Employee argues bullying and harassment forced departure from original role
The Fair Work Commission (FWC) recently dealt with a general protections dismissal application involving a public service worker who claimed she was dismissed when she transferred between Commonwealth Government agencies.
The worker argued that her employment with the Australian Taxation Office was terminated when she moved to the Australian Electoral Commission.
The worker maintained that she was subjected to severe bullying and harassment over four years, which left her with no alternative but to transfer to a new agency.
She argued that this transfer represented a termination of her employment and constituted either a dismissal or forced resignation under fair work legislation.
Bullying allegations drive transfer between agencies
The worker had been employed as an Australian Public Service employee with the taxation office since 2007 and held the senior position of director in solutions from April 2024.
She stated in her application: "I was a Director there for over 4 years, where I was subjected to severe bullying and harassment by a number of Assistant Commissioners within the workplace. This harassment did not occur at random and was in direct retaliation to reasonable requests as per my workplace rights."
The worker detailed that the alleged conduct affected her mental health and made the workplace dangerous. She explained:
"Due to the conduct of these individuals, the workplace became dangerous and had serious ramifications to my mental health. I sought support from many individuals over the course of the last 4 years, ranging from HR to senior leaders seeking to either end the harassment or alternatively move to another area within the organisation for a reprieve against these individuals."
She stated that despite her efforts to obtain support within the agency, no remedy was provided for the alleged behaviour. The worker concluded: "I was not provided support, and as such I was left with no option but to leave the organisation."
She applied for a transfer under section 26 of the Public Service Act 1999, which allows for voluntary moves between agencies. Her last day with the taxation office was 10 January 2025, and her first day at the electoral commission was 13 January 2025.
Agency transfer process creates employment dispute
The worker obtained assistance from an assistant commissioner at the taxation office to support her voluntary transfer to the electoral commission.
She argued that this transfer represented a termination of her employment from the taxation office and the commencement of employment with a new employer. The worker relied on several factors to support her argument that the agencies were separate employers.
The worker pointed to administrative requirements including signing a new contract with the electoral commission, filing a new tax file number declaration, superannuation form, and providing identification documents.
She also noted that the taxation office and electoral commission have different Australian Business Numbers that appeared on her respective payslips, arguing this demonstrated separate employment relationships.
The worker relied on an extract from the Australian Public Service Commission website stating: "When an APS employee moves to a new agency under section 26 of the PS Act, the new agency becomes their employer, even if the move is on a temporary basis."
She argued this confirmed that the electoral commission was a new employer, separate from her previous employment with the taxation office, and that the transfer therefore constituted a dismissal.
Transfer legislation challenges dismissal claims
The employer argued that the worker had activated a voluntary transfer between Commonwealth Government agencies under section 26 of the Public Service Act.
They contended that this provision contemplates situations where employees can voluntarily move between agencies while maintaining continuous employment and service within the Australian Public Service. Both agencies are Commonwealth Government agencies, and the movement was undertaken via the worker filing a transfer form.
The FWC examined the relevant legislation, noting that section 22 of the Public Service Act makes clear that Commonwealth Government agencies "engage employees on behalf of the Commonwealth."
The Commission found that the worker "in undertaking work for the [taxation office] or [electoral commission] is still an employee of the Commonwealth of Australia (not directly employed with the [taxation office] or the [electoral commission])."
Section 46 of the Australian Public Service Commissioner's Directions 2022 states that transfers between agencies are designed to facilitate mobility across the Australian Public Service. The FWC noted:
"Section 46(4) of the Australian Public Service Commissioner's Directions 2022 'makes clear' that a transfer is not an engagement under section 22 of the [Public Service Act] (in other words, it is not a new offer of employment)."
Dismissal requirements fail legal threshold
The FWC assessed whether the worker's circumstances met the definition of dismissal under section 386 of the Fair Work Act, which requires either termination at the employer's initiative or forced resignation due to employer conduct.
The Commission applied established case law requiring objective analysis of whether the employer's conduct was intended to bring employment to an end or had the probable result of termination.
The Commission found that key indicators of dismissal were absent from the facts. The worker retained continuity of employment and service, maintained all accrued leave entitlements and superannuation, and experienced no break in employment between agencies. The FWC noted: "The indicia associated with a dismissal were not present on the facts."
Regarding the different administrative requirements and business numbers, the FWC explained these reflected "internal accounting practices associated with the employment of employees by the Commonwealth of Australia via its different agencies."
The FWC found that while different agencies may have different business numbers and bank accounts, "all Commonwealth agencies are funded by the Commonwealth of Australia via its Consolidated Revenue Fund."
The Commission concluded: "It cannot be satisfactorily demonstrated that the [employer's] conduct caused a dismissal of the [worker's] employment or that it has been demonstrated that the [worker] had no real choice but to transfer."
The FWC determined: "The [worker's] transfer pursuant to section 26 from the [taxation office] to the [electoral commission] did not represent a termination of employment. The transfer between Agencies on the wording of section 26 of the [Public Service Act] cannot be construed or relied on as a termination of employment." The jurisdictional objection was upheld and the application was dismissed.
