Casaubon v Department of Transport and Main Roads [2015] QIRC 141

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Casaubon v Department of Transport and Main Roads [2015] QIRC 141 PARTIES: Casaubon, D’Arcy (Applicant) v Department of Transport and Main Roads (Respondent) CASE NO: B/2011/50 PROCEEDING: Section 276 application to vary or void contract of service DELIVERED ON: 31 July 2015 HEARING DATES: 28 July 2014 29 July 2014 30 July 2014 31 July 2014 MEMBERS: Industrial Commissioner Black ORDERS: Application dismissed CATCHWORDS: INDUSTRIAL LAW - APPLICATION TO AMEND OR DECLARE VOID A CONTRACT FOR SERVICE - acceptance of voluntary early retirement offer - claim of undue influence or pressure - claim that contract was unfair in that it did not prevent bullying behaviour. CASES: State of Queensland (Department of Transport and Main Roads) v D'Arcy Joseph Casaubon (B/2012/7) State of Queensland v D'Arcy Joseph Casaubon (C/2013/3) APPEARANCES: D'Arcy Casaubon v Department of Transport and Main Roads [2015] QIRC 025 Burgess v Huntsman Chemicals Pty Ltd [2003] 174 QGIG 377 Mr K. Watson, Counsel instructed by Mr L. Beaton, for Susan Moriarty Solicitors the Appellant. Mr M. Spry, Counsel instructed by R. Cornes, Crown Law for the Respondent. -- 1 of 32 -- 2 Decision [1] The applicant, Mr Casaubon, applies to the Commission, pursuant to s 276 of the Industrial Relations Act 1999 (the Act), for orders varying or declaring void the contract of service between him and the Department of Transport and Main Roads (the Department), and an order that the Department pay him compensation in the sum of $169,379.51. [2] The applicant had commenced employment with the Department some time in 1992 in the capacity of Driving Examiner. By letter dated 1 February 1999 he received a permanent appointment to the AO3(4) position of Driving Examiner, Client Service Delivery - North (South East), South East Region, Queensland Transport, at Maroochydore. He accepted an offer of a Voluntary Early Retirement (VER) package on 12 December 2008. The VER was offered in accordance with Directive 11/05 Voluntary Early Retirement, a directive made under the provisions of the Public Service Act 1996. [3] At the time of accepting the VER offer, the applicant's contract of employment was subject to the State Government Departments Certified Agreement 2006 and the Public Service Award - State 2003. At all relevant times the applicant was a public service employee employed pursuant to the Public Service Act in operation at the time. Despite ending his employment with the Department in December 2008 the applicant did not commence proceedings against the Department until 13 December 2011. [4] The prosecution of the application has followed a convoluted path. In proceedings commenced on 3 May 2012 the Department unsuccessfully sought to strike out the application pursuant to s 331(b)(ii) of the Act. The decision of the Commission given on 19 December 20121 was appealed, but President Hall dismissed the appeal on 26 June 20132. [5] On 12 May 2014 the Department lodged an application3 for further and better disclosure. Included in the orders sought was an order that the applicant disclose information pertaining to legal advice he had received from his lawyers, Susan Moriarty and Associates. In a decision given on 26 May 2014 Deputy President Kaufman declined to make the orders sought but granted leave to the Department to re-agitate the matter at some future stage if circumstances warranted. [6] The substantive application was heard on 28 July, 29 July, 30 July and 31 July 2014. All the witnesses sought to be called by either party were called across these hearing dates. However during the proceedings the applicant alluded during cross-examination to particular audio tapes and emails that had not been discovered. This led to the Department calling for the tapes and emails and asking that the applicant be recalled for further cross-examination. The Department said that the non-disclosure of the audio tapes in particular had affected the manner in which the applicant had been cross- examined and the manner in which evidence had been adduced from the Department’s witnesses. The Department also announced that it wanted to renew its application for further and better disclosure on the basis that legal professional privilege should be waived. 1 State of Queensland (Department of Transport and Main Roads) v D'Arcy Joseph Casaubon (B/2012/7) 2 State of Queensland v D'Arcy Joseph Casaubon (C/2013/3) 3 B/2014/20 dated 12 May 2014 -- 2 of 32 -- 3 [7] In the end result the proceedings were adjourned on the basis that further hearing dates were required to enable the Department to re-agitate its application for further and better disclosure, to enable tapes and emails not previously discovered to be entered into evidence, to recall the applicant for the purpose of giving further evidence about the new material and to allow, if requested, the recall of some or all of the Department's witnesses. [8] Further submissions were filed by both parties in respect to the legal professional privilege issue. The Department's submissions were filed on 25 August 2014 and the applicant's submissions were filed on 8 September 2014. The intention at that stage was to allow the parties to make oral submissions in relation to the matter at a date to be scheduled. Subsequent to these activities no further action was taken in respect to the application until 30 October 2014 when the applicant's solicitors informed the Commission that they no longer acted for the applicant. A notice of withdrawal of appointment of lawyer was subsequently filed by the applicant. Following these developments the matter was listed for call-over on 4 November 2014. [9] In the call-over proceedings the Department informed the Commission that while discovery of emails and audio tapes had occurred, and notwithstanding the earlier request of the Department that the applicant be recalled to give evidence in respect to this material, it was no longer of that view and that no further hearing time was sought. Neither did the applicant, who was self-represented, seek a resumption of the hearing and by agreement the parties asked that the outstanding matters be disposed of in the following way:  The Department's application dealing with the issue of legal professional privilege would be determined on the submissions lodged on 25 August and 8 September 2014, and that no further hearing would be required in connection with the matter;  No further hearings would be held in connection with the substantive application and this matter would be determined by reference to the proceedings conducted on 28, 29, 30 and 31 July 2014 and having regard to written submissions to be filed by the parties subsequent to the determination of the matter relating to legal professional privilege. [10] On 17 February 20154 the Commission issued its decision in relation to the legal professional privilege issue. The effect of the decision was to dismiss the Department's application for further and better discovery. The determination of this matter then left the substantive application for resolution. In this regard final submissions were filed by the by the applicant on 7 April 2015 and by the Department on 21 April 2015. [11] In the substantive proceedings the applicant sought an order varying or declaring void his contract of service and asked that a decision be arrived at in the following terms: "(a) That the contract was unfair, harsh or unconscionable or was against the public interest; (b) That the contract made between D'Arcy Joseph Casaubon and Queensland Transport as referred to in this application be declared void (wholly or partly); or 4 D'Arcy Casaubon v Department of Transport and Main Roads [2015] QIRC 025 -- 3 of 32 -- 4 (c) That the said contract be amended to overcome its unfairness as set out in this application; (d) That Queensland Transport be ordered to pay an amount of money to D'Arcy Joseph Casaubon which the Commission considers appropriate in the circumstances; (e) Further or alternatively, such other order as the Commission considers appropriate in the circumstances." [12] In his application the applicant asserted that his contract with his employer was unfair for the following reasons: (a) It failed to protect the applicant from bullying behaviour; (b) It failed to provide a suitable mechanism to investigate and deliver a just outcome in respect of the applicant's complaints; (c) It failed to provide an opportunity to the applicant to be a full participant in the investigation conducted into complaints made against him; (d) It allowed the Department to offer a VER at a time when the applicant was especially vulnerable as a result of the applicant's state of mind, and in circumstances where he needed to make an informed choice between the VER or permanent employment at Spring Hill; (e) It permitted the Department to propose a transfer which was disadvantageous to the applicant without proper consultation and thereby permitted the Department to take advantage of the applicant's personal circumstances, including the need to travel an additional 20 hours per week to Spring Hill in Brisbane (from the Sunshine Coast); (f) It allowed the Department to transfer the applicant to Spring Hill at a time when the applicant's substantive position at Nambour still existed; (g) It did not require the Department to correctly implement the approach recommended by Dr Richardson in that the Department unreasonably limited the options available to the applicant to a VER or transfer to Brisbane and erred in not accepting that Dr Richardson had cleared the applicant to return to work in his substantive position. [13] Soon after the application was lodged the Department sought further particulars from the applicant in respect to various aspects of his application. The applicant's response to the Department's request was provided on 5 April 2012. Subsequently on 5 June 2014 the applicant lodged an amended response. In the amended response the applicant said that his contract should be varied by including terms that required the Department to give the applicant adequate time to consider the terms of the VER taking into account his mental state at the time; that required the Department to adequately consult with the applicant about any proposed transfer; and that required the Department to properly consider alternative transfer locations for the applicant. [14] Prior to the commencement of the substantive proceedings an outline of submissions had been lodged by both parties. The applicant's submission was filed on 21 May 2014 while the Department's submission was filed on 7 July 2014. In essence the position of the applicant was that:  The relationship between the applicant and the Department was contractual and amenable to a s 276 application; -- 4 of 32 -- 5  That pursuant to s 276(2)(a)(b), the Commission may in determining whether to amend or void a term or terms of the contract, consider the relative bargaining power of the parties to the contract and whether any undue influence or pressure was exerted on, or any unfair tactics were used against, a party to the contract;  That undue influence or pressure was exerted upon the applicant by the Department in the way in which the voluntary early retirement offer was made to the applicant;  That the failure to include such terms as sought in the application has long been acknowledged as a species of unfairness in a contract and thus susceptible to variation to overcome such unfairness. [15] The Department said in its submission outline that while it accepted that the contract between it and the applicant fell within s 276(1)(a)(i) of the Act, it did not accept that the contract was an unfair contract. Legislation [16] Section 276 of the Act states: "276 Power to amend or declare void contracts (1) On application, the commission may amend or declare void (wholly or partly) a contract if it considers- (a) the contract is- (i) a contract of service that is not covered by an industrial instrument; or (ii) a contract for services; and (b) the contract is an unfair contract. … (2) In deciding whether to amend or declare void a contract, or part of a contract, the commission may consider - (a) the relative bargaining power of the parties to the contract and, if applicable, anyone acting for the parties; or (b) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, a party to the contract; or (c) an industrial instrument or this Act; or (d) the Queensland minimum wage; or (e) anything else the commission considers relevant. … (7) In this section- -- 5 of 32 -- 6 accident pay provision means a provision for accident pay, or other payment, on account of a worker sustaining an injury. contract includes- (a) an arrangement or understanding; and (b) a collateral contract relating to a contract. industrial instrument includes a federal industrial instrument. injury means an injury under the Workers’ Compensation and Rehabilitation Act 2003. unfair contract means a contract that- (a) is harsh, unconscionable or unfair; or (b) is against the public interest; or (c) provides, or has provided, a total remuneration less than that which a person performing the work as an employee would receive under an industrial instrument or this Act; or (d) is designed to, or does, avoid the provisions of an industrial instrument." Case Law [17] The relevant legal principles were canvassed by Fisher C in Burgess v Huntsman Chemicals Pty Ltd5 in the following terms: "Section 276(7) defines an “unfair contract” and includes at (a) a contract that is harsh, unconscionable or unfair. In deciding applications under s 276 of the Act, this Commission has adopted and applied a number of legal principles developed in relation to similar provisions as they have appeared in the New South Wales industrial relations legislation. In particular, this Commission has adopted and applied the test of unfairness developed by Sheldon J in Davies v General Transport Development Pty Ltd (1967) AR (NSW) 371. In that matter Sheldon J said (at 374) that unfairness of a contract was to be determined according to 'the common sense approach characteristic of the ordinary juryman. . . It is a plain matter of morals not law.' He also said (at 374, 375) that the (NSW) section’s 'massive power makes it imperative that it should be exercised with proper restraint . . . it should not permit itself to become a refuge for those who are merely disgruntled with a bargain entered into on even terms. . . the discretion should be exercised to protect victims of wrong dealings not to prescribe anodynes'. These principles have been adopted in various matters in this Commission including Reilly v TDG Logistics Pty Ltd (2001) 166 QGIG 430; P & J Trucking Pty Ltd ats Toll Transport Pty Ltd t/as Toll Logistics (2000) 166 QGIG 434 and Kevin Gleeson and Gold Coast Bakeries (Queensland) Pty Ltd (2001) 166 QGIG 354. Both parties also referred to these principles in their written submissions." 5 Burgess v Huntsman Chemicals Pty Ltd [2003] 174 QGIG 377 -- 6 of 32 -- 7 Evidence [18] The applicant gave evidence in support of his application while evidence for the Department was given by Carol Sheffield, Susan Reardon, and Anthony Kursius. [19] Persons not giving evidence, but who were referred to during the proceedings, included Mr Bradley Phillips Customer Service Centre (CSC) Manager for Nambour; Ms Cathy Gardiner, Customer Service Centre Manager for Maroochydore; Mr Phillip Davies, Business Area Manager to whom the CSC Managers reported; and Mr Michael Morgan, Product Centre Manager to whom Mr Davies reported. Overview [20] The applicant said in his affidavit that he experienced "substantial difficulties with members of management" from 1998 and through to 2008. He said that he was "outspoken in his views" primarily relating to safety issues. He said he was also a union representative between 1998 and 2008. He said that "all in all, I was considered a problem by management". In his final written submissions the applicant referred to vilification experience by him between November 2004 and December 2008. [21] At or around November 2004 the Department decided to act on complaints made by customers and co-workers about the applicant. These complaints precipitated the conduct of an external investigation by Livingstones Australia (Livingstones), which in turn led to the implementation of a performance management process in connection with which the applicant made a WorkCover claim in May 2006. This claim was accepted by WorkCover with effect from April 2006. [22] Arising from circumstances associated with his WorkCover claim, the applicant was off work for 20 months from April 2006 to 29 November 2007. While the applicant was medically cleared to return to work in late February 2006, discussions or negotiations about the return to work were complicated and ultimately the applicant did not resume work until the end of November 2007 when directed to do so by the Department. [23] The applicant returned to work at the Gympie Customer Service Centre for two days each week. At the end of January 2008 this commitment increased to three days a week including a day at the Nambour CSC. However this arrangement ended when the applicant said that he would not work with Mr Phillips and Ms Reardon made it plain that it was not tenable for the applicant to continue to work at Gympie. In the circumstances, the Department decided to subject the applicant to an independent medical assessment and to deploy him to Spring Hill on 29 February 2008 pending the outcome of the assessment. A complaint lodged by the applicant in relation to his deployment delayed his start at Spring Hill until 3 April 2008 and the applicant took a period of leave in the interim. [24] The applicant worked at Spring Hill until 9 June 2008 when he commenced a period of long service leave. It was the applicant's preference not to return to work at Spring Hill and when he was informed that he would be returning to Spring Hill he commenced a period of sick and other leave and lodged a complaint with the Acting Director General. In September 2008 the Department turned its mind to a consideration of whether the applicant would qualify for a Voluntary Early Retirement (VER) package and in -- 7 of 32 -- 8 October 2008 it raised the prospect with the applicant. The applicant accepted a VER on 12 December 2008 and left the employment of the Department on 19 December 2008. Bullying Behaviour [25] At paragraph 87 of his affidavit (Exhibit 1) the applicant said that his contract failed to protect him from bullying behaviour by management and said that the behaviour related to matters which had been the subject of his successful WorkCover claims. However, on the information provided, only one of his past claims was related to unreasonable management behaviour. This claim was lodged on 23 May 2006 and referred to the injury as anxiety and reactive depression and stated that the injury arose from intimidation and bullying in the workplace. [26] While an earlier claim dated 13 August 2001 also involved a psychological injury it did not appear to involve allegations of bullying and the principal stressor did not have any direct connection with management action. At paragraph 23 of his affidavit the applicant said that he suffered this injury "as a result of the on-going issues with aggressive customers (which included unfounded complaints) and excessive workload". [27] The applicant's other claims were physical injury claims. His claim dated 13 January 2002 arose from a motor bike accident which occurred on the way to work, while his claim dated 16 June 2005 involved a hip injury sustained while getting out of a test vehicle. [28] On the applicant's version of events his May 2006 WorkCover claim arose out of unreasonable management action taken in connection with the implementation of a performance agreement. The commencement of the performance process represented the Department's response to a report prepared by Livingstones into the complaints made about the applicant by customers and co-workers. The applicant said in his affidavit that around August 2005 he was placed on a performance improvement plan (PIP) following which he "was then systematically bullied by management in relation to the PIP" (paragraph 44). While the applicant referred to a PIP, the evidence establishes that, for the most part, the performance process used by the Department was a performance planning agreement (PPA). The difference is significant in that a PIP is a disciplinary process wherein the PPA is the routine performance improvement mechanism in which the commitment and agreement of the employee is secured to achieve particular year-end objectives. [29] In the amended response filed by the applicant on 5 June 2014 further particulars were provided about how he had been bullied. The applicant referred to the Livingstones investigation, the implementation of a PPA, a requirement to test violent customers in 2004 and 2005, the failure to conduct a mediation with Mr Phillips, the direction to work in Gympie on a full-time basis in breach of a medical certificate, the direction to attend an independent medical examination, and the formulation of a VER offer in breach of Directive 11 of 2005. [30] There was insufficient evidence adduced to support a finding in respect to the testing of violent customers. Nor am I prepared to make a finding in support of the applicant in respect to the failure to conduct a mediation. While the matter was poorly handled by the Department, the mediation did not proceed because Mr Phillips declined to participate. There is no significant basis upon which I could find that Mr Phillips' election -- 8 of 32 -- 9 to not participate, or the Department's unwillingness to direct Mr Phillips to participate, amounted to bullying behaviour. The proposition that the applicant was directed to resume work in Gympie in breach of medical direction is not sustainable on the facts. The submission in respect to the VER was to the effect that, were the terms of the Directive strictly complied with, no offer would have been made. I am unable to accept that this set of circumstances, if proved, reasonably translates into bullying conduct. The other allegations are addressed in the course of this decision. [31] A number of managers had some involvement in the PPA process. The applicant said that Ms Kent, Acting Regional Director for the Department, had formally communicated with him about the requirement to enter into a performance planning agreement, and that Ms Kent had directed him to sign the agreement. Initially Kathy Gardiner (Customer Services Manager, Maroochydore) was responsible for the administration of the PPA, but this responsibility was transferred to Mr Phillips in late October 2005. [32] While Mr Phillips, as the applicant's supervisor, would have been expected to conclude the PPA, the process was complicated by the applicant's lack of enthusiasm and his request that he be allowed representation by his union. After a number of disagreements emerged over the content of the PPA, and the applicant refuse to conclude the document, the process was escalated to senior management and ultimately Ms Kent directed the applicant to sign the PPA on or about 30 March 2006. [33] It was the applicant's evidence (paragraphs 46 to 48 of his affidavit) that he was involved in a workplace dispute with Mr Phillips between the middle of 2005 and through to early 2006. He said that the dispute arose from a direction that he sign the performance planning agreement. In his amended response dated 5 June 2014 the applicant described his dispute with Mr Phillips as a dispute "in writing" which was evidenced by the content of particular emails which were attached to the response. [34] Despite the general acceptance that the applicant had an axe to grind with Mr Phillips arising from or related to the implementation of the performance agreement, the applicant did not provide specific evidence which described behaviours or actions which could be construed to amount to bullying behaviour. The particulars of the bullying were generally disguised in general propositions such as that the applicant was systemically bullied by management in the implementation of the PPA. The vagueness in the evidence was reflected in sentiments expressed by Ms Reardon in a statement attached to her affidavit (Attachment SR5 to Exhibit 19): "Although Paul has repeatedly claimed that he has issues working with Brad Phillips, he refuses to state what these issues are. Brad Phillips informs me that he has no specific issues with Paul and that the only historical matter was over the development of the PPA which Paul had refused to sign." [35] The applicant included in his affidavit a copy of some email exchanges between himself and Mr Phillips relating to particular terms of the PPA and related matters, but these documents do not sustain any claim that the applicant was bullied by Mr Phillips. Further some of the disagreements about the content of the PPA were prosecuted by the union on behalf of the applicant and ultimately some of these matters were resolved to the applicant's satisfaction. This was a process of negotiation not bullying. -- 9 of 32 -- 10 [36] While the applicant relied on the outcomes of the WorkCover process, including the regulator's review decision, conclusions adverse to the Department or to Mr Phillips about bullying behaviour were not arrived at. The review decision made a finding of unreasonable management action based almost exclusively on delays in the process. The decision found that a delay of one and a half months in presenting allegations to the applicant was unreasonable; that a delay of four weeks in getting a draft statement to the applicant was unreasonable; that a two month delay taken by the Department in finalising its response to the Livingstone investigation was unreasonable; that the delay in conveying the Department's response to the applicant was unreasonable; that a delay of four months in commencing discussions about the PPA was unreasonable; and that the delay in making changes to the PPA which were sought by the union on behalf of the applicant was unreasonable. [37] As part of WorkCover's consideration of the applicant's claim it commissioned an investigation by Maurice J Kerrigan. In respect to relevant matters, the Kerrigan report concluded that "whilst our inquiries reveal that there were reasonable grounds for undertaking the investigation, the length of time between the Claimant being notified of the investigation (27 January 2005) and him being informed of the result (11 August 2005) was much longer" than what would be expected for an investigation of this type. It also commented adversely on other delays in the process including the delay in communicating the outcome to the applicant. Kerrigan considered the delay in finalisation of the report to be too long and noted that the delay may have adversely affected the applicant. [38] I do not agree that the decision of the Department to direct the applicant to sign the PPA amounted to an act of bullying. The PPA process had extended across an inordinate amount of time and while the Department was responsible for the delay in the commencement of the process it was entitled to be frustrated and exasperated that no resolution had been achieved four months after Mr Phillips commenced discussions in late November 2006. What should have been a relatively straight forward discussion between the applicant and his supervisor was transformed into an adversarial contest which was shaped more by the applicant's displeasure that the process was instigated than by compelling or substantive objections to the content of the PPA. [39] The applicant's resistance to the formulation and implementation of his PPA was disproportionate to the factual circumstances in which he was placed. When the applicant withdrew his co-operation from the process the Department had no option but to direct him to sign the agreement and to take disciplinary action if he refused to do so. A different view would be appropriate if the Department action in declining to make changes demanded by the applicant was plainly unreasonable, but I do not consider this to be the case. [40] While the applicant submitted that his contract was unfair in that it failed to protect him from bullying behaviour he has failed to establish the necessary factual foundation for such a submission to be entertained. Complaints [41] In his application the applicant claimed that his contract was unfair because it failed to provide a suitable mechanism to investigate and deliver a just outcome arising from complaints he made during the course of his employment. -- 10 of 32 -- 11 [42] In support of a finding of contract unfairness the applicant proposes that findings be made in respects to complaints he has made to the Department or against the Department extending back as far as 1998. However, in giving his oral testimony the applicant has failed to provide me with sufficient particulars to justify the finding sought. While there was no shortage of documentary material included as attachments to the applicant's affidavit, no significant attempt was made by the applicant in his evidence to temporally connect the historical material with his unfair contract application lodged in 2011. [43] In terms of complaints made against him the applicant said that the contract was deficient in that it failed to provide him with an opportunity to be a full participant in the investigations conducted by or on behalf of the Department into the complaints. This claim is contradicted in the Livingstones report which stated that the applicant "participated freely and fully in the investigative process". It was also recorded that the applicant was interviewed on two occasions, 18 February 2005 and 25 February 2005. In the first interview the applicant was supported by his solicitor and by Mr Cardno, Principal Advisor Driver Assessment (PADA), and a psychologist. In the second interview the applicant was supported by Mr Cardno and his psychologist. [44] The key recommendations emanating from the Livingstones investigation were that consideration be given by the Department to taking disciplinary action against the applicant, and that the applicant be given anger management counselling, customer service skills training and interpersonal skills training. However when Ms Kent (Acting Regional Director) formally informed the applicant of the Department's response to the investigation on 26 August 2005, disciplinary action was not included. [45] Ms Kent advised the applicant that two actions would be implemented "for the purpose of assisting you to meet the behavioural expectations of your role of Driving Examiner". The actions taken were a direction to the applicant to attend "anger management" and "customer service skills" training and the completion of a performance planning agreement involving quarterly reviews. The PPA was to include a process where immediate feedback was to be provided in the event that the applicant's behaviour did not meet expectations. [46] An initial meeting about the PPA process was held between Ms Gardiner, Mr Davies and the applicant at the end of August 2005. However because the applicant was transferred from Maroochydore to Nambour and Mr Phillips did not take up his position of Manager of the Nambour CSC until later in the year, the implementation of the PPA process was delayed. [47] A chronology of key events associated with the implementation of the PPA was included in the Kerrigan report in the following terms: "Following the finalisation of the 2005 investigation, preliminary action was taken by Gardner in August 2005 in relation to both a PPA and PIP process for the Claimant. However for reasons which remain unclear the PPA and PIP process did not get underway until November 2005, when Phillips returned to his substantive position. Then, in December 2005, it was realised that the Claimant was not supposed to be under a PIP process and such PIP process was dropped. Our inquiries reveal that between November 2005 and January 2006, Phillips changed the Claimant's PPA on 2 occasions to reflect changes requested by the -- 11 of 32 -- 12 Claimant and / or his union. The situation then reached a stalemate in February 2006 when Phillips chose not to accommodate further requested changes sought by the union over what the union rep (Bailey) considered to be objectionable clauses. However such stalemate appears to have then been resolved during a meeting involving senior management in early April 2006." [48] The Kerrigan report also included a statement from Juliette Roberts, Human Resources Manager for Queensland Transport (Attachment DJC27J to Exhibit 1). Ms Roberts said in her statement that the applicant was informed of the specific complaints made against him in a letter dated 24 January 2005. She said the complaints "primarily related to incidents that had occurred in November and December 2004". She said that the complaints had been raised by customers and staff. The complaints listed in the 24 January 2005 correspondence including the following: - a complaint that the applicant was abrupt and arrogant to a driving school instructor; - a complaint that the applicant was rude or adopted an inappropriate attitude towards examinees; - the applicant refused to comply with an instruction from his manager, Cathy Gardiner; - the applicant conducted himself inappropriately in Driver Examiner meetings including adopting an aggressive demeanour, raising his voice, and making inappropriate comments. [49] Ms Hunter said that on 22 March 2005 the applicant was provided with a draft copy of his statement and that he was allowed time to consult with his union and his psychologist before signing. The applicant's final statement was not completed until 20 April 2005. The investigation report was finalised on 2 May 2005. Ms Hunter set out the response of the Department to the report in paragraph 23 of her statement. The response was finalised on 4 July 2005. She said that it was determined that disciplinary action was not an appropriate response due to the age of some of the allegations and the fact that consistent and documented feedback had not been provided to the applicant when the incidents occurred. It was determined that the applicant should be provided with a full copy of the investigation report and that the appropriate manager meet with the applicant to discuss the findings of the report and to "clearly outline to him what is and isn't acceptable behaviour". [50] Ms Hunter said that the applicant was sent an email dated 11 July 2005 in which he was informed that the outcome of the investigation would be made known to him in seven to 10 days. Ultimately the applicant was informed of the outcome of the investigation on 11 August 2005, with a formal communication occurring later in the month. [51] Ms Hunter said that there had been some confusion within management about whether a PPA or a PIP was to be utilised. She said however that "the confusion was resolved and that all parties then understood that it was a PPA that was required and not a PIP". The view of Mr Phillips as articulated in Exhibit 26 was that he initially developed a PIP but that soon thereafter Ms Kent phoned him and asked him why he was conducting a PIP and told him to replace the PIP with a PPA. In this regard Ms Kent was acting consistently with the terms she had set out in her letter to the applicant dated 28 August 2005. -- 12 of 32 -- 13 [52] In a statement provided to the Kerrigan investigation (Attachment DJC27G to Exhibit 1), Paul Bailey gave his account of what transpired with the PPA and the PIP process. Bailey was involved in the process in the capacity of the applicant's union advisor. Bailey said in effect that the PPA involved an agreement entered into between employees and their manager on an annual basis. Further it was expected that the PPA should be reviewed quarterly. Mr Bailey's statement explained that "if there are performance issues that are not being resolved through the PPR process, then under the department's performance management policy, management can implement a performance improvement plan (known as the PIP process)". Mr Bailey pointed out in his statement however that the PIP process was abandoned and that all matters were left for consideration under the PPA process. [53] Emails included in the evidence as Attachment DJC20 to Exhibit 1 disclose that Mr Phillips met with the applicant to discuss a draft performance plan on 14 November 2005. There was some uncertainty whether the plan at this stage was in the form of a PIP or PPA. In an email to the applicant dated 15 November 2005 Mr Phillips said that "as there is only a small change to the documents you agreed to yesterday, I see no reason why we cannot proceed with this very quickly." When the process had not been completed by 1 December 2005 Mr Phillips endeavoured to impress on the applicant the importance of completing the document as soon as possible. On 5 December 2005 Mr Phillips declined to accede to the applicant's request to involve his union in the discussions about the performance document. On the same day 5 December 2005 the union wrote to Ms Kent, Acting Regional Director, and informed her that a right of representation existed in the development of a performance improvement plan (PIP). It can be inferred that this communication led to Ms Kent instructing Mr Phillips to proceed with a PPA not a PIP. On 14 December 2005 the union emailed Mr Davies and proposed a number of changes to the PPA as drafted. While some concessions were made by the Department the process reached a point in February 2006 where Mr Phillips informed the applicant on 17 February 2006 that further alterations would not be made. In response the applicant informed him that the whole document was unacceptable and the process stalled. [54] Following this development the process was escalated and on 16 March 2006 Mr Phillips advised the applicant that a meeting would be held on 22 March 2006 for the purpose of providing the applicant "with the Regional Director's response to the issues you have raised concerning your PPA". The applicant eventually signed the PPA on 30 March 2006 when directed to do so by Ms Kent. On the same day his union wrote to Ms Kent pointing out that the applicant had signed the PPA as directed by the Department and under threat of disciplinary action. [55] It was Mr Bailey's version of events that when the applicant signed the PPA at the end of March under threat of disciplinary action, the union had three objections to the content of the PPA. These objections were passed on to Ms Kent and were the subject of a meeting with Mr Bailey in April 2006. In this meeting Ms Kent offered to resolve the Union's concerns with the three clauses. It was around this time that the applicant commenced a period of stress leave before lodging his workers compensation claim on 23 May 2007. [56] The signed copy of the completed PPA is in the evidence as Attachment DJC18 to Exhibit 1. On my review of the document, there is nothing objectionable in the content, nor does the disclosed process suggest any unfairness procedurally or substantively. As -- 13 of 32 -- 14 I understood the applicant he took issue with Part C, the "PPA Assessment" and the section headed "Overall Performance Review". One section of the assessment was deferred pending the appointment of a permanent PADA. The applicant received an unsatisfactory rating for each of the other three dimensions. Importantly however the entries in the "Comments" column made it clear that the rating was an inevitable result of the investigation outcome but indicated that performance in each of the three areas had been trending towards "satisfactory/good" subsequent to the investigation. The outcome of the "Overall Performance Review" was to continue with the PPA process and not to propose the use of a disciplinary process. These outcomes are consistent with Mr Phillips' comments included in the document about the extent to which performance objectives have been achieved: "Considering the investigation into your behaviour and the resulting outcomes were finalised 6 months ago and we are now only at a point of establishing a Performance Agreement this document is somewhat of a compromise. I have tried to include the Investigation outcomes and required training along with a balanced view of your performance to date. Generally you have performed your duties well subsequent to the investigation. Of particular note is the very good response we continue to receive from customers regarding your interaction with them. I have tried to use this document to acknowledge the past and set the scene for the future to ensure you have a clear understanding of what is required of you and how that will be measured. Although the rating is marked as unsatisfactory overall that is only to reflect the reality of the Investigation outcomes and your continued training. If you continue to meet the performance indicators of this agreement I would expect that a satisfactory rating or better would apply at the next review in 3 months." [57] The applicant said that his contract should have included an appropriate mechanism which ensured that the investigation was conducted fairly and justly and that he was given an adequate opportunity to fully prosecute his defence of the allegations made against him. The evidence does not support a finding that this ground has been made out. The investigation was conducted in accordance with principles of natural justice. The applicant was presented with the detail of the allegations and given the opportunity to explain his position in an interview. Subsequent to the interview he was provided with a draft statement and given the opportunity to amend the statement to ensure that it fully reflected his defence of the allegations. There is no basis, on the evidence adduced, for a finding to be made to the effect that the applicant did not comprehend the allegations made against him or that he was not given sufficient time to respond to the allegations. Nor, on a review of all the relevant material, do I conclude that the complaints made against the applicant did not warrant investigation or that the Department's response to incorporate activities in the PPA designed to correct errant behaviour was disproportionate to the facts and circumstances established in the investigation. [58] The correspondence Ms Kent sent to the applicant on 28 August 2005 established that it was always the Department's intention to use a PPA and not a PIP as the vehicle for correcting the applicant's inappropriate behaviour. Mr Phillips' error in commencing the process in November 2005 with a PIP was quickly corrected and while the error was a management failure and the appellant would have been concerned by the apparent escalation in the management action, I am not of the view that the transitory impact of the error gave rise to an unfairness that should have been precluded by contract variation. -- 14 of 32 -- 15 [59] In paragraph 40 of his affidavit (Exhibit 1) the applicant asserted that the Livingstones investigation was flawed because two differing terms of reference were provided and the investigation failed to interview relevant persons including Mr Cardno, Ms Walsh and Ms Burgess. Having reviewed the material relevant to the Livingstones investigation including the statements provided and the final report, I am not inclined to accept the applicant's view on this matter. The suggestion relating to terms of reference appears to relate to the addition of subsequent complaints to the list of matters to be investigated, but there was no flaw in the manner in which the Department or Livingstones handled this matter. Nor do I think that the absence of some interviews is determinative given the number of complaints investigated, the range of material upon which the Department was able to rely, and the decision of the Department in the end result not to take disciplinary action. Return to Work [60] In a report prepared for WorkCover on 22 February 2007 (Attachment DJC25 to Exhibit 1), Dr Kar concluded that the applicant's work-related adjustment disorder had resolved and that the applicant was "well enough to return to work" some time the following week. Dr Kar said in effect that the applicant should return to work on a graduated basis and subject to a suitable return to work plan. Dr Kar also noted that the applicant perceived that he would not be treated fairly on his return to work and feared that he would not be returned to his usual job of driving examiner. [61] It was Ms Sheffield's evidence that after the cessation of the applicant's WorkCover claim on 16 March 2007, discussions commenced with the applicant about his return to work. Pending the applicant's return to work the Department decided to grant him leave on full pay. In the end result this arrangement prevailed up to 29 November 2007 when the applicant returned to work at the Gympie Customer Service Centre (CSC). [62] The contents of a statement drafted by Ms Sheffield on 13 December 2007 (Exhibit 24) and Attachment DJC31 to Exhibit 1 enables the eliciting of a chronology of events which disclose how the return to work process unfolded. Ms Sheffield said that in the first instance a return to work program recommended by the applicant's GP provided for the applicant to return to work for two days a week on the 23 April 2007. She also said that a meeting with the applicant had been proposed for 17 April 2007 to discuss a return to work location however this meeting was ultimately deferred until 3 May 2007. This meeting was attended by Ms Sheffield and Mr Morgan from the Department and the applicant and a union representative. At the meeting when the applicant was advised by Mr Morgan that he would be returning to work at Tewantin CSC he said that he wanted to resume work at Maroochydore CSC. Mr Morgan said that he would consider the request but he subsequently informed Ms Sheffield on 10 May 2007 that the applicant would be returned to work at Nambour CSC. In connection therewith Mr Morgan said that he would arrange for a mediation to be conducted between the applicant and Mr Phillips. [63] A further meeting involving Ms Sheffield, Mr Morgan, and the applicant was held on 28 May 2007. At this meeting the applicant was advised that he would be returned to work at Nambour and that mediation would be arranged for himself and Mr Phillips. At the meeting the applicant said that he was concerned about the Nambour placement and said that his doctor would not support the decision. Subsequently Ms Sheffield spoke to -- 15 of 32 -- 16 the doctor on 4 June 2007 and established that there was no medical impediment to a commencement of work at Nambour. [64] A return to work plan (Attachment DJC30 to Exhibit 1) was signed by the applicant's doctor on 19 June 2007. A condition of the plan was that a mediation session was to be held between the applicant and Mr Phillips prior to the applicant commencing work. The plan provided for the applicant to return to work as a driving examiner for two days per week in the first week, increasing to four days a week in week four. The objective of the plan was to return the applicant to full-time duties as a driving examiner. Nambour CSC was nominated as the work location. [65] Because of delays attributed to Mr Morgan, the arrangements for mediation were not settled until 23 July 2007 when Ms Sheffield advised the applicant that a pre-meeting between the applicant and the mediator had been arranged for 1 August 2007 and that the actual mediation would take place on 9 August 2007. On 25 July 2007 the applicant sought clarification on some aspects of the mediation and also said that he would like to discuss whether a return to work location other than Nambour could be considered. However on 30 July 2007 Ms Sheffield informed the applicant that the Department was not prepared to change the return to work location of Nambour. She also notified of changed dates for the mediation process with the applicant's pre-meeting scheduled for 9 August 2007 and the actual mediation to take place on 16 August 2007. In the end result while the applicant did complete a pre-meeting with the mediator, the formal mediation session with Mr Phillips never eventuated because Mr Phillips declined to participate and Ms Sheffield held the view that mediation required the consent of participating parties. [66] Mr Phillips' view was that he had no issues with the applicant and that mediation was unnecessary. In the circumstances Ms Sheffield said that Mr Morgan agreed on 24 August 2007 that an alternative return to work plan, not involving mediation, should be developed. The applicant was advised by Ms Sheffield on 10 September 2007 that the arrangements for mediation had been cancelled because the process did not meet the needs of the Department. Ms Sheffield also told the applicant that she wanted to convene a meeting with him, Mr Phillips and Mr Davies, the Business Area Manager for the Department. This meeting was initially scheduled for 14 September 2007 but eventually took place on 3 October 2007. [67] The applicant communicated his dissatisfaction at the abandonment of the mediation process to Ms Sheffield (Attachment DJC31 to Exhibit 1). In his communication the applicant referred to the positive part mediation would play in the re-establishment of his trust in management and with Mr Phillips in particular. He also said that he had reservations about how his trust in management could be restored "without replacing the management personnel whose actions attracted WorkCover's unfavourable assessment". [68] At the 3 October 2007 meeting the applicant raised about twenty items for discussion associated with his return to work. However the matters were not discussed because of the presence of Mr Davies and Mr Phillips who were regarded as "triggers" for the applicant's anxiety. While Ms Sheffield said that she saw the list the applicant did not allow her to retain the list. It was not tendered into the evidence in the proceedings. The meeting concluded on the basis that a draft return to work program would be prepared and circulated. -- 16 of 32 -- 17 [69] Mr Davies' reflections on the 3 October 2007 meeting were included in an email he sent to Ms Sheffield on 11 October 2007. The email included the following observations:  The approach of the applicant and his advisors did not reflect the actions of someone "who was willingly and cooperatively working with the department in facilitating a return to work";  While the applicant said that he had many issues with the Department and concerns about his return to work, he refused to discuss any of the issues or concerns;  The applicant's representative said that any discussion about the applicant's issues would be likely to be detrimental to the applicant's wellbeing and may cause him to suffer some stress or anxiety attack. Further, the issues could not be discussed without a medically trained person present;  The applicant's representative said that reporting arrangements in the workplace were a major concern and that any contact between the applicant and line management must be limited to email exchanges with no direct face to face contact. Further if face to face contact were necessary, it could only occur on notice and with a support person or union representative present. [70] Mr Davies concluded that the manner in which the meeting was conducted suggested that the applicant was at risk of suffering a psychological injury. He was concerned that the applicant was not well and "not yet ready to return to work". The email noted that the applicant had been absent from work for 18 months and given the Department's statutory duty to ensure the health and safety of its employees, it was recommended that the applicant should be subject to an independent medical examination to determine his fitness for work. [71] According to Ms Sheffield, subsequent to the receipt of Mr Davies' email, a number of management meetings or discussions took place about the return to work arrangements to apply to the applicant. Ms Sheffield said that the possibility of a medical assessment had been discussed but that ultimately a decision was taken to return the applicant to work at a location other than Nambour. On 29 October 2007 the applicant was informed that he would be returned to work at the Gympie CSC on 12 November 2007. A proposed rehabilitation plan attached to the correspondence provided for the applicant to work two days a week for the first four weeks of employment. [72] On 5 November 2007 the applicant advised Ms Sheffield that he had attended on his General Practitioner, Dr Rivlin, and that Dr Rivlin was unlikely to support his return to work plan. Ms Sheffield spoke to Dr Rivlin about the matter later that day. She said that Dr Rivlin expressed concern about the applicant commuting to Gympie and suggested that the applicant should be allowed to work from home or work at Nambour, but be isolated from his managers. Ms Sheffield informed Dr Rivlin that these suggestions did not constitute viable options for return to work. [73] Ms Sheffield said that on 9 November 2007 Dr Rivlin telephoned her and informed her that the applicant should not return to work at Gympie and that the applicant wanted to return to work at Nambour. Dr Rivlin said that he would not sign the return to work plan -- 17 of 32 -- 18 in its current form. As a consequence of this Ms Sheffield informed the applicant that the return to work planned for 12 November 2007 would have to be delayed. [74] In correspondence dated 16 November 2007, the applicant was directed to return to work at Gympie on 26 November 2007. However the applicant was informed that if he believed that he could not return to work because of "any continuing medical reason", an independent medical assessment would be arranged to establish his fitness for duty and to inform the preparation of suitable return to work arrangements. [75] Notwithstanding the applicant's resistance to returning to work he had made clear to the Department in correspondence sent on 19 November 2007 (Attachment DJC35 to Exhibit 1) that that he was physically and mentally fit to return to driver testing. He said that his fitness for work had been established in medical assessments completed during the WorkCover process including the psychiatric evaluation conducted by Dr Kar on 22 February 2007. [76] In the 19 November 2007 correspondence the applicant noted that he had informed the Department on 3 May 2007 that his preferred option was a return to Maroochydore CSC but that this option was not entertained by the Department. He said that the Department informed him on 28 May 2007 that a return to Nambour CSC was the only option, an outcome which he accepted given the mediation process proposed. He criticised the proposed return to work plan for Gympie on the basis that it was financially punitive in that it only allowed for two days' pay each week; that his travel time to and from work would increase from 40 minutes a day to 120 minutes per day; and that some reconciliation with Ms Reardon was necessary given that her statement to the Livingstones investigation had caused him distress. [77] It was Ms Sheffield's evidence that given the applicant's complaint about the financial consequences of only working two days a week, the Department agreed that if the applicant was medically cleared to do so, he could return to work at Gympie on a full time basis. In the circumstances a revised direction to return to work was issued to the applicant on 23 November 2011. The direction was to the effect that unless the applicant provided the Department with medical evidence that he was unfit to resume work at Gympie CSC, or unless he provided medical evidence that he was unfit to work on a full time basis, then the applicant was to attend for work at Gympie CSC on Monday 26 November 2007. [78] However, on 26 November 2007 Dr Rivlin faxed the Department and stated that he did not feel that the applicant should work five days a week and that he was "tentatively agreeable" that the applicant should work two days a week subject to a review in five or six weeks' time. On the same day the applicant informed the Gympie CSC that he was unwell and provided a medical certificate confirming his inability to work on 26 November and 27 November 2008. Later that day the applicant confirmed that he would attend for work at Gympie on 29 November 2007. [79] The applicant worked at Gympie for two days each week until Dr Rivlin informed the Department in mid-January 2008 that the applicant was fit to work three days a week subject to a review in three months' time. Dr Rivlin said however that it was not able to be determined when the applicant would be able to return to full-time work. -- 18 of 32 -- 19 [80] It was Ms Reardon's evidence that the applicant commenced working three days a week on 29 January 2008. She said that with the concurrence of the applicant's GP, the applicant worked one of the days at Nambour. She said the applicant expressed apprehension about working with Mr Phillips at Nambour but that it was not an immediate issue because Mr Phillips was on leave. Ms Reardon said that in a meeting with the applicant on 11 February 2008, the applicant had agreed to work at Gympie on Mondays and at Nambour on Tuesdays and Wednesdays. The applicant's agreement was limited to the forthcoming two weeks prior to Mr Phillips return from leave. The applicant had made clear that he would not work at Nambour once Mr Phillips returned. [81] In an email despatched to a Departmental Officer on 18 February 2007 Ms Reardon said that the applicant wanted full time work and noted that this could not be provided at the Gympie CSC. It was her view that the applicant's continued placement at Gympie was untenable. [82] In a statement prepared by Ms Reardon on 5 September 2007 (Exhibit 20), Ms Reardon criticised Mr Morgan's "mismanagement" of the applicant's return to work process. She said that in a management meeting in December 2006 Mr Morgan had declared that the applicant would not be returning to work in the Sunshine Coast region; that he would force the applicant to work somewhere else based on duty of care; and that he (Mr Morgan) could do anything he liked because he was the PCM. Ms Reardon considered Mr Morgan's approach to amount to an abuse of power. This evidence raised a doubt about whether the Department was ever genuinely motivated to return the applicant to work in his substantive role. [83] Ms Reardon also said that it was known that Mr Phillips did not want to manage the applicant unless certain conditions were met, and that Ms Gardiner had said that there were many reasons why it would be inappropriate to return the applicant to Maroochydore and that it would not be tenable for the applicant to return to work at Maroochydore. The prospect that the applicant might work at Tewantin had been ruled out because the applicant's wife worked at this CSC. Mr Phillips also characterised the management and HR practices associated with the applicant's return to work as "mismanagement". In an undated and unsigned document in the evidence as Exhibit 26, Mr Phillips called for a review into the management of the applicant arising from the investigation into complaints made against him. [84] The applicant was off work on sick leave on Wednesday 20 February 2008. In the week commencing Monday 24 February 2007 Mr Phillips was asked to work out of Caloundra CSC to allow the applicant to attend at Nambour. However the applicant took sick leave on 26 and 27 February 2008 and the matter momentarily resolved itself. The dilemma going forward however was that if the applicant did not work at Nambour he would have to work at Gympie for three days a week, an outcome based on work load which was not sustainable. It was in this context that the Department turned its mind to a future course of action. [85] I do not form the view that the circumstances associated with the applicant's return to work in 2007 supports his application. Firstly, while some of the management conduct associated with the return to work amounted to inefficiency or incompetence, the applicant did not suffer any financial detriment arising from the management failure to return him to work on a timelier basis. In terms of any claimed detriment arising from the delay in the applicant resuming normal employment, the evidence does not disclose -- 19 of 32 -- 20 a factual situation wherein the applicant was unequivocally pressing for a return to work. When he was told on 28 May 2007 that he would be returned to Nambour and that mediation would be arranged, he said that he was concerned about a return to Nambour and that his doctor would not approve a return to work plan which provided accordingly. Nor is there unambiguous contemporaneous evidence supporting a finding to the effect that the applicant complained to the Department about the delay in returning him to work. Additionally the evidence does not establish that the applicant ever accepted unconditionally any Departmental return to work proposal. The fact that he ultimately had to be directed to return to work is evidence of that. [86] I accept that the applicant's equivocation about a return to Nambour was partially explained by the withdrawal of the mediation process, but in circumstances where the basis for the applicant's alleged differences with Mr Phillips was never explained, and Mr Phillips was not aware of the differences, he (Phillips) was entitled to be wary of the process. The related and enduring problem for both the Department and the applicant was that it appeared that none of the key CSC managers wanted to work with the applicant because of his perceived recalcitrance, divisiveness, and interpersonal deficiencies. [87] The evidence did not disclose any rational basis for the applicant's refusal to work with Mr Phillips. The applicant declined to provide particulars of how he had been poorly or harshly treated by Mr Phillips. Further, Mr Phillips was not the architect of the performance management process that he was told to implement, nor did he direct the applicant to sign the PPA. Neither was the Department's investigation into the applicant's conduct prompted by complaints made by Mr Phillips. To the contrary the statement made by Mr Phillips to the Livingstones investigation discloses that he was generally supportive of the applicant. [88] An explanation in part may be found in a misguided view formed by the applicant about the workers' compensation outcomes. In a communication directed to Ms Sheffield on 10 September 2007 the applicant said in effect that the basis of his resentment against Mr Phillips was that Mr Phillips was part of a management team "whose actions attracted WorkCover's unfavourable assessment". These unfavourable assessments however were based on management failures causing delays not on bullying behaviour. Also Mr Phillips was not the cause of delays in settling the terms of the PPA. [89] While the applicant consistently asserted he was fully fit to return to work from March 2007 onwards, in October 2007 doubts were being expressed by the applicant's union about his mental condition and his fitness for work. When the applicant demanded a return to full time employment at Gympie, he immediately contradicted himself by accepting his doctor's intervention which limited his participation in the workplace for only two days a week. Further he or his doctor promoted conditions on a return to work in Nambour that were impractical and unviable. He suggested that he should resume work at Nambour but without any face to face communication, or if face to face communication were necessary, it had to be on notice and with his union representative or support person in attendance. Finally while the applicant maintained consistently that he would not work with Mr Phillips, he never satisfactorily explained the extent or nature of the differences between himself and Mr Phillips that would make the working arrangement unviable. -- 20 of 32 -- 21 [90] Despite Mr Morgan's declarations in the December 2006 meeting about what would happen to the applicant, he had recanted on these views as early as the 3 May 2007 meeting with the applicant when he proposed a return to work in the role of driving examiner at the Tewantin CSC. His involvement after this appeared to be limited to the arrangements for mediation before his withdrawal from the process in September 2007. In the circumstances I decline to apportion any significant weight to the pronouncements made by Mr Morgan in December 2006. Further, to the extent that it may be relevant, no evidence was adduced to the effect that the applicant held any contemporaneous awareness of Mr Morgan's views, or that he regarded Mr Morgan's interventions in the return to work process as inappropriate. Spring Hill [91] The effect of Mr Kursius' evidence was that he was aware that the applicant had refused to return to work in his substantive position at Nambour CSC and that the applicant had expressed sentiments to the effect that he did not trust himself to work with Mr Phillips and that if he were not treated well by Mr Phillips he might end up killing him. He said this factor and the pattern of aggressive and hostile behaviour displayed by the applicant towards Ms Reardon led him to form the view that given the applicant's previous psychological injury, it would be appropriate to direct the applicant to attend an independent medical examination. These same concerns and other similar concerns also led to a conclusion that the applicant should not continue to work as a driver examiner in the Sunshine Coast region and that he should be temporarily deployed to another role in Spring Hill. [92] The applicant said that he was advised on 29 February 2008 that he was to be redeployed to Spring Hill pending a compulsory medical evaluation. He was directed to report to work at Spring Hill on 3 March 2008. The applicant said that he declined to comply with this direction on the advice of his union and he elected to lodge a grievance with the Director General's Office (Attachment CS46 to Exhibit 21). [93] In his grievance letter dated 10 March 2008 the applicant said that there was no genuine basis for his deployment to Spring Hill and that his return to work and his re-integration into the region's workforce had been progressing well enough. He said that he was not consulted about the deployment nor was he given an opportunity to respond to the decision taken. He alleged that the Department had breached s 85 of the Public Service Act in directing him to attend a medical assessment. The applicant was informed of the outcome of his grievance on 31 March 2008. The correspondence stated that the matters outlined in his letter of grievance had been investigated and that both the direction to attend an independent medical assessment and the direction to temporarily deploy to Spring Hill were supported. The medical assessment was rescheduled for 21 April 2008. [94] The Department was entitled to hold doubts about the applicant's capacity to resume work in his substantive position on a full-time basis and to ask the applicant to undergo an independent medical examination. Firstly, the applicant had only returned to work after an 18 month absence because he was directed to do so. Over six months after the applicant had been deemed medically fit to resume work, the applicant's union representatives were informing the Department in a meeting in October 2007 that the applicant's mental state was fragile and expressing doubt about whether a return to work was practicable. Shortly thereafter when the applicant was insisting that he was fully fit -- 21 of 32 -- 22 and should be given full time work, his doctor was refusing to endorse a return to work plan which provided for more than two days' work a week. In mid-January 2008 while the applicant's doctor advised the Department that the applicant could work for three days a week, he said this level of participation would not be subject to review under three months and stated that he was not in a position to indicate when the applicant would be ready for a full-time return to work. [95] Other factors are relevant. Firstly, Mr Kursius' decision was consistent with the conclusions not unreasonably drawn by Mr Davies after the 3 October 2007 meeting. Secondly, while the applicant had resumed work on 29 November 2007 Ms Reardon had reported on continuing complications associated with his return to work including concerns over his demeanour and interpersonal style. His relationship with Ms Reardon was also a cause for concern. Thirdly, there were too many contradictions in the applicant's own position concerning his fitness for work. Finally, the applicant continued to refuse to return to work in his substantive position at Nambour. [96] It was Ms Sheffield's evidence that on 5 March 2008 she provided Dr Rivlin with a draft suitable duties plan covering the period of the applicant's placement at Spring Hill. Dr Rivlin provided a short response on 17 March 2008 in which he stated that he did not approve of the plan. As it transpired the applicant commenced work at Spring Hill on 2 April 2008 and continued working in this location until 9 June 2008 when he commenced a period of long service leave. The applicant worked in Spring Hill under arrangements where he worked for only three days of the week and where he travelled to and from Brisbane in his employer's time. [97] Mr Kursius received the report on the independent medical examination on or about 9 May 2008. Given that he was aware that the applicant would be on leave for most of June and July he elected to defer any decision making consequent upon the report until the applicant returned from his period of leave. [98] After a short period of sick leave following the conclusion of his long service leave, the applicant was scheduled to resume work at Spring Hill on 4 August 2008. However on the same day the applicant lodged a complaint with the Acting Director General stating that he refused to comply with any direction that he resume work in Spring Hill; complained about his lack of utilisation at Spring Hill; asked that he be returned to his role as a driving examiner; and requested that he be allowed to access his long service leave rather than work in Brisbane. Pending the finalisation of his complaint, the applicant did not resume work as scheduled. [99] On 4 September 2008 Mr Kursius wrote to the applicant (Attachment DJC47 to Exhibit 1) and advised him that, having regard to the report arising from the independent medical examination, he had decided that the applicant should be transferred at level to the role of Assistant Policy Officer, Service Delivery Policy Branch, Services Division, Spring Hill, Brisbane. Mr Kursius said that after considering the recommendations of Dr Richardson, health and safety considerations precluded the applicant's return to a driving examiner role. While the applicant was directed to start work on 8 September 2008, he did not do so and ultimately he never returned to work with the Department. He remained off work on various types of leave until his employment ended on 19 December 2008 following his acceptance of the VER. The applicant did not lodge an appeal with the Public Service Commission against the decision to transfer, nor he did he lodge a further complaint with the Director General. -- 22 of 32 -- 23 [100] The applicant said that the Department had wrongly construed the advice of Dr Richardson which had the effect of severely limiting the options open to the Department. Dr Richardson's report is in the evidence as Attachment AK-7 to Exhibit 27. The report incorporates conclusions to the following effect:  The applicant did not present with any major symptoms of psychiatric disturbance particularly anxiety or depression and there is no other medical condition or disability which might impact on the applicant's ability to perform his usual duties as driving examiner;  Having regard to the difficulties that the applicant had experienced with management in the Sunshine Coast region, "a placement in Brisbane would seem appropriate even though this is not Mr Casaubon's ideal job that he wishes to do";  Given the difficulties that the applicant had experienced with both staff and customers in his role of driving examiner in the Sunshine Coast region, "he may not be suited for this role";  There is no form of specific treatment or management that would assist the applicant "to safely and reliably meet the full range of duties of a driving examiner";  The applicant is "at increased risk of aggravating an underlying anxiety and mood disturbance should he be involved in the hierarchy on the Sunshine Coast and so it would be appropriate for him to be not considered for further work in this area";  That the applicant appears to be having difficulty performing the duties of a driving examiner given the demands of the work environment particularly his working relations with hierarchy and Mr Phillips;  While there was no psychiatric reason why the applicant could not perform his duties, having regard to his expressed sentiments and his past feelings of injustice with respect to the hierarchy on the Sunshine Coast, he should not work in this area;  That the applicant should not be medically retired on the grounds of ill health. [101] In cross-examination, the applicant challenged Mr Kursius's reliance on the medical opinion of Dr Richardson in deciding to transfer him to Spring Hill. The cross- examination was to the effect that Dr Richardson's report could not be relied on to justify a decision not to transfer the applicant to a driver examiner role in a location other than the Sunshine Coast. It followed from the applicant's perspective that the applicant should have been offered a driver examiner role in a location such as Zillmere, Pine Rivers, or Caboolture. The cross-examination included the following (T3-27): "Yes. Well, you see, Mr Kursius, didn’t you read this report in a way that you wanted it to be read, namely to support your position, namely you weren’t going to seek a driving examiner role elsewhere than the Sunshine Coast for -- 23 of 32 -- 24 Mr Casaubon?---No. I read this report in terms of exercising a duty of care both to Mr Casaubon, his work colleagues, our customers and the general public. Yes. But you did so on the basis - even if you took those into account, you were deciding you weren’t going to appoint Mr Casaubon as a driving examiner anywhere in Queensland?---I made a considered opinion - a considered decision with advice, this report was one of the contributing factors, that Mr Casaubon, in terms of a duty of care, that there were -or could be a high risk of him continuing in that role of driving examiner on the Sunshine Coast or in another driving examiner role at that time. Did you make any inquiries as to whether or not there was a driving examiner role available in Brisbane?---I can’t recall whether we looked at that, but I suggest we did not because -because of the issue of duty of care and looking for an alternative role which actually Dr Richardson had recommended in his report." [102] The intent of the cross-examination was to promote a view that the VER offer was contrived and that the VER was primarily used as a mechanism to remove the applicant from employment, an outcome which was facilitated by the tabling of a choice in which one option was known to be unacceptable. [103] In his application the applicant claimed that his contract was unfair because it permitted the Department to decide on a transfer which was disadvantageous to him. He said that the Department acted unilaterally and without consultation in deciding to permanently transfer him to Spring Hill. [104] The Department's prerogative in terms of transfer actions is sourced in s 133 and s 134 of the Public Service Act 2008. Section 133(1) provides in effect that the Department may transfer or redeploy an officer within the Department. Section 134 provides that the transfer has effect unless the officer establishes reasonable grounds for refusing the transfer to the satisfaction of the Department. If the officer refuses the transfer after failing to establish reasonable grounds, the officer's employment may be terminated. [105] I think it is clear that while Dr Richardson said that there was no medical barrier to the applicant's return to work as a driving examiner, it was his recommendation or opinion that the applicant be removed from the jurisdiction of the Sunshine Coast hierarchy. It was reasonable in these circumstances that the Department decide to transfer the applicant to another location. Given the reservations about his fitness for work in general and the satisfactory rating of the applicant's performance during his temporary stay at Spring Hill, I can accept that a transfer to Spring Hill would present as a logical option for Mr Kursius. [106] I accept the submission of the Department that it may be acting inconsistently with the legislation for the contract to be amended to include a provision precluding the applicant from being transferred to Spring Hill, or requiring that the applicant not be transferred out of the Sunshine Coast, or requiring that a transfer to a driving examiner role in north Brisbane should have occurred or should have been considered. The thrust of the applicant's argument was however less forensic. The applicant's view is that in adjudicating on the matter the Department acted unreasonably in limiting the options or its consideration of all the options. In terms of the statutory scheme it is relevant that the applicant had a right under s 134 of the Public Service Act to establish reasonable grounds -- 24 of 32 -- 25 for refusing the transfer and he had the right under s 194 of the same Act to appeal against the transfer decision. On my understanding of the evidence, the applicant did not pursue either of the avenues open to him to contest the decision to transfer. Further there is no evidence that appropriate vacancies existed in suitable roles elsewhere or that the applicant had expressed any interest in such roles. Voluntary Early Retirement [107] Sometime in September 2008 the Department began actively considering the option of offering the applicant a VER. Mr Kursius said that the applicant qualified for a VER because his skills and capabilities were no longer required by the Department. This conclusion was reached in a context where the applicant could no longer work in the capacity of a driver examiner, including in that capacity in the Sunshine Coast area, and the applicant had declined to continue working in the alternate role of policy adviser at Spring Hill. In forming these conclusions Mr Kursius took account of a number of matters including: (a) Circumstances where either the applicant or the relevant CSC Manager had applied some form of veto to the applicant working at either Maroochydore, Nambour or Gympie; (b) It was not appropriate to return the applicant to a driver examiner role; (c) The opinions of Dr Richardson, including a recommendation that the most appropriate outcome would be for the applicant to work at Spring Hill in a non-driving examiner role; (d) The applicant's refusal to comply with his direction to work at Spring Hill and his statement to the effect that it was a waste of public money that he continue to work in his assigned policy role in Spring Hill. [108] In paragraph 53 of his affidavit Mr Kursius said that he did not consider there were any opportunities for the applicant in the Sunshine Coast area which would not involve him coming into contact with customers or with those persons with whom he had demonstrated significant interpersonal difficulties. He noted in this regard that Dr Richardson had opined that the applicant would be at increased risk if he returned to the "Sunshine Coast hierarchy". [109] On 6 October 2008 Ms Sheffield canvassed the VER option with the applicant in a telephone conversation. Ms Sheffield's evidence was that the applicant said that he would prefer to discuss the matter in a face to face meeting. On 17 October 2008 the Department emailed the applicant and proposed a meeting on 22 October 2008 to discuss the VER. However on 20 October 2008 the applicant deferred this meeting because his union representative was not available on 22 October 2008. [110] Despite these pending arrangements, on 23 October 2008 the Department received an email from the applicant's solicitors in which they said that the applicant would not be attending a meeting "until we have advised him of his employment rights". On 5 November 2008, Mr Kursius wrote to the applicant's solicitors and inter alia listed the options that were to be the subject of discussion: "A permanent transfer at level to the role of AO4 Assistant Policy Officer within the Service Delivery Policy Team located at ... Spring Hill; or -- 25 of 32 -- 26 A Voluntary Early Retirement (VER) package." [111] On 14 November 2008 the applicant forwarded an email to Ms Sheffield in which he requested a copy of the Department's policy on redeployment to assist him in the formulation of a response to Mr Kursius's letter. On 19 November 2008 the applicant asked the Department to forward to him "a formal offer of the VER". A formal VER offer was subsequently mailed to the applicant on 1 December 2008. In the offer, the applicant was given until 19 December 2008 to accept or decline the offer. In financial terms the VER was almost the equivalent of a year's salary with the benefit of a substantially reduced taxation component. The applicant accepted the offer of a VER on 12 December 2008 and his employment with the Department ended on 19 November 2008. [112] Despite his acceptance of the VER in late 2008, the applicant's characterisation of events and circumstances had changed by the time he filed his application three years later to the extent that he claimed that he was not in a proper frame of mind to make a decision and that the Department had acted unfairly and opportunistically in putting the VER offer to him. The applicant's view about the matter at the time of his application and during the proceedings was that he felt that the Department was determined "to get him" either through the VER process or via a medical retirement. He considered this victimisation to be a form of retribution for his union role and his advocacy for workplace rights. He considered that he "had been exposed to what amounted in my mind to character assassination or 'death by a thousand cuts'". [113] In his affidavit the applicant said that "most of all, the timing of the offer of the VER is crucial to an understanding of my situation". He said that he had been through a protracted period of difficult interaction with the Department since 1998 which "had been continual and was highly degrading" to his health and well-being. He said that he had "gone from being very fit physically and emotionally to much weaker". He said that the Department had taken advantage of his frailties. He felt that he would never be able to return to a job as a driving examiner. He said that if the Department had properly supported him, and consulted appropriately with him, his state of mind at the time would have been better understood by the Department, and the Department would have acted differently. As it was, he felt that the Department was determined to get him "one way or the other". [114] In his evidence Mr Kursius accepted that the applicant was presented with two options in the VER process and that he knew that the applicant did not want to work at Spring Hill. It followed from the applicant's perspective that the Department knew that only one of the two options was viable. The basis upon which the Department approved the offer of a VER was also challenged by the applicant. In this regard the cross-examination went to erroneous or misleading information in a memorandum which sought approval to offer the VER (Attachment AK-16 to Exhibit 27). The applicant drew attention to a sentence in the memorandum which said that the applicant was transferred at level to Spring Hill in early 2007 when in fact the decision to transfer was not made until 4 September 2008. Further the transfer was never effected as the applicant remained off work on long service and other leave. [115] The applicant also pointed out that the propositions included in the memorandum to the effect that the applicant was not suited to, or capable of, performing the Spring Hill role was contradicted by the content of a file note prepared by Ms Sheffield on 21 July 2008 -- 26 of 32 -- 27 (Attachment CS56 to Exhibit 21) wherein the applicant's supervisor at Spring Hill spoke positively of the applicant's contribution. However I note that the supervisor qualified his comments with the words that the applicant "would need considerable skill development to work effectively". The applicant also criticised the inclusion in the memorandum of the statement that "no permanent role exists" for which the applicant was suited. It was claimed that this proposition was false given that the Department had already transferred the applicant to a role in Spring Hill and had expressed the position that the applicant had a choice between the permanent Spring Hill role and the VER. The implication in the line of cross-examination was that the Department was more motivated by a desire to get rid of the applicant than to ensure that the conditions attached to the grant of a VER were fully met. [116] For my part I accept that the memorandum was poorly expressed and did not accurately reflect the circumstances, but the offer of a VER did involve an exercise of discretion in complex circumstances, and errors in expression do not translate into unfairness. Whatever the applicant's speculation on the Department's motivation, in my view the applicant was a beneficiary of the offer, not a victim. The applicant was not disadvantaged or prejudiced by the outcome which was to offer him a severance payment in excess of $40,000.00, nor did he challenge the validity of the VER offer at the time. [117] The factual position was that the applicant had already been transferred to Spring Hill, and I think if any decision was open to challenge on the ground of fairness, it was this decision not the generation of an option involving an ex gratia payment in the order of $40,000.00. However, while the applicant had complained about the continuation of his temporary deployment, he did not lodge any grievance in respect to this decision, nor did he exercise his option to appeal the transfer decision to the Public Service Commission. Finally while the applicant criticised the Department for not including a transfer to a northern Brisbane CSC in the options, the evidence did not suggest that either the applicant, his union or his lawyers raised the possibility of such a transfer during the VER process. [118] The applicant's claims of contract unfairness associated with the VER process are summarised hereunder: (i) The applicant was not in a proper frame of mind to make an informed decision about whether to accept the VER offer. Contributing factors to his vulnerable state of mind were said to be: (a) Marriage break-up; (b) The burden of driving to and from Spring Hill on a daily basis; (c) Exhaustion arising from treatment by the Department; (d) Exhaustion arising from attending to his WorkCover claims and disillusionment and vulnerability after an extended period of interacting with the Department in relation to the WorkCover claims; (e) The cumulative impact of a protracted period of difficult interaction with the Department extending as far back as 1998. (ii) The applicant said that the Department acted unfairly in that he was rushed into making a decision within a month when the Department knew that he was not well placed to make such a decision. By way of elaboration the applicant submitted that: -- 27 of 32 -- 28 (a) He was not given adequate time to consider the terms of the VER and to adequately consult about any proposed transfer; (b) He was rushed into making a decision within a month; (c) He was not offered any independent support throughout the process; (d) He was required to negotiate or discuss matters with management with whom he had been in conflict with for a decade. (iii) The applicant said that he felt that he had no choice but to take the VER because he could not continue to work at Spring Hill. While the travel alone would be a major burden, the work to be performed at Spring Hill was very different from that attaching to his substantive position and was less rewarding. He elaborated as follows: (a) He should have been given alternative locations for transfer or redeployment; (b) He was denied the opportunity or choice of driver examiner positions on the Sunshine Coast; (c) Dr Richardson had cleared him to return to work in his substantive position; (d) There was no medical impediment to a return to his substantive position in Nambour. [119] The evidence does not support the entering of findings in the appellant's favour in respect to the first two elements set out above. Significantly, given that the applicant was being represented by a lawyer and had also discussed the matter with his union, none of these matters was raised at the time. In his lawyer and his union, the applicant had access to independent support and advice throughout the process. Additionally when the formal offer of a VER was made on 1 December 2008, the applicant was offered access to free and confidential advice from an external financial counsellor. In his evidence at T1-60 the applicant said that at that point he had a financial advisor and that he did not need to take up the offer. [120] At no stage during the VER offer process did the applicant or his representatives draw to the attention of the Department particular personal circumstances or other impediments to his timely consideration of the VER offer, and ask for more time to consider his position. There was no suggestion at all to this effect. Similarly despite the applicant's access to representation there is no contemporaneous evidence to the effect that he was under pressure to make a decision, that he needed more time to consult with his lawyer or his union, or that he was not fully informed when he made his decision to accept the VER. [121] Despite the fact that the applicant had been off work on various forms of leave since 9 June 2008 and therefore had not worked for the four months preceding the offer of the VER in October 2008, he claimed that at the time the VER was proposed by the Department, he was not in a proper frame of mind to make an informed decision in response to the VER offer or the choice inherent therein between retirement or transfer to Spring Hill. He said that his treatment by the Department in relation to his PPA, his return to work, and his transfer to Spring Hill, including the travel, had left him tired and exhausted. This proposition is difficult to accept. While his circumstances may understandably have been attended by some stress, his interaction with the Department -- 28 of 32 -- 29 was limited to the resolution of his August 2008 grievance and the preliminary discussions about the VER. Additionally the VER package was not subject to complex negotiations given that the terms were fixed. It was simply a case of the applicant getting the information and making a decision. It was not plausible for the applicant to assert that the make-up of the Department's negotiating team was a factor causing stress, nor was there any evidence that his marital circumstances impeded a rational consideration of his circumstances. [122] It is difficult to accept that the applicant's physical or mental circumstances could be fairly described as amounting to exhaustion. The applicant had last travelled to work in Brisbane on 9 June 2008 and even then he was travelling in his employer's time and working a short day. Further the applicant was on paid leave throughout the process and he had ample time to make his own investigations and ensure that he was fully informed. He then had ample time to arrive at his decision in a context where he was aware that a VER offer was possible on 6 October 2008, he requested that a formal offer be put to him on 19 November 2008, and when he received the formal offer on 1 December 2008, he was given three weeks to make up his mind. There was nothing rushed or pressured about the circumstances associated with the offer and acceptance of the VER. [123] In terms of the third element, it is not in dispute that at the time that a decision had to be made in response to the VER offer, it was still open to the applicant to take up his position at Spring Hill following the 4 September 2008 decision to transfer. However the applicant thought that other options should have been canvassed. He said that his substantive position in Nambour was still open and that, given that there was no medical impediment to a return to driving examiner duties, the Department should have offered to return the applicant to Nambour. Alternatively he said that he should have been offered a driving examiner position somewhere else on the Sunshine Coast. [124] There are a number of difficulties confronting the applicant in this regard. Firstly, the medical opinion of Dr Richardson clearly recommended against any return to work in the Sunshine Coast area. Consequently it was not relevant whether his substantive position had been filled or not. Secondly, the Department was entitled to take into account the practical difficulties associated with any return to work on the Sunshine Coast including insufficient work at Gympie, Ms Reardon's view, Ms Gardiner's view, and the applicant's own view in declining to work with Mr Phillips. Thirdly, the applicant had not been cleared to work for more than three days a week and there was a reasonable doubt about when he might return to full time employment, if at all. Finally, Dr Richardson had expressed a doubt about the applicant's suitability to continue in the examiner role and had suggested that the Spring Hill role was more suitable. [125] The applicant also maintained that the Department did not give sufficient consideration to other return to work options. The effect of this proposition was that the applicant should have been offered transfers to driver examiner positions in a location other than the Sunshine Coast. I don’t think this position can be sustained. The VER process did not extend to a consideration of employment options. The VER Directive (11/05) provided that a VER package may be offered to public servants "whose duties or functions are surplus to the agency's requirements and whose skills and abilities cannot be reasonably be used in other vacancies with the agency". The offer of a VER was at the discretion of the Chief Executive. The Directive also provided that if a VER offer was rejected the employee is "to be provided with transfer at level and/or redeployment -- 29 of 32 -- 30 and reasonable retraining opportunities" in accordance with the directive relating to deployment and redeployment. [126] Directive 4/99, "Medical Deployment and Redeployment", applied to public servants who were "permanently and partially incapacitated from a medical condition" and whose medical condition prevented the employee "from performing the substantive duties of their appointed role, but does not prevent them from performing duties required to be performed elsewhere in the public service". The directive provided that such a public servant might then be deployed (transferred at level) or redeployed (appointment to a lower level). [127] It seems to me that the Department's actions were consistent with the Directives. The Department had formed a view about capacity based on the medical opinion of Dr Richardson and had moved to a position where the applicant could either accept the VER offer or fall within the purview of Directive 4/99. The applicant's appreciation of these circumstances appeared to be reflected in his request that the Department provide him with a copy of Directive 4/99 to assist him in a consideration of his decision. (Attachment AK-15 to Exhibit 27 refers). It is reasonably self-evident from the directives that the VER process in play in the last quarter of 2008 could not have included a consideration of the applicant returning to his substantive position or to his substantive role in some other location. [128] The applicant complained that unfairness was manifest in the manner and timing of the Department's offer of a VER. It was the appellant's view, in effect, that the Department knew that he was vulnerable and of a fragile state of mind and had unfairly leveraged his past and current circumstances by the timing of their offer of a VER. This behaviour amounted to an inducement for him to accept the VER. His current circumstances included a forced transfer to Brisbane notwithstanding his place of residence was on the Sunshine Coast and his forced transfer into a role which he did not find fulfilling and provided no benefit to the Department. [129] From my perspective the timing of the VER offer was driven by the prevailing circumstances in which: (a) Where despite that the applicant's adjustment disorder had resolved in February 2006, in June 2008 he was only able to work three days a week; (b) Where an uncontested medical opinion concluded that the applicant should not return to his substantive position on the Sunshine Coast and indicated that it may not be suitable for the applicant to continue in a role of driving examiner; (c) Where the applicant had refused to continue working in an alternative role in Spring Hill and had not accepted his permanent transfer to Spring Hill; and (d) Where the applicant had not performed any work at all since 9 June 2008. [130] In my view the timing of the VER offer was a natural consequence of the applicant's employment and medical history and circumstances as at September or October 2008. I do not find anything unfair or unreasonable about the Department turning its mind to the question of the applicant's fitness for work in his substantive position, his commitment to resume work, and the options of voluntary early retirement, medical retirement or transfer or redeployment to another role in another location. Its exploration of these options was a proportionate response to the prevailing circumstances. -- 30 of 32 -- 31 Estoppel [131] It was the applicant's evidence that even before he had left the employment of the Department he had considered launching legal action against the Department. He said he had talked to his lawyers about the matter. It followed that despite voluntarily ending his employment with the Department, and despite accepting a substantial payment in the form of a VER, the applicant always intended to consider the repudiation of the VER arrangements that he had entered into under advisement of his lawyers and his union. The applicant explained his position in his evidence at T2-13: " … Well, the point is - is that I had expended every way possible to do - get justice within the organisation, and I had all this documentation. I hadn’t had a chance to appeal the investigation. I hadn’t had a chance to deal with the PPA process. I hadn’t had a chance to deal with the being home for all those months and not being - so the only avenue I had was to do it once I got outside of the department. DR SPRY: So you accept the VER knowing that you’re then going to bring an action against the department?---I didn’t know I was going to do it, but I had planned to do it." [132] In relying on the reasoning of Sheldon J in Davies v General Transport Development Pty Ltd6 the Department submitted that for whatever reason the applicant may now be disgruntled with the bargain he entered into on even terms, his current disgruntlement does not render his contract unfair. It was submitted in the alternative that in accepting the VER when it was put to him the applicant is now bound by his conduct such that an estoppel arises. [133] Given my decision in this matter it is not necessary that I determine the issue of estoppel. However the applicant's cause is not advanced by his own evidence that he accepted the VER in circumstances that fall short of good faith. Conclusion [134] To succeed with his application the applicant must prove on the balance of probabilities that his contract of employment with the Department was, or became, unfair. Section 276(2) provides that in deciding whether to amend or void a contract, the Commission may consider the relative bargaining power of the parties, whether undue influence or pressure was exerted on, or any unfair tactics were used against, a party to the contract. [135] The applicant said that contract unfairness was manifested in the absence of terms in his contract which would ensure that he was not bullied by the Department, an absence of terms that would have guaranteed the fair and just conduct of the Department's investigation into the complaints made against him, and an absence of terms that would have ensured that the Department had acted differently in the manner in which it pursued his acceptance of a VER. Further the applicant claimed that the Department exerted undue influence or pressure, or employed unfair tactics, in endeavouring to persuade him to accept the VER offer. 6 [1967] AR (NSW) 371 -- 31 of 32 -- 32 [136] However, for the reasons articulated throughout this decision, the applicant has not established the necessary factual foundation to support these claims or propositions. In the circumstances it is not necessary that consideration be given to whether his contract should be retrospectively amended, how his contract should be amended, and what remedies should be considered. [137] The application is dismissed. -- 32 of 32 --