Wildman V IMCD Australia Limited (2021) FCCA 1161

FEDERAL CIRCUIT COURT OF AUSTRALIA
Wildman v IMCD Australia Limited [2021] FCCA 1161
File number(s): SYG 1844 of 2018
Judgment of: JUDGE BAIRD
Date of judgment: 23 June 2021
Catchwords: INDUSTRIAL LAW – adverse action – coercion –

workplace right to take paid personal leave under s 97 of
the Fair Work Act 2009 (Cth) – applicant employee on paid
personal leave for more than 3 months – where applicant
submitted medical certificates – respondent asserted
applicant did not provide evidence of requisite character
that would satisfy a reasonable employer as to applicant’s
unfitness for work under s 107 of the Act – where did not
enliven right to take personal leave under s 97 of the Act –
applicant on paid personal leave – applicant dismissed from
employment whilst on paid personal leave – termination
without notice or payment in lieu – legitimate exercise of
employer’s power to direct respondent – employer issued
directions to attend independent medical assessment,
meetings with employer, and workplace whilst on paid
personal leave – applicant refused – respondent asserted
directions lawful and reasonable – whether applicant
dismissed for a reason or reasons including his exercise of a
workplace right – respondent alleged applicant engaged in
serious misconduct – duty to co-operate at common law –
held applicant dismissed for reasons including exercise of
workplace right to paid personal leave, or to exercise leave
in a particular way – held respondent’s conduct unlawful –
held respondent’s conduct coercion – held medical
certificates and evidence satisfied s 107 of the Act – held
respondent’s directions not lawful – held respondent’s
directions not reasonable – held duty to co-operate not
breached – held respondent’s directions and conduct
unlawful coercions – held adverse actions – held
contraventions of Act established – application allowed –
cross-claim for repayment of payments whilst on sick leave
– cross-claim dismissed.
Legislation: Fair Work Act 2009 (Cth), ss 12, 13, 14, 43, 44, 96 97, 107,
117, 123, 340, 341, 342, 343, 352, 360, 361
Fair Work Regulations 2009 (Cth) rr 1.07, 3.01
Cases cited: Australian and International Pilots Association v Qantas

Airways Ltd [2014] FCA 32; (2014) 240 IR 342
Australian Building and Construction Commissioner v
Ravbar [2018] FCA 1196
Australian Building and Construction Commissioner v Hall
[2018] FCAFC 83; (2018) 261 FCR 347
Blackadder v Ramsey Butchering Services Pty Ltd
[2002] FCA 603; (2002) 118 FCR 395
Board of Bendigo Regional Institute of Technical and
Further Education v Barclay [2012] HCA 32; (2012) 248
CLR 500
Commonwealth Bank of Australia v Barker
[2014] HCA 32; (2014) 253 CLR 169
Construction, Forestry, Mining and Energy Union v Anglo
Coal (Dawson Services) Pty Ltd [2015] FCAFC 157
Construction, Forestry, Mining and Energy Union v BHP
Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243
David Securities Pty Ltd v Commonwealth Bank of
Australia (1992) 175 CLR 353; [1992] HCA 48
Maritime Union of Australia v Geraldton Port Authority
[1999] FCA 899; (1999) 93 FCR 34; 94 IR 244
Mendonca v Chan & Naylor (Parramatta) Pty Ltd [2014]
FCCA 1042
RailPro Services Pty Ltd v Flavel [2015] FCA 504;
(2015) 242 FCR 424
Seymour v Saint-Gobain Abrasives Pty Ltd
[2006] FCA 1452; (2006) 161 IR 9
State of Victoria (Office of Public Prosecution) v Grant
[2014] FCAFC 184; (2014) 246 IR 441
Swanson v Monash Health [2018] FCCA 538
Number of paragraphs: 263
Date of last submission/s: 24 July 2019
Date of hearing: 22, 23, 24 July 2019
Place: Sydney
REPRESENTATION
Counsel for the Applicant: Mr B Miles

Solicitor for the Applicant: Haywards Solicitors
Counsel for the Respondent: Mr M G Rinaldi
Solicitor for the Respondent: Fitz Gibbon Law

ORDERS
SYG 1844 of 2018
BETWEEN: KEVIN WILDMAN

Applicant
AND: IMCD AUSTRALIA LIMITED

Respondent
ORDER MADE BY: JUDGE BAIRD

DATE OF ORDER: 23 JUNE 2021
THE COURT:
(a) DIRECTS the parties to confer, and within 14 days, provide to my Chambers
proposed short minutes of orders giving effect to the reasons for decision delivered
today, with any areas of disagreement between the parties identified in mark-up.
(b) STANDS OVER the remainder of the proceeding to 10:15am on a date to be fixed
after consultation with the parties, to program the further conduct of the proceeding in
relation to the penalty, if any, to be imposed on the respondent for the breaches of the
Act referred to in the accompanying reasons.
Wildman v IMCD Australia Limited [2021] FCCA 1161 i

REASONS FOR JUDGMENT
JUDGE BAIRD
INTRODUCTION
1 This is an application pursuant to the general protection and other provisions of the Fair Work
Act 2009 (Cth), brought by the applicant, Mr Kevin Wildman, for orders in relation to his
former employment by the respondent, IMCD Australia Limited, since 26 July 2019 named
IMCD Australia Pty Ltd (ABN 44 000 005 578). Mr Wildman claims that IMCD
contravened the Act by (i) taking adverse action against him for exercising his workplace
right to take personal leave pursuant to s 97 of the Act, contrary to s 340(1) of the Act, (ii)
coercing him to not exercise a workplace right to take personal leave, or to take it in a
particular way, contrary to s 343, (iii) dismissing him for reasons that included his temporary
absence because of illness of a kind prescribed, contrary to s 352, and his workplace right to
take personal leave, and (iv) IMCD’s failure to provide notice of termination or payment in
lieu, in contravention of s 117 of the Act. Mr Wildman claims compensation, penalties and
interest.
2 Mr Wildman's employment with IMCD was terminated by letter dated and effective 4 May
2018, after he had been absent from work on paid personal leave since 19 January 2018.
During the hearing before me, Mr Miles, counsel for Mr Wildman, and Mr Rinaldi, counsel
for IMCD, ultimately agreed that Mr Wildman was on leave and was sick on and from
19 January 2018, and that the cause of his illness is not relevant to the proceeding.
3 At the date of termination, Mr Wildman had more than 5 years of continuous service with
IMCD, and was over 45 years old.
BACKGROUND FACTS
4 Mr Wildman was employed by Capitol Ingredients Australia Pty Ltd from 22 February 1995
until 31 July 2013. Capitol Ingredients was an importer and distributor of raw materials for
use in manufacturing various complementary medicines, healthcare, veterinary products
personal care and household products. The final position he held with Capitol Ingredients
was as General Manager. As General Manager, Mr Wildman oversaw the day to day
operations of Capitol Ingredients, including sales costs analysis, and management of IT
infrastructure, procurement, logistics, warehousing and inventory. Mr Wildman accumulated
some 1,342.50 hours (approximately 149 days) of unused sick leave as at 15 August 2013.
Wildman v IMCD Australia Limited [2021] FCCA 1161 1

5 IMCD purchased the business of Capitol Ingredients in 2013, and IMCD offered
Mr Wildman employment with IMCD. He accepted that offer on 11 July 2013, commenced
on 1 August 2013, and facilitated the transition of the business to IMCD. He was employed
in the position of ‘Commercial Manager - Capitol Ingredients’, involved in day to day
management and office functions, with technical and regulatory personnel, and office
receptionist reporting to him. Mr Wildman had a focus on regulatory affairs, and was to
introduce the ISO quality system into the operations at the business’ Bella Vista site
(previously the location of Capitol Ingredients’ business). He reported to the General
Manager.
6 In 2015, Mr Wildman was provided with a position description for his role as Commercial
Manager – Bella Vista. His position description incorporated the role of Product Technical
Specialist (although there is some dispute when he received a copy of the position description
for this latter role, nothing turns on it). He was required to fulfil commercial business and
site requirements of the Bella Vista office as directed by the site General Manager, or
commercial managers of IMCD. His responsibilities encompassed commercial,
product/technical, and management systems responsibilities. The position description
reported to the General Manager, as before. Mr Wildman says his position description
remained unchanged until late January 2018.
7 Discussions took place from early 2017 over concerns with the state of sample storage and
available resources for the processing of samples. The Capitol Ingredients samples were
located at the Bella Vista office, and the process had remained separate to the IMCD system.
Mr Wildman attests to the inadequate staffing, resources and housekeeping functions to keep
the system organised. In July 2017, Mr Steven John Egan, at the time of the hearing the
Joint Managing Director and Country Manager of IMCD and located at the Bella Vista site,
instructed Mr Wildman to seek additional staff for a sample processing role, and additional
staff were sought (although it appears IMCD head office did not approve their engagement).
8 Mr Rodney Lambert, since May 2017, and at the time of the hearing Joint Managing
Director of IMCD, attests that IMCD planned to relocate its operations at its Bella Vista site
and its Rosehill site to one location in Western Sydney from about 2019.
9 On 13 December 2017, Mr Wildman attended a meeting with Mr Egan and IMCD's Human
Resources manager, Ms Karen Mary dela Fuente, at their request. Ms dela Fuente was based
in IMCD’s head office in Melbourne. At this meeting, Mr Egan and Ms dela Fuente told

Mr Wildman that Mr Wildman was to facilitate and coordinate the transition of Capitol
Ingredients’ samples from the Bella Vista site to the Rosehill site where IMCD’s samples
were to be held, and that he would relocate to the Rosehill site as well, effective 8 January
2018. Mr Wildman was to project manage the relocation of samples, including preparing
records so the samples could be transitioned or uploaded into the IMCD system, review aged
samples for segregation and disposal, and all associated functions to ensure an accurate
listing was established. It appears this transition was preparatory to IMCD’s planned 2019
Sydney relocation.
10 The same day, and following the above meeting, Mr Egan sent Mr Wildman an email (copied
to Ms dela Fuente) outlining his role. Mr Egan said “In addition to you [sic] current
Regulatory & Technical functions we require you to facilitate/ coordinate/ lead the transition
of [CI samples] …”. He said Mr Wildman’s “Bella Vista site functions” would be
redistributed. Mr Egan suggested “If there are other functions which you could release to
ensure the above occurs in a balanced work environment please advise”. Further to
Mr Egan’s request as to timing, Mr Wildman orally accepted the role on 14 December 2017.
11 During his employment with Capitol Ingredients, and then IMCD up to Christmas 2017,
Mr Wildman’s place of employment was at the business’ Bella Vista office in the Hills
District in Sydney’s northwest. He lived approximately 24 kilometres away, with a daily
commute of around 30 minutes each way. Mr Wildman’s oral evidence is that his commute
to Rosehill took him past his previous workplace, and took a bit longer. Whilst initially he
was not happy with the prospect of moving workplaces, he agreed to it on 14 December
2017, and he accepted that move.
12 Mr Wildman took paid annual leave (approved a considerable time beforehand) over the
Christmas New Year period, and commenced work at the Rosehill site on Monday 8 January
2018. Ms dela Fuente emailed him about work at the Rosehill site whilst he was on leave.
The week commencing 8 January 2018, he attended meetings and telephone discussions each
day to clarify his role.
13 On 10 January 2018, Ms dela Fuente emailed Mr Wildman with a “summary and clarification
for your re-location to Rosehill” and enclosed a position description. It differed from
Mr Egan’s email, and from Mr Wildman’s understanding from the meeting of 13 December
2017. She specified that he report to Mr Egan for regulatory or technical, and otherwise to

the warehouse manager. She advised he would be located in the Rosehill warehouse. She
proposed a notice to be sent out to staff regarding his relocation, and provided draft wording.
14 On 11 January 2018, Mr Wildman emailed Ms dela Fuente, advising that in general the
summary was okay, with the clarification that direct or functional reporting was to Mr Egan,
inclusive for the additional samples project, and that the current additional role had both
logistical requisites [and] also commercial requisites. He confirmed the operational or day to
day report to the warehouse manager, and that it was Mr Wildman’s responsibility to ensure
[the warehouse manager] is appropriately respected and informed so that he can satisfy this
role. Mr Wildman requested additional/ changed wording be included in the notice to staff,
that “Kevin continues to perform the Technical and Regulatory functions and additionally
[will] be assisting the business in other areas”. He advised he would need a few days to
review the amended position description, as he was flat out, and had staff going on leave the
following week. Mr Egan went on leave 11 to 16 January 2018.
15 Late on 12 January 2018, Ms dela Fuente replied by email stating it was necessary that staff
know he was “actioning CI sample requests and they should be directing them to you”.
Mr Wildman responded promptly that evening, reminding her of Mr Egan’s email of
13 December 2017, that his role was to project manage the transition of samples, and not to
action sample requests. He reminded Ms dela Fuente that actioning sample requests was a
different role, currently performed by another staff member, and that Mr Wildman’s role was
not to process samples once the integration and move is complete.
16 Mr Wildman states that it was not until Ms dela Fuente’s email of 12 January 2018 that he
was advised he would have to “pick and pack” samples himself.
THE EVIDENCE BEFORE THE COURT

17 Mr Wildman relies on the following affidavits, exhibits and medical reports:
(i) affidavit of Mr Kevin Wildman sworn 4 February 2019, and exhibit KW 1;
(ii) affidavit of Mr Kevin Wildman sworn 17 April 2019;
(iii) affidavit of Ms Lianne Wildman sworn 4 February 2019;
(iv) affidavit of Dr Jaspreet Singh affirmed 14 April 2019, and exhibits JS-1 and JS-2,
including expert report of Dr Singh dated 20 February 2019; and

(v) affidavit of Dr Kim Pinnock, undated but handed up in Court on 23 July 2019;
including expert report of Dr Pinnock dated 26 February 2019.
At the hearing, I deferred formally ruling on a relevance objection to the medical evidence,
and provisionally admitted the doctors’ evidence subject to relevance. Both doctors were
cross-examined. For the reasons I set out below, I consider their evidence relevant, and I
formally admit that evidence.
18 IMCD relies on the following affidavits and exhibits:

(f) affidavit of Mr Lambert sworn 13 March 2019; and exhibit RL-1;
(g) affidavit of Ms dela Fuente sworn 13 March 2019; and exhibit KF-1; and
(h) affidavit of Mr Egan sworn 13 March 2019.
19 Much of the factual foundation of Mr Wildman’s claim is admitted on the pleadings. The
correspondence, and medical certificates are in evidence. The background facts,
Mr Wildman’s health, and the correspondence between the parties (and Mr Wildman’s
solicitors) was not, ultimately, in contention.
20 At the hearing before me all deponents were cross-examined. Both parties provided written
outlines of opening submissions, and made oral submissions. IMCD also provided a short
written outline of closing submissions. Transcript of the hearing was obtained.
21 Regrettably, this judgment has been delayed well beyond any indicative time that may have
been assumed by the parties at hearing. Necessarily, my capacity to draw credibility
conclusions from the presentation of oral evidence alone is reduced by the passage of time,
notwithstanding my contemporaneous note taking. Accordingly, my conclusions on the
witnesses arise from my rereading of their written evidence, augmented by the transcript, and
having regard to the disclosures in correspondence, and the evidence of other witnesses,
particularly as among the IMCD witnesses. Further, the passage of time has enabled me to
undertake a detailed review of the written evidence and its relationship with the transcript,
obtain a clearer understanding of the chronology of events, and pay closer regard to the
interplay between the correspondence, and the witnesses’ conduct and actions in
chronological order. In addition, I have had the benefit of the principal authorities to which
counsel drew my attention.

MR WILDMAN’S HEALTH
22 During his employment Mr Wildman had, at various times, taken short periods – usually no
more than a few days - of sick leave.
23 Mr Wildman was diagnosed with rheumatoid arthritis in or around August 2014. He

informed IMCD of his treatment for rheumatoid arthritis in October 2015. That is, for
approximately 14 months, Mr Wildman did not disclose his health issues to IMCD. He
regularly experienced physical inconvenience due to his condition, and on occasions worked
from home. In about the fourth quarter of 2015, Mr Wildman and IMCD agreed that Friday
was the best day for him to be away from the office, as it had the least impact on the business,
and both Mr Wildman and co-worker, Ms Morgan, who reported to him, would be at the
workplace on Mondays. Despite his rheumatoid arthritis, he still worked in the office more
than half of the Fridays during 2016 and 2017. He attests to taking some 48 days of sick
leave between October 2015 and December 2017. The evidence of Mr Lambert and Ms dela
Fuente under cross-examination, and that of IMCD’s leave records in evidence, is that in the
calendar year 2017, IMCD recorded that Mr Wildman took 17 days sick leave, mostly, single
day absences.
24 Mr Wildman states that in December 2016, he became concerned about his continuing
position with IMCD upon viewing a job advertisement with the same job description as his.
He learnt that one of his direct reports would be reporting to someone else, and that some of
his other functions were being reassigned. He raised his concerns with Mr Egan who advised
the agency had put out the advertisement by mistake. In his written evidence Mr Wildman
says he found Mr Egan’s response to be disingenuous. Mr Wildman “found I was not coping
well, was becoming short tempered and irrational with my family, experiencing mood swings
and complete uneasiness about my employment”.
25 Mr Wildman consulted his general practitioner, Dr Pinnock, in relation to depression in

around March 2017. In follow-up consultations Dr Pinnock advised Mr Wildman take a
week off. On 15 May 2017, Mr Wildman provided IMCD with a medical certificate from Dr
Pinnock. The medical certificate stated:
This is to certify that:
Mr Kevin Wildman is receiving medical treatment.
He will be unfit to continue his usual occupation for the period:
15/5/2017 to 19/5/2017 inclusive.
This certificate was completed on 15 May 2017.
Signed
…

There is no evidence that IMCD queried this medical certificate, or sought to contact the
doctor.
26 In mid-2017 Mr Wildman’s father became ill, and died in early June 2017 (this bereavement
was disclosed by Mr Egan in his affidavit evidence). Mr Wildman began taking medication
for depression in June 2017, attended regular appointments with Dr Pinnock, and signed up to
an online program “My Compass”, run by the Black Dog Institute. Dr Pinnock’s clinical
notes confirm these matters.
27 Mr Wildman attests to feeling stressed and under a lot of pressure following discussions and
meetings with Mr Egan and Ms dela Fuente over the 2017-2018 Christmas and New Year
period (see [9]-[16] above). Ms Wildman, his wife, attests that also at this time a close friend
was diagnosed with a brain tumour and with a very short time to live.
28 On Friday 19 January 2018, Mr Wildman consulted Dr Pinnock. She advised Mr Wildman

that he needed a break from work because of his health, and provided a doctor’s certificate
for the period 19 January 2018 to 16 February 2018 (first medical certificate).
Mr Wildman emailed the medical certificate to Mr Egan, to whom he reported, on Sunday
evening, 21 January 2018.
29 IMCD emailed and communicated with Mr Wildman while he was on sick leave. I set out
below the sequence of emails and communications from IMCD and responses, which
commenced on 23 January 2018 with an email from Ms dela Fuente, and continued until
IMCD terminated Mr Wildman’s employment on 4 May 2018.
30 On 13 February 2018, Mr Wildman saw Dr Pinnock for a follow up consultation after his
appointment on 19 January 2018. She advised he take further time off, and issued a further
medical certificate for the period 13 February 2018 to 2 March 2018 (second medical
certificate). He emailed this medical certificate to Ms dela Fuente on 16 February 2018.
31 Mr Wildman consulted Dr Pinnock again on 26 February 2018, and she advised him he
needed further time off work. She provided him with a third medical certificate for the
period 3 March 2018 to 9 March 2018 (third medical certificate). He emailed it to Ms dela
Fuente on 1 March 2018.
32 On Monday, 5 March 2018, Mr Wildman was referred to and attended St John of God
Hospital, Richmond, for consultation and tests with Dr Singh, psychiatrist. Dr Singh

maintained Mr Wildman’s existing medication, prescribed medication to assist Mr Wildman’s
sleeping issues, and provided a report to Dr Pinnock.
33 On 8 March 2018, Dr Pinnock provided a fourth medical certificate to Mr Wildman for the
period 10 March 2018 to 18 May 2018 (fourth medical certificate), which Mr Wildman sent
to Ms dela Fuente on 9 March 2018.
34 Mr Wildman attests that earlier, in mid-2017 (which I note was around the time of his father’s
death), he and his wife had planned a caravan trip for March 2018 travelling with friends to
visit Ms Wildman’s brother in Western Australia. Mr Wildman states that in March 2018 his
doctors encouraged him to go on the trip, and not to cancel it. He and his wife travelled from
30 March and returned on 3 May 2018. Mr Wildman attests that he did not enjoy the trip; he
would have a few good days and then feel wiped out and struggled to interact with people.
35 On 21 May 2018, Mr Wildman attended a second appointment with Dr Singh who informed
him his recovery was being limited by issues with IMCD, and made no change to his
medication.
36 Each of Mr Wildman’s four medical certificates completed by Dr Pinnock in the period

January to May 2018 was in substantially the same terms, save as to dates, as the medical
certificate she had previously completed in May 2017 (see above, at [25]).
CORRESPONDENCE BETWEEN MR WILDMAN/ HIS SOLICITORS AND IMCD

37 In the period from late January 2018, whilst Mr Wildman was experiencing the above health
issues, IMCD and he were in correspondence and other communication as I set out in
chronological order in the following paragraphs.
38 On 23 January 2018, upon her receipt of the first medical certificate, Ms dela Fuente emailed
Mr Wildman seeking his approval for Ms dela Fuente to contact Mr Wildman’s treating
doctor, Dr Pinnock. She wrote (emphasis added):
I am sorry to hear of you being unwell. With reference to the medical certificate you
sent me on 21st January, it is important the Company understands the reason for your
unfitness for work and what the Company needs to consider for your return to work. This
wasn’t stated in your medical certificate. I am seeking your approval for me to contact your
doctor to ask for this general information.
Could you please respond with your consent or if you would like to discuss first, when
is a convenient time for me to call.

Mr Wildman did not reply.
39 The parties then entered into further correspondence and communications, as I set out in the
following chronology, together with references to the medical certificates I have referred to
above, and the pleaded 3 adverse actions, 8 coercions and 4 contraventions, as defined in the
claim (emphasis added):
(a) on 31 January 2018, Ms dela Fuente sent a second email requesting permission to
contact Dr Pinnock, in substantially similar terms, save that she explained “The
Company is concerned about your wellbeing and would like to know the reason you
are unfit for work and whether there are any requirements for us to consider for
your return to work”, and attaching a copy of her first email. (emphasis added)
(Together, the above emphasis in emails of 23 and 31 January 2018 is referred to in

the claim as the Health Information, and the emails and emphasised text are pleaded
to be the 1st Coercion);
(b) on 1 February 2018, Mr Wildman’s solicitors, Haywards Solicitors, responded to

Ms dela Fuente, by letter to IMCD, advising that:
My client has instructed me to respond to your emails on his behalf. Firstly, my client does not
consent to you contacting his treating Doctor.” Haywards drew attention to ss 97 and 107 of the Act,
stating that “My Client is entitled to take such leave when he is ill. He has provided evidence of his
illness, which is a medical certificate from his treating doctor, in accordance with section 107 of the
Act. There is no lawful reason for you to require my client to provide the reasons or an explanation
concerning his ill-health. He will not provide such an explanation. Please direct any enquiries
concerning this matter to this firm;
(c) by letter dated 5 February 2018 and sent by post, IMCD (Mr Lambert) replied to
Haywards, explaining the company’s concern about the impact Mr Wildman’s
absence was having on the business, the need to understand the reason for his
unfitness to facilitate a successful return, and if there is anything IMCD can do to
assist, and in case the cause impacts other employees.
IMCD wrote that Mr Wildman had not provided “evidence that would satisfy a
reasonable person (s 107)”, referred to legal authority, and said it was entitled to
insist on better evidence of the nature of the illness. Mr Lambert said Mr Wildman

had made the company aware of reasons for previous sick absences, it was suspicious
he was abusing his sick leave entitlements. The letter concluded as follows:
Subject to the receipt of any advice from you as to the nature of Kevin’s claimed
illness, IMCD intends to contact Kevin’s doctor to request details of the reason for him being unfit for
work, to enable us to take whatever steps are necessary to assist his return to work.
(pleaded 2nd Coercion);
(d) Ms dela Fuente attests that on 12 February 2018 she directly emailed Dr Pinnock’s
clinic. Ms dela Fuente followed her email with a telephone call to the clinic on
16 February 2018, explaining she had previously called and left a message for
Dr Pinnock, confirmed that her email was printed and in doctor’s in-tray, for her
attention, and requesting that Dr Pinnock return her call. It does not appear that this
direct contact was brought to Mr Wildman’s attention at this time;
second medical certificate dated 13 February 2018 for period 13 February to 2 March 2018
sent 16 February 2018; first medical certificate dated 19 January 2018 expires 16 February
2018;
(e) on 16 February 2018, Haywards emailed a further letter to IMCD, referring to

authority, reiterating that Mr Wildman “is not pressing to return to work”, rather he is
saying he is ill and taking personal leave in order that he can recover his good health,
that IMCD had no legitimate right to request to contact Dr Pinnock, or insist upon its
satisfaction by Mr Wildman, and he “does not consent to [IMCD] communicating
directly with his medical advisors”;
third medical certificate dated 26 February 2018 for period 3 March to 9 March 2018, sent
1 March 2018; second medical certificate expires 2 March 2018;
(f) Mr Lambert then emailed Mr Wildman directly on the evening of Friday 2 March
2018, saying he would like to meet “to better understand your current illness and
unfitness (if any) and how the Company may be able to assist you return to work”.
He said “I am concerned about the circumstances surrounding the timing and length
of your absence without having any supporting detail”. He wrote he would travel to
Sydney to meet, and asked Mr Wildman to nominate a day, time and location, the next
week (5 March). He advised: “Whilst this meeting is not a disciplinary meeting, you

are welcome to have a support person attend on the understanding you give advance
notice to me of who this person will be”. (pleaded 3rd Coercion);
(g) Mr Wildman responded by email on Sunday 4 March 2018, stating he was going to
hospital on 5 March and depending on the outcomes, would get back to him then;
(h) on 8 March 2018, Haywards sent a letter by email to IMCD (Mr Lambert), stating that
the proposed meeting was beyond IMCD’s legal rights, was drafted to intimidate, and
malicious, observing that “the clear insensitivity that you seem to be approaching my
client’s ill-health risks prolonging rather than assisting his recovery”, advising
Mr Wildman was not well enough to participate in any meeting, or otherwise
communicate directly on these matters. Haywards reiterated that further
communications IMCD wished to have with Mr Wildman should be directed to the
author at the firm;
fourth medical certificate dated 8 March 2018 for period 10 March to 18 May 2018, sent
9 March 2018; third medical certificate expires 9 March 2018;
(i) on Saturday morning 10 March 2018, Mr Lambert emailed Mr Wildman directly,
following up his meeting request;
(j) also on 10 March 2018, Mr Lambert emailed a response to Haywards letter of

8 March 2018, stating Mr Wildman is a required employee, he is attempting to
understand the cause of Mr Wildman’s illness, and how IMCD can assist him in
returning to work, and that he had again requested Mr Wildman meet him, and
disputed that IMCD was not entitled to communicate with its employees. (I observe
that Haywards letter had not stated IMCD could not communicate with Mr Wildman,
but rather that communications to Mr Wildman should be directed to – and thus via -
his instructing solicitors). (Together with the preceding email to Mr Wildman,
pleaded 4th Coercion);
(k) on 16 March 2018, Haywards wrote to IMCD again requesting Mr Lambert/IMCD

refrain from directly communicating with Mr Wildman while he is absent from work
as a consequence of ill-health;
(l) on 3 April 2018, Mr Lambert emailed Mr Wildman directly, and directed him to
attend an appointment with Dr Rose Wang at a medical centre proximate to his home
on Friday 6 April 2018 at 9:30am, at IMCD’s cost – “the purpose of this consultation

is to review your unfitness for work”, and requesting that he confirm with Mr
Lambert, and if the time was not suitable, advise why and nominate an alternative
time. Mr Lambert followed up with a text message;
(m) Mr Lambert then emailed Haywards on Thursday 5 April 2018, attaching his email of
3 April, and having received no response, requesting Haywards request Mr Wildman
contact Mr Lambert directly with his response (the 3 April 2018 email to
Mr Wildman, text message and 5 April 2018 email to Haywards pleaded 5th
Coercion);
(n) Haywards emailed a response to Mr Lambert the same day, stating that Mr Wildman
would not attend the medical appointment, reiterating the request that
communications be via the firm, and advising that the solicitor with carriage of the
matter was overseas, returning Monday 9 April 2018 (the email was sent by his
personal assistant);
(o) on Friday 6 April 2018, at 8am, Mr Lambert emailed Haywards (personal assistant)
and Mr Wildman requesting an explanation from Mr Wildman why he would not be
attending the appointment, and that he confirm by close of business he will be able to
attend a rescheduled medical appointment on 10 April 2018 (pleaded 6th Coercion);
(p) on 10 April 2018, Haywards sent a letter by email to IMCD, noting the persistent
direct email communications, and asking that IMCD please respect Mr Wildman’s
wishes. Haywards stated subject to precisely what [IMCD] might wish to ask
[Dr Pinnock], Mr Wildman would be willing to consider further whether or not to
consent to Mr Lambert writing to his doctor concerning his ill-health. Haywards
invited IMCD to provide them with the precise questions it wished to put to the
doctor;
(q) in response, on 11 April 2018, Mr Lambert emailed Haywards a draft email he

proposed sending to Dr Pinnock, and requiring consent and advice that Dr Pinnock
had been informed of the consent by close of business, 12 April 2018. The draft email
attached a copy of Mr Wildman’s position description (that proposed in January
2018), and posed the following questions:

1. What is the cause of Kevin being unfit for work?
2. How long has Kevin been suffering from this condition?
3. Does his condition expose other IMCD employees to a risk to their health or safety?
4. How does Kevin's condition make him unfit for work?
5. In your opinion, can he perform the inherent requirements of his job?
6. How has his condition changed for his current certificate to be issued for such a long
period?
7. How long do you expect his incapacity to continue, if at all, after the current
certificate expires?
8. How can IMCD assist Kevin return to work?
9. Are there any modifications to Kevin's work duties that would allow him to return to
work?
10. How long do you envisage it will take Kevin to return to work with such assistance
from IMCD?
(r) On Friday 13 April 2018, Mr Lambert emailed Haywards noting no response and
requesting an immediate update … “I will regard [failure to respond by close of
business] as refused consent and prepare my next instruction to Kevin”;
(s) on 16 April 2018, Mr Lambert emailed Mr Wildman, copied to Haywards, requesting

Mr Wildman attend a meeting at IMCD's Bella Vista office on Friday 20 April 2018 at
11am to “discuss the legitimacy of your unfitness for work, which if found to be an
abuse of entitlements, could lead to your termination of employment at IMCD”, and
inviting him to nominate an alternative time, if inconvenient. Mr Lambert warned “If
you do not attend this meeting, I will interpret this as a refusal to follow a direct
instruction.” (pleaded 1st Adverse Action, 1st Contravention, and 7th Coercion);
(t) on 18 April 2018, Mr Lambert emailed Mr Wildman and Haywards noting IMCD had
not received a response to the previous email, or about the questions posed for
Dr Pinnock, and requiring a response the same day with an alternative meeting time,
or failure would be a refusal to obey a direct instruction;
(u) on 19 April 2018, Haywards sent a letter by email to IMCD (Mr Lambert), noting that
IMCD had corresponded with Mr Wildman, notwithstanding their repeated requests
not to, on each of 10 March, 3, 6, 16 and 18 April 2018. Haywards referred to the
then current medical certificate (10 March to 18 May 2018), and advised the author
had enquired of Dr Pinnock "as to whether he is fit enough to attend any work-related
activity. She has advised me that he is ‘not fit to attend any work-related activity and
this includes any extra ordinary meetings’. Accordingly, my client will not be

attending any proposed meetings.” Haywards enclosed written advice from
Dr Pinnock to this effect;
(v) Mr Lambert responded to Haywards on 23 April 2018, attaching a final warning and
letter of instruction to Mr Wildman for urgent attention. In the attached letter IMCD
(Mr Lambert) listed the medical certificates, the communications both direct and to
Haywards, asserted:
IMCD can clearly demonstrate its support and flexibility with your past history of sick leave, and
asserting that “taking into account you were relocated from our Bella Vista office to Rosehill on
16/1/18 [sic – the evidence establishes the date was 8 January 2018] a very short time before you went
off on sick leave from which you have not yet returned 3 months later, nor provided details of your
condition … we have formed the prima facie view that there is a real possibility that you are being
dishonest and abusing your sick leave entitlements.
IMCD gave a formal written warning for Mr Wildman’s refusal to obey lawful and
reasonable directions, and provided a final opportunity to attend a meeting to discuss
his sick leave:
I now give you a final opportunity to meet with me on Friday 27 April at 2:00pm to discuss and
provide understanding of why you have been certified unfit for work and to satisfy me that you are not
abusing your sick leave entitlements. If you again refuse to attend or to provide details of your
claimed unfitness to work that would satisfy a reasonable employer, or are otherwise unable to
satisfactorily demonstrate that your sick leave is legitimate, your employment at IMCD may be
terminated.
(The letter of 23 April 2018 is the pleaded 2nd Adverse Action, 2nd Contravention,
and 8th Coercion);
(w) on 26 April 2018, Haywards wrote to IMCD reiterating that Mr Wildman was not
well enough to attend the proposed meeting the next day, but subject to the
information from the doctor being confined solely to Mr Lambert, and giving an
undertaking to keep that information confidential, and that he provide Haywards a
copy of his letter to the doctor, and sign an appropriate confidentiality undertaking,
Mr Wildman would allow Mr Lambert to ask Dr Pinnock directly the questions
proposed in the email of 11 April 2018 (see sub-paragraph (q) above);
(x) on 27 April 2018, Mr Lambert emailed Haywards attaching a draft letter to be sent to
Dr Pinnock (with the same questions as previously listed 1-8, and new questions 9
and 10: (9) If there are modifications to Kevin's work duties, when would he be able to
return to work? and (10) What type of specialist treatment is Kevin undertaking, if
any, in addition to your care?), and advising that the response would be kept
confidential between IMCD's managing directors, human resources manager, and any
legal and tax advisors on a needs to know basis;
(y) on 1 May 2018, Haywards wrote to IMCD stating that Mr Lambert had failed to
address at all Mr Wildman’s privacy concerns, and failed to give any reassurance he
would be provided with a copy of any response from the doctor, and advising consent
was not given to contact the doctor;
(z) on 1 May 2018, Mr Lambert sent a further email to Haywards stating his previous
email constituted the written undertaking to confidentiality, confirming he would copy
both the letter and response to Haywards, and requesting any amendments sought to
the draft letter by close of business on 2 May 2018. He stated “I have booked an
appointment with Dr Pinnock on Thursday 3rd May for her to provide answers to my
questions”. He advised that if consent was not then forthcoming, or if Mr Wildman
did not contact Mr Lambert to discuss his continued employment by close of business
on 3 May 2018, IMCD will proceed to make a decision to the continuance or
otherwise of his employment;
(aa) on 2 May 2018, Haywards sent a letter rejecting Mr Lambert’s characterisation of his
email as a confidentiality undertaking, and stating that Mr Wildman did not consent to
IMCD speaking to Dr Pinnock. The author of the letter made the matter clear:
I understand from my client that you have made an appointment to see his Doctor
with the IMCDs HR manager tomorrow.
My client has not consented to you speaking to his doctor. My client has not agreed
to you writing to his doctor.
For you to arrange an appointment with my client [sic] Doctor apparently intending
to speak to her about my client private medical information is wholly unacceptable.
You appear to know no boundaries.
My client does not consent to you speaking to his doctor.
I propose to write to my client’s doctor and advise her that she does not have my
client’s consent to speak to you about anything concerning him.
I reserve my client’s legal rights concerning your conduct.
(bb) on 4 May 2018, IMCD (Mr Lambert) wrote to Haywards terminating Mr Wildman’s
employment with immediate effect. (the pleaded 3rd Adverse Action, 3rd
Contravention, and 4th Contravention).

The letter was headed ‘TERMINATION OF EMPLOYMENT’. In the letter,
Mr Lambert said as follows:
…
Your role at IMCD provides required functions for the necessary operations of the business.
The efforts of Ms dela Fuente and I have been frustrated by you and Mr. Hayward in our
attempt to understand the reasons you have been certified unfit for work, how we can assist
you in your return to work and whether your condition could impact the health and safety of
other IMCD employees in the workplace. The supportive allowances IMCD has made to
assist you with health issues over the last 2½ years contrasts with your unspecified medical
condition apparently causing your absence from work for 3½ months commencing on
19/1/18. This has led to my suspicion of your current intentions as specifically outlined in my
email to Mr. Hayward on 27/4/18.
You did not meet with me, you did not respond, and you have again failed to comply with a
lawful and reasonable request. You have not given me any reason to believe that your claimed
unfitness to work is legitimate and is not an abuse of sick leave benefits.
Most recently, in my email to Mr Hayward of 1/5/18 (copied to you) I invited you to contact
me by close of business 3/5/18 to discuss your continued employment. I note that your
solicitor mistakenly understood that we had made an appointment with your doctor with the
intention to attend. I detailed my proposed process in my draft letter to your doctor and
contained in my email to your solicitor dated 27/4/18. You solicitor’s understanding was
incorrect; we had booked an appointment at a convenient time in her schedule, to allow her
window of time to consider and answer our proposed questions (without us being present),
but you disallowed that.
In the circumstances I have formed the conclusion that you are abusing your sick leave
benefits and have no interest in returning to work at the new location as directed, nor have
any intention to do so. You have refused to comply with my lawful and reasonable instructions
and requests issued on 2/3/18, 10/3/18, 3/4/18, 6/4/18 and 23/4/18 and 1/5/18. Your refusal to
comply with those instructions and requests, or to communicate with me are unreasonable
and have had an adverse impact on the operations of the business. I have decided to
terminate your employment with immediate effect based on your further refusals of those
requests since the final warning issued to you on 23/4/18.

CONSIDERATION – THE WITNESSES’ EVIDENCE
40 Each of the witnesses gave oral evidence, and I had the opportunity to observe them, and to
take notes. I have considered their written evidence and the transcript of their oral evidence.
In addition, I refreshed my recollection by reviewing my contemporaneous notes.
Mr Wildman
41 As I have stated at [2] above, by the final day of hearing the fact of Mr Wildman’s illness was
accepted by IMCD, and by agreement that acceptance put on the record by Mr Rinaldi,
IMCD’s counsel, and it was agreed that the cause of his illness was not relevant.
42 Mr Wildman’s affidavit and oral evidence is that his reasons for not disclosing his ill health
were because he was a “stoic man”, and because he had concerns about the stigma he
perceived attached to mental health issues. He was firm in his oral evidence on these
reasons: “Mental illness has quite a stigma in the market place and by employers and it’s –
and I’m a stoic person and it’s not something you are proud to walk around saying, you’re
buggared [sic, transcript spelling error] in the head.”. I accept his evidence as to his reasons,
and that they were and are genuinely held. As I have said above, I note that Mr Wildman did
not disclose his rheumatoid arthritis for some 14 months from first diagnosis.
43 His affidavit and oral evidence is also that as a consequence of Ms dela Fuente’s emails in
January 2018, and at that time, he felt there was a lot of “background chatter”, and after he
went on sick leave, and the emails continued, he felt so bullied. He attests “each email felt
like a threat to my employment and therefore mine and my family’s livelihood”.
44 There was some dispute in the evidence between Mr Wildman and Ms dela Fuente whether
on 13 December 2017 in meeting with Ms dela Fuente and Mr Egan he said that the proposed
role at Rosehill was beneath him. Mr Egan, the third person at the meeting, did not say any
such statement was made. Further, Mr Egan’s evidence in cross-examination was that there
was no discussion about actioning samples at the meeting. Ms dela Fuente’s evidence is that
she made a file note of the meeting shortly afterwards, perhaps on return to Melbourne. I
discuss her evidence below.
45 Having regard to the chronology, the affidavit evidence, documentary material, and the oral
evidence, I accept Mr Wildman’s evidence that he did not proffer the statement or
observation that the role was beneath him in the meeting of 13 December 2017. For the
reasons I set out below, I do not accept Ms dela Fuentes’ version of events.

46 I accept Mr Wildman’s further evidence that Ms dela Fuente put the proposition to him on a
number of occasions that he seemed to think that the Rosehill role was beneath him, and that
he denied it each time. Mr Wildman was firm on this matter in cross-examination. His
evidence, which I accept, is that he was not reluctant to take on the project management role.
I accept that he was, initially, reluctant about the necessity to relocate to Rosehill as in his
view the project management role did not require him to be located physically onsite at
Rosehill; rather, the role required him to be across the subject. I also accept that he accepted
that move on 14 December 2017, the time frame in which Mr Egan requested his response
(see above at [10]), and stood by his acceptance thereafter.
47 Mr Wildman attests that when it was raised on 12 January 2018 that he would be picking and
packing samples he indicated that it was beneath him to perform a warehouse role.
48 Mr Wildman gave evidence that upon Haywards receiving IMCD’s response dated
“4 February 2018” (sic, letter of 5 February 2018, auto-updated on printing to 4 February
2019, see [39(c)]) he felt IMCD’s reasons for wanting to contact his doctor were that they did
not believe he was sick, and was abusing his sick leave entitlements. He attests that he felt it
was very evident that he had not previously abused sick leave over his many years of
employment, and was shocked and upset that IMCD would assert he was abusing his sick
leave (first affidavit, at [72]).
49 During his first period of sick leave, Mr Wildman made an overnight visit to his daughter, a
health professional, in Newcastle, and later, as I have set out above, travelled to Western
Australia. IMCD sought to rely on a Facebook/Instagram post of a picture of Mr Wildman
smiling in Newcastle. It is unclear when IMCD (Ms dela Fuente) obtained the Newcastle
post. As to a later post from Ms Wildman relating to her absence at the time they were
travelling to Western Australia relied upon by IMCD, IMCD’s evidence is it was located by
Ms dela Fuente and brought to Mr Lambert’s attention on 4 May 2018, the day IMCD
terminated Mr Wildman’s employment.
50 I reject any suggestion that because Mr Wildman made these trips, or smiled, it follows that
he was fit for work, or, indeed, not ill. I accept that these trips were encouraged to aid in his
recovery. I accept Dr Singh’s written evidence in relation to the disorder suffered by
Mr Wildman that “non-pharmacological interventions including travel and lifestyle changes
can be effective tools to ameliorate symptoms”.

51 Ms Wildman gave evidence of her observations of the changes in Mr Wildman’s health and
wellbeing. As I have said, these matters were ultimately not in contention.
Doctors Singh and Pinnock

52 Dr Singh provided an affidavit affirmed 16 April 2019, and annexed his expert report dated
20 February, 2019, which was objected to, and admitted provisionally, subject to relevance.
He was cross-examined. He stood by his diagnosis of Mr Wildman as having adjustment
disorder, with mixed anxiety and depressive symptoms, rather than major depression (which
had been the opinion of a report dated 6 November 2018 provided by Dr Peter Young,
consultant psychiatrist, in connection with a later, separate claim for worker’s compensation,
not relevant to this proceeding).
53 Dr Singh reported Mr Wildman’s history, and that prior to 2017 (the present episode), he had
no earlier history of depression. Under cross-examination, Dr Singh gave evidence of
Mr Wildman’s belief that:
… since he was already been trivialised and his complaints not being looked at, so providing
evidence of having the mental health issues would have created further problems for him and
he anticipated no support from the workplace around those issues. … In relation to the
rheumatoid arthritis, my discussions with him were that this had flare[ed] up in the year or
two before seeing me and he was – at times he had to take a day off to attend exercise
physiology or have his injections, and that was what was leading to probably the employer
thinking that he should be on his way out.
54 Under cross-examination, Dr Singh also explained that “it’s a very common problem to feel
stigmatised by mental health issues, especially at a workplace which is competitive and needs
people to be, you know, working to their highest efficiencies, …”. He emphasised that “it is a
hugely personal decision for the individual themselves to make, as well as to when and how
they make that decision to disclose these issues.”
55 Mr Rinaldi put to Dr Singh that if IMCD had been made aware of the nature of his illness, it
would have been possible for IMCD to assist Mr Wildman to return to work. Dr Singh
responded that he could not speak on their behalf, “but that is the assumption”. I accept, as
Dr Singh said, that such an assumption is possible.
56 Dr Pinnock attests that she provides a standard medical certificate which does not state the
patient’s illness. I understand, and accept, that this is evidence of her customary practice.

57 Dr Pinnock gave evidence that IMCD’s actions (in seeking to communicate with
Mr Wildman to obtain more information about his illness) caused distress to him. She
doubted that they increased his depression at that point.
58 Dr Pinnock accepted the proposition put to her that: “If IMCD, the employer, had known what
was wrong with him, that is, the nature of his illness, obviously it follows they may have or
they could have been in a position would have been in a position, to help him.” As a
hypothetical proposition, this may be accepted.
Doctors evidence is admitted

59 Mr Miles submitted that the doctors’ evidence is relevant to whether Mr Wildman’s ill health
meant he was unfit for work. I consider the doctors’ evidence is relevant, to the extent that
Mr Wildman’s diagnosis and his unfitness for work remains in issue following IMCD’s
concession on the final day of hearing, and also as being relevant to the perception of stigma,
the effectiveness of non-pharmacological interventions as tools to ameliorate symptoms, and
Mr Wildman’s attendances.
60 I admit the doctors’ evidence. I admit Dr Singh’s affidavit and report, and it follows, his oral
evidence. It provides insight into Mr Wildman’s condition, and his reluctance to provide the
Health Information, or to meet with IMCD. I admit Dr Pinnock’s written and oral evidence
for the same reasons, and additionally, I consider relevant her customary practice of the
wording on medical certificates that she issues.
61 The correspondence from IMCD does not give any indication of what IMCD foresaw it
could, would or might do to assist Mr Wildman return to work. No specific evidence was
adduced by IMCD of any assistance it proposed to give Mr Wildman. The only evidence
before me of the form of assistance IMCD had earlier given in acknowledging his rheumatoid
arthritis prior to 19 January 2018 was that Mr Wildman could take some Fridays as sick
leave, and that he on occasion worked from home on Fridays (and noting that he had a
significant amount of sick leave accrued, and there is no suggestion that IMCD gave him
additional leave). In the circumstances, whilst I admit their evidence, I do not give great
weight to the doctors’ acceptance of the possibility of IMCD being able to provide assistance.
IMCD’s witnesses
62 In their affidavits the respondent’s witnesses all refer to IMCD as “IMCD Australia Pty Ltd”,
whilst Mr Wildman’s employer is, according to the documentation, the respondent in the

proceeding – “IMCD Australia Limited”, ABN 44 000 005 578. The relationship between the
named entities in 2018 was not explained. I have ascertained from the Australian
Government’s Australian Business Register ABN Lookup that on 26 July 2019, the
respondent ABN 44 000 005 578 changed its name from “IMCD Australia Limited” to
“IMCD Australia Pty Ltd”, although the trading name remains “IMCD Australia Limited”.
63 IMCD’s witnesses gave evidence in support of its case, seeking to rebut the statutory
presumption under s 361 of the Act. Their evidence of positions and responsibilities is as at
the date of hearing. Accordingly I refer to it in the present tense.
Mr Lambert
64 Mr Lambert is located in IMCD’s head office, in Mulgrave, Victoria. Since May 2017 he has
been joint managing director with Mr Egan. Previously he was Director–Finance and
Administration. He attests that his focus as joint managing director is on operations and
organisational structure, and his responsibilities include the operating and financial
performance, employee welfare and corporate compliance of IMCD Australia and IMCD
New Zealand.
65 Mr Lambert’s evidence is that he was the decision maker in relation to IMCD’s actions in
dismissing Mr Wildman, and that Ms dela Fuente acted under or in accordance with his
instructions. He consulted with Mr Egan when terminating Mr Wildman’s employment.
66 Mr Lambert’s written evidence is that in the lead up to Mr Wildman’s relocation Ms dela

Fuente told him of her conversations with Mr Wildman, and her “feedback” to Mr Lambert
that she thought Mr Wildman was resisting the relocation. It is clear from his written
evidence that Mr Lambert relied on Ms dela Fuente’s early characterisation of Mr Wildman
as abusing his sick leave entitlements.
67 In his written evidence, in the same paragraph as he sets out his receipt of Ms dela Fuente’s
feedback, Mr Lambert gives an undated explanation for his behaviour in contacting
Mr Wildman shortly after he went on sick leave, as follows:
… Combined with my knowledge of how his job role had to be modified in the past because
of his dismissive behaviour to some tasks, for example the Quality Management System and
adhering to standards of product masterfile creation, the timing of his sick leave being taken
immediately after his work relocation, and the large balance of sick leave he had accrued, I
wanted to be satisfied his sick leave was genuine. If his unfitness to work was related to his
rheumatoid arthritis, what had changed to prevent him from working at Rosehill and what
could IMCD do to assist his return to work? His absence was also having an impact on the
business and the work load of other employees. Without knowing the reason for his sick

leave, if genuine, I felt at risk in relation to my obligations of providing a safe working
environment for the other Rosehill staff as I didn't know why Mr Wildman was unfit for work.
68 Mr Lambert’s rationale set out in the preceding paragraph is a curious explanation for
Mr Lambert’s immediate scepticism of the first medical certificate, particularly in view of the
fact that Mr Wildman was an employee of such long standing and experience. The
description of Mr Wildman’s attitude to past tasks is not borne out by the documentary
evidence as a whole. Having regard to the events described earlier in these reasons, and Mr
Egan and Ms dela Fuente’s evidence, the immediate assumption, adopted from the receipt of
the first medical certificate, only 2 days into his absence, and in the face of the first medical
certificate, that Mr Wildman might be abusing his sick leave entitlements, is not an
assumption of a reasonable person in IMCD’s position.
69 Under cross-examination, Mr Lambert said that as at 5 February 2018, because he only had
correspondence from Haywards, Mr Wildman’s lawyers, and not “direct advice from our
employee what Mr Wildman’s preferred course of action was”, he did not know Mr Wildman
did not consent to IMCD contacting Dr Pinnock; only that “Haywards Solicitors didn’t pass
on any consent”.
70 Mr Lambert accepted the proposition that his requests in his emails of 2 and 10 March 2018
to Mr Wildman to meet, were not giving him the option to meet. Mr Lambert stated he was
flexible about when and where to meet.
71 Mr Lambert accepted that at the time Mr Lambert was directing Mr Wildman to meet with
him on 27 April 2018, he had received Dr Pinnock’s letter saying Mr Wildman was not fit to
attend any extra-ordinary meeting (letter dated 19 April 2018, see [39(u)] above).
Mr Lambert instructed Ms dela Fuente to make an appointment directly with Dr Pinnock,
without consulting Haywards beforehand, or discussing with Haywards the necessity for
making the appointment.
72 Mr Miles put to Mr Lambert that it was not reasonable to ask what specialist treatment
Mr Wildman was receiving, and that it did not relate to his unfitness for work. Mr Lambert’s
explanation as to why the information as to specialist treatment was sought was unclear: his
evidence was IMCD “needed whatever information we could get to understand why Kevin
was unfit for work, whether there was anything we could do to assist him in his return to
work, or whether there was any other risk posed”. I consider that Mr Lambert’s response

does not explain why this particular information was sought, or how it would assist IMCD,
given the separate questions 3 and 8 (see [39(q)]).
73 Whilst Ms dela Fuente brought the Facebook post to Mr Lambert’s attention on 4 May 2018,
he rejected any suggestion that it influenced or had any role in his decision to terminate
Mr Wildman’s employment. Given the tenor of IMCD’s earlier correspondence and conduct,
I accept that the post did not influence the fact of his decision. However, the inference is
reasonably available, and I so infer, that it influenced the timing of the termination on that
day.
74 Mr Lambert accepted that part of his reason for giving Mr Wildman a formal written warning
on 23 April 2018 was that Mr Wildman did not follow IMCD’s directions of 10 March and
16 April, as well as not providing reasons for his unfitness for work.
75 In his affidavit Mr Lambert explains his decision to send the letter of 23 April 2018, and
subsequent actions, and then to terminate Mr Wildman’s employment as follows:
[39] I wrote to Mr Wildman …offering him a final opportunity to meet with me to discuss why he
was unfit for work and to satisfy me that he was not abusing his sick leave entitlements.
Given Mr Wildman's past history of having open dialogue with me about the reasons for his
sick leave taken due to his rheumatoid arthritis condition and the conciliatory manner in
which his sick leave was managed, I considered it was most unusual and out of character for
him to not be open about his extended period of sick leave on this occasion. I considered I
had exhausted all reasonable efforts in attempting to determine the legitimacy of Mr
Wildman's sick leave and could not come to any other conclusion than he was wanting to
exhaust his sick leave entitlements before taking some other course of action to IMCD's
detriment. This conclusion seemed to me to be stronger in the circumstance of Mr Wildman
taking sick leave just 3 days after his relocation to the Rosehill site and not returning. …
[43] On 1 May 2018, I sent the email … to Mr Wildman and his solicitors … This email included
advice that IMCD had booked time for Dr Pinnock to complete her responses in anticipation
of approval by Mr Wildman to submit written questions discussed in prior correspondence. I
instructed Ms dela Fuente to make this appointment and pay for Dr Pinnock’s time even
though no-one would be attending the appointment to enable her to complete written
responses to my questions, if we received permission from Mr Wildman’s solicitors. I wanted
to avoid the situation of a delayed response from Dr Pinnock due to lack of available time due
to her other appointments. I asked Ms dela Fuente to inform the clinic that there would not be
anyone attending those appointments and the time was for her to answer my questions at a
time during the day when she may be least busy. We also took this approach so the doctor
would not be financially disadvantaged for the time she needed to complete her written
responses.
[44] I received the letter … from Mr Wildman’s solicitors dated 2 May 2018, including an
incorrect assumption that I had made the appointment to see his doctor.
[45] I considered I had exhausted all reasonable attempts to understand the reasons for
Mr Wildman's unfitness for work I gave consideration to the possibilities fox his sick leave
being related to his rheumatoid arthritis, but I couldn't understand why he would not inform
me of this when considering the support IMCD had given Mr Wildman in the past, I then

considered whether Mr Wildman could be suffering from another physical or mental illness.
However, I couldn't understand why he would not divulge a physical illness so I could
consider any exposure to other IMCD employees. Then if he was suffering from a mental
illness, why would he not share this when IMCD have demonstrated respect and
confidentiality, when previously requested in relation to his rheumatoid arthritis. Mr
Wildman also knows IMCD is a global, ethical and professional company and the issue of
employees with mental health issues is not uncommon. I was therefore left with the
conclusion that Mr Wildman was unhappy about his relocation to IMCD’s Rosehill site,
despite providing his earlier consent, and intended to use his outstanding leave balance to the
further detriment to IMCD caused by his absence. My view of his abuse of his sick leave
entitlements was Mr Wildman had no genuine intention to work with IMCD to return to work
and I had to provide direction to the other IMCD employees who were enduring the
operational difficulties by having to cover Mr Wildman's functions. I made the decision, on
behalf of IMCD, to terminate Mr Wildman’s employment for that reason, and because of his
repeated refusals to comply with what I regarded as lawful and reasonable directions that I
had given him. I did not terminate his employment because of his illness or his absence, but
because of their effect on IMCD’s operations. His repeated refusals to comply with my
directions or provide any information about his illness so that IMCD could endeavour to
assist him to return to work and ensure the health and safety of other employee caused my
belief that he was simply using up his sick leave entitlements with no genuine intention of
returning to IMCD, as I and my fellow managers were wanting to achieve.
[46] I therefore sent the letter dated 4 May 2018 to Mr Wildman care of his solicitors advising of
the termination of Mr Wildman's employment.
76 As I have said, above, Mr Lambert’s statement in his affidavit at [39] that Mr Wildman went
on leave 3 days after relocation is incorrect. Mr Wildman returned from Christmas vacation
on 8 January, and was absent from 19 January 2018, two weeks later.
77 As to Mr Lambert’s explanation of his appointment with Dr Pinnock in his affidavit at [43] –

[44], the advice was clumsily worded, and inappropriate in any event (see chronology at
[39(z)]). The evidence does not disclose any reason for urgency.
78 I accept that Mr Lambert was not aware of Mr Wildman’s mental health diagnosis until
several months after he terminated Mr Wildman’s employment. In the light of this, however,
I do not accept Mr Lambert’s proffered explanation that he gave any thought prior to
termination that Mr Wildman might be suffering any mental health problems. That
explanation is not borne out by Mr Lambert’s actions since 23 January 2018 (relating to
Ms dela Fuente’s actions), particularly his persistent direct contacts to Mr Wildman, and
IMCD’s attempts to directly contact Dr Pinnock.
79 The evidence from the doctors is unequivocal, Mr Wildman was ill. I reject IMCD’s
submission that Mr Wildman was abusing his sick leave entitlements.

80 Mr Lambert’s explanations in his affidavit at [45] as to his reasonableness do not survive
scrutiny. As I have said at [68], from the first communication from IMCD, each
communication expressed, and then reiterated doubt about, the validity of Mr Wildman’s
reason for his absence, and sought to go behind the medical certificate(s). Over time, that
disbelief was reiterated more loudly. From the first communication, IMCD sought to
approach Mr Wildman’s doctor. Although Mr Lambert says he had exhausted “all reasonable
attempts to understand the reasons for Mr Wildman’s unfitness”, repeating the same request
several times does not constitute all attempts at understanding nor any variations in attempt,
nor make reasonable the attempts.
81 As to the effects on IMCD’s workplace and other employees, at most, Mr Lambert’s

statements are generalisations. Mr Egan – Mr Wildman’s direct boss - did not give any
evidence of any such effects or concerns.
82 No proper explanation is given of what Mr Wildman’s absence was having or had on IMCD’s
business or staff’ workload. The asserted ‘operational difficulties’ are not disclosed, nor what
or how unnamed employees were experiencing having to cover for his absence. Given
Mr Egan’s email on 13 December 2017 (see at [10] above), and the work referred to at [15]
above, in the absence of any content or detail, I give little weight to Mr Lambert’s asserted
generalisations.
83 So too, Mr Lambert’s concern about IMCD’s obligations to provide a safe working

environment, and how Mr Wildman’s ill health and absence posed a risk to such an
environment, is couched in generalisations, and wanting detail. No explanation is given.
Nowhere in IMBD’s evidence was I able to ascertain what sort of safety risk or operational
difficulties then arose or were likely to arise.
84 Mr Lambert’s bald assertions are in stark contrast to the detailed evidence and context given
by and on behalf of the employer in Australian and International Pilots Association v Qantas
Airways Ltd [2014] FCA 32; (2014) 240 IR 342, to which authority I make further reference
below.
Ms dela Fuente
85 Ms dela Fuente has been employed with IMCD since 2015 as the Human Resources manager.
As I have said above, she is based in Melbourne. Her evidence is that she acted on
instructions from Mr Lambert.

86 It is apparent from her written evidence, her correspondence with Mr Wildman, and her
actions, that she held a negative view of Mr Wildman from at least the meeting of 13
December, 2017. Ms dela Fuente flew from Melbourne and attended the meeting on
13 December 2017. The meeting was to obtain Mr Wildman’s buy in to a management
decision already made.
87 Ms dela Fuente’s file note of the meeting on 13 December 2017 was written after the
meeting. She believes it was written when she returned to Melbourne. It is curiously titled
“File Note: Kevin Wildman 13.12.2017 Bella Vista Office”. It is undated, and does not
expressly identify that Mr Wildman was being asked to relocate his workplace. It does not
include the time, duration, specific outcomes or identified next steps of the meeting.
I consider that it contains a significant amount of self-serving commentary. It does not
reconcile it in all respects with Mr Egan’s email to Mr Wildman sent 13 December 2017, the
same day of the meeting, and confirming the outcome of the meeting. Ms dela Fuente
acknowledges that the discussion she commented adversely on was regarding Mr Wildman’s
concern about his status within the business and his reputation amongst his colleagues. I
consider that Mr Wildman’s concern is a reasonable concern to be expressed by an employee
of over 20 years standing. This concern subsequently expressed itself in exchanges between
them in the week of 8 January 2018, following Ms dela Fuente’s direction that he was to
action CI (that is, Capitol Ingredients’) samples and proposed to inform staff accordingly. It
is apparent from her file note of the 13 December 2017 meeting that Ms dela Fuente was not
prepared to give Mr Wildman time to absorb the decision imposed on him, and to be
reconciled to it.
88 Ms dela Fuente’s correspondence with Mr Wildman in the period 10 January-16 January

2018 evidences changes to Mr Wildman’s duties imposed after his acceptance of the
relocation to Rosehill on 14 December 2017, including imposing pick and pack duties. The
evidence is, and I accept, that to date these duties in relation to Capitol Ingredients samples
were ones undertaken by a part time employee who had reported to Mr Wildman. Further,
Mr Egan’s evidence is that staff already performed those duties at both Bella Vista and
Rosehill.
89 Ms dela Fuente’s email sent on 16 January 2018 after a discussion about the additional tasks
Mr Wildman was now being required to do, includes the statement “Several times you
mentioned if the Company wants you to leave then start the discussion, IMCD has not

proposed this option, nor intends to, however should you prefer to exit the business, I am sure
we can discuss with an amicable outcome”. Ms dela Fuente’s email ends with a comment,
unrelated to the other subject matter of the email, and relating to Mr Wildman’s absence from
the workplace the previous Friday: “Absences must be entered into Outlook Public Folders.
Your absence for Friday 12th January was not entered until Monday 16th January 2018
[sic]”. It is apparent from this email that Ms dela Fuente had no patience for Mr Wildman.
She was quick to invite him to present a proposal for him to leave IMCD.
90 In cross-examination, on being directed to a work-related email from Mr Wildman sent on

12 January 2018, she accepted that he dealt with work related matters whilst on sick leave,
and that he had done so that day.
91 Although existing staff performed duties actioning samples at both Bella Vista and Rosehill at
the time Ms dela Fuente informed Mr Wildman of the additional pick and pack duties on
12 January 2018, I do not accept it necessarily follows that Mr Wildman was being “eased
out” of his employment at that time. I accept, however, that it is reasonable that Mr Wildman
may have been inclined to that view.
92 Ms dela Fuente doubted Mr Wildman had issues with his health even before he went on
leave, viz. her email of 16 January 2018. Her emails of 23 and 31 January 2018
demonstrated she was extremely quick to disbelieve him. In her affidavit Ms dela Fuente
states that she believed Mr Wildman was using up his sick leave entitlements due to his
accrued sick leave balance being too high, and that she expressed this view to Mr Lambert
and Mr Egan. She situates this view as held by her from at least early February 2018. It is
apparent from Mr Lambert’s evidence (including above at [75]) that this belief conveyed to
him was a motivating factor in his subsequent actions.
93 It is reasonable to infer from Ms dela Fuente’s actions, and specifically, her written evidence
and the correspondence, that so far as Ms dela Fuente was concerned, at least, Mr Wildman
was abusing his sick leave entitlements, even before 19 January 2018, and that his exit from
IMCD was to be encouraged. It does not follow that because an employee has a high accrued
sick leave balance that when they are on leave and submit medical certificates they are
abusing their entitlements.
94 Ms dela Fuente attests that on 12 February 2018, within the period of the first medical
certificate, she contacted Dr Pinnock’s clinic by email, and sought to make an appointment to

call her. Ms dela Fuente followed up with a telephone call to the clinic on Friday
16 February 2018, and a further request that Dr Pinnock call Ms dela Fuente. Ms dela Fuente
attests that she ascertained from the clinic that Mr Wildman had consulted his doctor on
26 February 2018. She continued to approach Mr Wildman’s doctor and her clinic,
notwithstanding Haywards’ request that communications to Mr Wildman be directed to the
lawyers.
95 It is apparent from these actions that Ms dela Fuente (and thus IMCD) had no compunction in
trying to speak directly with Dr Pinnock, and that she expressed no regard for doctor-patient
confidentiality. I have serious reservations about the genuineness of Ms dela Fuente’s
explanations of her actions in relation to Mr Wildman throughout the relevant period. Even
taking into account her suspicions, which I consider unwarranted and reflective of her own
attitude, and not reasonable, her behaviour is reprehensible.
96 That IMCD (through Ms del Fuente, and Mr Lambert) in each of its correspondence and
communications from 23 January 2018 expressed disbelief as to Mr Wildman’s ill health, and
the veracity of his doctor’s clear statement, and notwithstanding his existing rheumatoid
arthritis, and their conduct similarly in directly contacting his doctor, and acting in repeated
disregard for Haywards’ requests that communications with Mr Wildman be to the lawyers,
are factors to which I give considerable weight.
Mr Egan
97 As I have I have described above, Mr Egan is joint managing director of IMCD.
Mr Wildman reported to him effective March 2014, and until his employment ceased,
although there was a period in 2015 when there was an intermediate report.
98 Mr Egan did not recall it being suggested at the 13 December 2017 meeting that Mr Wildman
should be responsible for actioning CI sample requests. As I have noted above, he said that
IMCD already had staff at both Bella Vista and Rosehill who were responsible for that role.
99 Mr Egan was on annual leave from 11 January to 16 January 2018. He had no further contact
with Mr Wildman thereafter. His evidence under cross-examination was that Mr Wildman’s
work performance was satisfactory, and there were no real issues. I give weight to this
evidence in view of the fact that Mr Wildman reported to Mr Egan.
100 Mr Egan did not have any input into the decision that Ms dela Fuente contact Dr Pinnock.
It was not his decision to terminate Mr Wildman’s employment. He was consulted.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
101 There is no issue in the proceeding that Mr Wildman was a national system employee as
defined in s 13 of the Act, and that IMCD was a national system employer as defined in s 14
of the Act. Accordingly, by s 43(1)(a) of the Act, the minimum terms set out in the National
Employment Standards (contained in Part 2-2) apply, relevantly, the provisions for paid
personal leave in Div 7 (ss 96, 97, 107), and the requirement for notice of termination, period
of notice, and payment in lieu in Div 11 of the Act (ss 117 and 123). Section 44(1) provides
that an employer must not contravene a provision of the National Employment Standards.
102 I set out relevant statutory provisions below.
Personal leave
103 Section 97 of the Act provides, relevantly, that:
An employee may take paid personal/carer’s leave if the leave is taken:
(a) because the employee is not fit for work because of a personal illness, or personal
injury, affecting the employee; or …
104 Section 107 of the Act provides as follows:

Notice
(1) An employee must give his or her employer notice of the taking of leave under this Division
by the employee.
(2) The notice:
(a) must be given to the employer as soon as practicable (which may be a time after the
leave has started); and
(b) must advise the employer of the period, or expected period, of the leave.
Evidence
(3) An employee who has given his or her employer notice of the taking of leave under this
Division must, if required by the employer, give the employer evidence that would satisfy a
reasonable person that:
(a) if it is paid personal/carer’s leave -- the leave is taken for a reason specified in
section 97; or …
Compliance
(4) An employee is not entitled to take leave under this Division unless the employee complies
with this section.
105 Mr Miles referred to the explanatory memorandum, which at [4.15] states “… The types of
evidence commonly requested includes a medical certificate or statutory declaration. It may
not be reasonable in every instance for an employer to require an employee to provide a
medical certificate. …”

Adverse action
106 Section 342(1) of the Act provides that an employer takes ‘adverse action’ against an
employee if the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee's prejudice; or
(d) discriminates between the employee and other employees of the employer.
107 Section 340(1) provides that:

A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposes or proposes not to exercise a
workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
108 Adverse action taken for a reason other than a reason set out in s 340(1) is not a contravention
of the Act.
109 ‘Workplace right’ is defined in s 341(1) of the Act:

(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law;
workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceeding under a workplace law or
instrument; or
(c) is able to make a complaint or inquiry: …
(ii) if the person is an employee - in relation to his or her employment.
110 Mr Wildman submits that he had a workplace right to take paid personal leave in accordance
with Division 7 of Part 2-2 of the National Employment Standards under the Act, that is,
pursuant to s 97.
111 Section 360 of the Act provides that for the purposes of this Part, a person takes action for a
particular reason if the reasons for the action include that reason. Section 361(1) of the Act
then provides that:
(1) if:

(a) in an application in relation to a contravention of this Part, it is alleged that a person
took, or is taking action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention
for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless
the person proves otherwise.
112 Sections 360 and 361 facilitate proof in relation to the employer’s reasons. Section 361
provides a presumption as to the employer’s reasons, unless the employer proves otherwise.
113 In Australian Building and Construction Commissioner v Hall [2018] FCAFC 83;
(2018) 261 FCR 347 (to which counsel referred) at [13]-[15], the Full Court of the Federal
Court of Australia said that, stated compendiously, s 361(1) places an onus or burden on a
person involved in a proceeding relating to a contravention of Part 3-1 of the Act (here, of
ss 340, 343, and 352) to “prove otherwise” than that they took the contravening action for the
particular reason, or with the particular intent, alleged in the applicant’s application. The
consequence of a failure to discharge this burden is that it is presumed against the person
concerned (here, IMCD) that the contravening action was taken for that particular reason or
with that particular intent.
114 The Full Court stated that before the presumption operates, however, two preconditions must
be met: first, (in sum) an allegation under s 361(1)(a) must precisely and distinctly identify
the particular alleged reason, or the particular alleged intent, for the contravening conduct,
and secondly, the requirement in s 361(b), additionally, that taking the alleged action, for the
alleged reason or with the alleged intent (or both) “would constitute a contravention of this
part”.
115 There must be a causal connection between the act of the employer and the employer’s
reasons for those actions which are critical to the allegations of determination of the alleged
contraventions of ss 340, 343 and 352 of the Act: see Maritime Union of Australia v
Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34; 94 IR 244. Normally sworn
evidence from the employer denying the prohibited reason is necessary, and in most cases, an
explanation of the real reason consistent with the absence of the prohibited reason as a reason
is, in a practical sense, also necessary: Seymour v Saint-Gobain Abrasives Pty Ltd [2006]
FCA 1452; (2006) 161 IR 9. The task for the Court is to consider whether the employer has
excluded the existence of a prohibited reason. It does not require the Court to go further and
determine whether the respondent made the correct decision, there was a valid reason for the

action, nor to consider whether that action was harsh, unjust or unreasonable. That is the
issue turns on whether the action was motivated by a prohibited reason, not on whether the
action was taken for a reason which is not shown to have been correct: Mendonca v Chan &
Naylor (Parramatta) Pty Ltd [2014] FCCA 1042 per Judge Cameron at [178].
116 Board of Bendigo Regional Institute of Technical and Further Education v Barclay
[2012] HCA 32; (2012) 248 CLR 500 is the leading authority on the operation of ss 360 and
361 of the Act. The principles explained in it were affirmed by the High Court of Australia in
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41;
(2014) 253 CLR 243. Those principles were summarised by the Full Court of the Federal
Court in State of Victoria (Office of Public Prosecution) v Grant [2014] FCAFC 184; (2014)
246 IR 441, at [32]:
…
• The central question to be determined is one of fact. It is: “Why was the adverse action
taken?”
• That question is to be answered having regard to all the facts established in the proceeding.
• The Court is concerned to determine the actual reason or reasons which motivated the
decision-maker. The Court is not required to determine whether some proscribed reason had
subconsciously influenced the decision-maker. Nor should such an enquiry be made.
• It will be “extremely difficult to displace the statutory presumption in s 361 if no direct

testimony is given by the decision-maker acting on behalf of the employer.”
• Even if the decision-maker gives evidence that he or she acted solely for non-proscribed
reasons other evidence (including contradictory evidence given by the decision-maker) may
render such assertions unreliable.
• If, however, the decision-maker’s testimony is accepted as reliable it will be capable of

discharging the burden imposed on the employer by s 361.
117 See also, Perry J in Rail Pro Services Pty Ltd v Flavel [2015] FCA 504; (2015) 242 FCR 424
at [81]-[93], to which I have also had regard, including noting that the actual reasons of a
decision maker is a question of fact which requires a consideration of the decision-maker’s
particular reasons.
Coercion
118 Section 343(1) of the Act provides:

(1) A person must not organise or take, or threaten to organise or take, any action against another
person with intent to coerce the other person, or a third person, to:
(a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b) exercise, or propose to exercise, a workplace right in a particular way.
119 In Hall at [24]–[26] the Full Court (Tracey, Reeves, and Bromwich JJ) stated (emphasis in
original, citations omitted):
[24] Justice Bromberg correctly highlighted this composite effect of the operation of s 361 with
respect the existence of both the intent and reason or purpose comments of s 343 in
Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2).
[25] It is well established that the expression “intent to coerce” in ss 343 and 355 carries within it a
requirement to establish two discrete elements: negation of choice, and the onus of unlawful,
illegitimate or unconscionable conduct to do so…
[26] Furthermore, and most importantly for present purposes, the Full Court also held in Esso that
the intent aspect of the expression “intent to coerce” applies to the negation of choice
element. This contrasts with the other element, the use of unlawful, illegitimate or
unconscionable conduct, which is to be assessed objectively. It follows that the relevant
particular intent for the purposes of a contravention of ss 343 and 355 is an intent to negate
choice. It follows further that, for the presumption in s 361 to operate with respect to a
contravention of those sections, the particular intent that must alleged in the application is an
intent to negate choice. Conversely, alleging that the particular intent was an “intent to
coerce” creates ambiguity because that expression does not refer to an intent per se, but
rather, as discussed above, refers to the two elements of coercion, only one of which relates to
the alleged contravener’s intent.
120 See also Australian Building and Construction Commissioner v Ravbar [2018] FCA 1196, a
decision of Reeves J, to which Mr Miles referred me. At [74]-[76], his Honour said:
[74] Accordingly, the Commissioner accepted that, in order to establish a contravention of
s 343, he must establish that:
(a) the action alleged was taken against Universal Cranes;
(b) the action was taken for the alleged purpose;
(c) in taking the action the respondents had an intention to coerce Universal
Cranes, that is, to negate its choice; and
(d) the action to be taken, or actually taken, was unlawful, illegitimate or
unconscionable.
[75] With respect to the third element above, the intent to negate choice must involve “a
high degree of compulsion, at least in a practical sense, and not some lesser form of pressure
by which a person is left with a realistic choice as to whether or not to comply”.
[76] With respect to the last two elements above, a proscribed intent to coerce is sufficient if the
conduct or action concerned is, objectively assessed to be, unlawful, illegitimate or
unconscionable. While it does not arise in this matter, it is therefore unnecessary for the
conduct or action to actually be undertaken.

121 Thus Mr Wildman must establish the action alleged was taken against him, for the alleged
purpose, in taking the action IMCD had an intention to negate his choice – involving a high
degree of compulsion, at least in a practical sense, and the action taken, or intended to be
taken was unlawful, illegitimate or unconscionable.
Temporary absence for illness or injury

122 Section 352 is headed ‘Temporary absence-illness or injury’. It prohibits an employer
dismissing an employee in certain circumstances, as follows:
An employer must not dismiss an employee because the employee is temporarily absent from
work because of illness or injury of a kind prescribed by the regulations.
123 Regulation 3.01 of the Fair Work Regulations 2009 (Cth), is the relevant regulation.
Reg 3.01(1)-(5) provide, relevantly:
3.01 Temporary absence—illness or injury
(1) For section 352 of the Act, this regulation prescribes kinds of illness or injury.
(2) A prescribed kind of illness or injury exists if the employee provides a medical certificate for
the illness or injury, or a statutory declaration about the illness or injury, within:
(a) 24 hours after the commencement of the absence; or
(b) such longer period as is reasonable in the circumstances.
(3) A prescribed kind of illness or injury exists if the employee:
(a) is required by the terms of a workplace instrument:
(i) to notify the employer of an absence from work; and
(ii) to substantiate the reason for the absence; and
(b) complies with those terms.
(4) A prescribed kind of illness or injury exists if the employee has provided the employer with
evidence, in accordance with paragraph 107(3)(a) of the Act, for taking paid personal/carer’s
leave for a personal illness or personal injury, as mentioned in paragraph 97(a) of the Act.
(5) An illness or injury is not a prescribed kind of illness or injury if:
(a) either:
(i) the employee’s absence extends for more than 3 months; or
(ii) the total absences of the employee, within a 12 month period, have been more
than 3 months (whether based on a single illness or injury or separate
illnesses or injuries); and
(b) the employee is not on paid personal/carer’s leave (however described) for a purpose
mentioned in paragraph 97(a) of the Act for the duration of the absence.
124 A ‘medical certificate’ is defined in s 12 of the Act as ‘a certificate signed by a medical

practitioner’. It is not in dispute that both Drs Pinnock and Singh are medical practitioners
within the meaning of the Act, that Dr Pinnock signed 4 medical certificates, and
Mr Wildman submitted each of them in a timely manner to IMCD.

Termination on notice or payment in lieu
125 Section 117(1) of the Act provides that an employer must not terminate an employee’s
employment unless the employer has given the employee written notice of the day of
termination, which cannot be before the day the notice is given. Section 117(2) provides in
substance that an employer must not terminate the employment unless the employer has
given the minimum period of notice, or has paid the employee payment in lieu of the notice at
the full rate of pay for the hours the employee would have worked had the employment
continued to the end of the minimum period of notice. Pursuant to ss 117(2) and (3), by
reason of his years of service, and his age, Mr Wildman was entitled to 5 weeks’ written
notice of termination, or payment in lieu.
126 Section 117’s notice and payment requirements are subject to exceptions, relevantly in
paragraph 123(1)(b), which provides that the Division (relevantly s 117) does not apply to an
employee whose employment is terminated because of ‘serious misconduct’.
Serious misconduct
127 By s 12 ‘serious misconduct’ is defined in the Regulations.
128 Regulation 1.07 (1) provides that for the definition of serious misconduct in s 12, serious
misconduct has its ordinary meaning. Regulation 1.07(2) provides that for subregulation (1),
conduct that is serious misconduct includes (relevantly):
(a) wilful or deliberate behaviour by an employee that is inconsistent with the
continuation of the contract of employment; …
129 Regulation 1.07(3) provides that for subregulation (1) conduct that is serious misconduct
includes (relevantly):
…
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with
the employee’s contract of employment.
130 Subregulation (4) then provides that:

Subregulation (3) does not apply if the employee is able to show that, in the circumstances,
the conduct engaged in by the employee was not conduct that made employment in the period
of notice unreasonable.
131 Each of ss.44, 340(1), 343(1), and 352 of the Act is a civil remedy provision: see Part 4-1.

OVERVIEW OF MR WILDMAN’S CONTENTIONS
Alleged contravention of section 340 of the Act

132 Three alleged Adverse Actions are identified in Mr Wildman’s claim and in the chronology of
communications above. They are:
(1) IMCD’s direction on 16 April 2018 that Mr Wildman attend the workplace;
(2) IMCD’s direction on 23 April 2018 that Mr Wildman attend the workplace;
(3) IMCD’s act in dismissing Mr Wildman on 4 May 2018.
133 Mr Wildman pleads that in directing each of (1) and (2) IMCD took adverse action within
s 342(1) of the Act in that IMCD threatened to dismiss Mr Wildman, and /or otherwise injure
him in his employment. Mr Wildman pleads that by dismissing him as per (3), IMCD took
adverse action within s 342(1). Mr Wildman claims that in contravention of s 340(1) of the
Act each of the Adverse Actions was taken because he had exercised a workplace right
(within the meaning of s 341 of the Act), and/ or to prevent his exercise of a workplace right.
134 The above alleged contraventions of s 340(1) of the Act are defined in the claim as the 1st,
2nd, and 3rd Contraventions.

135 Mr Wildman claims he was temporarily absent from work because of illness or injury as
defined in reg 3.01 of the Regulations. He says:
(a) he notified IMCD of his absence from work due to illness or injury;
(b) he provided IMCD with medical certificates for the illness or injury;
(c) he provided IMCD with evidence, in accordance with s 107(3)(a) of the Act, for taking
paid personal leave for a personal illness or personal injury, as stated in s 97(a) of the
Act, that is, by each of the 4 medical certificates.
136 Mr Wildman accepts his absence extended for more than 3 months, but says, however, he was
on paid personal leave for a purpose mentioned in s 97(a) for the duration of the absence.
137 Mr Wildman contends IMCD dismissed Mr Wildman on 4 May 2018 for reasons that
included that Mr Wildman was temporarily absent from work because of illness or injury of a
kind prescribed by the Regulations, and says IMCD thereby contravened s 352 of the Act,
which contravention is defined in the claim as the 4th Contravention.

138 Mr Wildman claims a total of 8 coercions by IMCD. Mr Wildman claims each of these was
intended to negate Mr Wildman’s choice whether or not to consent to the provision of the
Health Information, which Mr Wildman identifies in the claim (and see above, [39(a)]) as
‘the reason for his unfitness for work and what IMCD needs to consider for Mr Wildman to
return to work’. The 8 coercions claimed are identified in the claim and above chronology of
communications. They are, as identified by Mr Wildman:
(1) IMCD’s direction given to Mr Wildman by emails of 23 and 31 January 2018 to

consent to IMCD contacting Dr Pinnock;
(2) IMCD’s threat on 5 February 2018 to contact Dr Pinnock without Mr Wildman’s

consent;
(3) IMCD’s direction on 2 March 2018 to Mr Wildman to meet with Mr Lambert and to
disclose the Health Information;
(4) IMCD’s direction on 10 March 2018 to Mr Wildman to meet with Mr Lambert and to
disclose the Health Information;
(5) IMCD’s direction on 3 April 2018 to Mr Wildman that he attend a general practitioner
of IMCD’s choice;
(6) IMCD’s direction on 6 April 2018 to Mr Wildman that he attend a general practitioner
of IMCD’s choice;
(7) IMCD’s direction on 16 April 2018 to Mr Wildman that he attend the workplace to
meet with Mr Lambert and to disclose the Health Information; and
(8) IMCD’s direction on 23 April 2018 to Mr Wildman that he attend the workplace to
meet with Mr Lambert on 27 April 2018 and to disclose the Health Information.
139 Mr Wildman says that on the 8 separate occasions identified above, IMCD took action with
the intent to coerce Mr Wildman not to exercise his workplace right to take personal leave, or
to exercise it in a particular way, namely by providing the Health Information, contrary to
s 343 of the Act. Mr Wildman’s case is that he would not disclose his Health Information
because IMCD would not respect his right to privacy, including that IMCD directed
Mr Wildman to consent to it contacting his doctor, sought details of treatment, which it had

no legitimate interest in seeking, wanted to disclose his medical condition to people not
immediately involved in his employment such as tax advisors, and booked an appointment
with Dr Pinnock without Mr Wildman’s consent. Mr Miles stated at hearing that
Mr Wildman does not assert that the right to privacy was a workplace right.

140 Mr Wildman claims his employment was terminated in contravention of s 117 of the Act as
he was terminated without 5 weeks’ written notice of termination or payment in lieu of
notice.
141 As Judge Cameron in this Court stated in Mendonca at [178], pay in lieu of notice is payable
pursuant to statute unless Mr Wildman was guilty of serious misconduct (the defence raised
by IMCD, see [146] below). Consequently, in order to make out its defence to the alleged
contravention of s 117 of the Act, IMCD has to make out its assertion that he was guilty of
serious misconduct.
OVERVIEW OF IMCD’S CONTENTIONS
In answer to the allegations of contraventions of s 340 and 352 of the Act

142 Mr Rinaldi, counsel for IMCD, submits that the alleged 1st and 2nd Adverse Actions are
subsumed in the 3rd Adverse Action. IMCD admits that it adversely acted against
Mr Wildman by dismissing him, but says that action was not taken because of, or for reasons
that included Mr Wildman’s temporary absence because of illness (i.e., contrary to s 352 of
the Act), and/or his workplace right to take personal leave (i.e., contrary to s 340 of the Act),
but was solely because of the “repeated and serious misconduct of Mr Wildman”.
143 IMCD submits that ultimately, after providing numerous opportunities to Mr Wildman to
respond and consult as referred to in the above correspondence, and to remedy his conduct, it
decided to terminate Mr Wildman’s employment based on his repeated refusals to comply
with what it asserts are its lawful and reasonable directions on 2 March, 10 March, 3 April, 6
April, 16 April, 23 April, and 1 May 2018. IMCD says these refusals were regarded by it as
“clear serious misconduct”, so that it had no obligation to provide notice of termination or
pay in lieu thereof. There was no other reason.
144 IMCD says Mr Wildman did not co-operate as required at common law, he did not provide
evidence of the requisite character (that would satisfy a reasonable employer) as to his

unfitness for work under s 107, and so did not enliven the right to take personal leave under
s 97. Dismissal (fair or unfair) for failures to comply with an employer’s directions are not in
breach of the general protections provisions of the Act.
In answer to the allegations of contraventions of s 343 of the Act

145 IMCD says its conduct was not unlawful coercion: the directions given by it (such as to
attend medical appointments, to attend meetings with IMCD, and to attend the workplace),
were a legitimate exercise of the employer’s power to direct; their intention was not to negate
Mr Wildman’s choice as to how he exercised his workplace right, but to enable IMCD to
know the nature and extent of his illness so as to ensure his health and safety, and that of
other employees, and assist him to return to work.
In answer to the alleged contravention of s 117 of the Act

146 As to the alleged contravention of s 117, IMCD says that s 123(1)(b) applies: Mr Wildman’s
repeated refusals to comply with his employer’s directions evinced an intention not to be
bound by the essential conditions of his employment, that is, he engaged in ‘serious
misconduct’, and was properly and summarily dismissed without notice. In order to make out
its defence to the alleged contravention of s 117 of the Act, IMCD has to make out its
assertion that Mr Wildman was guilty of serious misconduct: Mendonca at [178].
IMCD’s Cross-claim
147 IMCD brings a cross-claim arguing that it paid personal leave under a mistake of law and a
mistake of fact as to its obligation to do so, and Mr Wildman should be obliged to repay the
personal leave payments of $42,465.83 plus $4,034.25 superannuation.
DISCUSSION AND CONSIDERATION

148 A critical issue in the proceeding is whether Mr Wildman was on paid personal leave
pursuant to s 97 of the Act, and whether he satisfied the requirements of s 107 of the Act.
Was Mr Wildman on personal leave pursuant to s 97 of the Act?
Mr Wildman’s submissions
149 Mr Miles, counsel for Mr Wildman, submits that there is no dispute that Dr Pinnock is a
medical practitioner, nor that each of the medical certificates meet the requirements of the Act
as being classified as medical certificates.

150 Mr Wildman has provided evidence in accordance with paragraph 107(3)(a) of the Act. The
medical certificates covered the entirety of Mr Wildman’s absence from January through to
May 2018, including the days on which Mr Wildman was directed to meet with Mr Lambert.
The directions to meet with Mr Lambert were specifically addressed in Dr Pinnock’s letter of
19 April 2018.
151 The requirements of reg 3.01(2) are met by the provision of the medical certificates.
Mr Wildman has met all requirements under reg 3.01(4).
152 Mr Miles submits that reg 3.01(5) requires that both sub-paragraphs (a) and (b) be met before
the illness is excluded from being prescribed for s 352 of the Act. As Mr Wildman was on
paid personal leave pursuant to s 97(a) for the whole period of his absence – the statutory
language is – “for the duration of the absence”; that he was absent for more than 3 months,
and thus falls within the terms of subparagraph 3.01(5)(a)(i), does not suffice.
153 Mr Miles points to the wording of reg 3.01(5), and submits that it does not require that
s 107(3) be satisfied, that is the work of reg 3.01(4). Reg 3.01(5) requires only that the paid
personal leave be for a purpose mentioned in paragraph 97(a).
154 Mr Miles submits that this is supported by IMCD still paying Mr Wildman his paid personal
leave up to and including termination.
IMCD’s submissions
155 IMCD accepts that, in the colloquial sense, Mr Wildman was on sick leave. However, being
on paid personal leave for the purposes of the Act requires compliance with s 107(3) of the
Act. Mr Rinaldi, counsel for IMCD, submits that Mr Wildman was not on sick leave because
he had not satisfied the requirements under s 107(3) for the enlivening of the workplace right
to take personal leave. IMCD accepts that the medical certificates provided were medical
certificates as defined in s 12 of the Act. IMCD submits, however, that the medical
certificates provided were not such as would satisfy a reasonable person in the position of
IMCD as required by s 107(3), read with s 97 of the Act.
156 IMCD says that the communications from IMCD were for the purposes of obtaining evidence
that would satisfy a reasonable employer within s 107(3). IMCD also submits that IMCD’s
directions (see above at [139]) were legitimate exercise of the employer’s power to direct (see
above at [143]-[146]).

157 Regulation 3.01 proscribed the kinds of illness that fall within s 352 of the Act. IMCD
accepts that in respect of each of the medical certificates reg 3.01(2) is satisfied, and
reg 3.01(3) is not relevant.
158 IMCD submits that reg 3.01(4) is relevant and has not been satisfied as the required evidence
under s 107(3)(a) has not been provided for the above reasons. IMCD says this is so in
respect of each of the medical certificates, and each of the periods of leave.
159 Regulation 3.01(5) then applies, which Mr Rinaldi describes as the critical regulation. IMCD
submits that as Mr Wildman’s absence has been greater than 3 months, he no longer has a
prescribed kind of illness or injury and is no longer on sick leave pursuant to s 97 of the Act.
160 IMCD submits that the case ultimately revolves around the non-disclosure by Mr Wildman of
his mental illness diagnosis, and the subsequent consequences of that non-disclosure.
Mr Rinaldi submits that Mr Lambert’s suspicion that Mr Wildman was abusing his significant
sick leave entitlements was born out by the evidence. He submits that IMCD’s subsequent
attempts to ascertain the nature of the illness were to determine whether the illness was
legitimate, and also to satisfy the employer by evidence that would satisfy a reasonable
person.
Relevant case law

161 Whether Mr Wildman was on personal leave pursuant to s 97 of the Act turns first on whether
the medical certificates suffice for the requirements of s 107(3) of the Act.
162 Mr Rinaldi submits that Qantas, a decision of Rares J in the Federal Court of Australia, and
Swanson v Monash Health [2018] FCCA 538, a decision of her Honour Judge Jones in this
Court, demonstrate that the medical certificates alone were not sufficient in Mr Wildman’s
case. IMCD also relies on Qantas in support of its submission that its directions to attend
medical examinations, attend meetings, and to attend the workplace were lawful. In Qantas,
Rares J referred approvingly to Blackadder v Ramsey Butchering Services Pty Ltd [2002]
FCA 603; (2002) 118 FCR 395 at [67]-[70], in passages on which Mr Rinaldi relies,
particularly in relation to the pleaded coercions. In Swanson, her Honour discussed and
applied Qantas.
163 Mr Miles drew attention to the particular facts of Qantas and Swanson, and sought to
distinguish them from the facts of this case.

Qantas
164 Qantas was concerned with the application of terms of an industrial award in the form of an
agreement regulating the industrial relationship between Qantas and the Australian and
International Pilots Association and crew members. Mr Kiernan was a crew member who
initially had provided two medical certificates as evidence he was unfit for duty, the first for
4 months, which informed Qantas that Mr Kiernan was suffering from clinical depression,
and would be unfit for work for the next 4 months, the second for a further 3 months, that
stated “he is suffering a medical condition and will be unfit for normal work” for the period.
Thereafter, a further medical certificate was provided extending a further 2½ months. Within
the period of the first medical certificate Mr Kiernan’s doctor also sought a suspension of
Mr Kiernan’s pilot’s licence.
165 Qantas did not dispute that Mr Kiernan was ill, however some 5 months after the first
certificate was provided, and a month into the period of the second certificate, saying as he
had given an indication he would remain unfit for a considerable period, Qantas sought a
written report from his treating doctor, and thereafter, that he attend a meeting to discuss the
contents. At this time Mr Kiernan had not used all his accrued personal leave, and had
approximately 129 days leave remaining. Similar requests were made of other employees on
extended sick leave at the time. Further correspondence and requests were then made, and
the Association lodged an application with Fair Work Australia to deal with a dispute in
accordance with the dispute settlement procedure under the agreement. Court proceedings
were later instituted. It is apparent from the judgment that considerable detailed evidence
was given on behalf of Qantas by Captain Miller, Qantas’ Boeing 747 fleet captain, of the
roster and operational issues regarding the fleet’s roster needs, and planning and daily
operational management issues and matters relevant to a pilot’s returning to work; and the
lead-in time and activities necessary to prepare for that return.
166 His Honour Justice Rares identified the first question for his determination at [44] as
involving whether Qantas was in fact acting under clause 31.3.10 (of the agreement), or
independently exercising its common law rights under an implied term of the contract of
employment of the kind identified by Madgwick J in Blackadder at [67]-[70]. The particular
wording of clause 31.1.10 is set out at [18] of the judgment.
167 At [59], Rares J referred to s 107(3), saying:

No doubt Qantas had to exercise its power to require evidentiary material reasonably, as
s 107(3) also required. The Association did not assert that Qantas’ requirements of

Mr Kiernan were unreasonable. It simply said, wrongly, in my opinion, that those
requirements were outside Qantas’ powers under the agreement and thus contravened
Mr Kiernan’s workplace rights.
168 At [60], his Honour observed that

In the present case, … Qantas had accepted that Mr Kiernan was unfit for duty and did not
require him to establish that unfitness … However the agreement was silent in respect of
dealing with the concerns that Capt Miller had raised about Mr Kiernan’s diagnosis,
prognosis, capacity to return to pre-injury duties and expected date of return to work. That
information would assist Qantas in making arrangements, first, to cover the absence of Mr
Kiernan for such time as he would be unable to perform his ordinary duties, and secondly, to
prepare the lead in time and activities necessary for him to return to work, if that were going
to happen.
169 At [61]-[62] his Honour referred to the decision of Madgwick J in Blackadder at [67]-[69],
[70], as follows:
[61] In Blackadder 118 FCR at 411 [67]-[69], Madgwick J held that, because of the strict
obligations imposed on an employer by earlier legislation, that was replaced by the Work
Health and Safety Act, it was essential for an employer to be able to require an employee,
first, where necessary, to furnish particulars and or medical evidence affirming his or her
continuing fitness to undertake duties and, secondly, where there was a genuine indication of
a need for it, on reasonable terms, to attend a medical examination to confirm his or her
fitness. He held that a term to that effect should be implied by law into contracts of
employment because it was necessary to give business efficacy to the contract and so was an
incident of the relationship as explained by McHugh and Gummow JJ in Byrne v Australian
Airlines Ltd (1995) 185 CLR 410 at 450. …
[62] I agree with Madgwick J’s analysis. Here, the terms of the agreement were not
exhaustive of the contractual rights of Qantas and its employees in respect of when or why
Qantas could require an employee to undergo a medical examination or provide it with further
information in relation to his or her medical condition. Moreover, the fact that the agreement
was certified under the Workplace Relations Act by the predecessor of the Fair Work
Commission and given force of law by that Act did not make it a part of the contract between
Qantas and its employees.
170 His Honour then continued at [63] and [64] (citations omitted):
[63] The necessity to imply a contractual right of Qantas to require its pilots to provide medical
evidence of the kind it sought from Mr Kiernan and for them to attend a meeting to discuss
matters concerning their conditions arises from the obligations imposed on Qantas by both the
agreement itself and the Work Health and Safety Act. In a contract of employment, as in most
other contracts, ordinarily, each party agrees to do all such things as are necessary on his, her
or its part to be done to enable the other party to have the benefit of the contract:..
[64] An employee’s statutory, certified agreement or analogous industrial award based entitlement
to take sick leave does not displace the contractual relationship in which, at some point, the
employer is entitled to make its own business arrangements to adjust for the impact that the
leave caused by the sickness of the employment will have on it and to address its obligations
under the Work Health and Safety Act and its analogues. … Moreover an employee’s illness
can be related to an obligation imposed on the employer under the Work Health and Safety
Act and its analogues. The employer must be able to obtain appropriate medical information

to ascertain, first, whether its workplace or some matter for which it is legally responsible
under such legislation has not been a cause of the employee’s condition, and secondly, if it
has, how to remedy that situation as soon as practicable.
171 At [66] Rares J stated:

[66] Qantas did not interfere with Mr Kiernan's workplace rights under cl 31.3.10 by requiring
more information. Qantas had respected those rights and did not challenge Mr Kiernan's
entitlement to sick leave. …
172 At [67] his Honour stated:

[67] … Qantas did not demand this information early in the course of the illness, where the
continued ability of the officers to perform their ordinary duties was not in peril by their
absence from flying that would require them to obtain re-certification or regain their licences
either from cancellation or suspension by satisfying CASA of its requirements. The
circumstances in which Qantas made its requests of Mr Kiernan occurred after his licence had
been suspended and it had become apparent that there was an indefinite and uncertain nature
about the duration of his sick leave and the potential for him to return to work.
173 Rares J held at [72], on the facts of that case, that:

Qantas’ requirements were reasonable requirements and were made solely for the purpose of
assisting it in understanding how it would need to deal with [the employee, Mr Kiernan] in
terms of matters to which [the fleet captain, Capt Miller’s] evidence referred. Qantas required
[the employee’s] co-operation in order to make the operational side of the relationship work,
both for [the employee] and Qantas. …
Blackadder
174 It is relevant to refer to what his Honour Justice Madgwick said in Blackadder, and the
context in which he made the statements referred to by Rares J in Qantas. In Blackadder,
Madgwick J was concerned with the circumstance of an abattoir employee (whose
employment had been reinstated by order of the Australian Industrial Relations Commission)
being required by his employer to undergo a medical examination before resuming his
attendance at work, on pain of loss of wages until that was done, and being required to accept
leave entitlements at times inconvenient to him. At [67], Madgwick J referred to the strict
obligations under NSW legislation that employers ensure the safety and well-being of all
employees. At [68] and [69] he said:
[68] It is, in my opinion, essential for compliance with the above duties [being occupational and
safety obligations referred to in [67]], that an employer be able, where necessary, to require
an employee to furnish particulars and/or medical evidence affirming the employee’s
continuing fitness to undertake duties. Likewise, an employer should, where there is a
genuine indication of a need for it, also be able to require an employee, on reasonable
terms, to attend a medical examination to confirm his or her fitness. This is likely to be
particularly pertinent in dangerous work environments…Abattoirs entail obvious risks,
among other things, of injuries from the repetitive use of knives at speed, and to the spinal

column from the necessity to twist, bend and/or lift.
[69] The question whether it is reasonable for an employer to request an employee to attend a
medical examination will always be a question of fact as will the question of what are
reasonable terms for the undertaking of the medical examination. The matters will
generally require a sensitive approach, including as far as possible, respect for privacy.
Nevertheless, I assume that there now should be implied by law into contracts of employment
terms such as those set out in the first two sentences of the preceding paragraph, on the basis
that such terms pass the test of “necessity” accepted by McHugh and Gummow JJ in Byrne v
Australian Airlines Ltd.
(citation omitted, emphasis added)
Swanson
175 In Swanson, Judge Jones discussed Qantas as follows:
[42] It is appropriate to set out the circumstances of Qantas Airways as they bear some
resemblance to these proceedings. The employee in question in Qantas Airways had been on
various forms of paid leave for some time, still had available to him accrued personal leave,
and did not intend to return to work. The employee had not made any application for
compensation under relevant State workers compensation legislation. The employee’s
general practitioner had provided two medical certificates, one of which stated that the
employee was suffering from clinical depression and both of which stated that the employee
would be unfit for normal work for around a four month period.
[43] Qantas made a request to the employee that he provide a written report from his treating
doctor which “…should clearly indicate [his] diagnosis, prognosis, capacity to return to [his]
preinjury duties and the anticipated timeframe” (Qantas Airways at [21]). The employee
refused to provide the requested report and further directions were made by Qantas for the
provision of a medical report. Qantas asserted in its communications with the employee that
it had made a lawful and reasonable direction and that a failure to provide the medical report
may lead to disciplinary action being taken against the employee. Ultimately, Qantas
informed the employee that it considered his failure to comply with lawful and reasonable
directions constituted serious misconduct and that Qantas was considering taking disciplinary
action which may include termination of employment. Qantas provided the employee with
three weeks to provide them with information as to why disciplinary action should not be
taken.
176 Her Honour held at [47]:

I find that the statutory entitlement to take paid personal leave under s.97 of the Act does not
displace the implied term of the subsisting contract of employment, that the respondent
provide a safe and healthy workplace, which carries with it a right that the respondent may,
where reasonable, require an employee on paid personal leave to attend a medical
examination to confirm the employee’s incapacity to perform work. I am satisfied that
this implied term of the contract of employment does not depend upon either the employee
stating that he or she wishes to return to work or an application by the employee for
compensation under relevant State workers compensation legislation. (emphasis added).
177 None of Qantas, Swanson, or Blackadder is authority that a medical certificate will not
suffice as evidence for the purposes of s 107(3) of the Act. The Explanatory Memorandum to
the Fair Work Bill 2008 at [415] indicates that a medical certificate may suffice. As her
Honour Judge Jones stated in Swanson, an employer has the right “where reasonable” to

require an employee on paid personal leave to attend a medical examination. Much will
depend upon the facts in each case.
178 It may be that, as Rares J said in Qantas at [64], “at some point” the employer must be able to
make its own arrangements for the continuance of its business, and address its obligations
under Work, Health and Safety legislation. I do not read his Honour at [61]-[64] as saying
that invariably the employer must be able to obtain the medical information he there
describes. In Qantas, the employee had been on leave for several months, and the issues as
set out at [67] of the judgment had eventuated. Mr Kiernan’s pilot licence had been
suspended. In Blackadder, Madgwick J at [68] qualified the right of an employer to require
an employee to furnish particulars and/or medical evidence as “where necessary”. As
Mr Miles submitted, the circumstances there were an employee who had been reinstated to
work.
Consideration – the sufficiency of the medical certificates

179 Each of the medical certificates was in the form set out in [25] above. The medical
certificates were in customary form issued by Dr Pinnock. As I said above, before the present
dispute arose there is no suggestion that IMCD had ever questioned the medical certificates
issued by Dr Pinnock (or any other doctor) for Mr Wildman, or directly approached his
treating doctors. Mr Wildman had not disclosed his rheumatoid arthritis for over 12 months.
Whilst IMCD (Mr Lambert) says that it had given support in the past, and previously
demonstrated respect and confidentiality when previously requested in relation to his
rheumatoid arthritis (see affidavit [45], extracted above at [75]), on the evidence this support
appears to have been allowing Mr Wildman to use his accrued sick leave to be absent from
the office on some Fridays, or to work from home sometimes. As is evident from Ms dela
Fuente’s email of 16 January 2018, IMCD’s support was not invariable.
The period 19 January to 16 February 2018 – first medical certificate
180 The first medical certificate was for a period of 29 days / 20 work days (excluding 26 January
holiday), from 19 January 2018 to 16 February 2018. It states both that Mr Wildman is
undergoing medical treatment, and is unfit for work for the period stated. It is reasonable to
understand these statements as connected, and I so find.
181 I accept Mr Wildman’s explanation for his reluctance to disclose his medical condition.
Given Mr Wildman’s sex, age (early 60s), and previous health issues, his explanation is

understandable. I reject Mr Rinaldi’s submission that Mr Wildman was unhappy about his
work relocation to the Rosehill site, and therefore decided to utilise the significant amount of
accrued personal leave that he had accrued rather than attend work at Rosehill. I reiterate, I
reject the submission that Mr Wildman was abusing his sick leave entitlements.
182 I do not accept that any or all of the circumstances of Mr Wildman’s relocation to Rosehill,
his initial reluctance as to the necessity for him to perform the role, or to move, or the
discussion about actioning CI samples provide any reasonable justification for IMCD
doubting that Mr Wildman was not fit for work because of a personal illness for the period of
the first medical certificate, or not being satisfied by the evidence of the first medical
certificate.
183 Given IMCD was aware of the debilitating effects of his rheumatoid arthritis, and each of
Mr Egan, Mr Lambert, and Ms dela Fuente attested to their awareness of Mr Wildman’s
health and his difficulty in moving whilst at work, and that he had regularly taken short
periods of sick leave in 2016 and 2017 (at least), a reasonable employer in IMCD’s situation
would have accepted that the relocation would have (at least) an adverse physical effect.
That IMCD, in the person of Ms dela Fuente, did not admit of such a reasonable
interpretation, but immediately concluded the worse, and from 23 January 2018 sought to go
behind the first medical certificate, is not the conduct of a reasonable employer at that time.
184 I find that the first medical certificate satisfies the requirements of s 107(3) of the Act. It is
evidence that would satisfy a reasonable person that the leave is taken for a reason specified
in s 97 of the Act, namely because Mr Wildman is not fit for work because of a personal
illness.
185 The first medical certificate expired 16 February 2018. It follows that as at 4 May 2018,
whether or not the later medical certificates satisfy s 107(3) of the Act, Mr Wildman was on
paid personal leave for a purpose mentioned in paragraph 97(a) of the Act for part of the
preceding 3 months (the period to 16 February 2018). IMCD cannot rely on subreg 3.01(5)
(b) to exclude Mr Wildman’s claim to be temporarily absent from work for the purposes of
s 352 of the Act.
The period 13 February 2018 to 2 March 2018 – the second medical certificate
186 The second medical certificate was sent to IMCD on 16 February 2018. It is for 18 days /
14 work days (overlapping with the first medical certificate), to 2 March 2018. It states both

that Mr Wildman is undergoing medical treatment, and is unfit for work for the period stated.
As with the first medical certificate, it is reasonable to understand these statements as
connected, and I so find.
187 I find that the second medical certificate satisfies the requirements of s 107(3) of the Act.
The second medical certificate, for just under a fortnight (excluding overlap), and bringing
the total absence to 6 weeks, is evidence that would satisfy a reasonable person that the leave
is taken for a reason specified in s 97 of the Act, namely because Mr Wildman is not fit for
work because of a personal illness.
188 Separately, I note Ms dela Fuente’s evidence that she ascertained from Dr Pinnock’s clinic
that Mr Wildman had consulted his doctor on 26 February 2018. Although that evidence was
not proffered by Mr Wildman, and thus does not satisfy the provisions of s 107(3) of the Act,
I consider that it is relevant to take into account as information available to the employer.
The period 3 March 2018 to 9 March 2018 – the third medical certificate
189 The third medical certificate was sent to IMCD on 1 March 2018. It was for a further
7 days / 5 work days. As did the previous medical certificates, it states both that Mr Wildman
is undergoing medical treatment, and is unfit for work for the period stated. As with the first
medical certificate, it is reasonable to understand these statements as connected, and I so find.
190 In addition, on Sunday 4 March 2018, Mr Wildman emailed Mr Lambert that “I will be in
hospital tomorrow for further tests and depending on the outcomes will get back to you then.
Thank you for getting in touch”.
191 In these circumstances, I consider that the third medical certificate, together with the
information provided by Mr Wildman in the email, is evidence that would satisfy a
reasonable person within s 107(3) of the Act, and I so find it satisfies those requirements. It
is evidence that would satisfy a reasonable person that the leave is taken for a reason
specified in s 97 of the Act, namely because Mr Wildman is not fit for work because of a
personal illness.
The period 10 March to 18 May 2018 – the fourth medical certificate

192 The fourth medical certificate was sent to IMCD (Ms dela Fuente) on 9 March 2018. It was
for a further approximately 10 weeks (including the Easter and Anzac holidays). As did the
previous medical certificates, it states both that Mr Wildman is undergoing medical treatment,

and is unfit for work for the period stated. As with the first medical certificate, it is
reasonable to understand these statements as connected, and I so find.
193 In the circumstances of a preceding 7 weeks of paid personal leave, which had been for
varying periods, that this certificate was for a 10 week period rather than further incremental
short periods, of itself should satisfy a reasonable person that the subject had, as the doctor
stated, a medical condition and was not fit for work because of a personal illness.
194 On 19 April 2018, during the period of this certificate, and notwithstanding his lawyers’
statement that the medical certificate was sufficient for the purposes of s 107(3),
Mr Wildman’s lawyers informed IMCD that the author had enquired of Dr Pinnock "as to
whether he is fit enough to attend any work-related activity. She has advised me that he is
‘not fit to attend any work-related activity and this includes any extra ordinary meetings’.
Accordingly, my client will not be attending any proposed meetings.” Haywards enclosed
written advice from Dr Pinnock to this effect (see [39(u)], above).
195 I consider that the combination of the medical certificate, Haywards letter and Dr Pinnock’s
written advice sent 19 April 2018 together satisfies the requirements of s 107(3) of the Act. It
is evidence that would satisfy a reasonable person that Mr Wildman’s leave was taken for a
reason specified in s 97, namely because he is not fit for work because of a personal illness. I
find accordingly.
196 I consider that the circumstances pertaining in each of Qantas, and Swanson are of a very
different character, and distinguishable, in so far as they are called in aid by IMCD to support
the argument that the fourth medical certificate (or any of the preceding medical certificates),
is not evidence that would satisfy a reasonable person, for the reasons already stated.
Conclusion
197 For the above reasons, I have concluded that:
(a) Mr Wildman was not fit for work because of a personal illness;
(b) Mr Wildman met the evidence requirements of s 107(3) of the Act for each of the
periods of the first, second, third, and fourth medical certificate, that is, for the period
19 January 2018 up to and including 4 May 2018 (the Period);
(c) Mr Wildman’s absence from work for the Period was an exercise of his workplace
right to take personal leave;

(d) Mr Wildman met the requirements of regulation 3.01(2) and (4).
198 It follows that for the Period up to 4 May 2018, Mr Wildman was on paid personal leave for a
purpose mentioned in paragraph 97(a), and thus that sub-reg 3.01(5) does not apply to
exclude Mr Wildman from being temporarily absent from work because of illness or injury.
It follows that for s 352 of the Act, Mr Wildman was temporarily absent from work because
of illness of a kind prescribed by the Regulations.
Were the directions by IMCD lawful?
The parties’ submissions

199 I accept IMCD’s submissions that IMCD has an implied duty to provide employees with a
safe system of work (see Commonwealth Bank of Australia v Barker [2014] HCA 32;
(2014) 253 CLR 169 at [40]), and that Mr Wildman has an obligation to co-operate at
common law.
200 Mr Rinaldi submits that IMCD’s attempts to ascertain the nature of the illness were to
determine whether the illness was legitimate, and also to satisfy the employer by evidence
that would satisfy a reasonable person (see inter alia, at [160] above); they were lawful and
reasonable in accordance with s 107(3) and the implied term referred to in Blackadder.
(IMCD’s attempts included directly approaching Dr Pinnock, and enquiring of her clinic
whether Mr Wildman had attended consultations, to be informed that he had done so.)
201 IMCD further submits that the directions (identified in [138] above), including that provided
in the final warning letter of 23 April 2018 from Mr Lambert to Mr Wildman to attend the
workplace (the pleaded 8th coercion), were lawful and reasonable because they were
pursuant to the implied term in employment contracts referred to in Blackadder at [67]-[69]
that employers ensure the health and safety of all employees, particularly at [68]. Mr Rinaldi
submits Qantas at [64] and [72] demonstrates that asking an employee to come in for a
meeting, notwithstanding that a doctor has stated he is unfit to do so (Dr Pinnock’s advice of
19 April 2018), is both lawful and reasonable in the circumstances. The employer’s lawful
entitlements allows the employer to request evidence that would satisfy a reasonable person.
202 Mr Rinaldi reiterated his submissions as to the lack of a workplace right being exercised, as
s 107(3) has not been enlivened. I have concluded above that s 107(3) was enlivened, and
that Mr Wildman was exercising his workplace right to paid personal leave.

203 Mr Miles submits that Swanson should be viewed narrowly on the facts of the case, and that
the decisions of Blackadder and Qantas pertain to very different, and distinguishable
situations. The employer’s right is not unconstrained.
204 In Blackadder, the right to require an employee to attend a medical examination (see decision
at [68], set out above), is not about whether the employee is fit for work at a time they are
saying they are sick, but rather the time at which the employee attends for performance of
work, which is when an employee is saying that they are able and ready to return to work. At
[68], Madgwick J’s reference is to the fulfilment and affirming the employee’s continuing
fitness to undertake duties, because the dispute there was about the employee’s continuing
fitness to undertake specific duties (in the context of a dangerous workplace), and the obvious
risks associated with repetitive use of limbs and such matters. Whether it is reasonable for an
employer to request an employee attend a medical examination will always be a question of
fact, as will be the terms for undertaking such an examination.
205 The conduct of IMCD is the complete opposite to the situation in Qantas as IMCD was
seeking to interfere with the workplace right to take sick leave, particularly considering the
circumstances in Qantas. The right to request a medical attendance discussed in Qantas,
must be considered in relation to the facts present in that case. The Civil Aviation Safety
Authority required a Class 1 medical certificate for pilots that would need to be recertified
yearly. An important aspect of an employer being able to require an employee to attend a
medical examination is qualified by Rares J in Qantas, is that there be “a genuine indication
of a need for [the medical examination], on reasonable terms” at [54]; see also Qantas [64]
and [66].
206 Mr Miles accepts that return to work does give rise to an obligation, and accepts that
particularly with mental health issues, in terms of how that return is to be structured and
communicated is a matter that would need to be carefully managed, particularly in the light of
both the work health and safety obligations, and the obligation to provide reasonable
adjustments under the Disability Discrimination Act 1992 (Cth). However, Mr Wildman was
not at the point where he was seeking to return to work, but was on sick leave. Further, in
this case IMCD had no idea of the nature of Mr Wildman’s illness.
Consideration
207 I have concluded that the medical certificates were evidence that would satisfy a reasonable
person, and in respect of the third and fourth medical certificates, also the additional evidence

I have identified. The correspondence and other evidence demonstrated IMCD had formed
its views that Mr Wildman was abusing his sick leave entitlements from the first medical
certificate. For the above reasons I find, those views were not views of a reasonable person.
208 I accept however that the duty to co-operate at common law may arise, notwithstanding that
the requirements of s 107(3) are satisfied.
209 I have concluded that Mr Wildman was not abusing his sick leave entitlements.
Mr Lambert’s suspicion was unfounded. Ms dela Fuente’s views were similarly unfounded.
210 IMCD, through Mr Lambert, also expressed a desire to ascertain what IMCD could do to
assist Mr Wildman return to work. He explained his request and directions were also to
ensure the ongoing health and safety of IMCD’s other employees, who were being required to
perform Mr Wildman’s functions in his absence. I have earlier considered Mr Lambert’s
explanation. For the reasons I there stated, I am not persuaded by IMCD’s submission that
IMCD’s directions to attend medical examinations, to allow contact with doctors, and to
attend meetings are lawful and reasonable in the circumstances. The evidence does not
demonstrate a genuine indication of any need for the medical examinations, or provision of
medical information (the Health Information), or for Mr Wildman to attend the workplace
notwithstanding his doctor’s advice, and his medical certificates and evidence (c.f., Qantas).
211 I do not consider it is correct to say (if IMCD does say) that there is a duty of cooperation that
by the simple fact of the duty, therefore extends to any requirement of the employee to submit
to whatever it is that the employer wishes to ask the employee’s doctor, or to submit to an
examination by a general practitioner, without any guidance or disclosure as to what that
general practitioner has been instructed to consider, or the basis upon which that has been
instructed. As Judge Jones said in Swanson at [53], directions issued by employers must also
be reasonable. What is reasonable in any given circumstances will depend on the particular
type of employment.
212 I do not accept that IMCD’s directions identified as the coercions (see [39] and [138] above)
fall within the duty of co-operation, or pursuant to the implied terms of employment contracts
of the kind identified in Blackadder, Qantas and Swanson. I accept that the circumstances of
those cases are very different, and that the duty of co-operation /implied term is qualified as I
have identified and emphasised in my discussion of those decisions earlier in these reasons.

IMCD’s circumstances are distinguishable. Mr Wildman’s employment by IMCD was not
such that its directions were reasonable.
213 At a factual level, IMCD’s witnesses’ evidence lacks the content to support its claims as to
the lawfulness and reasonableness of the identified directions on 5 February, 2 and 10 March,
and 3, 6, 16, and 23 April and 1 May 2018. In the present case, on the facts I have set out and
found, the directions and requests were not necessary (c.f., Blackadder), or reasonable (c.f.,
Swanson), nor were they reasonable requirements for the purpose of assisting IMCD in
understanding how it would need to deal with Mr Wildman on his return, or the operational
needs of IMCD’s business, or the health and safety of other employees (c.f., Qantas), c.f.,
IMCD’s submissions summarised at [143]-[145] and [163] above.
214 It follows for the reasons I have set out above, I have concluded that IMCD’s directions were
not lawful. They were not reasonable. I reject IMCD’s submission that directions were
legitimate exercises of the employer’s power to direct.
Coercion in contravention of s 343

215 I now turn to the 8 coercions pleaded.
216 Counsel were agreed that the leading authority is the decision of the Full Court in Hall which
I have discussed above. In sum, coercion requires the use of illegitimate means by the
impugned actor with the intention to negate the choice of the other party (see Hall at
[13]-[19] and [23]-[26]).
The parties’ submissions

217 The parties’ contentions and submissions have been referred to above.
218 In closing oral submissions for Mr Wildman, Mr Miles conceded that the Court need not
trouble itself with the allegation in relation to the 1st coercion.
219 As to the second and following coercions, Mr Miles stated that Mr Wildman does not assert
that the right to privacy is a workplace right, but that the privacy went to the reason that the
action was unlawful, illegitimate or unconscionable. Mr Wildman submits that both limbs of
s 343, being the coercion not to exercise the workplace right, and to exercise it in a particular
way are engaged, as the only way in which, on IMCD’s directions / threats, Mr Wildman
could exercise his right to privacy is by not exercising his workplace right to sick leave.

IMCD intended that its unlawful directions/ threats negate choice regarding Mr Wildman’s
exercise of his workplace right to sick leave.
220 Mr Miles made submissions in relation to the 2nd coercion, and argued that the third to
eighth coercions were of the same character, and the analysis of the 2nd coercion also applied
to them. The letter of 5 February 2018 (2nd coercion, see [39(c)]) states that unless Mr
Wildman acts in a certain way, IMCD intends to contact his doctor to request details of the
reason for him being unfit for work, to understand how they can assist his to return to work.
Mr Wildman says this was not an idle threat, as that is exactly what Ms dela Fuente did.
Failure to consent does not give the employer the right to override that absence of consent. It
is the deliberate decision to act in the absence of consent that is unlawful and illegitimate.
That is what IMCD did. The duty of co-operation does not extend to the point IMCD
submits.
221 Mr Miles submits that Madgwick J’s caution in Blackadder at [69]: “the matter will generally
require a sensitive approach, including as far as possible, respect for privacy”, is contrary to
the approach taken by IMCD by attempting to directly contact Dr Pinnock.
222 IMCD submits the directions given were a legitimate exercise of the employer’s power to
direct. The intention of the directions was not to negate the choice of Mr Wildman as to the
exercising of his workplace right, but to ascertain the nature and extent of Mr Wildman’s
illness so as to ensure his health and safety, the health and safety of other employees, and to
assist Mr Wildman’s return to work. Mr Wildman had a duty to co-operate, which was not
negated by being on paid personal leave. See also, IMCD’s submissions above, including at
[200]-[201].
Consideration
223 I accept Mr Miles analysis of the 2nd coercion. I accept that each of the following pleaded
coercions has the same indicia, and are established pursuant to the same analysis, and
additionally for the following reasons.
224 IMCD acted in the face of evidence I have found satisfied s 107(3). Mr Wildman’s absence
of consent to contact the doctor was unambiguous. In relation to the 8th coercion,
Dr Pinnock’s advice of 19 April 2018 was clear.
225 IMCD did not believe Mr Wildman was sick, but believed he was abusing his leave
entitlements. It expressed that disbelief strongly, and sought to interrogate Mr Wildman and

his doctor to establish to its satisfaction otherwise. That reason is a continuing substantial
theme evident in its communications and conduct. Mr Wildman was exercising his
workplace rights and IMCD considered he should not be doing so.
226 I have concluded above that I am not satisfied by Mr Lambert’s and Ms dela Fuente’s
explanations that IMCD’s actions were for reasons of Mr Wildman’s health and safety or that
of other employees, or to assist Mr Wildman’s return to work.
227 I have rejected above IMCD’s submission that the directions given by IMCD were a
legitimate exercise of the employer’s power to direct. I have found that the directions of
IMCD were not lawful, and reasonable. I consider the duty of co-operation submitted by
IMCD, on the particular facts of this case, does not extend to the point sought of
Mr Wildman. In the circumstances, it did not extend to co-operation as sought by IMCD’s
directions and threats.
228 The import of Mr Lambert’s oral evidence was that the directions of 2 March and 10 March
2018 were intended not to give Mr Wildman a choice to accept or to refuse to follow the
directions. A limited choice was given as to timing and location. The directions evinced a
high degree of compulsion, at least in a practical sense, and not some lesser form of pressure
by which Mr Wildman was left with a realistic choice as to whether or not to comply (see
[121] above). It follows from the directions on their face, and Mr Lambert’s evidence, that
Mr Wildman’s choice of whether to exercise his workplace right, or how to exercise his right
is negated, and that it was IMCD’s intention that it be negated.
229 So too, the subsequent directions evinced a high degree of compulsion. IMCD intended that
they negate Mr Wildman’s choice whether and how to exercise his workplace right to paid
personal leave, and they did so.
230 As Qantas and Blackadder make clear, and Swanson supports, the power to direct is not
unconstrained. The power must be exercised reasonably in the circumstances. In the present
case, it was not.
231 For the foregoing reasons, I find that Mr Wildman has made out each of the 2nd, 3rd, 4th,
5th, 6th, 7th and 8th coercions, and that IMCD has contravened s 343 of the Act.

ADVERSE ACTION – SECTIONS 340(1) AND 352 OF THE ACT
Contravention of s 340 of the Act

232 It is not in dispute that IMCD took adverse action against Mr Wildman by dismissing him
from his employment on 4 May 2018. As I have adverted to above at [142], IMCD submits
that this 3rd Adverse Action – dismissal - subsumes the two earlier adverse actions claimed to
be threats to dismiss or injure Mr Wildman in his employment (the two warning letters of 16
April 2018 (above at [39(s)]) and 23 April 2018 (above at [39(v)]). Those letters leading up
to termination were preparatory to, and gave Mr Wildman warning of, the potential
disciplinary action. They are not properly regarded as relevant adverse action in themselves.
233 I accept IMCD’s characterisation of the 1st and 2nd Adverse Actions. The two earlier letters
are subsumed in the later Adverse Action of dismissal.
234 IMCD says true it is that but for Mr Wildman being on personal (sick) leave he would not
have been dismissed, but that it not the requisite causation test. IMCD says that even if there
was an exercise by Mr Wildman of the workplace right to take personal leave, the adverse
action was not taken because of that exercise. IMCD says (closing submissions, [6A(3)]) the
dismissal was solely because of Mr Wildman’s repeated and serious misconduct in refusing to
comply with IMCD’s lawful and reasonable directions, after having been given multiple
opportunities to remedy that misconduct.
235 IMCD has put on evidence from critical witnesses. Mr Lambert was the decision maker.
Mr Rinaldi submits Mr Lambert’s evidence demonstrates the above sole reason for the
dismissal, and rebuts the statutory presumption in s 361 of the Act.
236 Mr Miles submits that Mr Lambert’s evidence cannot be accepted. The Court is not sitting in
judgment in this particular aspect about whether the real reason was valid, but merely trying
to identify that there was, in fact, a reason. It is not necessary for it to be a complete
explanation. Even if there is a real reason for the dismissal, if there is also a prohibited
reason, then by reason of s 360, that is a contravention of s 340 of the Act. The critical
question is therefore is the prohibited reason absent, rather than whether there is the presence
of some other reason (see authorities referred to above at [115]-[117]).
237 Mr Miles submits that inconsistencies in Mr Lambert’s evidence - that he instructed the filing
of the defence and cross-claim, and [2] and [3] of the cross-claim, contradict what
Mr Lambert says were his reasons for terminating Mr Wildman. He further submits that the

continuing payment of sick leave also contradicts that evidence: IMCD continued payment in
February, March, and April 2018, after it stated and claimed it did not believe Mr Wildman
was sick, and he had not provided evidence that would satisfy a reasonable person. There is
no explanation on the evidence as to why it paid him sick leave.
238 Mr Miles submits considerable time is spent in Mr Lambert’s affidavits attempting to

establish the actual reason for dismissal, but very little in terms of expressly denying the
prohibited reason. Mr Miles submits that if IMCD is not satisfied with the evidence, then it
should cease to pay the sick leave, and that this conclusion is supported by Construction,
Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC
157.
Consideration
239 Mr Wildman has established as a matter of fact that he exercised his workplace right to paid
personal leave under s 97 of the Act (meeting the requirements of s 107(3)). IMCD has
admitted that it took adverse action by dismissing him. The evidentiary onus thus shifts to
IMCD to satisfy the Court that the reason/s it took adverse action did not include the reason
that Mr Wildman had exercised his workplace right to take paid personal leave under s 97 of
the Act.
240 Whilst direct evidence of the decision maker as to their reasons is relevant and in general
necessary, to discharge the statutory presumption in s 361, whether the presumption is in fact
discharged turns upon the Court’s assessment of all of the facts and circumstances and
available inferences. The proscribed reason need not be the sole or dominant reason, it must
however, be a substantial and operative factor in the employer’s reasons for dismissal:
RailPro at [85]-[86].
241 Mr Lambert’s written evidence (affidavit at [45]) was that his decision to terminate
Mr Wildman’s employment was [not] “because of his illness or his absence, but because of
the effect Mr Wildman’s absence was having on IMCD’s operations”. He says Mr Wildman’s
“repeated refusal to comply with directions or provide any information about his illness, and
the subsequent effects that this was having on IMCD’s business and day to day operations …
caused my belief that he was simply using up his sick leave entitlements with no genuine
intention of returning to IMCD”. As I have said above, IMCD did not support or substantiate
his claims of the effect of Mr Wildman’s absence.

242 Mr Lambert repeatedly stated in cross-examination that Mr Wildman’s entitlement to sick
leave was not a part of the reasoning for dismissing him, nor was the quantum of that
entitlement.
243 Mr Lambert’s bald denials notwithstanding, assessing all of the facts and circumstances I
have set out in these reasons, including the chronology and documentary evidence, the
affidavit and oral evidence, and available inferences, I am not satisfied that IMCD has
discharged its evidentiary onus on the balance of probabilities.
244 I find a substantial, and operative factor in the reasons IMCD terminated Mr Wildman’s
employment, although it may not be the sole reason, was because he was exercising his
workplace right to be on paid personal leave, and specifically, that he was continuing to
exercise that right. Mr Wildman did so in the face of directions and threats I have found were
not lawful and reasonable. In Mr Lambert’s affidavit at [45] (see at [75] above and also
[241]), his explanation attempts to distinguish between the fact of the absence and the effect
of the absence on IMCD’s business. As I have already said, no detail of that effect was
provided. I have addressed Mr Lambert’s explanation earlier in these reasons. I was not
persuaded by his explanations that the prohibited reason was absent – in the words of s 360,
that IMCD’s reasons did not include that reason.
245 For the above reasons, I conclude that IMCD took adverse action against Mr Wildman by
threatening to, and on 4 May 2018 dismissing him because Mr Wildman exercised his
workplace right to take paid personal leave under s 97 of the Act. IMCD thereby contravened
s 340(1) of the Act.
Contravention of s 352 of the Act

246 I have concluded that Mr Wildman was temporarily absent from work because of illness of a
kind prescribed by the Regulations.
247 For the same reasons as I have concluded that IMCD has contravened s 340(1) of the Act, I
conclude that on 4 May 2018 IMCD dismissed Mr Wildman for reasons that included that
Mr Wildman was temporarily absent from work because of illness or injury of a kind
prescribed by the Regulations. IMCD thereby contravened s 352 of the Act.

SECTION 117
248 IMCD terminated Mr Wildman’s employment on 4 May 2018 without 5 weeks’ written
notice and without making payment in lieu.
249 Mr Wildman refused to comply with IMCD’s directions requesting further particulars in
relation to his leave, specifically the directions to attend medical appointments on 6 and
10 April 2018, and attending meetings with IMCD on 20 and 27 April 2018. He did not
provide the consent sought by IMCD (Mr Lambert’s) email on 1 May 2018. I have found
that those directions were not lawful and not reasonable.
250 It follows from the findings and conclusions I have reached above that IMCD had not made
out its defence to s 117 of the Act that Mr Wildman engaged in serious misconduct. The
exception in s 123(1)(b) is not engaged. IMCD breached s 117 of the Act. It has thereby
contravened s 44 of the Act.
THE CROSS-CLAIM
251 The Cross-claim dated 30 November 2018 is relevantly as follows:
…
[2] IMCD paid Mr Wildman his usual remuneration during the periods of claimed personal leave
referred to in paragraphs 11, 20, 29, 36 and 46 of the Statement of Claim ( Personal Leave)
under a mistake of law, mistakenly believing the lawful requirements for the payment of
personal leave to have been fulfilled, when in fact by reason of the matters pleaded in
paragraph 48(b) of the Defence those requirements were not fulfilled.
[3] Further or alternatively to paragraph 2, IMCD paid for the Personal Leave under a mistake of
fact, mistakenly believing Mr Wildman to have been unfit for work during the Personal Leave
based on the medical certificates he supplied.
[4] By reason of the payment for Personal Leave made under a mistake, IMCD has suffered loss
and damage.
PARTICULARS
The loss and damage consists of the total amount of payments made to Mr Wildman for the
Personal Leave between 19 January and 4 May 2018, viz, $42,465.83 plus $4,034.25
superannuation.
[5] Further or alternatively to paragraph 4, by reason of the payments for Personal Leave made
under a mistake, Mr Wildman:
(a) has been unjustly enriched; and
(b) is liable to make restitution to IMCD of the amount of the unjust enrichment.
PARTICULARS
The amount of the unjust enrichment consists of the total amount of payments made to
Mr Wildman for the Personal Leave between 19 January and 4 May 2018, viz, $42,465.83
plus $4,034.25 superannuation.

Submissions and consideration
252 In view of the above findings in the principal claim, the cross-claim can be dealt with briefly.
253 IMCD submits that medical certificates were accepted at face value at first instance by
IMCD. I have found, however, that the preponderance of the evidence is to the contrary.
254 IMCD now submits that Mr Wildman did not satisfy the requirements under the Act to be
paid sick leave and that payments were made under a mistake. IMCD relies on David
Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48
that “if the payer has made the payment because of a mistake” which IMCD submits it did,
then it should not have been paid. As s 107(3) was not satisfied, s 107(4) applies and the
entitlement goes away: see Swanson at [27], where her Honour stated the s 107 obligations
must be satisfied in order for the employee’s entitlement to be paid personal leave due to
illness be enlivened.
255 IMCD says as s 107 has not been enlivened, Mr Wildman is unjustly enriched by the
payments made. The principle of repayability of funds paid under the law of restitution
should apply. Thus, the $42,465.83 and $4,034.25 paid for wages and superannuation
respectively should be repaid. Mr Rinaldi submits there has not been any evidence filed to
support any defence to the cross-claim.
Mr Wildman’s submissions
256 The cross-claim is without substance. As has been agreed at the hearing, it is clear that
Mr Wildman was genuinely sick in the period: [3] of the cross-claim falls away. Paragraph
[2] refers to a mistaken belief that the lawful requirements had been fulfilled. This is contrary
to the assertions made by IMCD in letter dated 5 February 2018, in which IMCD positively
asserted:
… Kevin has not provided evidence that would satisfy a reasonable person that he is not fit
for work because of a personal illness.
257 This is not the action of an employer who is mistaken. More fundamentally, however, is that
IMCD says it dismissed Mr Wildman on 4 May 2018 because it was not satisfied he was sick,
and he had not produced evidence that would satisfy a reasonable person, had refused a
direction to meet with Mr Lambert, and yet, immediately following termination IMCD made
a further payment. There is no evidence as to why that payment was made, let alone that it
was paid by mistake.

Consideration of the Cross-Claim
258 I accept Mr Miles reasoning. The actions of IMCD, to doubt Mr Wildman’s illness, and
stating that he had not provided adequate evidence of his illness, demonstrate that IMCD was
not making these payments under a mistake of law or fact.
259 Further, and in any event, it follows from my findings on the principal claim, that the
cross-claim is dismissed.
DISPOSITION
260 For the reasons set out above, I have found that Mr Wildman’s claim succeeds and the
cross-claim fails. IMCD has contravened the Act by (i) taking adverse action against
Mr Wildman for exercising his workplace right to take personal leave pursuant to s 97 of the
Act, contrary to s 340(1) of the Act, (ii) coercing him to not exercise a workplace right to take
personal leave, or to take it in a particular way, contrary to s 343, (iii) dismissing him for
reasons that included his temporary absence because of illness of a kind prescribed, contrary
to s 352, and his workplace right to take personal leave, and (iv) failing to make payment in
lieu of notice of termination in contravention of s 117 of the Act. IMCD is to make payment
accordingly together with interest.
261 I will direct the parties to confer, and within 14 days, provide to my Chambers proposed short
minutes of orders giving effect to these reasons for decision.
262 The remainder of the proceeding will be adjourned to a date to be fixed to program the
further conduct of the proceeding, including in relation to the penalty, if any, which should be
imposed on the respondent for the breaches of the Act referred to in these reasons for
decision.
263 I so order.
I certify that the preceding two

hundred and sixty-three (263)
numbered paragraphs are a true copy
of the Reasons for Judgment of
Judge Baird.
Associate:

Dated: 23 June 2021

Wildman V IMCD Australia Limited (2021) FCCA 1161

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FEDERAL CIRCUIT COURT OF AUSTRALIA

Wildman v IMCD Australia Limited [2021] FCCA 1161

File number(s): SYG 1844 of 2018

Judgment of: JUDGE BAIRD

Date of judgment: 23 June 2021

Catchwords: INDUSTRIAL LAW – adverse action – coercion –

Cases cited: Australian and International Pilots Association v Qantas

Number of paragraphs: 263

Date of last submission/s: 24 July 2019

Date of hearing: 22, 23, 24 July 2019

Counsel for the Applicant: Mr B Miles

Counsel for the Respondent: Mr M G Rinaldi

Solicitor for the Respondent: Fitz Gibbon Law

SYG 1844 of 2018

BETWEEN: KEVIN WILDMAN

AND: IMCD AUSTRALIA LIMITED

ORDER MADE BY: JUDGE BAIRD

Wildman v IMCD Australia Limited [2021] FCCA 1161 i

Wildman v IMCD Australia Limited [2021] FCCA 1161 1

Wildman v IMCD Australia Limited [2021] FCCA 1161 2

Wildman v IMCD Australia Limited [2021] FCCA 1161 3

THE EVIDENCE BEFORE THE COURT

(ii) affidavit of Mr Kevin Wildman sworn 17 April 2019;

(iii) affidavit of Ms Lianne Wildman sworn 4 February 2019;

Wildman v IMCD Australia Limited [2021] FCCA 1161 4

18 IMCD relies on the following affidavits and exhibits:

(h) affidavit of Mr Egan sworn 13 March 2019.

Wildman v IMCD Australia Limited [2021] FCCA 1161 5

23 Mr Wildman was diagnosed with rheumatoid arthritis in or around August 2014. He

25 Mr Wildman consulted his general practitioner, Dr Pinnock, in relation to depression in

Wildman v IMCD Australia Limited [2021] FCCA 1161 6

28 On Friday 19 January 2018, Mr Wildman consulted Dr Pinnock. She advised Mr Wildman

Wildman v IMCD Australia Limited [2021] FCCA 1161 7

36 Each of Mr Wildman’s four medical certificates completed by Dr Pinnock in the period

CORRESPONDENCE BETWEEN MR WILDMAN/ HIS SOLICITORS AND IMCD

Wildman v IMCD Australia Limited [2021] FCCA 1161 8

(Together, the above emphasis in emails of 23 and 31 January 2018 is referred to in

(b) on 1 February 2018, Mr Wildman’s solicitors, Haywards Solicitors, responded to

Wildman v IMCD Australia Limited [2021] FCCA 1161 9

(pleaded 2nd Coercion);

(e) on 16 February 2018, Haywards emailed a further letter to IMCD, referring to

Wildman v IMCD Australia Limited [2021] FCCA 1161 10

(j) also on 10 March 2018, Mr Lambert emailed a response to Haywards letter of

(k) on 16 March 2018, Haywards wrote to IMCD again requesting Mr Lambert/IMCD

Wildman v IMCD Australia Limited [2021] FCCA 1161 11

(q) in response, on 11 April 2018, Mr Lambert emailed Haywards a draft email he

Wildman v IMCD Australia Limited [2021] FCCA 1161 12

(s) on 16 April 2018, Mr Lambert emailed Mr Wildman, copied to Haywards, requesting

Wildman v IMCD Australia Limited [2021] FCCA 1161 13

Wildman v IMCD Australia Limited [2021] FCCA 1161 15

Wildman v IMCD Australia Limited [2021] FCCA 1161 16

Wildman v IMCD Australia Limited [2021] FCCA 1161 17

Wildman v IMCD Australia Limited [2021] FCCA 1161 18

Doctors Singh and Pinnock

Wildman v IMCD Australia Limited [2021] FCCA 1161 19

Doctors evidence is admitted

Wildman v IMCD Australia Limited [2021] FCCA 1161 20

66 Mr Lambert’s written evidence is that in the lead up to Mr Wildman’s relocation Ms dela

Wildman v IMCD Australia Limited [2021] FCCA 1161 21

Wildman v IMCD Australia Limited [2021] FCCA 1161 22

Wildman v IMCD Australia Limited [2021] FCCA 1161 23

77 As to Mr Lambert’s explanation of his appointment with Dr Pinnock in his affidavit at [43] –

Wildman v IMCD Australia Limited [2021] FCCA 1161 24