Bo-Rim (Bryan) Kim v Australian Federal Police

[2013] FWC 1231

[2013] FWC 1231

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bo-Rim (Bryan) Kim
v
Australian Federal Police
(U2012/12772)

COMMISSIONER BULL SYDNEY, 1 MAY 2013

Alleged unfair dismissal - misrepresentation as a Federal police officer - conduct incompatible with the continuation of employment - loss of trust and confidence.

[1] In this matter filed under s.394 of the Fair Work Act2009 (the FW Act), Mr Bo-Rim Kim (Mr Kim) alleges that his previous employer, the Australian Federal Police (the AFP) terminated his employment unfairly as the dismissal was harsh, unjust or unreasonable as per s.385(b) of the FW Act.

[2] The Australian Federal Police Act 1979 (the AFP Act) at s.69B - Limited operation of Fair Work Act,limits matters that may be dealt with under the FW Act but does not prohibit a claim of unfair dismissal. 1

[3] On the commencement of the hearing the Applicant’s solicitor Mr Elliot and the Respondent’s solicitor Mr Klein, sought and were granted leave to appear as per s.596(2)(a) of the FW Act.

Background

[4] Mr Kim was engaged by the AFP on 25 February 2008 as an Information Technology (IT) officer team member in the AFP’s Information Technology department in Goulburn Street, Sydney. In November 2010 Mr Kim was transferred to the Criminal Intelligence area located at Customs House Sydney International Airport.

[5] Mr Kim was never employed as a sworn Federal Police Officer which requires a declaration to be made by the AFP Commissioner pursuant to s.40B of the AFP Act, but rather employed as an unsworn member of the AFP.

[6] In a letter dated 9 August 2012, Ms Leanne Close, Assistant Commissioner and National Manager Human Resources advised Mr Kim that his employment was terminated pursuant to s.28 of the AFP Act, effective from 16 August 2012. The reasons provided in the termination letter referred to the outcome of a Professional Reporting Standards (PRS) Investigation that examined four complaints and concluded that Mr Kim had:

● represented himself as a sworn police officer;
● failed to report his associations with persons from a foreign government;
● failed to properly use and manage an AFP issued mobile phone; and
● disclosing AFP Security-In-Confidence documentation to a foreign government representative without authority.

[7] In conclusion, the termination letter stated that Mr Kim had failed to demonstrate sound judgement expected of an employee of the AFP.

[8] The decision to terminate Mr Kim followed a recommendation from the Australian Security Intelligence Office (ASIO) made in correspondence dated 22 September 2011, to have Mr Kim’s security clearance revoked. On receipt of this recommendation, AFP Federal Agent Duncan Mooney (then engaged in the AFP’s Professional Reporting Standards portfolio) was assigned to conduct an investigation. Mr Mooney’s adverse findings against Mr Kim eventually led to Ms Close terminating Mr Kim’s employment.

The Applicant’s Case

[9] Mr Kim tendered a witness statement and gave evidence to support his claim of unfair dismissal. No witnesses were called in support Mr Kim’s claim.

[10] Prior to Mr Kim’s employment with the AFP, he had worked with the Korean Consulate General in Sydney on a part-time basis and since leaving had maintained relationships with some of the Korean Consulate employees.

[11] In October 2008, Mr Kim attended the Third Annual Multi-National Korean Law Enforcement Symposium (the Symposium) hosted by the Korean National Police in Seoul, Korea. Official approval was sought by Mr Kim to attend this Symposium which was declined. Mr Kim proceeded to take leave and attended the Symposium without AFP approval.

[12] Between May and September 2010, Mr Kim was seconded to the Solomon Islands to provide IT support to the AFP and multinational police and army contingents stationed in the Solomon Islands. Mr Kim was provided with an AFP uniform for this secondment; the shirt was emblazoned with the AFP logo and on his shorts was emblazoned in large lettering the word “Police” 2.3

[13] On 14 October 2011, Mr Kim whilst working at the Sydney International Airport was asked to accompany Federal Agent Duncan Mooney and another AFP member Federal Agent Kristy Scott who were both attached to the AFP Professional Standards portfolio. The Applicant was driven to the Goulburn Street office in the Sydney CBD where he was interviewed and provided with a copy of an ASIO assessment that had recommended to the AFP that his security clearance be revoked. The assessment by ASIO was made in accordance with s.17(1)(c) and Part IV of the Australian Security Intelligence Organisation Act 1979 (ASIO Act). At this meeting Mr Kim was advised that his security clearance was withdrawn following the recommendation from ASIO and he was given a letter advising of his suspension from duty on full pay until such time approved by the Commissioner or his delegate.

ASIO Assessment

[14] The ASIO Assessment dated 15 September 2011, provided to the AFP, contained material until then unknown to the AFP. 4 The Assessment revealed that in August 2006, Mr Kim was suspended from the NSW Police Academy for 12 months for two separate incidents relating to dishonesty. Further, that whilst employed by the AFP Mr Kim applied for four positions with ASIO between 2009 and 2010 and on each occasion stated that he had completed his education and training at the NSW Police Academy, which was untrue.5

[15] The ASIO recommendation to the AFP to revoke Mr Kim’s secret security clearance was based on his failure to report his associations with foreign government employees as required and the passing of sensitive information to people he knew or ought to have known were associated with the intelligence services of a foreign government, thereby committed an act of foreign interference against Australia as defined by s.4 of the ASIO Act. Mr Kim had been granted access to classified information marked secret and to secure areas by the AFP.

[16] It appears that had ASIO not recommended in September 2011, that Mr Kim’s security clearance be revoked; the conduct leading to Mr Kim’s termination may not have come to the attention of the AFP.

[17] Mr Kim attempted to diminish the complaints made against him on the basis that he had not attempted to gain any benefit from his conduct and some of the allegations made against him were not accurate. In any event, Mr Kim was remorseful and recognised his mistakes.

Respondent’s Case

Evidence of Duncan Mooney

[18] Federal Agent Duncan Mooney was at the relevant time employed as an investigator with the AFP’s Professional Reporting Standards. This role was primarily to investigate complaints concerning alleged breaches of the AFP Code of Conduct.

[19] Mr Mooney swore a witness statement and gave evidence under oath. He advised the Commission that following the ASIO recommendation to the AFP that Mr Kim’s security clearance be revoked contained in an adverse security assessment report dated September 2011, he was asked to undertake an investigation on 6 October 2011.

[20] His investigation focused on persons working at the Korean Consulate General located in Sydney and that Mr Kim had without authorisation released AFP classified information and documentation to a person working within the Korean Consulate General.

[21] Mr Mooney obtained information on Mr Kim’s work and employment history prior to joining the AFP. These inquiries identified that Mr Kim had previously worked for the Korean Consulate General in Sydney and that he had been enrolled at the NSW Police Academy which ended when he was suspended from the Academy.

[22] To assist the investigation of Mr Kim’s conduct, Mr Mooney requested an email audit be conducted on Mr Kim’s AFP email account. The results of the audit revealed that Mr Kim had forwarded AFP documentation to the Korean Consulate General and that Mr Kim had received an email from a Korean Consulate General employee seeking information on what the AFP’s response would be to a terrorist threat at the Sydney airport.

[23] The email audit also revealed that Mr Kim had been invited to attend a Symposium in Seoul by the Korean Consulate General for overseas police officers of Korean origin. In preparation for the Symposium Mr Kim had sought to borrow a Federal police uniform from a sworn AFP officer.

[24] Mr Kim had requested AFP approval to attend the Korean Symposium, however, team leader Mr Wayne Brookes rejected formal AFP approval on the basis the AFP was unlikely to gain much from Mr Kim’s attendance. Mr Kim subsequently took annual leave to attend the conference. Mr Kim advised Mr Mooney that he had attempted to obtain a uniform from a sworn AFP member to wear at the Symposium (which was not provided).

[25] At the Symposium Mr Kim made a presentation without AFP approval.

[26] The email audit also revealed that Mr Kim represented himself as a sworn Federal police officer outside the offices of the AFP when sending emails by altering his signature block with the words Federal Agent inserted below his name. In doing so Mr Kim had consciously altered his email signature block to falsely represent himself as a Federal Police Officer.

[27] It was also revealed that on 18 May 2010, Federal Agent Angus McGilvray had submitted an integrity report regarding Mr Kim representing himself as a sworn AFP Officer either directly or by omission based on information received from an anonymous community contact. In Mr Mooney’s evidence he advised the Commission that nothing was done about the integrity report, it was just kept on the record. 6

[28] Mr Kim was interviewed by Mr Mooney on 14 October 2011, in conjunction with Federal Agent Kristy Scott.

[29] Federal Agent Michael Holmesby attended the initial interview as Mr Kim’s support person. A further interview was held on 15 November 2011 without a support person present.

[30] Mr Kim told Mr Mooney that he wanted to join the AFP as a sworn member and that it made him feel proud when people thought he was a Federal Police Officer.

[31] During the meetings held with Mr Kim, Mr Mooney stated that Mr Kim conceded that he had ongoing contacts and associations with certain employees of the Korean Consulate General. Mr Kim understood one Consulate employee was involved in intelligence work.

[32] Mr Kim told Mr Mooney that he should have reported these associations and that he knew it was wrong not to do so. During the interview with Mr Mooney, Mr Kim initially stated he had been a sworn police officer of the NSW Police Service but on being presented with evidence to the contrary he adjusted his response to having studied at the NSW police academy.

[33] Mr Kim also admitted that he had allowed his wife to make a number of domestic and international phone calls on his AFP issued mobile phone, which he had neither reported to the AFP nor paid for.

[34] Mr Kim advised Mr Mooney that he recalled receiving an email seeking specific information about the AFP’s terrorist response at Sydney airport which he forwarded via email to other AFP Officers for advice. There were no email records to support this action and the two AFP Officers had no recollection of receiving such an email from Mr Kim.

[35] Mr Kim was also asked as to why he recorded his occupation on his marriage certificate dated 21 April 2010, as an Australian Federal Police Officer. Mr Kim responded that the Registry of Marriages must have made an error, but in any event he was an officer of the Australian Federal Police. Mr Mooney stated to Mr Kim that he was an unsworn AFP member and not a Federal Police Officer.

[36] Mr Mooney’s evidence was that Mr Kim could not provide a satisfactory account of his employment period with the Korean Consulate General.

[37] Following the interviews with Mr Kim, Mr Mooney prepared a letter dated 13 December 2011, to Mr Kim listing the findings of his investigation and invited him to provide any comments on the findings in the letter prior to the Manager of Professional Standards considering his findings.

[38] Mr Mooney’s findings were that Mr Kim had:

● Represented himself as a sworn police officer contrary to s.148.2 of the Criminal Code 1995.
● Breached the AFP Code of Conduct by failing to report his associations with persons of a foreign government.
● Failed to properly use and manage his AFP issued mobile phone.
● Breached the AFP Code of Conduct by disclosing AFP Security-In-Confidence documentation to a foreign government representative without authority.

[39] Mr Kim was given until Friday 6 January 2012, to provide his response which is termed a “natural justice response”.

[40] Following this correspondence Mr Mooney did not have any further direct involvement in Mr Kim’s termination.

[41] Mr Klein on behalf of the AFP submitted that the Commission lacked jurisdiction to disturb these findings as they are only reviewable under the provisions of the Administrative Decisions (Judicial Review) Act 1977, a course not chosen by the Applicant. The Commission’s role is to determine the unfair dismissal application pursuant to its obligations under the FW Act, a role which the AFP Act provides for under s.69B.

[42] The Commission has an obligation to arrive at its own conclusions on the basis of the submissions and evidence put before it. In examining the fairness of the decision to terminate Mr Kim’s employment made by the Assistant Commissioner the conclusions of this Commission may differ from those of Mr Mooney.

Mr Kim’s Natural Justice Response

[43] Mr Kim provided his natural justice response to the findings made against him in correspondence dated 20 January 2012.

[44] In reference to Mr Kim’s attendance at the Symposium Mr Kim stated that during his attendance he never mentioned that he was a Federal Police Officer and that not all other attendees were police officers but persons working in law enforcement.

[45] As to the reasons his email signature read “Federal Agent”, Mr Kim stated this was done out of pride but that he had learnt from this experience.

[46] Mr Kim also responded by stating that he had told friends on social occasions that he was a police officer but this was out of respect for the AFP, he advised that he had later clarified that he was not a Federal Police Officer.

[47] Mr Kim maintained that at no time did he purport to be a sworn member of the AFP to the Korean police authorities. Mr Kim also conceded that he advised Mr Mooney that the organiser of the Symposium probably believed he was a police officer but it was not his intention for anyone to think that and he did not at any time represent himself as a sworn police officer.

[48] Mr Kim accepted that he did not complete a contact report for the times he met with consulate staff of the Korean Consulate General Office. However, he advised that he had informed many of his AFP colleagues of his contact with Korean consulate staff and his curriculum vitae (CV) indicated that he had previously worked with the Korean Consulate in Sydney.

[49] Mr Kim submitted that some of the Consulate staff were known to him through his church and were close family friends. Despite hearing that some Korean Consulate staff were intelligence officers it did not cross his mind to report these contacts.

[50] In respect to not being able to recall the dates of his employment at the Korean Consulate he advised that this may have been a result of his nervousness at his interview and the length of time since the event and possible memory loss from malaria prophylaxis tablets he had taken while working in the Solomon Islands.

[51] Mr Kim did not dispute that his AFP issued mobile phone had been used by his wife without AFP authority.

[52] Mr Kim acknowledged that upon request he had provided a Korean Consulate staff member a blank AFP Initial Clearance Security Clearance Package. He did not believe this was a security breach as this information was available on the internet.

[53] Following receipt of Mr Kim’s natural justice response, Mr Mooney submitted the response and his findings to Detective Superintendent Coutsolitis, Coordinator Investigations Professional Standards, for information and consideration.

[54] Commander Ray Johnson, Manager PRS, provided an adjudication report on 29 February 2012. Mr Johnson found that the matters raised paint a picture of a person that has consistently failed to demonstrate the level of integrity and accountability of an AFP appointee and on the balance of probabilities the findings made by Mr Mooney were established. 7

[55] Mr Johnson recommended that Mr Kim’s employment suitability be subject to consideration under s.28 - Termination of employment by Commissioner of the AFP Act.

[56] On 9 March 2012, Superintendent Coutsolitis wrote to Mr Kim advising him that the Manager PRS has recommended consideration of his suitability for AFP employment.

Evidence of Ms Close

[57] Ms Leanne Close, Assistant Commissioner and National Manager of Human Resources for the AFP submitted a witness statement and gave evidence before the Commission. Ms Close’s evidence was that a security clearance was an essential requirement for all AFP appointees to be able to carry out any meaningful duties. 8

[58] Ms Close stated that she made the decision to terminate Mr Kim’s employment following written advice from Mr Johnson, Manager PRS who had adjudicated on an investigation completed by Mr Mooney in respect of alleged conduct breaches by Mr Kim.

[59] Mr Johnson had provided a minute of advice on 15 March 2012 to Ms Close recommending that she consider Mr Kim’s suitability for ongoing employment and advising that she would be provided with a briefing for this purpose.

[60] On 19 June 2012, Ms Close received a briefing from Superintendant Ian Houghton Coordinator of PRS, which she reviewed and then wrote to Mr Kim on 20 June 2012. Ms Close advised Mr Kim that she was considering terminating his employment and asked him to show cause within 28 days as to why his employment should not be terminated or provide any further information or materials for her consideration.

[61] Ms Close’s letter to Mr Kim also stated that she was concerned that he had failed to demonstrate sound judgement and had acted contrary to the AFP’s values of accountability, integrity and trust.

[62] On 9 August 2012, Ms Close determined that Mr Kim was unsuitable to remain in employment with the AFP and that his employment should be terminated. Ms Close advised that to the best of her knowledge she had not received any response to her letter to Mr Kim.

[63] A letter was sent to Mr Kim on the same date terminating his employment with seven days notice, effective from 16 August 2012. The reason seven days notice was given is unclear. Mr Kim had been employed with the AFP since February 2008. When questioned, Ms Close stated that the AFP practice is to provide two week’s notice, there being no obligation to provide any further notice. Ms Close was unable to answer whether such a practice was contrary to the National Employment Standards. 9

[64] Ms Close advised that she subsequently received an email from Mr Kim on 17 September 2012, which included a copy of an email purportedly sent on 18 July 2012 by Mr Kim attaching a response to Ms Close’s show cause letter on 20 June 2012.

[65] Ms Close’s evidence was that although she had not received Mr Kim’s response to her show cause letter before terminating his employment, having subsequently considered it, her decision to terminate Mr Kim remained unaltered 10 as there was nothing new in the letter that had not already been stated in Mr Kim’s natural justice response.11

Consideration

[66] Pursuant to s.387 Criteria for considering harshness etc of the FW Act the Commission must take into account in determining whether a dismissal was harsh, unjust or unreasonable a number of listed factors. I consider each of these factors below.

Was there a valid reason for the Applicant’s dismissalrelated to his capacity or conduct s.387(a)

[67] The term “valid reason” was considered by Northrop J in Selvachandran v. Petron Plastics Pty Ltd (Selvachandran) 12, in relation to s.170DE of the Industrial Relations Act 1988. While under a different legislative framework Northrop J comments remain apposite:

“Section 170DE(1) refers to ‘a valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective `valid’. A reference to dictionaries shows that the word `valid’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: `2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In the Macquarie Dictionary the relevant meaning is `sound, just or well founded; a valid reason.’

In its context in s 170DE(1), the adjective `valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of a s 170DC.”

[68] The holding of the term “valid reason”, as meaning sound, defensible or well founded has been adopted in many cases before this Commission.

[69] The letter of termination given to Mr Kim refers to four complaints having been established following the PRS investigation. Following which the Assistant Commissioner then states the decision to terminate the Applicant was based on evidence before her which showed Mr Kim:

● represented himself as a sworn police officer;

● failed to report associations with persons from a foreign government;

● failed to properly use and manage an AFP issued mobile phone; and

● disclosed AFP Security-In-Confidence documentation to a foreign government representative without authority.

[70] The termination letter then concludes on the basis that the named breaches are sufficiently serious for Mr Kim’s employment to be terminated based on a failure to demonstrate the sound judgement expected of an employee of the AFP.

[71] I need not be satisfied that all grounds raised constitute a valid reason. In my view one ground is sufficient to meet the test of a valid reason.

[72] I consider each of the reasons provided by the AFP for Mr Kim’s termination of employment below:

Represented himself as a sworn police officer

[73] The Respondent provided the Commission with a copy of the Role Scope of Team Member Intelligence, Intelligence Officer (Non Policing) 13. This document describes Mr Kim’s position as an Intelligence Officer as one engaging in the collection, collation, analysis and dissemination of intelligence to support corporate intelligence objectives. Mr Kim described his work as an intelligence officer as more of an administrative sort of role, assisting the investigations team and on a daily basis processing information and reports.14

[74] Clearly Mr Kim was not a sworn Federal Police Officer.

[75] The evidence demonstrated that Mr Kim had on a number of occasions either purported to be a sworn AFP Police Officer or allowed others to believe he was a sworn AFP Police Officer when he was under an obligation to correct this misunderstanding.

[76] The identifiable occasions when this conduct occurred include:

1. Attendance at the Multi-National Korean Law Enforcement Symposium in October 2008. Mr Mooney’s evidence was that Mr Kim admitted that he represented himself as a sworn AFP Police Officer at the Symposium where he delivered a presentation. Following which he received an honorary police award, crystal-ware and police patches from the Korean National Police. Mr Kim was reimbursed the return airfares to Korea by the Korean Consulate General and his accommodation and meals were provided by the Korean National police. In Mr Kim’s written response of 20 January 2012 he states that he never mentioned he was a Police Officer and in fact stated he was an IT officer.

I do not find this latter explanation plausible. Mr Kim received a written invitation which stated that one of the qualifications for attendance was being an overseas Korean currently serving as a Police Officer.

Mr Kim’s written self introduction as part of the application process in part states; I decided to join the police force, and further stated that he is currently employed as a member of the Australian Federal Police as a team member under the Chief Information Portfolio. Nowhere does Mr Kim state he does not meet the qualification of being a serving Police Officer. Mr Kim’s presentation at the Symposium was not related to his role in information technology, but the operation of the AFP generally.

Clearly Mr Kim benefited from the misapprehension by others arranging this event that he was a sworn Police Officer.

2. Allowing persons outside the AFP to believe he was a sworn AFP Police Officer. Mr Mooney described how Mr Kim stated in the interview of 14 October 2011, that when he socialised with friends he told them he worked for the AFP upon which they presumed he was a Police Officer. Mr Kim acknowledged that he does not always correct this misunderstanding and that it was done on the basis of a “pride thing” 15.

Mr Kim confirmed this conduct in his written response of 20 January 2012, but added that he later told the truth, this was said to be done out of pride and he regretted making such stupid mistakes.

3. Altering his email signature block to read Federal Agent when messaging persons outside the AFP which Mr Kim did not deny and acknowledged as being wrong. 16

[77] On 9 October 2008, Mr Kim sent an email to a Mr David Copley, Recognition and Ceremonial Chief of Staff Portfolio, querying the formalities of wearing AFP uniforms and stated the following:

Currently I am an unsowrn (sic) AFP member - former sworn member.

(My emphasis)

[78] Mr Kim admitted in evidence that his statement of being a former sworn officer in this email was incorrect. 17

[79] Also raised in this matter was the reference on Mr Kim’s marriage certificate dated 21 April 2010. Alongside the heading Occupation, Mr Kim is listed as: Australian Federal Police Officer. At the initial interview with Federal Agent Mooney, Mr Kim stated that this was an error made by the Registry of Births Deaths and Marriages. 18 This matter is not addressed in Mr Kim’s natural justice response, but in his evidence and as argued by his solicitor he submitted that this nomenclature was accurate as Mr Kim is an officer of the Australian Federal Police.

[80] What occupation Mr Kim should have listed on his marriage certificate is unclear to the Commission. Mr Mooney and Ms Close gave differing evidence on this. 19 However, the AFP argument is that taken with other attempts to portray himself as a Federal Police Officer that the reference on the marriage certificate was a further example of that conduct with the intention to mislead. I would agree with this approach particularly accepting that Mr Kim’s first response at his initial interview was that the Registry of Births Deaths and Marriages had made an error, not that his occupation reference was correct.

[81] I find that Mr Kim did represent himself as a sworn Police Officer as stated in his letter of termination. Such conduct may or may not have been a breach of s.148.2 of the Criminal Code 1995. However, creating the false impression to others of being a sworn Federal Police Officer is plainly contrary to the AFP Commissioner’s Order on Professional Standards.

[82] The AFP Core Values described in the Commissioner’s Order require AFP appointees to maintain a soundness of moral principles manifested by honesty and sincerity in their approach to themselves, others and their work. Section 8 of the Commissioner’s Order, describes the AFP’s Code of Conduct which requires an AFP appointee to act with honesty and propriety in the course of AFP duties. I would not limit this obligation to Mr Kim’s working hours.

[83] Mr Kim’s attempts to portray himself as a sworn Federal Police Officer constitute a valid reason for his dismissal.

Failed to report associations with persons from a foreign government

[84] The ASIO Report revealed that Mr Kim had ongoing contact with foreign government representatives and he did not formally report this contact to the AFP. The ASIO report stated that Mr Kim was aware that some of his foreign contacts were considered to be involved in clandestine activities.

[85] Mr Kim conceded that he had ongoing associations with employees from the Korean Consulate. Mr Kim stated that he did not think his associations which arose through family friendships, his church and social events were an issue and therefore did not report them. He explained that he had disclosed his previous part time employment with the Korean Consulate in Sydney when applying to work at the AFP and had given the names of Korean Consulate employees as referees. He had assumed part of the reason he was employed as an intelligence officer was because of his Korean background and ability to make contacts within the Korean community and Consulate. 20

[86] On one occasion in November 2010, the Applicant was invited to lunch by Federal Agent Chris Waters with members of the Korean Consulate. Later Mr Kim says that Federal Agent Waters commented that it was good to have an ongoing relationship with the Korean Consulate and that it was beneficial to the AFP that he spoke both Korean and English. Mr Kim stated that other AFP employees knew of his contacts with certain Consular staff so he did not believe it was necessary to submit a formal contact incident report, but he now knows better.

[87] On the explanation provided by Mr Kim, his failure to complete a contact incident report for contact with foreign nationals was due to the fact that he believed they were already known to the AFP through his CV, they were family friends or he had met them in contact with sworn AFP Officers.

[88] In applying the meaning of a valid reason in a practical, commonsense way to ensure that the employer and employee are each treated fairly as outlined in Selvachandran above, I would not find failure to report these contacts alone to constitute a valid reason for termination.

[89] However, of more serious concern is the failure to report a dinner with a Korean Consulate employee attended in the absence of any other AFP employees and telephone contacts and email contacts from employees of the Korean Consulate.

[90] While working as an Intelligence Officer, Mr Kim received a number of requests for information from employees of the Korean Consulate. Mr Kim stated he believed the Consulate saw him as an easier point of reference than going through the formal channels of the AFP. 21

[91] Based on my findings in relation to Mr Kim representing himself as a sworn AFP Police Officer I conclude that it is highly likely that employees of the Korean Consulate were generating their enquiries to Mr Kim because of their belief Mr Kim was a sworn AFP Police Officer.

[92] On 29 January 2009, following an earlier telephone call, Mr Kim received an email from a Consular Protocol Officer which attached a questionnaire from another Consulate employee. 22 The questionnaire sought specific information about the AFP’s terrorist response at the Sydney airport. Mr Kim advised both ASIO and the AFP that he had been told by others and understood that the Consulate employee was an “intelligence officer”23 or “secret squirrel”24 (this Consulate employee was deported from Australia in March 2009 for espionage25). Mr Kim had also been invited to and attended a dinner at this Consular employee’s apartment which Mr Kim did not consider an important enough contact to report.26

[93] Mr Kim’s initial response was that he forwarded the request for information regarding security arrangements at the Sydney airport to two Federal Agents. The AFP evidence was that these agents had no recollection of receiving Mr Kim’s forwarded email. In Mr Kim’s evidence he stated he must have been mistaken and altered this position to not having forwarded the email to any other AFP employee and that he did not act on the email request at all. 27 Mr Kim in his evidence accepted that his failure to report this foreign national contact was an error.28

[94] On 23 April 2008, Mr Kim forwarded to an employee of the Korean Consulate a document titled Australian Federal Police - Initial Clearance Security Package. Mr Kim did not think this was a problem as the information can be accessed on the internet, he did not report this contact.

[95] The events where Mr Kim attended a dinner in the absence of other AFP employees with a Korean Consulate employee whom he knew was regarded as being involved in intelligence, where that same Consulate employee requested information concerning the AFP’s security response to a terrorist attack at the Sydney airport, were clearly reportable contacts.

[96] Whether Mr Kim failed to report these contacts due to his naivety or poor judgement does not detract from this conduct constituting a valid reason for dismissal.

Failed to properly use and manage an AFP issued mobile phone

[97] Mr Kim accepts this complaint, 29 the details of which are that he made personal local and international calls between November 2008 and June 2010 using his AFP issued mobile phone, which he had not paid for contrary to the AFP Guidelines. Further, while Mr Kim was deployed to the Solomon Islands he allowed his wife to use his AFP mobile phone in his absence; the value of the calls was not repaid by Mr Kim.

[98] No evidence was presented as to the seriousness of this conduct in comparison with how other AFP employees have been dealt with where their AFP issue mobile phones have been used for personal calls. The matter only came to light as a result of the AFP investigating the ASIO adverse security assessment of Mr Kim where his high level of personal use was identified. Ms Close in her evidence told the Tribunal that she was unable to speculate whether this conduct when viewed separately would result in termination of employment. 30

[99] Without further detail about the AFP’s approach to these matters including what constitutes reasonable personal use, I am unable to conclude that the failure to properly use and manage an AFP issued phone constitutes a valid reason for dismissal.

Disclosed AFP Security-in Confidence documentation to a foreign government representative without authority

[100] This allegation concerns Mr Kim providing the document Australian Federal Police - Initial Clearance Security Package upon request to a Korean Consulate employee. The solicitor for Mr Kim argued that the documentation was not confidential.

[101] It was put to Mr Kim by the solicitor for the AFP that the Initial Clearance Security Package sent to the Korean Consulate employee was not as Mr Kim had pleaded, publically available on the internet 31 and that a search of the internet by the AFP was unable to locate the document titled AFP Initial Clearance Security Package.

[102] Mr Kim maintained in his evidence that typing in the address that he had advised of in his correspondence to Ms Close on 18 July 2012, it was publically available. 32 It was acknowledged by the solicitor for the AFP that the website address provided by Mr Kim had not been checked by the AFP.33 The Commission’s Associate during the course of proceedings was able to locate up the AFP Initial Clearance Security Package on her FWC laptop at the address provided by Mr Kim.34

[103] The AFP Initial Clearance Security Package is marked In-Confidence (when completed). The document forwarded by Mr Kim was blank and not completed. It appeared that applicants for AFP Police Officer roles are provided with the web address when making applications.

[104] When asked in cross examination why a blank AFP Initial Clearance Security document marked In Confidence when completed was considered confidential, Ms Close was provided the following response:

... I can’t really answer the question. 35

[105] Ms Close stated that any applicant for a position with the AFP who received the link could forward the link to anyone else without breaching any confidentiality requirement 36. Ms Close stated that the issue of concern was an employee of the AFP sending material to other law enforcement agencies, particularly foreign law enforcement agencies.37

[106] The difficulty with Ms Close’s response is that the complaint against Mr Kim was that he forwarded AFP Security-In-Confidence documentation to a foreign government representative without authority. The document is only confidential when completed as confirmed by Ms Close in her evidence. 38 While Mr Kim in forwarding the documentation without advising the AFP or without relaying the request to the appropriate department was wrong it cannot be classified on Ms Close’s own evidence as disclosing AFP Security-In-Confidence documentation.

[107] As stated above the AFP has demonstrated that it had a valid reason for the dismissal of Mr Kim related to his conduct, despite not all the reasons provided when viewed separately withstanding scrutiny.

[108] It is Ms Close’s conclusion as stated in the letter of termination and again in her evidence that Mr Kim failed to conduct himself in a manner that maintains public confidence by acting professionally and in accordance with the AFP’s Core Values and Code of Conduct. 39 That conclusion has not been seriously challenged in the case put by Mr Kim.

Notification of the reason for termination of employment s.387(b)

[109] Mr Kim was notified of the reason for his termination. On 20 June 2012, a letter was forwarded to Mr Kim by Assistant Commissioner Close stating that she was considering terminating his employment and outlining the basis for this conclusion. These reasons have been known to Mr Kim in various forms since his initial interview with Federal Agent Mooney on 14 October 2011.

Opportunity to respond s.387(c)

[110] There was no suggestion in this matter that Mr Kim did not have adequate time to respond to the concerns of the AFP. Mr Kim remained suspended from duties on pay from 14 October 2011, until his termination on 16 August 2012, a significant period during which he could contemplate his responses.

Support person s.387(d)

[111] Mr Kim in his natural justice response stated that he was not allowed to have PSO Hall attend the first interview to act as his support person and Professional Standards nominated Federal Agent Holmesby to attend.

[112] At the second interview on 15 November 2011 Mr Kim attended alone. The Solicitor for Mr Kim submitted that Mr Kim was entitled to welfare assistance 40 at these meetings. There was no real suggestion that Mr Kim was prejudiced by any lack of support persons at his two interviews and I am unable to conclude that this was a relevant prejudicial factor in his termination.

Previous warnings for unsatisfactory performance s.387(e)

[113] While some issues of unsatisfactory performance were raised during this matter, the dismissal centred on Mr Kim’s conduct being contrary to the AFP’s Core Values and Code of Conduct. Although an issue of Mr Kim purporting to represent himself as a sworn AFP officer was raised in May 2010 from an anonymous source, this was not acted on by the AFP and was not brought to Mr Kim’s attention. Had it been, some of the events leading to Mr Kim’s termination may not have arisen.

Size of the enterprise and impact on dismissal procedures s.387(f)

[114] The procedures followed by the AFP in effecting the dismissal were not impacted by the size of the AFP.

Absence of dedicated human resources s.387(g)

[115] The AFP did not lack any human resource management specialists or expertise likely to impact on the procedures they followed in effecting the dismissal.

Other matters s.387(h)

[116] During the hearing of this matter it became abundantly clear that confusion between a sworn and unsworn officer of the AFP was not an uncommon situation outside the AFP.

[117] The issuing of a uniform to an unsworn employee emblazoned with the AFP logo on the top and in large lettering the word “Police” on the shorts would portray to a reasonable person that the wearer would likely be a police officer, thus imposing on the wearer an ongoing obligation to correct this misconception when known. Federal Agent Mooney in his evidence told the Commission:

... there are times when people look at a shirt like that and assume that somebody does work for the AFP and may make an assumption that that person is a police officer... 41

[118] It was noted during the hearing that the Termination Brief prepared by Superintendent Houghton for the Assistant Commissioner makes numerous references to FA (Federal Agent) Kim which is clearly incorrect. Further the title of AFP Intelligence Officer easily leads to the connotation of police officer being made by persons outside the AFP. Despite these matters the evidence and Mr Kim’s admissions establish that he deliberately engaged in purporting to be a sworn Federal Police Officer.

Conclusion

[119] I have no hesitation in accepting that Mr Kim failed to demonstrate the necessary judgement required of an AFP employee. The AFP’s conclusion that Mr Kim was not acting professionally and in accordance with the AFP’s core values and Code of Conduct provided a valid reason for his termination. While a number of the events occurred between 2008 and 2010 they were promptly acted on when brought to the AFP’s attention.

[120] All employers are entitled to receive from their employees a standard of honesty and integrity commensurate with the position they occupy. It is self evident that any employee of the AFP and, in particular, an intelligence officer must meet these standards to a high level as the AFP Code of Conduct stipulates. Much of the conduct engaged in by Mr Kim is inconsistent with the AFP’s core values and placed Mr Kim in a position where he was likely to be vulnerable to exploitation, a situation that the AFP could not be expected to countenance.

[121] Mr Kim had an admirable passion and aspiration to become a Police Officer. I accept that Mr Kim was remorseful and recognised his mistakes.

[122] Mr Kim completed sessions one and two of the NSW Police Academy recruitment program but following his 12 month suspension did not reapply and thus did not graduate from the college as a sworn Police Officer.

[123] While employed by the AFP he had applied for four positions in ASIO between 2009 and 2010 and on each occasion stated he had completed his education and training at the NSW Police Academy, which was untrue.

[124] Mr Kim has applied to the AFP on two occasions to become a Federal Police Officer. 42

[125] This aspiration consumed all rational behaviour to the extent where Mr Kim was prepared to compromise his honesty and integrity by purporting to be a sworn AFP Police Officer to ingratiate himself with foreign nationals and other persons outside the AFP.

[126] Mr Kim’s behaviour became illogical. This can be demonstrated by his response to Mr Mooney on 14 October 2011 where he stated he was a former sworn NSW Police Officer which was clearly incorrect and which he later recanted. In Mr Kim’s email to the AFP Recognition and Ceremonial Chief of Staff Portfolio dated 9 October 2008 he referred to himself as a former sworn officer knowing it to be incorrect. These and the other cases of wilful misrepresentation or failure to correct a persons’ misapprehension of his position described above, demonstrate a totally unsuitable character to occupy a position of trust within the AFP.

[127] There are no grounds for holding that Mr Kim’s dismissal was harsh, unjust or unreasonable.

[128] The Applicant’s case proceeded on the basis of an acknowledgement of the futility of seeking reinstatement or compensation. The Solicitor for Mr Kim at the commencement of the hearing submitted that the remedy sought was reinstatement for the purpose of resigning 43 as the status of a termination vis a vis a resignation was making it difficult for Mr Kim to obtain other employment.

[129] The matter was adjourned for a short period to enable Mr Klein to seek instructions from the National Manager of Human Resources 44 as to whether the Respondent’s records could show the Applicant resigned as opposed to having been terminated, thus avoiding the need for an arbitrated hearing.

[130] Mr Klein subsequently advised that his instructions were that the AFP as not minded to reinstate Mr Kim to allow him to resign 45 and that it would go to the integrity of the AFP given the seriousness of the Applicant’s conduct.46

[131] The Assistant Commissioner and National Manager for Human Resources Ms Close in response to a question from the Commission when giving her evidence advised that it was not uncommon for employees under investigation to resign during the process without the employee’s resignation affecting the integrity of the AFP. 47

[132] It was put on behalf of Mr Kim that the opportunity for Mr Kim to resign was taken away, as on enquiry with Mr Mooney as to what he should do in terms of his employment Mr Kim understood he could not resign. 48 I am unable to draw this conclusion from Mr Mooney’s evidence and it was not the direct evidence of Mr Kim.

[133] For my part though, having regard to the obligations on the Commonwealth to act as a model litigant by endeavouring to avoid, prevent and limit legal proceedings wherever possible, including where appropriate resolving matters via settlement offers, 49 I would have considered the Applicant’s settlement offer to resign rather than be terminated to have been a reasonable outcome not against the public interest or impacting on the AFP’s integrity. As it was, public monies were expended by the AFP in engaging legal services to defend the unfair dismissal claim over three days of hearing.

[134] Having regard to all the relevant criteria under the Act I am satisfied that the Applicant’s dismissal by the Respondent was not harsh, unjust or unreasonable. The application is accordingly dismissed.

COMMISSIONER

Appearances:

G Elliot for the Applicant

A Klein for the Respondent

Hearing details:

2013.

Sydney:

5, 6 and 21 February 2013.

 1 s.69B(2) of the AFP Act

 2   Exhibit A3

 3   This decision has been vetted by the Commonwealth re: confidential matters which may affect National security

 4   Transcript at PN2251

 5   Paragraph 23 of ASIO Statement of Grounds Attachment A of Mr Mooney’s witness statement Exhibit R4

 6   Transcript at PN3017

 7   Attachment J of Mr Mooney’s Witness Statement Exhibit R4

 8   Point 7 of Ms Close’s Witness Statement Exhibit R3, Transcript at PN2239

 9   Transcript at PN2245 and PN2248

 10   Transcript at PN1677

 11   Transcript at PN1678

 12 (1995) 62 IR 371 at 373

 13   Exhibit R1

 14   Transcript at PN 708

 15   Agent Mooney’s PRS Report 13 December 2011 at 5.19

 16   Transcript at PN915

 17   Transcript at PN1120

 18   Agent Mooney’s PRS Report 13 December 2011 at 5.40

 19   Transcript at PN2108 and PN2844

 20   See Kim’s Natural Justice Response of 20 January 2012

 21   Agent Mooney’s PRS Report 13 December 2011 at 5.40

 22   See Mr Kim’s Natural Justice Response paragraph 1, page 5

 23   Transcript at PN1225

 24   Transcript at PN1240

 25   Agent Mooney’s PRS Report 13 December 2011 at 5.13 and Transcript at PN1549

 26   Agent Mooney’s PRS Report 13 December 2011 at 5.14

 27   Transcript at PN1192

 28   Transcript at PN1217

 29   Transcript at PN150

 30   Transcript at PN2025

 31   Transcript at PN1261

 32   Note this correspondence was not received by Ms Close until after Mr Kim’s termination.

 33   Transcript at PN1276

 34   Transcript at PN1386

 35   Transcript at PN1972

 36   Transcript at PN1977

 37   Transcript at PN1978

 38   Transcript at PN1984

 39   Transcript at PN 2037

 40   Transcript at PN2896

 41   Transcript at PN2666

 42   Transcript at PN1329

 43   Transcript at PN18

 44   Transcript at PN55

 45   Transcript at PN69

 46   Transcript at PN73

 47   Transcript at PN2254

 48   Transcript at PN2857 and page 10 of Applicant’s Outline of Closing Submissions

 49 Legal Services Directions 2005 Appendix B made under s.55ZF of the Judiciary Act 1903

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