Applicant v GBE

[2013] FWC 8422

[2013] FWC 8422

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Applicant
v
GBE
(U2013/9825)

COMMISSIONER WILSON MELBOURNE, 29 OCTOBER 2013

Application for relief from unfair dismissal.

[1] The Applicant in this matter was dismissed since, having found out he held previously undisclosed criminal convictions, the employer decided he could no longer fulfil the inherent requirements of his role.

[2] In this matter, the Applicant was employed as a Workforce Development Adviser by an Australian Government Business Enterprise in the period 13 February 2012 until 2 May 2013. For the reason that the matter proceeded before me as a determinative conference and because of the personally sensitive nature of the matters which are the subject of the unfair dismissal application, these reasons for decision do not contain identifying material. Throughout the decision, the former employee is referred to as the Applicant and the employer, being a Government Business Enterprise, is referred to as the GBE.

[3] At the time the GBE employed the Applicant, in early 2012, it was not aware that he held convictions for serious offences. It subsequently learned of the convictions, in early 2013, and after a process which will be described shortly, made a decision to dismiss the Applicant.

[4] The Applicant is presently aged in his mid-50s. About six years ago he was found guilty of a child sex offence and was sentenced to time in jail, with a significant amount of the sentence suspended. After the original conviction he was also found guilty of the possession of child pornography, for which he also received a jail sentence, all of which was suspended. Arising out of these convictions the Applicant spent about six months in jail. Nearly two years ago (which was about two to three months prior to being employed by the GBE), the Applicant was charged and found guilty of failing to comply with the reporting obligations placed on him as a consequence of his convictions, and was fined as a result.

[5] The GBE argues the Applicant’s convictions mean he is unable to perform the inherent requirements of his position. The GBE argues there is an expectation of contact between the employee and underage people and that his convictions give rise to an unacceptable risk of reoffending and/or of reputational damage to the GBE (which could conceivably arise whether or not there is reoffending). This arises as a result of what the GBE says is the link between the convictions and the duties being performed by the Applicant.

[6] By inference, if there was no link, or an insufficient link between the two, it may be difficult for the GBE to sustain the reasoning for the dismissal.

[7] The Applicant argues there is no link. He argues that both a review of his job description as applied from the start of his employment in February 2012, and a review of the duties he performed, would reasonably lead to the view there is no link. Further he argues, since he is not prohibited from coming into contact with underage people, there is nothing to prevent him from incidental contact with underage people as a result of his employment. That is, he argues, there is nothing to prevent him from fulfilling the inherent requirements of his job.

[8] The Applicant also argues that his convictions arose out of a brief consensual encounter and that there was no link between his then employment and the person involved in the encounter. He argues that a Google search of his name will provide information which is not factual or accurate.

[9] The Applicant commenced employment with the GBE in February 2012. In 2011 he had applied for a more senior position and was unsuccessful in that application. Part of the application process required him to submit a resume and other personal material. After being unsuccessful in the original job application, the Applicant applied for another position, which is the one he was employed in. While the Applicant’s resume is not in evidence, it is uncontested that the Applicant did not disclose to the GBE prior to employment that he had been convicted for serious offences. Instead the Applicant’s resume indicated that he had undertaken “consultancy/self-employed” during the period of his trial and the subsequent jail time 1.

[10] The process of employment with the GBE involved a formal letter of offer to the Applicant in January 2012 which required him to accept the offer in accordance with the terms attached to the offer. The offer included extensive standard terms of contract, part of which included the condition that;

“Your employment at [GBE] is subject to the completion of satisfactory background checks, including any criminal record checks, to ensure that you are suitable to carry out the requirements of your position, and to ensure that the information you have provided is true and correct. In the event that the background checks (when and if conducted) reveal that you have given false information or disclose unsatisfactory results [GBE] reserves the right to immediately terminate your employment without notice, or, if your employment has not commenced immediately revoke any offer of employment that they have been made to you.” 2

[11] The Applicant accepted the offer of employment, making no changes to the terms, or making any declarations about his past, and subsequently commenced with the GBE in mid-February 2012. Notwithstanding the condition that the Applicant’s employment would be subject to satisfactory background checks, none were conducted, or proposed to be conducted, by the employer until late in 2012.

[12] By late 2012, GBE had formed the view it needed to undertake background checks of all employees for the purposes of conforming with the obligations it held under the Australian Government’s Protective Security Policy Framework.

[13] The GBE’s Head of Human Resources gave evidence that this was a company-wide policy and that the background checks included a criminal record check. The checks were to be carried out by a third-party provider. There was an initial request made to the Applicant in late 2012 to provide consent for the undertaking of the background check, which was given voluntarily by him. As a result of problems experienced by the third-party provider, the GBE did not proceed to undertake the background check as a result of the original consent being given. The Applicant was not unique in this regard and other people were affected by the delay as well. The Head of Human Resources’ evidence is that the process of checking backgrounds was relaunched in February 2013 and that as a result some employees, including the Applicant, were requested to submit relevant details and their consent on two occasions. The Applicant subsequently consented to the second request.

[14] The background check on the Applicant was undertaken and disclosed the existence of serious criminal offences. This finding was discussed by the company’s personnel security team with its Industrial Relations Manager in early or mid April 2013. Having been alerted to the situation the Industrial Relations Manager discussed it with the Head of Human Resources and they jointly agreed they should have a conversation with the Applicant about the adverse information. Both met with the Applicant on 17 April 2013. In the course of the conversation the Applicant agreed that the indicated convictions related to him. He said that he did not wish to discuss the matter any further until he spoke with his lawyer. He also said to the two managers that he had discussed the request for a background check with a lawyer who advised him that he should follow the direction of GBE and proceed with the check. 3 The Applicant also asked to work from home on the next day, which he did, as well as for the remainder of his employment with the GBE.

[15] Following the first meeting, there was a second meeting on 26 April 2013 between the Applicant and the company’s Industrial Relations Manager and legal representatives for both. The meeting discussed the GBE’s concern that the Applicant had been convicted for the offences concerned and connected that concern with the time the Applicant “was attending career expos and contractor forums where school-age and young people may be present”. 4

[16] Following the second meeting the GBE’s Industrial Relations Manager and Head Of Human Resources discussed what should occur. They took into account not only the information arising out of the adverse background check report and the two meetings with the Applicant, but also discussions with the Applicant’s Direct Manager (who reported to the Head of Human Resources). These discussions went not only to the nature of the adverse background check, but also to the implications for the Applicant’s job within the team in which he worked.

[17] The Applicant’s Direct Manager gave evidence that consideration was given to whether the duties of the Applicant could be modified in order to ensure that the Applicant did not come into contact with underage people in his job as a matter of course.

[18] The evidence of the Applicant’s Direct Manager is that given the combination of the small team within which they worked, together with his expectation that there was a high likelihood of future work associated with external events such as the Job and Skills Expos and subcontractor forums, modification of the Applicant’s role so that he did not have to come in contact with young people was not feasible. The Direct Manager’s evidence was that;

“[A] redistribution of work would place an unnecessary and unreasonable burden on other members of the team given the number of expos to attend and the time associated with such events.” 5

[19] Further, the Direct Manager was;

“... concerned that the majority of the work that is carried out by members of my team is done so without direct supervision. I was concerned that [the Applicant’s] criminal record and the risks associated would mean that I would be required to exercise a greater degree of supervision of his day to day activities and be required to consider whether each new opportunity that arose was suitable for him to undertake.” 6

[20] The Head of Human Resources gave evidence that this advice was not simply accepted without question and that instead questions were asked of the Direct Manager about its accuracy. In the end though, the Head of Human Resources accepted the advice of the Direct Manager that the duties of the Applicant’s position could not be easily modified.

[21] Consequently the Head of Human Resources agreed with the Industrial Relations Manager that the Applicant’s employment should be terminated and that this should be because the Applicant was unable to perform the inherent requirements of his job.

[22] The Head’s evidence in relation to the decision to dismiss the Applicant included that;

“In forming this decision I took into account the risks associated with [the Applicant’s] background. As his role directly interfaces with jobseekers, which includes school leavers many of which are under age, his convictions are directly relevant to this work. Given that this type of activity is increasing, … it would become increasingly problematic operationally to try and engineer part of his job away. He is our representative to the public about jobs and training.” 7

[23] As a result the Industrial Relations Manager met with the Applicant on 2 May 2013, together with the legal representatives of both parties, and advised the Applicant of this decision. The GBE subsequently confirmed in writing its termination of the Applicant’s employment. The company’s letter of termination advised the Applicant he would be paid one month’s remuneration in lieu of notice together with any other accrued entitlements and that in addition, and in accordance with the Applicant’s employment agreement, the GBE would make a termination payment of one month’s remuneration. 8

[24] The Applicant’s job description was introduced into evidence. The stated job purpose includes that the position is designed to be a central source and coordinator of activities supporting the GBE’s principal contractors with advice and information on government programs and funding opportunities 9.

[25] The position is within a branch charged with developing the workforce related to achieving the GBE’s corporate strategies 10. The branch’s program includes three elements: provision of training for workers through external providers; ensuring government funding support is available for the training; and ensuring attendance of its potential workers at the training11. These elements are part of a workforce pipeline programme12. In essence, the GBE is taking a long term view of the need for skill acquisition and deployment and aims to ensure sufficient workers are available for its work in a few years time, through ensuring potential workers are interested in training; that they move into training; and once training is completed, moving to work for contractors associated with the GBE.

[26] It is within this context, the Applicant’s job description requires consideration. His role as part of a team delivering on the aim of widespread skill acquisition and development. The job description covers eight key accountabilities as follows 13;

• Coordinate and project manage the development of course content and design aspects of ATRG agreed approved training courses, including access to vendors training information (20% of total job);



• Maintain a “watching brief” on workforce development activities being undertaken for GBE’s own staff and advise on the implications for external workers strategies (20% of total job);



• Establish and maintain a catalogue of federal, state and industry workforce development, pipeline and training programs are relevant to GBE’s business activities (10% of total job);



• Support principal contractors in understanding the nature of program opportunities and in engaging with relevant programs; (10% of total job);



• Oversee and support the application and implementation of government and industry employment, training and workforce development programs in GBE areas of interest (10% of total job);



• Establish and maintain a catalogue of federal, state and other funding sources relevant to GBE’s workforce development activities (10% of total job);



• Maintain a watching brief and advise on implications of Training Package and related training delivery developments with particular relevance to GBE’s workforce development strategy (10% of total job);



• Other duties as directed (10% of total job).

[27] The accountabilities and other material in the job description place an emphasis on program or project management activities with less emphasis on external trainee-facing activities. That is, the evidence did not disclose the Applicant’s position as one called upon to directly train staff, contractors, students or clients. Instead, the preponderance of duties, as they were stated in February 2012, have little risk of the employee coming into contact with underage people.

[28] The Applicant’s evidence was, on the one hand, that the accountabilities did not shift appreciably in the time of his employment, and on the other that he had been asked to undertake some duties that are not directly referred to on the job description. These include the convening a sub contractor forums, which started during 2012, and attendance at Job and Skills Expos from March 2013. The Applicant attended four such Expos between 1 March and 16 April. Both types of events were public, or semi-public, events. Over 13,000 people attended the Expos the employee attended 14.

[29] The Job and Skill Expos were an Australian Government initiative, connecting employment and training opportunities to job seekers 15 and as such the GBE staff could reasonably be expected to come into contact with people of all ages. The Applicant’s evidence is he was asked questions by about 50 people at each of the Expos.

[30] The sub contractor forums were smaller events with an emphasis on briefing invited subcontractors about contractor, skill and project issues and answering their questions. The GBE evidence is that many of the subcontractors were family businesses, meaning a full age range of people could conceivably be in attendance.

[31] The Applicant says about the Job and Skills Expos that the GBE’s attendance was politically driven, connected with needs arising from the then forthcoming election. The GBE’s evidence on this is more nuanced. While conceding the GBE was asked to attend through Australian Government sources, the request connected with the GBE’s business needs. The GBE needed to deliver its workforce development objectives and the expos conceivably allow that. Attendance at the Job and Skill Expos continued after March. While supporting the Expos was paused during the election “caretaker” period there is no reason to expect that attendance at the Expos will not resume, and indeed the GBE’s evidence, presented after the election, was that they expected the work to continue.

[32] I am satisfied from the evidence that the attributes of the Applicant’s job changed between the time he was employed and when the GBE learned of his convictions. The evidence demonstrates that, by at least March 2013, the Applicant’s job had changed to the point where an important element of the job was interface with the public in forums such as the sub contractor forums or the Job and Skills Expos. These are significant events with the evidence demonstrating;

• They were expected to continue for some time. The Applicant’s own questions to his Direct Manager in the course of cross-examination went to whether or not the witness recalled the Applicant having made suggestions about how best to staff the Expos for some months ahead.



• The GBE stand would be staffed by a single GBE employee and contractor, or perhaps by a lone GBE employee.



• They were events that invited the participation of large numbers of people, without the opportunity to control or know in advance who would be attending.

[33] I am also satisfied from the evidence of the Applicant’s Direct Manager and the Head of Human Resources that the changes to the Applicant’s actual duties are, on the balance of probabilities, likely to be ongoing.

[34] The characteristics of the Applicant’s job by March 2013 included most of the accountabilities referred to above. While the new features of the position did not dominate his overall job, they were nonetheless significant, in the sense of having importance to the overall role.

[35] From these characteristics emerges the likelihood of the Applicant being in contact with underage people on a semi-regular basis. While the evidence is unclear about the extent of the frequency of such possibilities, it is at least the case in May 2013 when the Applicant was dismissed, that there may be one or two occasions each month for the foreseeable future where he might have been called upon to work at a public or semi public event. That is not to say either that there would have been only or predominantly underage people in attendance, or that the Applicant would have acted inappropriately towards anyone at such events. It is only to say that there was a probability of some level of the interaction of the Applicant with underage people.

LEGISLATION

[36] The legislative provisions which are relevant to this matter are set out in s.387 of the Fair Work Act 2009 (the Act), which is as follows;

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

CONSIDERATION

[37] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission (FWC) must take into account the legislative factors set out earlier.

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[38] The Applicant plainly thought that when he commenced employment with the GBE that he had an opportunity to overcome the stain of his convictions and no doubt look forward to working for some time in order to re-establish his career. The Applicant’s evidence included that on being released from jail he had been advised not to volunteer that he had been convicted. This advice brought with it obvious risks in the event that an employer found out about his past.

[39] In the proceedings, the GBE did not argue that the Applicant deserved dismissal for not having been entirely truthful in the course of making his application for employment. Instead the GBE argued that it was the nature of the employment undertaken by the Applicant which meant the discovery of his convictions made his continuing employment untenable, for the reason that he was, in their view unable to perform the inherent requirements of the role.

[40] In so arguing, the GBE can be seen to acknowledge that the Applicant’s convictions may not render him unsuitable for any position within the employ of the GBE, but rather that it meant he was unsuitable for the particular position he occupied.

[41] The evidence of the Head of Human Resources regarding the purpose of the background checks was that they were to allow the GBE to assess whether the background of the person concerned impacted on their ability to do at work. The Head of Human Resources’ evidence was that in the course of undertaking the background checks throughout the organisation, adverse information was found out about a number of people and that the GBE’s response to each was to assess each person according to their particular circumstances. Their evidence was that there was only one other situation of the seriousness of the Applicant. While 16 checks had revealed criminal records with serious offences, the Applicant is one of only two whose employment was terminated as a result, and that in both cases the Head of Human Resources formed the view that the content of the criminal record impacted the ability of the individual to carry out the inherent requirements of their job 16.

[42] In considering whether or not there was a valid reason for the dismissal of the Applicant, I take into account the following matters;

• That the Applicant worked for the GBE for slightly over 14 months;



• That the Applicant was not entirely truthful with the GBE prior to the commencement of employment;



• That he knowingly signed a contract of employment which put him on notice that at some time during the course of employment the GBE may well undertake background checks about his past which may well include the undertaking of a criminal record check;



• That the Applicant willingly agreed to have a background check undertaken about him on two occasions, and that on neither occasion did he volunteer information about his background to the GBE in advance of the completion of the background check;



• That by at least April 2013, the duties associated with the Applicant’s position had changed from those set out within the job description, so as to mean there was a likelihood of continuing to be required to undertake duties that caused him, on occasion at least, to come into contact with underage people, in an environment in which he may be the only representative or perhaps one of two representatives of the GBE present;



• That the GBE considered modifications to the Applicant’s position so as to distribute these public duties away from the Applicant, but that it decided in all the circumstances it was not possible to do so.

[43] I also take into account the environment within which the GBE operates. It is a Government Business Enterprise which is directly responsible to the Australian Government. The risks associated with a staff member offending against a member of public attending a function at which the GBE is represented would be significant, if not close to catastrophic. While the Applicant submits that there is no legal bar to him being present at places where there are underage people, that submission does not account for the risk which the GBE must balance, and ultimately answer about to the Australian Government.

[44] An inherent requirement is something that is essential to the position; but an employer cannot create an inherent requirement by stipulating something that is not essential 17. To determine what are the inherent requirements of a particular position usually requires an examination of the tasks performed, because it is the capacity to perform those tasks which is an inherent requirement18.

[45] In this particular case, the GBE submits the Applicant's position has changed over time to encompass the public-facing duties referred to, and that the inclusion of these duties in the Applicant's position is expected to be ongoing. In reply, the Applicant submits these aspects of his duties are minor and to the point of insignificant and probably ephemeral. The Applicant submits that the GBE could, without great difficulty, modify the duties he was actually required to undertake, thereby removing the risk that he may come in contact with underage people.

[46] Relevantly, in relation to the question of which duties are to be taken account of in assessing whether there is an impairment in performing the full duties of a position, the Full Bench has found;

“When an employer relies upon an employee's incapacity to perform the inherent requirements of his position or role, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered.” 19

[47] In the alternative, it would be an error to assess the inherent requirements of a job on the basis of restricted duties put in place to accommodate some limitation of capability 20.

[48] The substantive position or role in relation to the Applicant is that which the original position had evolved to by the time the GBE came to consider the future of his employment. This was not a modified or temporary alternative position. The evidence demonstrates that the inclusion by the employer of public-facing duties was as the result of an opportunity that presented in the course of 2012. It also demonstrates the changes that had occurred were likely to continue for some time and that further opportunities causing other changes to the actual duties were likely. That these changes to the task of the job have occurred, is not inconsistent with the general purpose of the position, which is framed around relatively abstract objectives.

[49] In Qantas Airways Ltd v Christie, there is a distinction drawn between the requirements of a position and the requirements of a job. McHugh J notes that in some cases the distinction between the two may be material 21, with the assessment of whether something is an inherent requirement to be;

“determined according to the dictates of common sense and as a matter of objective fact rather than mere speculation or impression”. 22

[50] The position of the Applicant in this case is Workforce Development Adviser, which stands in contradistinction to the more senior position he had applied for before he was actually employed, and the other more junior positions that worked around the Applicant's position. The evidence was that there is not another position at the same level as the Applicant's position. 23 These factors are relevant to the consideration of whether it was feasible for the GBE to allocate the public-facing duties away from the Applicant. The accountabilities of the Applicant's position, referred to above, are within the context of the job purpose, which indicates the position is primarily focussed on external workers involved in functions associated with the GBE’s business24.

[51] Objectively, the Applicant was called upon to take on public-facing activities, and these tasks were consistent with identifying or developing programs that could link potential workers with training and employment related to the GBE’s activities, which is one of the primary functions of the team in which he worked, as described by his Direct Manager 25. In a relatively short period, he had to attend four Expos, and there was plainly debate within his work-team about doing far more into the foreseeable future. The tasks were not inconsistent with his overall job purpose and consistent with his skill base.

[52] I find that the public-facing tasks asked of the Applicant were, by the time he was dismissed, an inherent requirement of his job.

[53] The Full Bench has previously held that a valid reason is one which is “sound, defensible or well founded”, but not “capricious, fanciful, spiteful or prejudiced” 26. In applying this proposition to its intersection with a question of the inherent requirements of the job, the Full Bench in J Boag and Son Brewing Pty Ltd v Button found;

“An inability to perform the inherent requirements of a position will generally provide a valid reason for dismissal. But this will not invariably be so. For example, the dismissal may be prohibited by State workers compensation legislation or otherwise unlawful. It is highly likely, bordering on certain, that there could be no valid reason for the dismissal in that event. Further, a dismissal based on an incapacity to perform the inherent requirements of a position may not be valid reason for dismissal if the employee has a capacity to perform the inherent requirements of their job. Plainly, there can be a valid reason for the dismissal of an employee where he or she simply does not have the capacity (or ability) to do their job. But, again, there may be circumstances where such incapacity does not constitute a valid reason in the relevant sense.

In the present case, it is clear that both Mr Button’s position and his job had important features that he could not perform because of his lifting restriction. Mr Button had an incapacity to perform the all of the inherent requirements of his job and, on balance, this constituted a valid reason for his dismissal.

However, it is also well established that there may be a valid reason for dismissal but the dismissal may nevertheless be harsh, unjust or unreasonable.” 27 (references omitted)

[54] Having taken this into account, together with the matters I have referred to above relating to the facts and circumstances of this case, I find there was a valid reason for the dismissal of the Applicant by the GBE, and turn to consider whether there are any factors which may require the Applicant’s dismissal be nevertheless found as harsh, unjust or unreasonable.

(b) whether the person was notified of that reason

[55] I find that the Applicant was notified of the reason for his dismissal, both within the meeting he attended with the GBE’s industrial relations manager on 2 May 2013 and subsequently in its letter of termination to him also dated 2 May 2013

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[56] I find that the Applicant was given an opportunity to respond to the information which was held by the GBE and upon which it relied for the dismissal. On 17 April 2013, the Applicant was provided with details about the adverse information contained in the background check; was asked to verify whether the information was correct; and subsequently verified it was. On 26 April, the Applicant was given a further opportunity to discuss the adverse information and the implications it bore for him.

[57] While the information so discussed was not in relation to the capacity or conduct of the Applicant, the discussion was about the information upon which the employer relied for its subsequent decision for dismissal, and I take into account that the GBE was prepared to discuss this information with the Applicant and take into account in its decision making any response that he chose to make.

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;

[58] The Applicant was provided with an opportunity to have legal representation available to him in both the meeting on 26 April 2013 and also in the subsequent meeting on 2 May 2013. The attendance of legal representation on behalf of the Applicant was initiated at his request given in the meeting on 17 April 2013, and willingly agreed to by the GBE for the two subsequent meetings.

[59] I find therefore that there was no refusal by the employer to allow the Applicant to have a support person present to assist in the discussions relating to his dismissal.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

[60] The criteria relating to warnings about the unsatisfactory performance of a person prior to dismissal does not arise, since the Applicant was dismissed for information received regarding his criminal convictions and the subsequent decision by the employer that because of the convictions he was unable to perform the inherent requirements of his role.

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal;

[61] The evidence discloses that the employer is large and sophisticated and has available to it significant legal, industrial relations and human management expertise.

[62] As a result I find the size of the employer’s enterprise and its potential impact on the procedures followed in effecting the dismissal of the Applicant is not a factor to be taken into account by me in this decision. For the same reason, I find that the absence of dedicated human resource management specialists or expertise is not a fact that we take into account.

(h) any other matters that the FWC considers relevant.

[63] I do not consider there are any other matters relevant to my decision.

[64] For the reason I have found there was a valid reason for the dismissal of the Applicant by the GBE, coupled with the clear and appropriate processes followed by the GBE in disclosing to the Applicant the information it had found out about him, and discussing with him what was to be done as a result, I am satisfied the dismissal of the Applicant was not harsh, unjust or unreasonable.

[65] As a consequence, I must dismiss the Applicant’s application to the Commission.

[66] An order dismissing the application has been issued in conjunction with this decision.

COMMISSIONER

Appearances:

The Applicant on his own behalf

A staff solicitor for the GBE

Hearing details:

2013.

Melbourne:

October, 8

 1   Employer's Response Form F3, paragraph 3.1

 2   Exhibit R4, Attachment 1

 3   Exhibit R3, para 7

 4   Exhibit R 3, para 12

 5   Exhibit R4, para 21

 6   Ibid, para 22

 7   Exhibit R5, paragraph 18

 8   Exhibit R3, attachment 3

 9   Exhibit A2

 10   Exhibit R4, para 3

 11   Ibid, para 4

 12   Ibid, para 9(b)

 13   Exhibit A2, de-identified as necessary

 14   Exhibit R4, Attachment 3

 15   Ibid, para 11

 16   Exhibit R5, para 19

 17   Qantas Airways Ltd v Christie (1998) 193 CLR 280, per Gaudron J at [34]

 18   Hail Creek Coal Pty Ltd v CFMEU (2004) 143 IR 354

 19   J Boag and Son Brewing Pty Ltd v Button, [2010] FWAFB 4022, (2010) 195 IR 292 at [22]

 20   Ibid, at [21]

 21   Qantas Airways Ltd v Christie, at [73]

 22   Ibid, at [82]

 23   Exhibit R4, para 5

 24   Exhibit A2

 25   Exhibit R5, para 16

 26   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 27   J Boag and Son Brewing Pty Ltd v Button, at [29] - [31]

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