr Osborne had considered the complaint and an appropriate course of action was determined. As far as Ms Andrews could recall, Ms Peters did not return to work after 18 October 2011. Page 24 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 [177] Between October 2011 and August 2012, Ms Andrews received updates on Ms Peters’ progress in returning to work from Ms Anderson and Ms Sloan as well as being copied in on Dr Felman’s OHA for Ms Peters. [178] Ms Andrews’ evidence was that whilst she was supportive of Ms Peters’ rehabilitation to the workplace, she needed to consider the impact of Ms Peters’ return on surrounding staff. In particular, the impact on Ms Krassaris and Mr Gautier. Ms Andrews formed the view that it was not appropriate for Ms Peters to return to facilities management in the Melbourne CBD. [179] On 24 May 2012, Ms Andrews received an email from Ms Fazio, Senior Health Consultant with ATO People (Ms Fazio) in which she stated that she had received a letter from Ms Peters’ treating specialist Dr Katz to the effect that he did not support Ms Peters’ returning to work under her former manager and recommended that Ms Peters be redeployed to a different part of the ATO “where she will have no effective dealings with her former managers”. Ms Fazio sought Ms Andrews’ advice as to whether an alternative position could be found to meet Ms Peters’ specialist’s recommendations. [180] On 25 May 2012, Ms Andrews responded to Ms Fazio and noted that she agreed with the specialist’s recommendations. Ms Andrews informed Ms Fazio that the Box Hill site was the only suitable alternative placement for Ms Peters to return to facilities management in the Melbourne metropolitan area. This was because Ms Peters’ former managers had oversight of the consolidated Docklands. Moonee Ponds and Dandenong sites. [181] On 1 June 2012, Ms Andrews received an email from Ms Fazio regarding a request from Ms Peters to attend the ATO on the weekend to pack her belongings as the ATO was moving to a new site in the Docklands. Ms Andrews said that she was unsure how to proceed with Ms Peters’ request and sought advice from Mr Osborne. Mr Osborne subsequently advised Ms Andrews that he did not consider it was appropriate for Ms Peters to attend the premises on a weekend and that he did not want to place her or any other staff in a position where they could be accused of any wrongdoing. Mr Osborne said that his preference was for Ms Peters to nominate somebody to pack her desk ready for the move or to make a time during business hours where Ms Peters could be met by someone to ensure a stress free environment. Shortly thereafter, Ms Andrews ceased to be involved in overseeing Ms Peters’ return to work arrangements. [182] Ms Andrews, in her affidavit, deposed to the reasons for undertaking the conduct which she did to manage Ms Peters’ employment with the ATO. To the extent that Ms Andrews’ conduct towards Ms Peters could be considered to have been adverse action against Ms Peters or to have contributed to any form of adverse action then Ms Andrews denies that her conduct was actuated by Ms Peters claiming workplace rights or other preventative action, [183] Ms Andrews deposed that any decision made by her in relation to Ms Peters’ employment being made for the reasons given in her affidavit and for no other reason. Specifically, Ms Andrews denies that she took adverse action against Ms Peters by reallocating her to the ATO’s Queen Street site. Ms Andrews denies failing to provide Ms Peters with a return to work program or suitable duties. Ms Andrews did not provide Ms Peters with a return to work program as Ms Peters was not certified as fit to return to work by her treating doctor. Ms Andrews did not believe it was appropriate for Ms Peters to return to work in the Melbourne CBD because she was concerned about the impact on other staff in the Melbourne CBD. Ms Peters’ treating doctor recommended that Ms Peters be redeployed to a different part of the ATO where she would not have dealings with her former managers, Ms Krassaris and Mr Gautier. This meant that the only ATO site where Ms Peters would be able to work would be Box Hill. [184] Ms Andrews refused Ms Peters permission to collect her belongings from the ATO’s site at 414 Latrobe Street personally on the basis solely of the advice and recommendation of Mr Osborne. Ms Andrews denied making misrepresentations to Ms Peters and to medical practitioners and rehabilitation providers that there were misconduct proceedings against Ms Peters and that she could not return to work until she was fit to participate in Page 25 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 the misconduct proceedings. Ms Andrews’ evidence was that there were misconduct proceedings against Ms Peters and that she was not the delegate responsible for determining that matter. [185] Ms Andrews’ affidavit was not challenged by Ms Peters. I accept the evidence of Ms Andrews and the reasons given by her in her affidavit for her conduct towards Ms Peters. Duncan John Stewart [186] Duncan John Stewart (Mr Stewart) filed an affidavit on5 June 2020. Mr Stewart was not required to attend for cross-examination and his evidence was unchallenged. By his affidavit, Mr Stewart gave, in summary, the following evidence. [187] Between 2011 and May 2020, Mr Stewart held various positions at the ATO. Between March 2013 and January 2014, Mr Stewart was the Regional Manager of Facilities Management (Victoria and Tasmania), responsible for management of the ATO’s premises across Victoria and Tasmania. [188] Prior to Mr Stewart starting his role as Regional Manager, the ATO underwent a process to consolidate five Melbourne CBD sites into a single location in the Docklands in around July 2012. Due to reduction of the ATO’s sites in Melbourne CBD, the ATO no longer required the same number of facilities management staff to service the single Docklands building as it had previously been required to service the five sites. As a result, there was a need to reduce the eight existing APS 3 positions in facilities management to four positions. This required the ATO to implement a process to determine which of the eight existing APS 3 facilities management staff would fill the four positions available. [189] Mr Stewart deposed that the ATO ran a process in which the eight affected facilities management staff would be given an opportunity to express an interest and apply for the facilities management positions within the new Docklands premises. [190] Mr Stewart deposed that he did not know Ms Peters before he commenced as Regional Manager in March 2013. [191] In April 2013, the ATO’s proposed selection process of the APS 3 facilities management positions was approved by the Fair Work Commission. [192] On or about 13 May 2013, Mr Stewart became aware of an opportunity for facilities management staff to attend a training session with Barb Hart (Ms Hart) a Director in Reporting, Accounts, Policy at ATO Finance. The training was for the purposes of upskilling employees on writing job applications. Although Ms Peters was not fit for work, Mr Stewart considered it was important for her to have the same opportunity to attend the training as other facilities management staff. Mr Stewart informed Mr Osborne of his view. [193] On 13 May 2013, Mr Stewart sent Ms Peters an email in which he introduced himself as the new Regional Manager and invited Ms Peters to attend Ms Hart’s training session on 21 May 2013. [194] On 19 May 2013, Ms Peters responded to Mr Stewart’s email and stated that it was her understanding that she was locked out of the ATO as a graduated return to work plan had not yet been put in place. Mr Stewart sought advice from Mr Osborne about Ms Peters’ claim. Subsequently, on 20 May 2013, Mr Stewart advised Ms Peters that there had been a misunderstanding about her access to the ATO site and that she was not locked out of the ATO. Mr Stewart told Ms Peters that as she was a current ATO employee, she was able to attend an ATO site and that he would send her a copy of Ms Hart’s training materials. Page 26 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 [195] Mr Stewart deposed that in late May or early June 2013, the selection process to be managed by the independent selection panel of Mr Lennox and Ms Beesley commenced. Mr Stewart was not involved in assessing each of the applications for the four facilities management positions. [196] On 5 June 2013, Mr Osborne provided Mr Stewart with a summary of Dr Felman’s recommendations following an OHA with Ms Peters. Dr Felman: (a) stated that Ms Peters had capacity to return to work and agreed that she could return to work in Mr Stewart’s team if she did not have to report to Mr Mitvalski in any way; (b) recommended that Ms Peters return to work on a graduated basis with the assistance of a rehabilitation provider; (c) stated that Ms Peters and Dr Katz wanted her Code of Conduct matter to be delayed until she had settled into work; and (d) stated that Dr Felman would speak with Ms Peters about returning to her position in facilities management under a different manager than Mr Mitvalski. [197] In or around mid-July 2013, Mr Stewart was informed that Mr Lennox and Ms Beesley did not intend to interview Ms Peters as part of the expression of interest process as she had failed to respond to the selection criteria. [198] On 15 July 2013, Mr Stewart sent an email to Ms Peters in which he asked her to re-send her resume as her previous resume was in a format that the selection panel was not able to open. [199] On 21 July 2013, Mr Stewart received an email from Ms Peters addressed to Mr Lennox in which she stated that she would not be able to attend an interview in relation to the facilities management positions. Ms Peters asserted that she had only just collected Mr Lennox’s letter and that, by that time, it was too late. Ms Peters also requested that any interview be postponed until such a time that she had undertaken a return to work program and was confirmed to be fit for full-time duties. [200] On 23 July 2013, Mr Stewart had a conversation with Ms Anderson about Ms Peter’s case. Mr Stewart informed Ms Anderson that as the APS 3 roles in facilities management at the Docklands site reported to Mr Mitvalski and that Ms Peters could not report to Mr Mitvalski, there were no available suitable duties for Ms Peters within facilities management and that it was likely that redeployment within ATO Finance would need to be considered. [201] On 16 August 2013, Mr Osborne sent an email to Ms Peters to which Mr Stewart was copied, informing her that she was likely to be in an excess situation and that the ATO was trying to find her another position under clauses 118.5 and 118.7 of the 2011 Agreement. [202] On 9 September 2013, Mr Stewart wrote to Ms Peters about the potential excess situation she was in and advising of the next steps. Page 27 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 [203] On 23 October 2013, Mr Stewart sent an email to all ATO Finance Directors across Australia to see if there were any ongoing APS 3 level vacancies in their respective areas in the metropolitan Melbourne area suitable for the facilities management staff that were likely excess of which Ms Peter was one. [204] On 31 October 2013, Ms Peters was informed about an APS 3 Compliance Officer role in Box Hill and asked to indicate whether she wished to be considered for the vacancy and to provide a copy of her resume. [205] On 3 November 2013, Ms Peters provided a copy of her updated CV in response to the APS 3 Compliance Office vacancy at the Box Hill site. [206] On 19 November 2013, Ms Peter was informed about an APS 3 Data Matching and Compliance Strategies role in the Melbourne CBD. Ms Peters was invited to indicate whether she wished to be considered for the vacancy and to provide a copy of her resume. [207] In December 2013, a temporary APS 3 role became vacant in Melbourne. However, as the position reported to Mr Mitvalski, Mr Stewart was not in a position to offer Ms Peters the role. When Mr Stewart returned from leave in January 2014, he attempted to telephone Ms Peters to discuss her return to work and the ATO’s redeployment efforts. Mr Stewarts’ evidence was that he was concerned that her health case and her efforts to be redeployed had been going on for some time and wanted to have a conversation with her to check on how she was going. Mr Stewart was not able to reach Ms Peters by telephone and then sent her an email on 21 January 2014 in which he requested that she contact Mr Stewart. [208] On 23 January 2014, Mr Stewart received a letter from Cheryl Weeks (Ms Weeks), a lawyer acting on behalf of Ms Peters. Ms Weeks stated that it was inappropriate and contrary to Ms Peters’ best interests for her to personally engage in discussions with anyone within the ATO and asked that all future communications be directed to Ms Weeks. [209] On 26 February 2014, Ms Peters was informed by Mr Smillie who was the delegate for the purposes of the redundancy process, that the ATO had not been able to locate a suitable position for her under cl. 118 of the 2011 Agreement and that the matter would progress to the consultation period in accordance with cl. 119 of the 2011 Agreement. Ms Peters was informed that if a position was not found at the end of the consultation period, she would be advised in writing that she was an excess employee and would be made redundant. [210] During March and April 2014, Mr Stewart assisted with Mr Smillie to prepare correspondence notifying Ms Peters that she was an excess employee, following the expiration of the consultation period, ascertaining Ms Peters’ financial settlement and making a formal offer of voluntary redundancy to Ms Peters. [211] Mr Stewart deposed in his affidavit that to the extent that his conduct is considered to have been adverse action or having contributed to any adverse action against Ms Peters then he denies that Ms Peters’ alleged workplace rights or other prohibited reason was a substantial or operative reason for any of the conduct on his part. Mr Stewart deposes that any decisions he made in relation to Ms Peters’ employment were made for the reasons which he has given and for no other reason. [212] Mr Stewart’s affidavit evidence was unchallenged and I accept his evidence. Grace Maria Milograd [213] Grace Maria Milograd (Ms Milograd) filed an affidavit on 5 June 2020. Ms Milograd was not cross-examined Page 28 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 and her evidence was tendered unchallenged. Ms Milograd, by her affidavit gave, in summary, the following evidence. [214] Ms Milograd has been employed by the ATO for approximately 30 years. Since 2010, Ms Milograd has been employed in the ATO People business line. The ATO People business line is the ATO’s corporate human resources team. [215] In 2013, Ms Milograd was a Senior Case Manager in Issues Resolution, within the Employment, Policy and Health Division of ATO People. In this role, Ms Milograd was responsible for managing bullying and harassment complaints involving ATO employees and conducting investigations. [216] In or around August 2013, Ms Milograd was allocated a matter involving a complaint made by Ms Weeks, a lawyer acting on behalf of Ms Peters. Ms Milograd was asked to conduct a preliminary investigation to determine whether or not the matter warranted consideration under the APS Code of Conduct. Ms Milograd produced an investigation report dated 27 September 2013 (Investigation Report). [217] Ms Peters’ complaint, which was the subject of the Investigation Report, made three allegations about the conduct of Mr Gautier and Ms Krassaris in or around October 2011. Those complaints were: (a) in early October 2011, Mr Gautier covertly videoed Ms Peters on ATO premises and used the video as part of a caricature film which he entitled “Elderlies in the ATO” (Allegation 1); (b) Ms Krassaris failed to respond in a suitable way by inappropriately minimising the seriousness of Mr Gautier’s behaviour and failing to take any action to address Ms Peters’ concerns (Allegation 2); and (c) after Ms Peters telephoned Ms Krassaris twice to express her concerns, Ms Krassaris made a complaint against her (Allegation 3). [218] Ms Milograd in her affidavit deposed to the process of the investigation which she undertook and deposed in her Investigation Report to making the following findings on the three allegations: (a) in respect of Allegation 1, Ms Milograd found that Mr Gautier took a video of Ms Cummaudo and Ms Peters and that possibly Ms Peters and Ms Cummaudo were aware that he was doing so. Ms Milograd also found that it was highly unlikely that there was a title on the footage; (b) in respect of Allegation 2, Ms Milograd found that Ms Krassaris believed the matter had been resolved between Ms Peters and Mr Gautier and as a result she did not pursue the matter further. Ms Milograd found that it was reasonable to conclude that Ms Krassaris took no further action on the basis that the parties had addressed the matter between themselves; and (c) in respect of Allegation 3, Ms Milograd found that Ms Krassaris’ complaint about the voicemail messages left on her phone by Ms Peters was not taken as a direct result of Ms Peters raising her concerns with Ms Krassaris and that Ms Krassaris had reason to believe that the messages were inappropriate and warranted escalation for possible Code of Conduct action. Page 29 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 [219] The evidence deposed to by Ms Milograd in her affidavit was not challenged by Ms Peters and I accept that evidence. Lauren Ann Sloan [220] Lauren Ann Sloan (Ms Sloan) filed an affidavit on 5 June 2020. Ms Sloan was not cross-examined by Ms Peters and her affidavit evidence was tendered unchallenged. Ms Sloan, by her affidavit gave, in summary, the following evidence. [221] Ms Sloan is the HR Director and Business Partner to Enterprise Solutions & Technology at the ATO. Between October 2008 and June 2013, Ms Sloan was a Specialist People Adviser/People Consultant with ATO People. In that role, Ms Sloan was responsible for assisting all business areas of the ATO with internal misconduct matters, including conducting investigations, advising on relevant procedures, liaising with other areas of ATO People and liaising with individual employees about their conduct matters. [222] The APS Code of Conduct is a set of behavioural standards that each employee of the APS is required to comply with in the course of their employment. The APS Code of Conduct is enshrined in the Public Service Act 1999 (Cth) and applies to employees of the ATO as members of the APS. [223] Amongst other things, the APS Code of Conduct requires APS employees to: (a) behave honestly and with integrity in connection with APS employment; (b) act with care and diligence in connection with APS employment; (c) treat everyone with respect and courtesy and without harassment, when acting in connection with APS employment; and (d) behave in a way that upholds the APS Values and APS Employment Principles and the integrity and good reputation of the employees’ agency and the APS. [224] On Monday, 10 October 2011, the ATO People Helpline received an email request from Ms Krassaris. Ms Krassaris’ email sets out details of voicemail messages left by Ms Peters on her ATO mobile phone over the previous weekend. [225] Ms Krassaris’ request for assistance was allocated to Ms Sloan. Ms Sloan recalls having a conversation with Ms Krassaris in which she told Ms Sloan that she was concerned about the voicemail messages left on her phone by Ms Peters. [226] Ms Sloan deposed that after her discussion with Ms Krassaris, she spoke to Ms Andrews. Ms Sloan discussed with Ms Andrews the likely steps that would need to be taken following the complaint and what processes would need to be followed. [227] Between October 2011 and May 2012, Ms Sloan provided support to Mr Osborne. This involved drafting correspondence for Mr Osborne and obtaining information from Ms Anderson regarding Ms Peters return to work arrangements. Page 30 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 [228] On 1 May 2012, Ms Sloan commenced a period of parental leave and handed Ms Peters’ Code of Conduct matter to Jo Davis, another People Consultant at ATO People. [229] Ms Sloan’s evidence was that she recommended to Mr Osborne that a misconduct investigation be conducted into Ms Peters’ actions for leaving the voicemail messages because she believed Ms Peters’ conduct potentially breached the Code of Conduct and was serious enough to warrant such an investigation. Ms Sloan deposed that she made that recommendation for that reason and for no other substantial or operative reason. Specifically, Ms Sloan deposed that she did not take into account Mr Smillie’s wishes regarding the outcome of the matter as set out in his email to Ms Sloan dated 17 October 2011. [230] Ms Sloan deposed that she recommended to Mr Osborne that the misconduct investigation should not proceed until Ms Peters had returned to work. Ms Sloan made this recommendation because she did not consider that it would be fair or appropriate to require Ms Peters to respond to allegations of misconduct when she was not fit to fully participate in work. [231] Ms Sloan deposed that she was aware that Ms Peters had a hearing before the AAT and that that fact was not a reason for any of her actions in relation to Ms Peters’ employment. [232] Ms Sloan denied that any of her conduct towards Ms Peters which is alleged to have been or contributed to any form of adverse action against her was actuated by Ms Peters taking any workplace rights or any other prohibited reason against the ATO. [233] Ms Sloan was not cross-examined on her affidavit and I accept her unchallenged evidence. Mimma Maria Rosa Fazio [234] Mimma Maria Rosa Fazio (Ms Fazio) filed an affidavit on 5 June 2020. Ms Peters required Ms Fazio to attend for cross-examination. Ms Fazio’s evidence, comprising her affidavit and oral testimony, may be summarised as follows. [235] Ms Fazio recently retired in the employment of the ATO as a Senior Health Consultant. Ms Fazio’s role as a Senior Health Consultant was to manage complex employee health matters involving long term illness and absence from work. [236] Ms Peters’ health case was managed by a number of people in Ms Fazio’s team including Ms Anderson, and Verne Mantova. Ms Fazio did not have the day to day management of Ms Peters’ health case but would briefly manage Ms Peters’ case when Ms Anderson was away. [237] In May 2012, Ms Fazio briefly managed Ms Peters’ case whilst Ms Anderson was away. During this period, the health team was trying to establish Ms Peters’ fitness to return to work and to locate a role for her that was consistent with the recommendations of her treating medical practitioners. [238] On 1 May 2012, Ms Anderson sent to Ms Fazio a copy of the report prepared by Dr Felman. Dr Felman in that report: Page 31 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 (a) considered that Ms Peters may have capacity to attempt a return to work under her former manager in the future with the benefit of additional support and adjustments. However, she noted that Ms Peters’ private psychiatrist did not support this plan; (b) considered, consequently, that Ms Peters should be considered unfit to work in an environment under her former manager and that she will require her duties to take place in an alternate environment; and (c) opined that if, on review, Ms Peters’ specialist amends his opinion, it would be appropriate for Ms Peters to attempt a return to work under her former manager. [239] On 3 May 2012, Ms Fazio sent a copy of Dr Felman’s recommendations to Ms Andrews. [240] On 4 May 2012, Ms Fazio sent a copy of Dr Felman’s report to Dr Katz, Ms Peters’ treating psychiatrist and Dr Angela Roche, Ms Peters’ treating general practitioner. [241] On 9 May 2012, Ms Fazio received a progress report prepared by Ms Shembrey. [242] On or about 24 May 2012, Ms Fazio received a copy of a letter from Dr Katz, Ms Peters’ treating psychiatrist that was addressed to Ms Shembrey and dated 1 May 2012 in which Dr Katz advised. (a) that Ms Peters agreed with his assessment that she should not return to work under a former manager who was involved in recent legal proceedings involving her; (b) recommended that Ms Peters be redeployed to a different part of the ATO where she would have no dealings with her former managers; (c) stated that the relevant increments of Ms Peters’ return to work would need to be established following her return to the workplace; and (d) stated that Ms Peters should have a fair idea as to what sort of employment she would be undertaking, prior to her return to work. [243] On 4 June 2012, Ms Fazio had a telephone conference with Ms Peters and Ms Shembrey. During the call: (a) Ms Fazio told Ms Peters that she had advised her business service line of Dr Katz’s recommendation that she be redeployed; (b) Ms Fazio told Ms Peters that she was aware that there was a suspected breach of Code of Conduct matter that was to be investigated and that she did not know the details of the alleged breach; (c) Ms Fazio told Ms Peters that she had sought Dr Felman’s supplementary opinion as to whether Ms Peters was fit to participate in any administrative action associated with the Code of Conduct matter and that she wanted to seek Ms Peters’ opinion on this as well; Page 32 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 (d) Ms Peters initially stated that she would prefer to deal with the Code of Conduct matter on her return to the workplace; (e) Ms Fazio told Ms Peters that if she was placed with a different manager as part of redeployment, the ATO would need to disclose the suspected breach of Code of Conduct matter to her new manager; and (f) Ms Peters told Ms Fazio that she would think about it and would let her know. [244] On 5 June 2012, Ms Fazio received an email from Mr Osborne about Ms Peters’ request to attend the ATO premises to pick up her belongings. Mr Osborne advised Ms Fazio that he did not think it was appropriate for Ms Peters to attend ATO premises on a weekend and that his preference was for Ms Peters to nominate somebody to pack her desk or to otherwise arrange a time during business hours. Ms Fazio sent a copy of Mr Osborne’s email to Ms Peters and she requested that her colleague De’arn Olsen pack her desk and belongings for the move. [245] Between June 2012 and August 2012, Ms Fazio was involved in liaising with Ms Peters, Dr Felman, Dr Katz and Ms Shembrey about Ms Peters’ fitness to return to the workplace at ATO. [246] Ms Fazio in her affidavit, deposed that she was not responsible for making any decisions in relation to Ms Peters’ employment however to the extent that Ms Peters alleges that Ms Fazio’s conduct was adverse action against Ms Peters or contributed to any form of alleged adverse action, Ms Fazio denies that Ms Peters’ workplace rights or any other prohibited reason was a reason for Ms Fazio’s conduct towards Ms Peters. Ms Fazio deposes that any action that she took in relation to Ms Peters’ employment was taken for the reasons given by her and not as a result of any workplace rights which Ms Peters sought to exercise. [247] Ms Fazio was cross-examined by Ms Peters and confirmed the matters deposed in her affidavit. [248] I accept the evidence deposed to by Ms Fazio in her affidavit. Stewart Taylor Smillie [249] Stewart Taylor Smillie filed his affidavit on 5 June 2020. Ms Peters required Mr Smillie to attend for cross- examination. Mr Smillie gave the following evidence by way of his affidavit and in oral testimony. [250] Mr Smillie has recently retired from the ATO as Assistant Commissioner in Property, Security and Environmental Services. Mr Smillie had a career at the ATO over a period of 32 years. [251] Mr Smillie in his role as Assistant Commissioner was responsible for overseeing management of the ATO’s office-based property services across Australia. Mr Smillie was responsible for approximately 64 sites including both national sites and smaller shop fronts. Mr Smillie was responsible for managing approximately 400 employees and a budget of approximately $450 million. [252] Mr Smillie had very few direct dealings with Ms Peters. [253] On or around 13 October 2011, Ms Andrews and Ms Krassaris came into Mr Smillie’s office and informed him that Ms Peters had left threatening and abusive messages on Ms Krassaris’ ATO issued mobile phone on 8 and 9 October 2011. Page 33 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 [254] The voicemail messages were played to Mr Smillie. Ms Krassaris appeared to Mr Smillie to be upset by the messages. Mr Smillie was concerned about the threatening nature of Ms Peters’ voicemail messages and the distressing effect that it had had on Ms Krassaris. [255] Mr Smillie said that he was disappointed by Ms Peters’ behaviour and thought that such behaviour did not have a place in the ATO workplace and should not be tolerated. On this basis, it was Mr Smillie’s personal opinion that the conduct was serious. As a consequence, on 14 October 2011 at approximately 7.49 am, Mr Smillie sent an email to Ms Sloan outlining his concerns about Ms Peters’ behaviour. Mr Smillie copied Ms Andrews and Ms Krassaris into this email because he wanted to ensure that they knew that he was taking the matter seriously. [256] Whilst Mr Smillie expressed his views about what he perceived would be an appropriate outcome of any investigation into whether Ms Peters breached the APS Code of Conduct, his view was not a direction to staff to reach a pre-determined outcome. The subsequent investigation process was not a process over which Mr Smillie had any control. [257] Mr Smillie had no role in the Code of Conduct process undertaken in relation to Ms Peters but wanted to make it clear that he considered Ms Peters’ behaviour to be completely unacceptable and condemned in the strongest terms. [258] Mr Smillie was not involved with the Code of Conduct investigation process nor with the issues relating to Ms Peters’ medical clearance to return to work. [259] On 26 February 2014, Mr Smillie wrote to Ms Peters to provide her with an update on the ATO’s efforts to locate a suitable position for her. The ATO had not been able to find a suitable position for Ms Peters. [260] On 17 April 2014, Mr Smillie sent to Ms Peters a formal offer of voluntary redundancy. The letter asked Ms Peters to provide a response to the voluntary redundancy by 1 May 2014 and set out the processes in place if Ms Peters elected to decline the offer. [261] On 28 April 2014, Mr Smillie received Ms Peters’ written acceptance of the voluntary redundancy. [262] On 2 May 2014, Mr Smillie approved and signed a notice of termination letter to be sent to Ms Peters. The letter stated that Ms Peters’ employment would cease on 5 May 2014. [263] Mr Smillie in his affidavit deposed that, to the extent that any of his conduct is considered to have contributed to any form of alleged adverse action, he denies that Ms Peters’ workplace rights or any other prohibited reason were a reason for any of his conduct. Mr Smillie denies that he took any action or engaged in any conduct adverse to Ms Peters either because she possessed workplace rights or to prevent Ms Peters from exercising any workplace right. [264] Mr Smillie denies that he gave any direction to Ms Sloan to charge Ms Peters with a breach of the Code of Conduct. Mr Smillie had no line management authority to provide any such direction to Ms Sloan. [265] Mr Smillie was cross-examined by Ms Peters. Mr Smillie confirmed his affidavit evidence during cross- examination. Page 34 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 [266] I accept the evidence of Mr Smillie as to the reasons why he acted in the manner that he did towards Ms Peters. I reject the claims by Ms Peters that he acted and engaged in conduct adverse to Ms Peters either because she possessed workplace rights or to prevent Ms Peters from exercising any workplace right. Susan Hazel Rynhart [267] Susan Hazel Rynhart (Ms Rynhart) filed an affidavit on 5 June 2020. Ms Rynhart was not required to attend for cross-examination by Ms Peters. Ms Rynhart deposed in summary to the following. Ms Rynhart is currently retired but was previously employed as a Case Manager in the Enterprise Agreement and Employment Framework division of ATO People. Ms Rynhart had worked at the ATO for approximately 11 years starting in or around May 2003 until her retirement in April 2014. Ms Rynhart became involved in case managing Ms Peters following a restructure of the ATO which involved consolidation of a number of ATO Melbourne offices. Ms Rynhart had not worked with Ms Peters and did not know Ms Peters prior to case managing her. Ms Peters was an APS 3 level employee with the Property, Security and Environmental Services branch of the ATO in Melbourne. [268] The restructure took place in or around July 2012 and resulted in a number of positions being made redundant. As a result of the restructure, the eight APS 3 level jobs in the facilities management area in the Melbourne CBD were to be reduced to four positions. The process to achieve this reduction involved the eight ATO employees including Ms Peters reapplying to be considered for one of the four roles. Those employees who were not selected for one of the four available positions found themselves in a “likely excess position”. [269] Ms Rynhart was involved in trying to redeploy Ms Peters. [270] Between July 2012 and March 2014, Ms Rynhart sought to identify an appropriate position within the ATO to place Ms Peters in an APS 3 position. During this time, Ms Rynhart made Ms Peters aware of APS 3 vacancies in the payroll team, in the debt branch, as a compliance officer at Moonee Ponds, as a compliance officer at Box Hill and in data matching and corporate strategies in the Melbourne CBD. [271] Ms Rynhart’s evidence was that she did not believe that Ms Peters was taking genuine steps to assist in the ATO’s efforts to redeploy her. In particular, Ms Peters seemed reluctant to apply for positions and often did not respond promptly to emails or answer phone calls about vacancies. Ms Rynhart’s view was that Ms Peters’ approach was limiting her changes of securing a new position. Ms Rynhart’s impression at the time was that Ms Peters did not seem particularly interested in finding another job at the ATO and seemed to assume that the ATO would just give her a job. [272] Ms Rynhart in her affidavit denies that any conduct on her part which is alleged to have been adverse action against Ms Peters was undertaken because Ms Peters sought to exercise a workplace right. Ms Rynhart’s evidence is that she attempted as best she could to find a role for Ms Peters at the ATO but this proved beyond successful. [273] Ms Rynhart was not cross-examined by Ms Peters. I accept the unchallenged evidence deposed to by Ms Rynhart in her affidavit. Carol Maria Anderson [274] Carol Maria Anderson filed an affidavit on 5 June 2020. Ms Peters did not require Ms Anderson to attend for cross-examination. In her affidavit, Ms Anderson deposed in summary to the following. Ms Anderson is retired. Prior to her retirement, Ms Anderson was employed as a Health Management Consultant at the ATO. Page 35 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 [275] Ms Anderson first became involved with Ms Peters in mid-November 2011 in arranging an OHA for Ms Peters. [276] On about 21 November 2011, Ms Anderson had a conversation with Ms Andrews about Ms Peters. Ms Andrews told Ms Anderson that Ms Peters had been on sick leave and had been certified by a doctor as being unfit for work between 20 October 2011 and 20 January 2012. Ms Andrews also told Ms Anderson that Ms Peters was suffering from anxiety and depressive symptoms. [277] As Ms Peters had been certified as unfit for work for three months by her treating practitioner, Ms Anderson considered that an OHA was required to understand the nature of Ms Peters’ illness, her prognosis and any adjustments she may need to return to work. [278] Ms Anderson arranged for Ms Peters to see a consultant psychiatrist, Dr Felman. [279] On 28 November 2011, Ms Anderson wrote to Dr Felman and referred Ms Peters for an OHA. Ms Anderson provided Dr Felman with Ms Peters’ manager’s report, a summary of Ms Peters’ duties and details of her previous leave record. [280] Subsequently, Ms Anderson received a telephone call from Dr Felman about Ms Peters’ OHA. Dr Felman told Ms Anderson that: (a) Ms Peters made the ‘phone call’ because her direct manager did not take any action about her complaint about being videoed by a colleague; (b) Ms Peters was concerned about working with/for her former manager; (c) there were issues to do with an unresolved compensation claim that should be finalised in January 2012; (d) Ms Peters wanted the videoing matter to be investigated by HR; (e) Ms Peters should be fit to commence a graduated return to work plan in late January 2012, returning to full-time work and hours over six weeks; and (f) Ms Peters would benefit from working with a rehabilitation provider and a workplace mentor being made available to her. [281] On 3 January 2012, Ms Anderson received Dr Felman’s OHA report following her assessment of Ms Peters. Dr Felman’s report stated that: (a) Ms Peters suffered from a medical condition which has impacted her ability to attend work; (b) Ms Peters was fit to return to work in the week of 23 January 2012, on a graduated return to work program but with a full range of duties; (c) the proposed timeframe for Ms Peters’ return would allow her time to deal with her Comcare issues; Page 36 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 (d) Ms Peters would benefit from the assistance of a workplace rehabilitation provider; (e) Ms Peters would benefit from a round table discussion and mediation between her, her direct manager, the person involved in the videoing and a third party to discuss what had occurred and to resolve her concerns; and (f) Ms Peters would benefit from having a workplace mentor she could approach if she experienced any concerns. [282] Between January and April 2012, Ms Anderson liaised with Ms Peters’ treating doctors, Dr Katz and Dr Roche, and provided them with a copy of Dr Felman’s OHA report. Ms Anderson referred Ms Peters to Ms Shembrey for assessment. Ms Peters failed to attend the scheduled appointment with Ms Shembrey. [283] On 4 April 2012 at 12.21 pm, Ms Anderson received an email from Ms Peters which attached a medical certificate from Dr Roche stating that Ms Peters was unfit for duty between 30 March 2012 and 27 April 2012. [284] On 4 April 2012, Ms Anderson received an initial assessment report from Ms Shembrey after her consultation with Ms Peters. [285] On 5 April 2021, Dr Felman rang Ms Anderson and provided her with a verbal update about her examination of Ms Peters that morning. Dr Felman: (a) had been told by Ms Peters she was happy with her rehabilitation provider; (b) considered mediation was no longer required; (c) stated that Ms Peters’ final submission to Comcare in her appeal had been submitted the previous week; (d) stated that Ms Peters’ return to work would initially be slow to allow her to rebuild her confidence; and (e) expected Ms Peters to be able to commence her graduated return to work in the first week of May 2012. [286] Between April 2012 and December 2012, Ms Anderson sought advice from Ms Peters’ treating doctors, Dr Katz and Dr Roche, about Ms Peters’ ability to be able to undertake a graduated return to work program. Ms Anderson also consulted Dr Felman and Ms Shembrey about Ms Peters’ ability to be able to return to work. [287] Ms Anderson continued to engage with Ms Peters’ treating doctors, Dr Katz and Dr Roche, as well as seeking advice from Dr Felman and Ms Shembrey throughout 2013 up until March 2014 when Ms Peters’ case was transferred to another ATO officer, Ms Lane. [288] Ms Anderson, in her affidavit, denies that to the extent that any of her conduct was considered to have been adverse action against Ms Peters that Ms Peters exercising her workplace right was a substantial and operative reason for any conduct on Ms Anderson’s part. [289] Ms Anderson was not cross-examined on her affidavit by Ms Peters. I accept the unchallenged evidence of Ms Anderson contained in her affidavit. Page 37 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 Steven Sofronoff, [290] Steven Sofronoff filed his affidavit on 1 September 2020. By his affidavit, Mr Sofronoff, in summary, gave the following evidence. [291] Mr Sofronoff is employed as the HR Business Partner — Client Engagement Group in the ATO People business service line at the ATO. In his previous role as Director — Health Case Management, Mr Sofronoff was responsible for the Health Case Management Team. As Director, Mr Sofronoff had overall responsibility for: (a) managing and leading the compensation and non-compensation teams in their work to manage the rehabilitation of ill or injured staff with a view to returning them to work as early and as safely as possible; (b) providing strategic advice on reducing the ATO’s Comcare premium; (c) managing approximately 15 staff; (d) having an overview of the team’s budget and monetary resources; and (e) liaising with other streams in the Employment and Health Policy branch, as required. [292] Ms Peters’ health case was managed by Ms Anderson. Ms Anderson had the day to day responsibility for Ms Peters’ health case including liaising with Ms Peters’ business service line, engaging with rehabilitation providers and arranging health assessments. [293] As Director, Mr Sofronoff, did not have a direct case load and was not fully acquainted with the details of every health case that his team was managing. [294] Mr Sofronoff’s involvement in Ms Peters’ health management case was limited. He was provided with updates from time to time by Ms Anderson. [295] In April 2013, Mr Sofronoff was informed that Ms Peters had not attended a scheduled OHA. The purpose of an OHA is to determine an ill or injured employee’s fitness for work. The Health Case Management Team could not take any further steps with an employee’s return to work until the employee was found to be fit for duty. As Ms Peters had not attended the scheduled OHA, it was the recommendation of Mr Sofronoff’s team that Ms Peters be directed by her business service line to attend a further OHA. A failure by the employee to follow a direction can lead to consequences under the APS Code of Conduct. [296] In or around May 2013, Mr Sofronoff was told by Ms Anderson that Yvonne Overste (Ms Overste), a Senior Consultant in Conduct, Performance and Probation Support wanted to issue a Notice of Suspected Breach to Ms Peters in relation to the Code of Conduct matter concerning the voicemail messages Ms Peters had left on Ms Krassaris’ mobile phone. At this time, Ms Peters was still absent from work. It was the ATO’s general practice to put conduct matters on hold while an employee was absent from work due to an ongoing health issue. For this reason, Ms Peters’ conduct case did not proceed while she was on personal leave and was postponed until she was certified as being fit for return to work and to participate in the conduct process. Page 38 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 [297] Ms Peters was not able to work with particular managers in her business service line. The ATO would work to find alternative duties so as to avoid any interpersonal conflict. [298] On 2 September 2013, Mr Sofronoff attended a telephone conference with Megan Boyd, Director of the Issues Resolution stream, Kerry Carroll, People Management Consultant, Ms Rynhart, Coral Pocock, a consultant in Workforce Adjustments, Ms Overste and Ms Anderson. Mr Sofronoff’s evidence was that the purpose of the meeting was to ensure that the relevant areas who were involved in Ms Peters’ health, conduct and potentially her being excess to the ATO’s requirement were in agreement with the proposed way forward. During the meeting, it was agreed that the ATO’s excess process superseded the medical redeployment process and that Ms Peters needed to be treated the same as her three colleagues who were also potentially excess. [299] On 23 October 2014 at 3.10 pm, Mr Sofronoff received an email from Ms Rynhart in which she advised that she was seeking advice from the Office of General Counsel about the appropriateness of moving to the redundancy provisions in the ATO Enterprise Agreement in circumstances where Ms Peters had lodged a compensation claim with Comcare that had not yet been determined. [300] On 23 October 2014 at 4.30 pm, Mr Sofronoff sent an email to Ms Rynhart in which he told her that it was his understanding that the redundancy process had overtaken the medical redeployment process. Mr Sofronoff asked Ms Rynhart to respond to queries raised by Ms Peters’ treating doctor, Dr Katz. Mr Sofronoff suggested that the ATO response should outline that the redundancy process was taking shape and that the medical aspect of Ms Peters’ case would be closed or put on hold as the ATO would not be progressing the health issues as the excess provisions took precedence. [301] That concluded Mr Sofronoff’s involvement with Ms Peters’ redundancy process. [302] Mr Sofronoff, in his affidavit, denied that any conduct of his which may be considered adverse action against Ms Peters was overtaken because Ms Peters had sought to exercise workplace rights or any other prohibited reason. Mr Sofronoff did not make any decision in relation to Ms Peters’ employment. The decisions which Mr Sofronoff made about Ms Peters’ health management case were limited to approving the suggested recommendations of Ms Peters’ Health Case Manager. [303] Mr Sofronoff was cross-examined by Ms Peters. Mr Sofronoff during cross-examination confirmed the matters deposed to in his affidavit. I accept the evidence of Mr Sofronoff. Tanya Maree Lane [304] Tanya Maree Lane (Ms Lane) filed an affidavit on 9 September 2020. Ms Peters did not require Ms Lane to attend for cross-examination. Ms Lane in her affidavit deposed in summary to the following. [305] Ms Lane is an HR Business Partner in Integrated Compliance & Individuals and Intermediaries, in the ATO People business service line at the ATO. [306] Between November 2011 and April 2016, Ms Lane was a Senior Consultant in Health Case Management with ATO People. As a Senior Consultant, Ms Lane worked on health management cases involving ATO employees across Australia. In this role, Ms Lane supported ill or injured employees returning to work at the ATO. This involved arranging medical assessments with ill or injured employees; liaising with rehabilitation providers; providing advice to employees’ managers about matters concerning their return to work and liaising with ill or injured employees. Ms Lane in her role in health case management was from time to time the team leader and managed a number of health consultants including Ms Anderson. Page 39 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 [307] Ms Anderson was the case manager with general responsibility for the day to day management of Ms Peters’ health case. From time to time Ms Lane assisted Ms Anderson when she requested assistance as her team leader. Ms Lane also acted as case manager during a few occasions when Ms Anderson was on leave. [308] Ms Lane first became involved in managing Ms Peters’ case in or around March 2013. Between or on about 28 March and 29 April 2013, Ms Lane was responsible for managing Ms Peters’ health management matters whilst Ms Anderson was away on leave. In May 2013, Ms Lane assisted Ms Anderson in writing a reply to correspondence received from Ms Peters. Ms Lane also assisted in providing a briefing note on Ms Peters’ progress in returning to work for Shane Reardon, First Assistant Commissioner of ATO People. [309] Ms Lane assisted Ms Anderson from time to time in liaising with Ms Peters’ treating doctors and other health professionals as well as dealing with internal correspondence from other ATO employees. [310] Ms Lane in her affidavit denies that any conduct on her part that could be considered adverse action against Ms Peters was a consequence of Ms Peters exercising workplace rights or in other prohibited reason. Ms Lane did not make any decisions relating to Ms Peters’ employment. Ms Lane had limited involvement with Ms Peters’ health case. Ms Lane as a team leader provided support from time to time to Ms Anderson. The decisions which Ms Lane made were for the reasons which she deposes to in her affidavit and not as a consequence of any workplace rights which Ms Peters may have exercised. [311] Ms Lane was not cross-examined by Ms Peters. I accept Ms Lane’s affidavit evidence. DOES THE COURT HAVE JURISDICTION TO DETERMINE MS PETERS’ CLAIMS UNDER THE DISABILITY DISCRIMINATION ACT 1992 (CTH) AND THE AGE DISCRIMINATION ACT 2004 (CTH) [312] In her ASOC, Ms Peters alleges the ATO unlawfully subjected her to discrimination on the basis of age in respect of its officers’ exercise of power under a Commonwealth law, or for the purposes of a Commonwealth program, or its officers’ fulfilment of responsibility for the administration of a Commonwealth law or conduct of a Commonwealth program, and thereby contravened s 31 of the Age Discrimination Act 2004 (Cth) (AD Act). Ms Peters further alleges that the ATO unlawfully discriminated against her on the basis of her disability (having in October 2011 been diagnosed with anxiety and depressive symptoms) in contravention of s 15 of the Disability Discrimination Act 1992 (Cth) (DD Act). [313] The ATO by its Second Further Amended Defence dated 3 December 2021 contends that by reason of the operation of s 46PO(1) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), the Court lacks jurisdiction to determine any claim by Ms Peters alleging unlawful discrimination in contravention of the DD Act or the AD Act as: (a) Ms Peters has not lodged any complaint under Division 1 of Part IIB of the AHRC Act; (b) the President of the Australian Human Rights Commission (President) has not terminated a complaint by Ms Peters under s 46PE, s 46PF(1)(b) or s 46PH of the AHRC Act; (c) the President has not given notice to any person under s 46PH(2) of the AHRC Act in relation to the termination of a complaint by Ms Peters under Division 1 of Part IIB of the AHRC Act; and (d) by reason of the matters set out in sub-paragraphs (a), (b) and (c) above, Ms Peters is not permitted to make any discrimination application to this Court. Page 40 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 [314] Section 46PO(1) of the AHRC Act provides: (1) If: (a) a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and (b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination; any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), alleging unlawful discrimination by one or more of the respondents to the terminated conduct. [315] Section 46PO of the AHRC Act prescribes certain preconditions that Ms Peters was required to meet before she could become entitled to make an application to this Court in respect of alleged unlawful discrimination in contravention of the DD Act or the AD Act. One of those preconditions is the making of an initial complaint to the AHRC. Ms Peters conceded under cross-examination that she has made no such complaint to the AHRC. It necessarily follows that as one of the preconditions of s 46PO(1) of the AHRC Act has not been satisfied that this Court does not have jurisdiction to entertain any application by Ms Peters alleging contraventions of the AD Act or the DD Act: Clarke v Nursing & Midwifery Council New South Wales [2019] FCA 1782 per Flick J at [14]. NEW ALLEGATIONS MADE BEYOND STATUTORY TIME LIMIT [316] The ATO alleges that the allegations, the subject of Ms Peters’ ASOC, are statute barred under s 544 of the FW Act having occurred more than six years prior to the filing of the ASOC. [317] 7 The following procedural chronology is relevant to determining this issue. [318] Ms Peters commenced this proceeding by originating application and statement of claim (SOC) dated 28 September 2017. [319] In the SOC, Ms Peters alleged that: (a) in late October 2011, she was suffering from “anxiety and depressive symptoms” and incapacitated for work as a result of her illness: SOC [5]; (b) from August 2012, she was “ready, willing and able to return to work”: SOC [16]; Page 41 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 (c) the ATO failed or refused to provide her with a return-to-work program, or suitable duties, and thereby excluded her from the workplace and failed or refused to pay her for a period during which she was ready, willing and able to work: SOC [18]; (d) the failures and / or refusals prevented Ms Peters from exercising various alleged “workplace rights”: SOC [19]; and (e) the ATO discriminated against her “after she had suffered an episode of disability due to a psychological illness” (the alleged disability): SOC [20]. [320] The SOC contains two principal themes. These are that Ms Peters was unable to work for a period of time and, upon becoming (purportedly) able, was not returned to work by the ATO or paid remuneration: (a) first, because the ATO sought to prevent her exercising various alleged “workplace rights”; and (b) second, because of the alleged disability. [321] On 23 August 2019, I granted Ms Peters leave to file and serve an amended statement of claim in the form of the draft amended statement of claim dated 24 May 2019, by 30 August 2019. [322] The New Allegations contained in the ASOC are as follows: (a) some time prior to October 2011, Mr Gautier filmed Ms Peters on ATO premises and titled the video “Elderlies in the ATO” (Video Incident); (b) on 7 October 2011, during a Team Meeting in which Ms Peters raised her concerns about Mr Gautier’s conduct in filming her, Ms Gautier made ageist comments to Ms Peters (Team Meeting Incident — Gautier); and (c) on 7 October 2011, Ms Krassaris failed to intervene between Ms Peters and Mr Gautier, failed to censor Mr Gautier and failed to provide a report to Ms Peters (Team Meeting Incident — Krassaris). [323] The ATO, has at all relevant times, maintained that the new allegations alleged in the ASOC at [6], [7], [9], [11], [17]–[21], [23], [24], [28], [29]–[36] and [40] (New Allegations) are time barred under s 544 of the FW Act. [324] On 20 December 2018, solicitors for the ATO wrote to Ms Peters seeking further and better particulars regarding the then proposed ASOC. That letter put Ms Peters on notice that a number of the allegations were new allegations and were time barred by reason of s 544 of the FW Act. [325] On 27 January 2019, Ms Peters responded to the ATO’s request for further and better particulars. Ms Peters denied that the ASOC raised new allegations and referred the ATO to paragraph 6 of the SOC. [326] Paragraph 6 of the SOC states: Page 42 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 In December 2011, Dr Felman “Independent Psychiatrist” advised the respondent that the applicant was fit to return to the workplace in January 2012. Particulars Report of Dr Felman “Independent Psychiatrist” dated 13 December 2011. [327] Dr Felman’s report supported the factual allegation in paragraph 6 of the SOC and stated “Ms Peters should be considered fit for duty by her psychiatrist’s suggested date of 20 January”. The ATO submits, and I agree, that paragraph 6 of the SOC does not, on its face, raise the Video Incident, the Team Meeting Incident — Gautier, or the Team Meeting Incident — Krassaris. [328] Ms Peters contends that the allegations relating to the Video Incident, the Team Meeting Incident — Gautier and the Team Meeting Incident — Krassaris were not new allegations because the conduct underpinning the allegations was referred to in Dr Felman’s report. That report states that: … colleague made videos about her [Ms Peters] which she found offensive and which discriminated against her on the basis of age. Ms Peters stated that she informed her manager of her concerns however no action was taken. Ms Peters experienced other stressors at that time, including finding out that a previous manager whom she had a damaged relationship would be returning to work with her in April 2012, when several tax office sites were to amalgamate. Ms Peters also experienced on-going stress secondary to appealing a comcare [sic] claim related to events occurring in 2009. [329] This Court has the power under the Federal Court Rules 2011 (Cth) (Federal Court Rules) to grant leave to amend the originating application and the statement of claim to add a statute-barred cause of action. The power to amend is not without limitation. [330] In Voxson Pty Ltd v Telstra Corporation Ltd (No 7) [2017] FCA 267 (Voxson), Perram J considered the Court’s power to amend a claim to bring a cause of action that would otherwise be statute barred. [331] His Honour observed (at [8]) that r 8.21 of the Federal Court Rules permitted amendment of an originating application for any reason including (at 8.21(g)): to add or substitute a new claim for relief, or a new foundation in law for a claim for relief, that arises: (i) out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the applicant; or Page 43 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 (ii) in whole or in part, out of facts or matters that have occurred or arisen since the start of the proceeding. [332] His Honour went on to state at [16]–[17] and [21]–[22] that: The situation under the FCR in the case of pleadings is not satisfactory either. Some might have thought the reference in FCR 8.21(1)(g)(i) to claims arising out of the same facts was a little incongruous in relation to originating processes which often have no facts alleged in them. Such a rule would more naturally find its home amongst the rules dealing with pleadings which are contained in FCR Part 16. But there such a rule is, unfortunately, not to be found. That is to say, the FCR do not currently provide that a pleading may in some circumstances be amended, even though a limitation period has expired. This is another serious drafting error. … … … I conclude that the Court has the power to grant leave to amend both an originating process and a pleading to add a statute barred cause of action but only in the circumstances referred to in FCR 8.21(2). It would be helpful if FCR 16.53 were explicitly brought into line with FCR 8.21 but in fact, as a matter of implication, it already operates in that way… … For the reasons I have already given, the Court only had power to grant leave to amend to Voxson to pursue these statute barred claims if the amendments, relevantly, arose out of substantially the same facts. [333] As to the meaning of “substantially the same facts”, Perram J noted at [28]: … test is not a narrow one, citing Clasul Pty Ltd v Commonwealth [2014] FCA 1133 at [41]–[51] per Gleeson J. Her Honour there collected the relevant authorities. Various judicial parsings of the expression were referred to: what was called for was a ‘fairly broad brush comparison’, did the amendments invoke ‘a new set of ideas’ or was what was involved ‘a new story’. The same authorities also make clear that ‘substantially the same facts’ does not mean ‘the same facts’. [334] In the present case, the “story” told by the SOC was that the ATO failed to return Ms Peters to work because it sought to prevent her exercise of alleged “workplace rights” and/or alleged disability. [335] The narrative or the “story” in the ASOC is substantially different from that in the SOC. [336] The ASOC tells a story about age discrimination. The Video Incident is the cornerstone of that story. It is said, in effect, to be the genesis of a range of actions taken against Ms Peters on account of her age. Ms Peters, in her opening statement to the Court, stated: Page 44 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 This case is about age discrimination and ageism in the workplace and the adverse actions the applicant is alleging were taken against her when she called it out. [337] The ATO submits that the story of age discrimination invokes a “new story” which was introduced for the first time in the ASOC. That new story is not peripheral or ancillary to the original case pleaded in the SOC but is the heart of the case alleged in the ASOC and run at trial. [338] The SOC does not contain any allegation of age discrimination. There is nothing in the SOC other than the reference to Dr Felman’s report which would put the ATO on notice of Ms Peters’ claims of age discrimination. In my opinion, the New Allegations do not arise out of or not substantially similar facts as those alleged in the SOC: Voxson at [21]. [339] As the New Allegations concern facts and matters which occurred six years prior to the filing of the ASOC on 30 August 2019, it follows that the New Allegations are time-barred under s 544 of the FW Act. [340] Notwithstanding the view which I have expressed about the New Allegations being time-barred, and in the event that I am wrong in that conclusion, I shall hereafter go on to express my views as to the merits of the New Allegations pleaded in the ASOC. ADVERSE ACTION CLAIMS Principles to be applied [341] In a general protections proceeding, the applicant bears the onus of proving each element of each alleged statutory contravention: Wong v National Australia Bank [2021] FCA 671 (Wong) per Snaden J at [59]. For Ms Peters to make out her case, Ms Peters needs to demonstrate that the ATO subjected her to “adverse action” and did so because (or for reasons that included that) she had exercised a “workplace right” or “workplace rights”. [342] In the present case, Ms Peters must establish that: (a) the conduct complained about in fact occurred, in the manner she alleges it occurred; (b) the ATO, via the conduct and agency of its human officers, subjected her to “adverse action” as defined in s 342 of the FW Act; (c) the alleged proscribed reason for that conduct is proved (ie Ms Peters must prove that she possessed and/or exercised the pleaded workplace rights or possessed the protected attributes); and (d) the particular adverse action was actuated by a particular proscribed reason, in the sense that the proscribed reason was a substantive or operative reason for taking the adverse action. [343] In proving the above elements, an applicant such as Ms Peters is provided with substantial assistance by the Page 45 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 reverse onus in s 361 of the FW Act which creates a rebuttable presumption concerning the proof, in any given case, of the reasons for which the adverse action was taken: Wong per Snaden J at [54]. [344] If a person is alleged to have done something for a particular reason, and the doing of that thing for that particular reason would constitute a contravention of Part 3–1 of the FW Act, then it is presumed that the conduct was engaged in for that reason, unless the person who engaged in the action proves otherwise. [345] Part 3-1 of the FW Act is entitled “General Protections”. Amongst other things, it provides for a suite of protections designed to safeguard the exercise of “workplace rights”. One of those protections is provided for by s 340(1) of the FW Act, which provides (and, at all relevant times, provided) as follows: Division 3 — Workplace rights 340 Protection (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. Note: This subsection is a civil remedy provision (see Part 4–1). [346] Section 342(1) of the FW Act defines “adverse action”. Relevantly, an employer subjects an employee to adverse action if the employer: Page 46 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 (a) dismisses the employee; (b) injures the employee in his or her employment; (c) alters the position of the employee to the employee’s prejudice; or (d) discriminates between the employee and other employees of the employer. (FW Act, s 342(1), item 1). [347] Section 341(1) of the FW Act identifies the circumstances in which a person might be understood to possess a “workplace right”. It relevantly provides (and provided) as follows: 341 Meaning of workplace right … (1) A person has a workplace right if the person: … (c) is able to make a complaint or inquiry: … (ii) if the person is an employee — in relation to his or her employment. [348] Section 360 of the FW Act recognises that some adverse action might be taken for a variety of reasons, including some unrelated to reasons that Pt 3-1 of the FW Act proscribes. In order to be actionable under Pt 3-1 of the FW Act, it is sufficient that relevant adverse action is taken for reasons that include such proscribed reasons. Page 47 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 [349] An application pleading a Pt 3–1 FW Act contravention has a special burden as such allegations are inherently serious and proceedings penal in nature. As a matter of fairness, the applicant is required to plead his or her allegations of the contravention under Pt 3–1 of the FW Act with sufficient precision to allow the respondent to know the case against it. [350] In Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347 per Tracey, Reeves and Bromwich JJ at [13]–[14], the Full Court said: Stated compendiously, s 361(1) places an onus or burden on a person involved in a proceeding relating to a contravention of Pt 3–1 of the FWA to “prove otherwise” than that he or she took the contravening action for the particular reason, or with the particular intent, alleged in the applicant’s application. The consequence of a failure to discharge this burden is that it is presumed against the person concerned with contravening action was taken for that particular reason or with that particular intent. Before this presumption operates, however, two pre-conditions must be met. First, under s 361(1)(a) the particular reason or the particular intent for the contravening action must be alleged in the application. It is with respect to that alleged reason or alleged intent that the person concerned must prove otherwise. The word “particular in s 361(1)(a) must be given its ordinary and natural meaning. Relevantly, that is: “2. being definite one, individual or single, or considered separately: each particular item. 3. Distinguished or different from others or from the ordinary; noteworthy; marked; unusual. … 6 dealing with or giving details, as an account, description, etc, of a person; detailed; minute; circumstantial”. See Susan Butler (ed), Macquarie Dictionary (7th ed, Pan Macmillan, 2017) Vol 2 p 1096. It follows that an allegation under s 361(1)(a) must precisely and distinctly identify the alleged reason, or the alleged intent, for the contravening conduct. This need for care and precision in making the allegations in connection with which the presumption may operate is similar to that required with respect to the analogous situation of averments in criminal prosecutions… [351] 51 Whilst there is no obligation on an applicant to establish a prima facie connection between alleged adverse action and a prohibited reason, the Full Court in Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215 per Greenwood, Besanko and Rangiah JJ stated at [73] that: It may well be appropriate to describe the requirement that the evidence is consistent with the hypothesis that the respondent was actuated by a proscribed purpose a precondition or as operating before the presumption is engaged. After all, the presumption operates and continues to operate unless the person who took the action proves otherwise. However, we do not think a conclusion to that effect resolves the issue in this case which is whether it was necessary for the Union to prove, before the presumption was engaged, that Ms Emblem engaged in protected industrial action. [352] The Court’s inquiry will always be “why did the Respondent do what it did?” This question is one of fact, which must be answered in light of all the facts established in the proceeding. In proving otherwise, the employer is entitled to adduce such evidence as is necessary to satisfy the Court that the asserted proscribed reason was not a substantive and operative reason for the adverse action alleged. Direct testimony from a decision-maker which is accepted as reliable is itself capable of discharging the burden upon an employer: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32;; 248 CLR 500 . [353] The Court must determine whose mind or minds is “the operative mind of [the employer] in making the decision”. It is a pure question of fact where in particular circumstances the corporate mind may be located. Further, Page 48 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 the corporate state of mind may be located in the mind of one or more officers: National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139 at [29] (Gray J) (NTEU); Wood v Lord Mayor Councillors and Citizens of the City of Melbourne (1979) 41 FLR 1 at 1. [354] The Court’s inquiry into the state of mind element of an alleged contravention must be framed by the alleged adverse action around which the allegation is built. One must first go to the adverse action alleged ie what decision is impugned by the pleading? One must then identify whose state of mind was the operative state of mind of the respondent corporation in relation to that decision. [355] Where a decision to engage in certain action is made by way of a collective decision, the Court’s task is to focus on why those who resolved that the corporate body should conduct itself in that way were moved so to resolve: Wong at [84]. [356] Where a decision has been made by an officer or group of officers, with input from others (that is, individuals other than those who decided to effect the conduct), this Court is bound by the Full Court decision in Elliott v Kodak Australasia [2001] FCA 1804 . In Construction, Forestry, Mining and Energy Union v Clermont Coal [2015] FCA 1014 , Reeves J, after referring to Kodak, made the following observations (at [121]): …where the reasoning process is dispersed through an assessment process involving a number of persons, the task is much more complicated. In that situation, I consider thejudgment in Kodak requires me to examine the reasoning process employed by each person whose involvement had a material effect on the ultimate decision. This inquiry does not involve a roving search of the minds of the employees of the kind rejected by Heydon J in Barclay (at [146]). Nor does it involve an objective inquiry of the kind rejected in Barclay (at [44] and [126]), nor import some unconscious reasoning to the ultimate decision-maker that was also rejected in Barclay (at [124] per Gummow and Hayne JJ, and [146] per Heydon J). Instead, it focuses on the conscious reasoning processes of those who had a material effect on the ultimate outcome to determine whether their reasoning processes were free of the alleged prohibited reason or reasons. If one or more of the reasons employed by one or more of them was a prohibited reason, that will impugn the ultimate decision. This is what I consider the Full Court meant by inadvertently adopting an undisclosed prohibited reason in Kodak … [357] It is not, however, necessary for a respondent to call every person who might have influenced a particular decision. In Construction, Forestry, Mining and Energy Union v Anglo Coal [2015] FCAFC 157; 238 FCR 273 Jessup J stated at [32]–[34]: Notwithstanding that relatively minor reservation, I am unpersuaded by the appellants’ case on appeal that her Honour’s conclusion as to Mr Power’s reasons was attended by error. While a party’s failure to lead particular evidence may tip the scales in favour of drawing an inference adverse to that party, the inference must still be fairly open on the evidence which has been called. In the present controversy, the questions presumptively in play were, first, whether the uncalled witnesses had advised Mr Power to dismiss Mr Byrne, and secondly, whether he followed that advice. At the first level, her Honour’s observation that the advice given by the three human resources staff members who did not give evidence related to matters of procedure has not been challenged. At the second level, Mr Power gave evidence, was tested on his reasons, and was believed by the trier of fact. Although not specifically adverted to as a factor by the primary Judge, I think the circumstance that the participation of each of the three uncalled human resources staff members was limited to attendance at meetings at which others were present, either without or additionally to Mr Power, was also relevant to her Honour’s conclusion that no adverse inference should be drawn from the respondent’s omission to call them. Put the other way round, there was never an occasion when one or more of those staff members met with Mr Power in the absence of some who was called to give evidence. In respect of Page 49 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 every occasion when Mr Power’s thinking was potentially exposed to the influence of others, at least one of those others was called as a witness. Once the notion that, by the operation of s 361 of the FW Act, the respondent was under an obligation to call every person who might have influenced Mr Power in some way is rejected, there was nothing about the evidence, or the case generally, to justify the conclusion that the respondent ought to have called these three human resource staff members as an indispensable component of its evidentiary case. There was, correspondingly, no error in the primary Judge deciding the case by reference to the evidence which was called. [358] It is not for the Court to conduct a broad inquiry into whether Ms Peters has been subjected to a procedurally or substantively unfair outcome. Snaden J held in Wong at [81]–[83]: Where, by way of rebuttal of the presumption established by s 361 of the FW Act, a respondent leads evidence as to why it engaged in the conduct that an applicant seeks to impugn, the relevant inquiry starts and ends with whether, in fact, those reasons relevantly actuated that conduct. It is not necessary for a respondent to prove that the reasons that actuated its conduct were procedurally or substantively fair: Khiani v Australian Bureau of Statistics [2011] FCAFC 109 , [31] (Gray, Cowdroy and Reeves JJ). Thus where, as here, a respondent employer cites, as its reasons for taking adverse action against an applicant, opinions that it formed about his or her conduct or capacity, the relevant inquiry is not whether those opinions were fairly or properly formed, or vindicated in fact. Rather and more simply, the relevant inquiry is whether the opinions were formed at all and, if they were, whether the respondent was moved to act as it did in consequence of them. A claim under Pt 3–1 of the FW Act “…is not a broad inquiry as to whether the applicant has been subject to a procedurally or substantively unfair outcome” Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 , [48] (Bromberg J). THE ALLEGED WORKPLACE RIGHTS [359] A workplace right has the meaning ascribed by s 341(1) of the FW Act. Of particular relevance in this case are the terms of s 341(1)(a), which provides that a person has a workplace right if the person “is entitled to the benefit of…a workplace law, workplace instrument or order made by an industrial body”. Workplace law and workplace instrument are defined in s 12 of the FW Act and are construed broadly: Tattsbet v Morrow [2015] FCAFC 62; (2015) 233 FCR 46 . [360] Ms Peters alleges that each occasion of adverse action was taken either because she possessed or exercised or proposed to exercise certain “workplace rights” or in order to prevent her from exercising those workplace rights: s 340(1)(a) of the FW Act. [361] Ms Peters alleges that she had a workplace right to perform the service for which she was engaged as an ongoing APS employee under s 22 of the Public Service Act 1999 (Cth). [362] The ATO by its defence admits that this right exists, but says that it is at all times subject to Ms Peters being ready, willing and able to perform all the duties and obligations of her employment as an APS employee whether contractual, statutory, implied or otherwise and being certified as medically fit to perform the duties and obligations. Page 50 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 [363] Ms Peters alleges that she has a workplace right to be remunerated at the rate specified in the ATO Enterprise Agreement for her service during all periods during which she was willing, ready and able to perform work whether or not the ATO made available any work for Ms Peters to do. [364] Ms Peters alleges that she had a workplace right, as provided in cl. 132.2 of the 2011 Agreement, to be given opportunities to: (a) maintain her current capabilities; (b) demonstrate her competitiveness for available positions in the imminent restructure of the section of the ATO in which she was employed; and (c) develop the varied and transportable capabilities which will be necessary for the advancement of her career in the ATO. [365] Clause 132.2 of the 2011 Agreement provides as follows: The ATO is committed to ensuring all employees: a) have opportunities to develop and maintain the capabilities required to perform their current job, now and as it may evolve; b) have opportunities to develop the varied and transportable capabilities they will need to advance their career, in the context of the ATO’s future business directions, organisational priorities and team operational requirements; c) have a Learning and Development Plan with their manager that identifies agreed learning and development needs, how and when they will be addressed and how the learning outcomes will be measured. [366] 6 Ms Peters alleges that she had a workplace right to experience the purpose, dignity, pride, enjoyment, social acceptance and many social connections that result from an employee’s participation in the workplace under their contract of employment. [367] Ms Peters relies on the decision of Bromberg J in Quinn v Overland [2010] FCA 799; 199 IR 40 as authority for the existence of this workplace right: this reliance is misconceived. The relevant paragraph in the judgment relates to the remedy of specific performance. His Honour held at [101]: Furthermore, the appropriateness of specific performance as a remedy is strengthened by a growing acceptance at Page 51 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 common law of the right of an employee to perform work. That recognition has arisen out of changed social attitudes. There is now a greater recognition than ever that employment is important to an employee not simply because it provides economic sustenance. Workplaces are a hub of important human exchanges which are vital to the wellbeing of individual workers. Work provides employees with purpose, dignity, pride, enjoyment, social acceptance and many social connections. As well, the performance of work allows for skill enhancement and advances career opportunities. These non- pecuniary attributes of work are important and their denial can be devastating to the legitimate interests of any worker, either skilled or unskilled. [368] Ms Peters alleges that she had a workplace right to exercise her legal rights under 11 different instruments relating to her APS employment: Amended Statement of Claim at [5(f)]. KEY FINDINGS [369] I make the following key findings which are relevant to Ms Peters’ pleaded case. The Video Incident [370] It was not in dispute between the parties that in the weeks prior to 7 October 2011, Mr Gautier filmed the video of Ms Peters and another colleague on his iPhone or iPad. I so find. It was also not in dispute that the video was created by an application on Mr Gautier’s iPhone or iPad called “Film Director” which filtered raw footage to make it look like a Charlie Chaplin style film. I so find. [371] I find that Ms Peters knew that Mr Gautier had made the video recording and that he did so to demonstrate to Ms Peters the working of the application “Film Director”. I reject Ms Peters’ evidence that the video recording was titled “Elderlies in the ATO”. I find that there was no title on the video recording. Team Meeting on 7 October 2011 [372] I accept Ms Krassaris’ evidence on what occurred at the Team Meeting on 7 October 2011 which she chaired and after the meeting sent an email to Ms Andrews which recorded a summary of what had occurred at the Friday Team Meeting. Ms Krassaris’ evidence, which I accept, was that one of the topics discussed at the Friday Team Meeting was the proper use of ATO mobile phones. ATO policy prohibits staff from videoing or taking photos of ATO premises. I accept Ms Krassaris’ evidence that the mood at the Friday Team Meeting was light-hearted and that the team discussed how the policy appeared to be at odds with the fact that staff were provided with ATO mobile phones and that these phones had video capabilities. I accept Ms Krassaris’ evidence and find that Ms Peters referred to Mr Gautier having previously filmed her with his iPhone or iPad a few weeks prior. I accept Ms Krassaris’ evidence that Mr Gautier explained at the Friday Team Meeting that he had recorded Ms Peters and Ms Parra a few weeks previously and showed them what he had done. I accept, that Mr Gautier then said words to the effect that Ms Peters was an “elder” and that Ms Peters then informed Mr Gautier that she did not appreciate his comment. I accept Ms Krassaris’ evidence that Mr Gautier immediately ceased the discussion. I reject Ms Peters’ version of what was said at the Friday Team Meeting on 7 October 2011. I do not accept that Mr Gautier “defended his behaviour towards me [Ms Peters] by saying words to the effect that I [Ms Peters] was in fact old, and therefore he could say or do whatever he liked”. Ms Peters, in cross-examination, conceded that Mr Gautier did not, in fact, say words to that effect. I accept Ms Krassaris’ evidence that Mr Gautier referred to Ms Peters as “elder” but that she had no recollection of other staff telling Mr Gautier “he could not make remarks of that kind in the workplace”. Ms Krassaris’ failure to intervene at the Team Meeting on 7 October 2011 [373] Ms Peters alleges that Ms Krassaris failed to “intervene” and “censure” Mr Gautier at the Friday Team Meeting on 7 October 2011. Page 52 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 [374] Ms Peters under cross-examination conceded that contrary to her pleading and her affidavit evidence, Ms Krassaris did “shut down” Mr Gautier at the Friday Team Meeting. [375] I accept Ms Krassaris’ evidence that she had no reason to intervene as it appeared to her that Ms Peters had expressed her opinion about Mr Gautier’s comment and Mr Gautier had taken her opinion on board in that he immediately stopped discussing the topic after Ms Peters informed him that she did not like what he said and that she would go to the ATO helpline “People Concern” if he continued. [376] I accept Ms Krassaris’ evidence that she did not consider it was necessary for her to intervene as it appeared the issue had been resolved between Mr Gautier and Ms Peters at the Friday Team Meeting. Alleged direction of Mr Smillie to charge Ms Peters with misconduct [377] Ms Peters alleges that Assistant Commissioner Smillie issued a direction to charge her with misconduct by means of his email dated 14 October 2011. Ms Peters alleges that by seeking to initiate and direct the outcome of her disciplinary procedure, Mr Smillie’s conduct was adverse action because it injured Ms Peters in her employment and was taken against her because she had, or in order to prevent her exercising, workplace rights. I do not accept that Mr Smillie’s email dated 14 October 2011 was such a direction. Mr Smillie denied that in sending the 14 October 2011 that he was seeking to direct staff to any predetermined outcome. Mr Smillie’s evidence was that after sending the 14 October 2011 email he played no further part in the misconduct process. I accept Mr Smillie’s evidence on this issue. [378] The evidence does not support the contention that Mr Smillie’s email dated 14 October 2011 was a “direction” nor that his email “initiated” the misconduct process. It was not in dispute that by 12 October 2011, Ms Krassaris had already made a report of suspected misconduct by Ms Peters. Ms Krassaris and Ms Andrews attended Mr Smillie’s office and played the voicemail messages to Mr Smillie. Mr Smillie’s evidence, which I accept, was that Ms Krassaris was distressed when the voice messages were played. [379] I find that Mr Smillie, in his email dated 14 October 2011, wrote to the Case Manager assigned to report on the suspected misconduct and was seeking advice from Ms Sloan about how to implement a misconduct charge and how to ensure that Ms Peters was properly advised in relation to the procedure surrounding the charge. I find that Mr Smillie by this email did not “direct” Ms Sloan, or anyone else to “charge” Ms Peters. [380] I reject the allegation that Mr Smillie was seeking to initiate and direct the outcome of any disciplinary procedure against Ms Peters. Queen Street relocation and “solitary confinement” allegation [381] Ms Peters pleads that on her return to work on 17 October 2011, she was directed by Ms Andrews to work in a different building to the one in which she normally worked, that is, to work from the ATO’s Queen Street location when she normally worked at 414 Latrobe Street. Ms Peters pleads that she “sat at the workstation in isolation for the remainder of the working day”. [382] I accept Ms Andrews’ evidence and find that at approximately 7.15 am on Tuesday, 18 October 2011, Ms Andrews met Ms Peters in the conference room at the 414 Latrobe Street site and asked Ms Peters to base herself at the ATO’s Queen Street site for the day and for the next few days. I accept Ms Andrews’ evidence that she did this as she was concerned to ensure that Ms Peters was not working closely with Ms Krassaris or Mr Gautier in light of Ms Peters’ voicemail messages. I accept Ms Andrews’ evidence that she intended Ms Peters’ relocation to Queen Street to be a temporary measure only until her superior Mr Osborne had considered the complaint regarding the voicemail messages and determined the appropriate course of action. Page 53 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 [383] I reject Ms Peters’ evidence that she was placed in “solitary confinement”. Ms Peters conceded under cross- examination that the Queen Street site housed a number of ATO call centre teams on different floors. Ms Peters also conceded that persons in her role worked from the Queen Street site on a regular and constant rotating basis as needed and that she had worked from the Queen Street previously. Ms Andrews denied directing Ms Peters to stay at the Queen Street site “in isolation”. I accept Ms Andrews’ evidence. Misrepresentations to medical practitioners [384] Ms Peters alleges that the ATO engaged in unlawful adverse action by making various misrepresentations to her and to her medical practitioners that there was an ongoing APS Code of Conduct process in which she would be required to participate, either before she returned to work or immediately upon her return. [385] I find that Ms Peters did know that she had been made the subject of a Code of Conduct process. On 25 January 2012, Mr Osborne wrote to Ms Peters advising that he had received a report of suspected misconduct which may constitute a breach of the APS Code of Conduct and advised that a Notice of Suspected Breach would be issued shortly. Ms Peters, under cross-examination, conceded that she understood from that email that her conduct would be formally investigated. I find that Ms Peter also understood that she would be required to participate in that Code of Conduct process upon her return to the workplace. In an email to Ms Fazio dated 6 July 2012, Ms Peters stated: I do understand that on my return to work I would have to undertake the Code of Conduct process and/or normal administrative action, as any other employee would. [386] Under cross-examination, Ms Peters conceded that she understood that on return to work, she would have to answer to the Code of Conduct process. I also find that Ms Peters understood that further medical clearance was required prior to her undertaking the Code of Conduct process. [387] The evidence does not support a finding that the ATO made the misrepresentations alleged let alone any misrepresentation for a prohibited purpose. Alleged denial of rehabilitation [388] I reject Ms Peters’ claim that the ATO denied her a rehabilitation program. The evidence of Mr Osborne, Ms Fazio and Ms Anderson establish that Ms Peters was provided with a rehabilitation program. Ms Peters did not challenge the evidence of Mr Osborne, Ms Anderson and Ms Lane. I accept their evidence which provides a detailed account of the attempts made to put in place a rehabilitation program for Ms Peters and the benefits that Ms Peters derived from those efforts. [389] I also find that Ms Shembrey liaised with Dr Katz and Dr Felman and endeavoured to facilitate a return to work for Ms Peters when she was certified as fit to do so. I find that Ms Peters was unable to return to work as a result of Ms Peters’ ongoing medical unfitness. I find that throughout the relevant period up until Ms Peters accepted a redundancy on 28 April 2014, Ms Peters had medical certificates from her treating doctors certifying that she was unable to return to work. Redeployment under ATO Enterprise Agreement Page 54 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 [390] Ms Peters alleges that the ATO took adverse action against her by asserting that redeployment on medical grounds was not an available course of action, contrary to the recommendations of the medical specialist and the rehabilitation providers. [391] I find that on 16 August 2014, Ms Peters was notified that she was in a likely excess position. I find this was due to Ms Peters not securing one of the four APS 3 ongoing job positions at the Docklands site. [392] I accept Mr Stewart’s evidence in relation to the attempts that he made to redeploy Ms Peters in the ATO in accordance with cl. 118 of the ATO Enterprise Agreement. [393] I accept the evidence of Mr Sofronoff that the “likely excess” provision cl. 118 of the 2011 Agreement applied to Ms Peters, just as those provisions apply equally to all employees who were in a likely excess situation, regardless of whether or not there is a medical issue affecting their fitness for duty. I accept the unchallenged evidence of Mr Sofronoff and Ms Anderson that it was their belief that the excess provisions of cl. 118 of the ATO Enterprise Agreement were to take precedence and that it was on the basis of this belief that they acted in the manner in which they did and not for any prohibited reason. [394] I reject Ms Peters’ contention that the application of the redeployment processes under the 2011 Agreement, rather than medical redeployment processes, constituted adverse action taken for a prohibited purpose. I am of this view for two reasons. First, the application of the redeployment process under the 2011 Agreement, rather than medical redeployment processes, did not constitute adverse action as there was no tangible benefit of the latter process over the former. I find that Ms Peters being placed under the ATO’s excess processes was advantageous to Ms Peters as it meant that her application would be given preference to applications from medical redeployment or the order of merit register. In short, being placed on the likely excess register was to Ms Peters benefit and not adverse action. [395] Second, even if Ms Peters were able to establish that her placement on the register did constitute adverse action, both Mr Sofronoff and Ms Anderson gave evidence, which I accept, that it was their belief that the excess provisions of the 2011 Agreement were to take precedence and that it was on the basis of this belief that they acted in the manner in which they did and not for any prohibited reason. Allegations that Ms Peters was “locked out” from the ATO [396] Ms Peters alleges that she was subject to adverse action because she was “excluded and isolated” from the workplace after 17 October 2011. [397] I find that from 18 October 2011 up until the termination of Ms Peters’ employment on the ground of redundancy on 5 May 2015, Ms Peters provided the ATO with medical certificates from her treating doctors which declared that she was not fit for work. I reject Ms Peters’ claim that she was locked out of the ATO workplace generally. I find that Ms Peters was not fit to attend work during the relevant period as certified by her treating doctors. [398] I find that the ATO actively sought to re-engage Ms Peters in the workplace by way of engaging an independent psychiatrist, Dr Felman, to assess her fitness and rehabilitation providers such as Ms Shembrey to assist her return to work and psychologist, Ms Claire Dennis to assist in her job seeker plan. I also find that the ATO sought to assist Ms Peters by referring her to redeployment opportunities within the ATO and facilitating her application for those job opportunities. I find the ATO’s attempts to actively re-engage with Ms Peters wholly inconsistent with Ms Peters’ contention, which I reject, that she was subject to adverse action because she was “excluded and isolated” from the workplace after 17 October 2011. Page 55 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 Alleged lock out and not permitted to pack up desk [399] Ms Peters alleges that she was subjected to adverse action when she was refused permission to attend the office at 414 Latrobe Street to pack up her belongings ahead of the move by the ATO to Docklands. [400] I find that on 3 June 2012, Mr Osborne received an email from Ms Andrews with a request from Ms Peters to attend her work site on the weekend to pack up her belongings and clear out her workstation in preparation for the move by the ATO to Docklands. I accept Mr Osborne’s evidence that he did not consider it appropriate for Ms Peters to attend the site on the weekend in the circumstances that then existed. I accept Mr Osborne’s evidence that he was concerned not to place Ms Peters or other staff in a position where they could be accused of any wrongdoing. I accept Mr Osborne’s evidence that he did not want to put Ms Peters in a position where she may have been the subject of a complaint by her colleagues if any possessions or objects were alleged to have gone missing or being interfered with. [401] I accept Mr Osborne’s evidence that he suggested that Ms Peters may wish to nominate a colleague to pack her desk for her or to make an appointment during business hours where she could be met by someone she was comfortable with as an escort to help make the process as smooth as possible. I accept Ms Fazio’s evidence that a copy of Mr Osborne’s email dated 5 June 2012 was passed on to Ms Peters and subsequently Ms Peters requested that her colleague De’arn Olsen pack her desk and belongings for the move to Docklands. Ms Peters accepted in cross-examination that she received these personal belongings. Ms Peters acknowledged in cross-examination that she was offered the chance to come into the workplace under escort, but that she chose not to take up this option because it was too humiliating. [402] I reject Ms Peters’ allegation that she was subjected to adverse action when she was refused permission to attend the office at 414 Latrobe Street to pack up her belongings ahead of the move by the ATO to Docklands. Locked out of training opportunity [403] Ms Peters alleges that in May 2013, she was unable to attend the workplace and participate in a training course “How to write a job application” due to being locked out of the workplace. [404] I find that on or around 13 May 2013, Mr Osborne and Mr Stewart learned about an opportunity for staff to receive training on preparing job applications. The course was to be run Ms Hart, Director — Reporting Accounts, Policy. I find that Mr Osborne and Mr Stewart considered that this training would assist the eight APS 3 staff who would soon be applying for the four APS 3 positions through the expression of interest process which had been established. I find that Mr Stewart and Mr Osborne asked Ms Hart to extend an invitation to the training to the eight APS 3 facilities management staff, including Ms Peters. [405] I find that Mr Stewart was aware Ms Peters was not fit for work, but considered it important for her to have the same opportunity as the other APS 3 facilities management staff. I find that on 13 May 2013, Mr Stewart sent Ms Peters an email advising her of Ms Hart’s training session on 21 May 2013 and encouraged her to attend. I find that on 19 May 2013, Ms Peters responded to Mr Stewart’s email and stated that it was her understanding that she had been locked out of the ATO. I find that on 20 May 2013, Mr Stewart advised Ms Peters that there had been a misunderstanding about her access to the ATO site and that she was not locked out of the ATO. I find that Mr Stewart advised Ms Peters that as she was a current ATO employee, she was able to attend an ATO site. Ms Peters, under cross-examination, accepted that she had received Mr Stewart’s email on 20 May 2013. [406] I reject Ms Peters’ allegations that she had been “locked out” of ATO premises. I also reject Ms Peters’ allegation that she had been “locked out” of a training opportunity. Page 56 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 Failure or refusal to offer Ms Peters an APS 3 facilities management position [407] Ms Peters alleges that a suitable position for her became available on 15 August 2013 but was not offered to her, the result of which was that she was put in a “likely excess” situation. [408] I find that the consolidation of five Melbourne CBD sites into a single location in Docklands commenced in about July 2012. I find that the reduction in the ATO sites in the Melbourne CBD resulted in the ATO no longer requiring the same number of facilities management staff to serve the single Docklands site. I find that as a result there was a need to reduce the eight existing APS 3 positions in facilities management to four positions. I find that the ATO implemented a process to determine which of the eight existing APS 3 facilities management staff would fill the four positions available. I find that the selection process was frustrated by industrial action taken by the Australian Services Union and proceedings commenced in Fair Work Commission. I find that, as a consequence, the selection process was put on hold by the ATO until the Fair Work Commission determined the matter in mid- 2013. I find Ms Peters was invited to participate in the selection process at the same time and in the same manner as the other APS 3 candidates. [409] I find that Ms Peters was initially ruled as “non-competitive” by the independent selection panel comprising of Mr Lennox and Ms Beesley because her application for the positions was non-compliant as she had failed to address the selection criteria. [410] I find that Mr Osborne and Mr Stewart insisted that Ms Peters be given an opportunity to resubmit her resume in an appropriate format and that Ms Peters be given an opportunity to interview for one of the four APS 3 positions. I find that Ms Peters on 21 July 2013 sent an email to Mr Stewart advising that she could not attend an interview because she had not been told where the interview was to be held and she had not been provided with information about how she might gain access to the building and that she felt the whole process should be delayed until she had undertaken a return to work program and was fit for full-time duties. [411] I find that Mr Osborne requested that the panel reschedule an interview for Ms Peters and for the panel to advise Ms Peters that she was able to enter the building if she wished to attend a face to face interview with the panel. [412] I find that Ms Peters participated in a telephone interview with the panel on 1 August 2013. [413] I find that on 16 August 2013, Ms Peters was informed that she was unsuccessful in her application for one of the four APS 3 positions and was declared a likely excess position. Suitable APS 3 position did not become available on 15 August 2013 [414] I find that by 15 August 2013, Ms Peters had been deemed unsuitable and uncompetitive for the APS 3 positions and that was why Ms Peters was not offered one of the four APS positions. I find that Ms Peters was not subjected to adverse action. Ms Peters not offered a suitable position at Box Hill in mid-2012 [415] Ms Peters alleges that, in mid-2012, a suitable position became available at the ATO office in Box Hill but that it was not offered to her. Ms Peters alleges that this was further adverse action taken by the ATO in order to prevent Ms Peters from exercising one or more of her workplace rights. [416] I find that Ms Peters was not offered the Box Hill position. I find that the failure to offer Ms Peters the Box Hill Page 57 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 position was not taken in order to prevent Ms Peters exercising one or more of her workplace rights. I find that continuously throughout the second half of 2012 and thereafter, Ms Peters was certified by her treating doctors as unfit to perform work and not certified as fit to participate in management processes including participating in the Code of Conduct process. [417] I accept Ms Fazio’s evidence that in early July 2012, Ms Fazio informed Ms Peters that the role involved the same work that Ms Peters had performed in the Melbourne CBD. Ms Fazio informed Ms Peters that she needed to be certified as fit for work by her treating specialist, Dr Katz. I also find that Ms Peters was informed by Ms Fazio that she would be required to participate in the Code of Conduct investigation upon any return to work and that this was discussed between Ms Peters and the rehabilitation provider, Ms Shembrey. I accept Ms Fazio’s evidence that on or around 8 August 2012, she attended a meeting during which Dr Katz said that he was not comfortable with Ms Peters participating in a Code of Conduct process on her return to work. [418] I find that there was no failure by the ATO to offer work at Box Hill to Ms Peters in circumstances where Ms Peters’ treating doctors had certified that she was not fit for work. In these circumstances, a failure to offer Ms Peters work at Box Hill could not be said to constitute adverse action. [419] I accept Ms Fazio’s evidence that to the extent that it is alleged that she was involved in an alleged failure to offer Ms Peters a temporary role at Box Hill in mid-2012, Ms Fazio did so because Ms Peters was not satisfied by her treating doctors as being fit to participate in the Code of Conduct process and therefore was not fit to return to work. [420] I find that the failure to offer Ms Peters the Box Hill position was neither adverse action nor conduct engaged in for a prohibited reason. Denial of opportunity to upgrade skills [421] I reject Ms Peters’ claim that she was denied an opportunity to upgrade her skills or to keep up to date with work practices. I find that a consequence of Ms Peters’ lengthy absence from the workplace was that she did not maintain an ongoing involvement with work. As a consequence, Ms Peters did not upgrade her skills or keep up to date with work practices. This was because Ms Peters was certified by her treating doctors as being not fit for work and as a consequence did not attend work. I find that her non-attendance was not due to any conduct by the ATO but was due to the failure of her treating doctors to certify Ms Peters as being fit for work. I reject Ms Peters’ claim that she was denied access to her resume after the move by the ATO to Docklands. Ms Peters conceded under cross-examination that between 21 May 2013 and 1 August 2013, when Ms Peters interviewed for one of the four APS 3 positions, she made no attempt to retrieve her resume from the workplace. I find that there was no basis upon which Ms Peters was denied access to her resume. Failure to assist Ms Peters in finding new employment [422] I reject Ms Peters’ claim that the ATO failed to assist her in finding new employment. I accept the evidence of Ms Rynhart that she actively sought to find new employment within the ATO for Ms Peters. I accept Ms Rynhart’s evidence that between July 2012 and March 2014, Ms Rynhart sought to identify an appropriate position within the ATO to place Ms Peters in an APS 3 position. I accept Ms Rynhart’s evidence that she made Ms Peters aware of the APS 3 vacancies in the payroll team, the debt branch, as a compliance officer at Moonee Ponds, as a compliance officer at Box Hill and in data matching in corporate strategies in the Melbourne CBD. [423] I accept Ms Rynhart’s evidence that she did not believe that Ms Peters was making genuine attempts to find employment within the ATO. I accept Ms Rynhart’s evidence that Ms Peters was not particularly interested in finding another position at the ATO and seemed to assume that the ATO would just give her a job. Page 58 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 [424] I also accept the evidence of Mr Stewart as to the redeployment efforts made by the ATO to find Ms Peters a job. None of the evidence of Ms Rynhart or Mr Stewart was challenged by Ms Peters and I accept their evidence as to the attempts made by them to find a position within the ATO for Ms Peters. CONSIDERATION [425] For the reasons which I have given, Ms Peters was not a reliable or credible witness. I prefer the unchallenged affidavit evidence tendered by the ATO and I accept the oral testimony of the three witnesses which were cross-examined, namely, Mr Sofronoff, Mr Smillie and Ms Fazio. Each of those witnesses impressed me as a witnesses of truth who did the best they could to recall events which occurred many years ago. [426] I am satisfied that the ATO has tendered evidence from each of the decision-makers who were involved in the alleged adverse actions against Ms Peters. Each of those witnesses in their affidavit denied that Ms Peters’ workplace rights was a substantial and operative reason for any of the conduct on their part. Ms Peters cross- examined three witnesses, Mr Sofronoff, Mr Smillie and Ms Fazio. She did not challenge these witnesses as to their reason for taking the alleged adverse action against Ms Peters. Ms Peters did not put to the witnesses that their alleged adverse actions were taken against Ms Peters because she had exercised her workplace rights. I accept the denials made by Mr Sofronoff, Mr Smillie and Ms Fazio in their affidavits which was not, as I have said, challenged by Ms Peters. [427] The affidavit evidence of the other ATO witnesses was not sought to be challenged by Ms Peters in cross- examination. Each of the deponents in their affidavit denied that any of the alleged adverse action against Ms Peters was as a consequence of Ms Peters seeking to exercise workplace rights. I accept that unchallenged evidence. [428] The ATO’s evidence, which I accept, provides a fulsome explanation for the actions including those alleged to be adverse actions taken against Ms Peters and provide an objectively logical explanation for the actions taken which does not include being a response to Ms Peters exercising workplace rights. [429] I am satisfied that the ATO has rebutted the reverse onus in s 361 of the FW Act in respect of the reasons given by the ATO’s witnesses for taking the alleged adverse action. I am satisfied that Ms Peters was not subjected to any adverse action for a prohibited reason. [430] I am satisfied on the evidence that the proceeding must be dismissed. Ms Peters has not established that the ATO contravened s 351(1) of the FW Act by taking unlawful adverse action against her because of her age. [431] Ms Peters has not established on the evidence that the ATO contravened s 340(1) of the FW Act by taking any of the adverse action claims alleged against the ATO in her ASOC. [432] For the reasons given earlier, this Court does not have jurisdiction to entertain any application by Ms Peters alleging contravention under s 31 of the AD Act or s 15 of the DD Act. DISPOSITION [433] Ms Peters’ claims must be rejected. The proceeding will be dismissed. Order Page 59 of 59 Peters v Commonwealth of Australia, [2021] FCA 1624 1. The proceeding is dismissed. 2. The costs of the proceeding are reserved. The applicant appeared in person. Counsel for the respondent: Ms R Sweet appearing with Mr A Crocker Solicitors for the respondent: MinterEllison End of Document