The Australian National Audit Office’s dismissal of one of its long-time auditors was marked by incorrect advice and a disregard for personal circumstances, the Fair Work Commission has ruled.
The ANAO sacked Ruth Cully, 64, after an ongoing dispute over working from home arrangements due to the COVID-19 pandemic, continued leave applications and unauthorised absences to deal with the terminal illness of her uncle, her next of kin who had lived with her in either her Canberra or Woolgoolga home since 2016.
But Fair Work Commission deputy president Lyndall Dean has found that the dismissal was harsh, unreasonable and unfair.
Ms Culley is a Commonwealth public servant of 30 years and has worked with ANAO for 23 years. She is employed on a part-time basis, three days a week.
In 2020, she applied to work from home due to a medical condition that put her in the at-risk category for COVID-19 and travelled to Woolgoolga where she was advised that her elderly uncle was dying.
Ms Cully began a series of applications to extend her working from home arrangements and take leave, including long service leave and without pay, to deal with her ailing uncle.
ANAO approved some of these and agreed, with conditions, to her continuing to work from home but disputed whether her uncle was a member of her immediate family and Woolgoolga was her principal place of residence.
In emails to Ms Cully, ANAO said it was concerned that the situation affected her ability to perform her role and impacted other team members.
On 28 September 2020, ANOA confirmed that her flexible work arrangements were being revoked and Ms Cully eventually returned to the Canberra office on 26 October 2020 after taking a combination of leave.
The following month she requested leave to care for her uncle after being advised his condition had deteriorated.
This was denied but she went home to Woolgoolga in any case, applying for further leave on 18 November because her uncle had been referred to in-home palliative care and she was required to care for him.
Ms Cully refused directions to return to Canberra although she did resume remote working in February 2021, requesting work from her supervisor.
On 5 March 2021 ANAO told her she had breached the Code of Conduct by failing to comply with the first direction to return to the Canberra office and on 9 March gave her notice of termination due to non-performance of duties.
On 17 March Ms Cully returned to the office but applied for long service leave which was declined.
On 6 April, she learned that her barely responsive uncle had been removed from her Woolgoolga home and died the next day in hospital. She applied for leave and began another period of absence to make funeral arrangements, not returning to Canberra until 21 April.
On 19 May ANAO demoted Ms Cully to APS6 form EL1 and on 2 June, terminated her employment.
But Ms Dean found that Ms Cully’s circumstances were unique and that ANAO’s directions were not reasonable.
“Ms Cully considered she had an elevated risk of COVID (supported by medical evidence) and had caring responsibilities for her uncle, a member of her household, and who had at the latter stages of the events set out above, been sent home in Ms Cully’s care to die,” she said.
Ms Dean said an exchange in the proceedings between Ms Cully, who represented herself and a supervisor Joyce Knight, highlighted the ANAO’s disregard for her circumstances.
Ms Cully: My question is, is it ever lawful and reasonable – can a direction ever be lawful and reasonable if there is a material risk that it results in the death – in the suffering and/or death of a human being?
Ms Knight: I think, potentially, yes … because life isn’t fair and sometimes bad things happen.
Ms Dean said Ms Cully met the definition of carer, ANAO had no grounds to decline leave requests on the basis that her uncle was not an immediate family member and there was no evidence to say an ANAO employee could not have two residences.
She found ANAO had no business grounds to revoke her working from home status, particularly as most staff were doing so at the time.
“At the time of her dismissal there was no basis for dismissing her for non-performance of duties as she was in fact performing her duties as directed and had already been the subject of a sanction,” she said.
She ordered Ms Cully’s employment be restored at its original level APS6.