A selection of cases in which Cathy Dowsett has been involved:

A selection of cases in which Cathy Dowsett has been involved:
Employment - general protection
Marshall v Commonwealth of Australia (represented by The Bureau of Meteorology)
[2012] FMCA 1052 – The “Beauty and The Geek” case. Mr Marshall was certified unfit for
work, but an independent medical assessment found him fit for work. When Mr Marshall
failed to attend for work his employment was terminated. Shortly after the termination,
he appeared as a contest on a reality TV show. The Federal Magistrate found that
Mr Marshall was exercising a workplace right, accepting that he could be unfit for work
but fit for TV, and ordered that he be reinstated and compensated for lost earnings.
Benjamin v Endeavour Industries Pty Ltd [2012] FMCA 488 – An interlocutory application
considering whether the individuals were “involved in” the alleged contravention of the
Fair Work Act 2009 and whether they were “necessary parties” and should be joined to
the proceedings.
Khiani v Australian Bureau of Statistics [2011] FCAFC 109 – In dismissing Mrs Khiani’s
appeal, the Full Court noted that a general protections court application must relate to
the causal relationship between the adverse action (in this case termination) and the
protected attribute. It was not an opportunity for broad ranging complaints about the
process or the authority of the decision maker to take the relevant decision.
Khiani v Australian Bureau of Statistics [2010] FCA 1059 – Mrs Khiani did not attain and
sustain the required standard of performance, and her employment was terminated.
Mrs Khiani made a number of complaints about the process and the outcome, including
contending that being on sick leave effectively protected her from having her
employment terminated. The Court held that being on sick leave did not operate as a
protection from termination, provided there were lawful reasons for that termination.
Employment - unfair dismissal
Bilic v Glass Expansion U2012/5615 – After being counselled about her work performance
Mrs Bilic threatened to resign. She was talked out of resigning and remained at work for
the rest of the day. The next day, Mrs Bilic again said she was resigning. Efforts to
dissuade her were unsuccessful. Fair Work Australia upheld the employer’s jurisdictional
objection, finding that Mrs Bilic had not been forced to resign and there had been no
constructive dismissal. (ex tempore decision)
Davidson v The Commonwealth of Australia (represented by the Department of Climate
Change and Energy Efficiency) [2011] FWAFB 6265 – The Full Bench was satisfied that
there was no error in the first instance decision.
Davidson v The Commonwealth of Australia (represented by the Department of Climate
Change and Energy Efficiency) [2011] FWA 3610 – Mr Davidson claimed he had been

constructively dismissed when his employer commenced an investigation into a
suspected breach of the Code of Conduct, suspending his IT and building access, and
requested return of the departmental Blackberry allocated for his use. Fair Work
Australia rejected Mr Davidson’s claim that he had no choice but to resign.
Workers’ Compensation
Briggs v Comcare [2012] AATA 514 – A lengthy delay in giving notice of an injury did not
result in prejudice to the respondent, accordingly, notice deemed to have been given in
accordance with the Safety, Rehabilitation and Compensation Act 1988.
Peters and Comcare [2012] AATA 636 – Mrs Peters’ claim for compensation was denied
because the events she said caused her psychological injury (the management of a return
to work following a non-work related injury, her failure to obtain a short-term transfer
and a decision not to place her on the “on-call” roster) were found to be reasonable
administrative action taken in a reasonable manner.
Pilan v Military Rehabilitation and Compensation Commission [2011] AATA 426 –
Mr Pilan’s brief period of military service (21 October 1986 to 11 November 1986) was
found not to have been a contributing factor to the development of his schizophrenia.
Veterans’ Affairs
Repatriation Commission v Bawden [2012] FCAFC 176 – reversing the decision below, the
Full Court held that the question whether the traumatic event had occurred must be
determined to the reasonable satisfaction of the decision maker.
Bawden v Repatriation Commission [2012] FCA 345 – This case concerned the standard
of proof to be applied when determining whether a veteran is suffering from Post
Traumatic Stress Disorder (PTSD) for the purposes of a claim under the Veterans’
Entitlements Act 1986. The primary judge held that where causation is an element of the
diagnostic criteria (as with PTSD) those elements did not need to be established to the
reasonable satisfaction of the decision maker, but were to be assessed by reference to
the more generous reverse criminal standard.
Smith v Repatriation Commission [2012] FCA 1043 – A veteran with a history of postservice
employment ceased work and subsequently sought an increase in his pension to
the a special rate . The Court held that there was no error in the Tribunal’s decision to
reject the application for an increase on the basis that the veteran had not been
genuinely seeking remunerative work during the assessment period. Appeal to the Full
Court pending.
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Julian v Repatriation Commission [2012] AATA 426 – the Veteran’s accepted hypertension
contributed to the disease from which he died (renal failure) but was not the medical
cause of his death. Accordingly, the widow’s claim under the Veterans’ Entitlements Act
1986 failed.
Summers v Repatriation Commission [2012] FCAFC 104 – the Tribunal was required to
consider the alternative formulation – that Mr Summers’ response to being told of the
fall when he regained consciousness in hospital – was the relevant traumatic event.
However there was no evidence that Mr Summers had experienced a response of fear,
helpless or horror at the aftermath of his fall and therefore no error in the approach of
the Tribunal.
Summers v Repatriation Commission[2011] FCA 1451 – there was no error in the
Tribunal’s finding that an assault followed by a fall from a cliff at Watson’s Bay did not
constituted a “traumatic event” for the purposes of the diagnosis of Post Traumatic
Stress Disorder in circumstances where the veteran had only vague memories or no
recollection of the event.
Judicial Review
Rich v Ingram and others – Dr Rich complained inter alia about the validity of the
appointment of the Deputy Director of the Professional Services Review committee that
had made findings against him. After the proceedings were commenced, remedial
legislation was enacted. Dr Rich challenged the application of the remedial legislation to
his case (decision reserved)
A selection of Cathy Dowsett’s recent papers and presentations:
Employee, Contractors and Sham Arrangements, co-authored with Mark Felman (Nov
2012)
The Safety Rehabilitation and Compensation Act and the ‘reasonable administrative
action’ exclusion (July 2011)
Termination of employment and the Fair Work Act (CPDS) (March 2012)
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