Junqi Zhang v Commonwealth of Australia as represented by Services Australia

[2021] FWC 1731

[2021] FWC 1731

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Junqi Zhang
v
Commonwealth of Australia as represented by Services Australia
(U2020/14084)

DEPUTY PRESIDENT DEAN SYDNEY, 1 APRIL 2021

Application for an unfair dismissal remedy – breach of code of conduct -– dismissal not harsh, unreasonable or unjust – application dismissed.

[1] Mr Junqi Zhang (Applicant) was employed by Commonwealth of Australia as represented by Services Australia (Respondent) until his employment was terminated on 6 October 2020 for misconduct. He made an application pursuant to s.394 of the Fair Work Act 2009 claiming that he was unfairly dismissed. He seeks reinstatement to his former position.

[2] The application was heard by video on 3 March 2021. At the hearing, the Applicant was self-represented and was assisted by a Mandarin-speaking interpreter. The Respondent was represented by Mr J Davidson of the Australian Government Solicitor.

[3] For the reasons set out below, I find that the Applicant was not unfairly dismissed.

Factual background

[4] The Applicant commenced employment with the Respondent on 25 August 2010 and at the time of his dismissal was employed at the APS Level 5 classification as a Security Administrator in the Cyber Security Branch of the Respondent in Canberra. His employment was governed by the Public Service Act 1999 (Cth) (PS Act).

[5] On or about 30 May 2018 the Applicant disclosed to his team leader that he had been charged by the police. On 11 June 2018 the Applicant disclosed that he had been charged with an ‘Act of indecency without consent’ under s60(1) of the Crimes Act 1900 (ACT) (the Offence) and was required to appear court on 2 July 2018. The Respondent suspended the Applicant from duty from 13 June 2018. He remained suspended up until his dismissal.

[6] On 12 March 2020, the Applicant was found guilty of the Offence by the ACT Magistrate Court. The Applicant lodged an appeal but it was dismissed by the ACT Supreme Court on 6 July 2020.

[7] In July 2020, the Applicant was informed by the Respondent of its decision to commence a formal investigation into allegations against him with respect to breaches of the APS Code of Conduct. Mr Kendall Cini was appointed as the investigator and Mr Carl Princehorn was appointed as the sanction delegate.

[8] On 17 September the Respondent made a determination that the Applicant had breached the Code of Conduct, having been found guilty of committing the Offence. Mr Cini considered that the Applicant’s actions were unethical and put the integrity and good reputation of the Respondent at risk.

[9] Mr Princehorn decided that the Applicant’s conduct was extremely serious in nature, put the reputation of the Respondent at risk, impacted on the relationship of trust and confidence between the Applicant and the Respondent, and irreparably damaged the employment relationship. Accordingly, termination of the Applicant’s employment was considered the appropriate sanction.

[10] The Applicant was terminated from his employment on 6 October 2020 pursuant to section 13 of the PS Act after it was determined that he had breached the APS Code of Conduct.

The Applicant’s case

[11] The Applicant’s reason for considering that his dismissal was unfair was essentially because he did not commit the Offence. He said he attended the ACT Magistrates Court in February 2019 and a decision was issued in February 2020 finding him guilty of the Offence. He said he was shocked by the decision, and the Magistrate made many errors in the judgment, so he applied to the Supreme Court, but the Court dismissed his appeal in July 2020. He said that because he knows he is innocent, he has lodged another appeal with the Supreme Court, and is awaiting that judgment.

[12] He argued that if the Supreme Court decides that he is not guilty, then he should be reinstated, because he did not breach the Code of Conduct.

The Respondent’s case

[13] The Respondent submitted that while the Applicant maintains his innocence, there is no dispute that a guilty finding was made and was upheld on appeal.

[14] The Respondent submitted that the dismissal was not unfair because:

a. The misconduct falls within the ambit of the criteria for where ‘out of hours’ conduct can provide a valid reason for dismissal;

b. The misconduct was in contravention of element 11 of the Code of Conduct which applies to APS employees “at all times”;

c. The misconduct constituted a valid reason for terminating the Applicant’s employment;

d. The dismissal was a fair and proportionate response to the misconduct; and

e. The dismissal was not otherwise harsh, unjust or unreasonable having regard to the other relevant criteria in s.387 of the Act.

[15] Element 11 of the Code of Conduct provides that:

“An APS employee must at all times behave in a way that upholds;

a. The APS Values and APS Employment Principles; and

b. The integrity and good reputation of the employees Agency and the APS.”

[16] Mr Cini gave evidence as to the investigation process he undertook, which was said to be in accordance with the Respondent’s “Procedures for determining breaches of the APS Code of Conduct and imposition of Sanctions” (the Procedure). This included the opportunities provided to the Applicant to respond to the allegations put to him. He set out the matters he had regard to in coming to a preliminary determination as to suspected misconduct, and the invitation to the Applicant to comment on the preliminary determination. Having taken into account the Applicant’s response, Mr Cini confirmed his preliminary view that the Applicant had breached the Code of Conduct. The Applicant was informed of the final determination and the reasons for the decision. He was also advised that the matter would be referred to the sanction delegate, Mr Princehorn.

[17] Mr Princehorn gave evidence that when he received the sanction referral, he considered the way Mr Cini had approached the investigation and felt that the methodology and conclusions were sound. He also considered that Mr Cini had given the Applicant an appropriate opportunity to respond, which was demonstrated by the fact that the Applicant had provided several responses.

[18] Mr Princehorn was satisfied, having reviewed all of the material, that the heart of the issue was the Offence was of a serious and sexual nature, and the Respondent had an important role in providing services to vulnerable customers. As a result, he did not consider that it was appropriate to have the Applicant continue his employment due to the risk of damaging the Respondent’s reputation and standing in the community. He was further satisfied that the Applicant’s conduct was of an extremely serious nature that fell below the standard of behaviour and ethical conduct considered acceptable by the Australian public. He also considered the necessary relationship of trust and confidence between the parties to have been significantly impacted, as the Offence was fundamentally at odds with the culture of the Respondent. Mr Princehorn acknowledged that the conduct occurred outside of working hours but considered it was not possible to separate the Applicant’s conduct from his duties and his employment with the Respondent.

[19] For these reasons, he formed the preliminary view that the termination of employment was the appropriate sanction. In forming this view Mr Princehorn considered a number of potential mitigating factors such has the Applicant’s length of service, his otherwise unblemished criminal and work record, and his advise that he had lodged a second appeal of the decision of the Magistrate.

[20] He subsequently wrote to the Applicant setting out his preliminary view on sanction and gave the Applicant an opportunity to respond. Having considered the Applicant’s response, Mr Princehorn affirmed his preliminary view and confirmed the termination of his employment.

[21] Mr Glen Mitchell, Director of Cyber Security for the Respondent and senior manager of the Applicant, gave evidence as to his interactions with the Applicant and the Applicant’s role within the Respondent.

Was the Applicant’s dismissal unfair?

[22] Section 385 of the Act, set out below, defines what is an unfair dismissal.

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[23] There is no suggestion that the Applicant’s dismissal was a case of genuine redundancy or that the dismissal was consistent with the Small Business Fair Dismissal Code. The Applicant has been unfairly dismissed only if I am satisfied that it was harsh, unjust or unreasonable.

[24] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.

[25] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.¹

Valid reason - s.387(a)

[26] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”² and should not be “capricious, fanciful, spiteful or prejudiced.”³ However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.⁴

[27] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.⁵ The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.⁶

[28] There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give the matter(s) weight as a fundamental element in the decision making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.

[29] Having considered all of the evidence and submissions of the parties, I am satisfied there was a valid reason for the Applicant’s dismissal.

[30] While I acknowledge the Applicant maintains his innocence, the undisputed facts are that he was found guilty of the Offence and was unsuccessful in his appeal of that decision.

[31] I accept the evidence and submissions of the Respondent that the conduct in question was a breach of the Code of Conduct. It is clearly not conduct that could be described as conduct that upholds the integrity and good reputation of the Respondent, nor could it be described as ethical.

[32] I accept that the conduct, while occurring out of working hours, had a sufficient connection with his employment as to constitute a valid reason for his dismissal. Viewed objectively, I consider that the conduct would be likely to cause serious damage to the relationship between the Respondent and the Applicant, and damage to the Respondent’s reputation and standing in the community.

[33] In Cooper v Australian Taxation Office 7, the Full Bench held, in similar circumstances, that a serious criminal offence committed outside working hours by an APS employee caused serious damage to the employee-employer relationship, and warranted a finding that there was a valid reason for the dismissal.

[34] In finding there was a valid reason for dismissal, I have also taken into account the fact that the Respondent provides services to a wide range of vulnerable people including those who may have been the victim of sexual offences or other violence. I accept the Respondent’s argument that it should not tolerate the type of conduct the Applicant has been found to have engaged in.

[35] I consider that the conduct the Applicant has been found to have engaged in incompatible with his employment and provides a valid reason for his dismissal.

Notification of the valid reason and opportunity to respond - s.387(b) and (c) 

[36] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,⁸ in explicit terms⁹ and in plain and clear terms.¹⁰

[37] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern.¹¹ This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.¹²

[38] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to the Applicant before his dismissal was effected.

[39] I am satisfied in this matter that the Applicant was notified of a valid reason for his dismissal and was given an opportunity to respond. It is clear that the Applicant was notified of the reasons for his dismissal. He was invited to respond both to the allegations and the proposed termination.

Unreasonable refusal by the employer to allow a support person - s.387(d) 

[40] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[41] There was no evidence that the Applicant was refused a support person.

Warnings regarding unsatisfactory performance - s.387(e)

[42] The Applicant’s dismissal did not relate to unsatisfactory performance and this criterion is therefore not relevant.

Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))

[43] The Respondent is a large Commonwealth agency. I do not consider that its size impacted on the procedures followed by it in effecting the dismissal.

Other relevant matters - s.387(h)

[44] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[45] I do not consider there are other matters that require consideration under this subsection.

Conclusion

[46] I have considered each of the matters specified in s.387 of the Act, and having weighed up each of those matters, I am satisfied that the dismissal of the Applicant was not unfair. Accordingly, his application is dismissed.

DEPUTY PRESIDENT

Appearances:

J Zhang on his own behalf.
J Davidson for Commonwealth of Australia as represented by Services Australia.

Hearing details:

2021.
Canberra and Sydney (By video):
March 3.

Printed by authority of the Commonwealth Government Printer

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1 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

2 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

3 Ibid.

4 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

5 Edwards v Justice Giudice [1999] FCA 1836, [7].

6 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

 7   [2014] FWCFB 868.

8 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

9 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

10 Previsic v Australian Quarantine Inspection Services Print Q3730.

11 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

12 RMIT v Asher (2010) 194 IR 1, 14-15.