Kate Achieng v The Commonwealth of Australia, represented by Centrelink T/A

[2010] FWA 5174

[2010] FWA 5174

FAIR WORK AUSTRALIA

DECISION

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

Kate Achieng
v
The Commonwealth of Australia, represented by Centrelink T/A
(U2010/6081)

COMMISSIONER DEEGAN CANBERRA, 14 JULY 2010

Termination of employment.

[1] This matter arises from an application lodged on 15 February 2010 by Kate Achieng (the applicant) for a remedy for unfair dismissal in respect of the termination of her employment by Centrelink (the respondent) on 5 February 2010.

[2] The matter was the subject of an unsuccessful conciliation conference on 9 March 2010 and originally listed for hearing on 2 and 3 June 2010. At the conclusion of the hearing, which took place only on 2 June 2010, I indicated to the parties that I had reached a decision on the matter.

[3] It was my decision that the termination of the applicant’s employment was not harsh, unjust or unreasonable and I dismissed the application. I indicated that I would provide my reasons for the decision in writing. These are my reasons.

Background

[4] The applicant was employed as a Customer Service Adviser by Centrelink from 11 April 2009 until 5 February 2010. By letter dated 5 February 2010 the applicant’s employment was terminated. That letter contained the following paragraphs:

“I refer to my minute of 6 January 2010 concerning the consideration to terminate your employment because of your failure to provide complete and accurate information in your pre-employment checking processes.

At that time you were given the opportunity of providing comments on the recommendation and providing additional information before a decision was made regarding the termination of your employment.

I have received your comments. Having now considered these, I am satisfied that you failed to provide complete and accurate information in the pre-employment checking processes. In accordance with subsection 29(3)(f) of the Public Service Act 1999 (the Act), this constitutes a failure to meet a condition of engagement imposed under subsection 22(6) of the Act, and as a consequence I am terminating your employment with Centrelink with effect from 5 February 2010.”

[5] According to the evidence of the respondent the applicant:

• failed to disclose that she was the subject of pending criminal charges on a Centrelink National Criminal History Record Check form she completed on 18 March 2009 as part of the recruitment process for her position with the respondent; and



• failed to disclose that she had previously been known as Kate Otieno in the appropriate section of that form.

[6] The matters referred to by the respondent concerned eight charges initially laid in 2007 against a person named Kate Otieno alleging fraud against WorkCover Authority of New South Wales (WorkCover). According to those charges Kate Otieno had continued to receive WorkCover payments and had failed to notify WorkCover that she had returned to paid work.

[7] The details concerning those charges and the subsequent court action are as follows:

• a WorkCover claim was made in relation to a work related injury that occurred in November 2003;



• payments were made in respect of that claim over an extended period of time;



• some medical certificates supplied to support the claim were false;



• payslips provided to the insurer were falsified;



• the claim was made by a Kate Otieno and monies in respect of that claim were paid into a credit union account that was opened in the name of Kate Otieno but later changed to Kate Otieno Achieng;



• charges were laid against Kate Otieno concerning these matters;



• a Court Attendance Notice in respect of charges against Kate Otieno (also known as Kate Achieng) was filed in the Chief Industrial Magistrate’s Court in NSW on 27 August 2007 and the matter was listed for 8 October 2007;



• the matter was adjourned to 5 November 2007, 11 December 2007, 29 January 2008, 28 February 2008, 28 April 2008, 26 May 2008, 6 May 2009 and eventually heard on 15, 16, 17, 18 and 23 September 2009;



• a decision was handed down on 1 October 2009 and sentencing took place on 11 November 2009.

The applicant’s case

[8] The applicant provided information and evidence through the application she lodged on 15 February, the submissions lodged in accordance with directions issued for the conduct of the hearing, by oral evidence given at the hearing on 2 June, and further documentation submitted at that time.

[9] Essentially, it was the applicant’s case that she had not provided false information in the forms she provided to Centrelink during the recruitment process. The applicant claimed that she had not used the name Kate Otieno and that court proceedings involving Kate Otieno did not apply to her. She maintained that she had advised the court authorities that she was not Kate Otieno but that, without any proper investigation, the court documents had been changed from Kate Otieno to Kate Otieno Achieng. 1

[10] The applicant gave details of her birth in Kenya, her subsequent migration to Australia and the fact that she gained permanent residency in 2005 and Australian citizenship in 2007. She produced copies of her Kenyan birth certificate and her Kenyan passport in order to show that neither was in the name of Otieno. She acknowledged that her father’s surname was Otieno but noted that for cultural reasons she was not able to use that name.

[11] The applicant maintained that she had never used the name Otieno and for that reason completed the Centrelink forms without mentioning that name or the criminal charges which she considered had nothing to do with her. She stated that she had provided WorkCover with numerous documents to show that she had always used the name Achieng when migrating and in her employment. She considered that WorkCover had mistakenly confused her with Kate Otieno and that, as the criminal charges were therefore a mistake, she need not mention them on her Centrelink form as they did not refer to her. According to the applicant she believed that WorkCover were investigating the matter to get the right person who had actually committed the offence. She also stated that she had explained to the magistrate that she was not the person who had committed the offence and had given information in order that the correct person could be identified.

[12] It was also the evidence of the applicant that she attempted to have the hearing of the criminal charges adjourned in September 2009 but that the magistrate refused to adjourn them again. She was then forced to find a solicitor to represent her at short notice and was found guilty of the charges because she was not fully prepared. It was her intention to appeal the matter and to bring fresh evidence.

[13] Finally the applicant summarised the matter by stating that, at the time she completed the Centrelink pre-employment forms she did not believe that she was Kate Otieno and was not lying on the form because she did not believe that she had any criminal matter pending in a court of law.

[14] When cross-examined the applicant agreed that she had worked as a Customer Service Adviser with Centrelink, meeting regularly with Centrelink clients and accessing confidential information. She also agreed that she had completed Centrelink pre-employment documents and was aware that she needed to pass a check of her criminal history, a records check and a previous employment check. She also agreed that it was a requirement that she be honest about the matters contained in the form.

[15] The applicant conceded that the Court Attendance Notice filed on 27 August 2007 had been left at her home and that the document referred to “Kate Otieno also known as Kate Achieng”. She also agreed that on 2 November 2007 she sent the presiding magistrate a fax concerning the matter explaining that she did not know anybody collectively known as Kate Otieno/Kate Achieng. She did, however, concede that she knew at that time that WorkCover had issued charges against a person known as Kate Otieno but also known as Kate Achieng, and that that person was the subject of criminal charges before the Chief Industrial Magistrates Court. She also agreed that by February 2008 she had engaged solicitors to defend the charges and that solicitors acting on her behalf had subsequently sought adjournment of the hearing of the charges on a number of occasions.

[16] The applicant also agreed that in Australia she had attended Duval High School in Armidale NSW and identified a certificate issued to her by that school in the name of Kate Achieng Otieno. She also identified an application she had made to Encompass Credit Union in April 2005 which had been completed in her handwriting. While she was not prepared to identify the signature on the application as her own she conceded that she had marked the name Kate Achieng Otieno on the document, giving Otieno as the surname. She agreed that in 2005 she had submitted to the credit union a document for the purpose of changing her name on the account from Kate Achieng Otieno to Kate Achieng.

[17] The applicant was also cross-examined about evidence she gave in the proceedings in the Chief Industrial Magistrate’s Court. She agreed that she had given her evidence under oath and that in that evidence she had admitted to completing the credit union documentation giving the surname Otieno. The applicant also agreed that she had, in her evidence, admitted completing an employment application form with the surname Otieno and that the transcript of the proceedings showed that she had also admitted telling Hays Personnel that her surname was Otieno.

[18] It was put to the applicant, and she agreed, that on several occasions during her evidence in the magistrates court she had admitted holding herself out to be Kate Otieno and to having been known as Kate Otieno. She refused to concede that statements that she made during the sentencing hearing in the court amounted to admissions to committing the crimes with which she had been charged and convicted.

[19] It was put to the applicant that when she completed the Centrelink pre-employment forms on 18 March 2009 she responded to the questions which asked by which names she was known or had been known in the past with “Kate Achieng”. When it was put to her that this answer was not correct the applicant denied that it was not correct, claiming that she had not “officially” been known as Kate Otieno but had used that name. The applicant agreed that at the time she had completed the Centrelink forms she had been served with charges by WorkCover in the name “Kate Otieno also known as Kate Achieng”, had corresponded with the magistrate about those charges and had instructed lawyers in relation to those charges. The applicant could not recall receiving a notice form the magistrate’s court in January 2009 advising that the matter was set down for hearing in May 2009, but when shown the transcript of proceedings in that court on 6 May 2009 agreed that she had appeared, in person, at the hearing, so that she must have known about it. She also agreed that the transcript indicated that she had told the magistrate that she had been taking action in relation to the charges since January 2009.

[20] The applicant was also asked about a number of matters in the statement of Ms Jennifer Potter, the Centrelink manager who dealt with the investigation and subsequent termination of her employment. The applicant agreed with much of Ms Potter’s evidence but denied that she had shown Ms Potter a passport issued in the name of Kate Otieno. The applicant took issue with whether some of her conversations with Ms Potter had occurred face to face or by telephone, but generally agreed that around 29 January 2010 she had told Ms Potter that her appeal had been adjourned for quite some time and had given her a written response to the matters set out in Ms Potter’s letter, which detailed the allegations against her by Centrelink. She also agreed that she had never requested that she be allowed the assistance of a support person for any of her conversations with Ms Potter.

[21] It was put to the applicant that where, in her written response provided to Ms Potter she claimed never to have been known as Kate Otieno she had not been telling the truth. The applicant denied this.

[22] It was the applicant’s evidence that she had not been employed since her employment with Centrelink had been terminated but had been looking for work as well as studying.

[23] At the conclusion of the cross-examination the applicant attempted to clarify some of her answers to the questions that had been put. Essentially, the applicant maintained that she had not “formally used the name Kate Otieno for work purpose or for WorkCover purposes” and that she had not officially changed her name. She admitted to having had an email address that had Kate Otieno in it. So far as her use of the name Otieno in opening the credit union account was concerned, the applicant claimed that she was unable to recall some of the events that occurred at that time as she was not “psychologically and medically” fit.

The respondent’s case

[24] The respondent relied on evidence given by way of statement and orally by Ms Jennifer Potter, Area Business Manager, Corporate, for Centrelink.

[25] Ms Potter’s evidence was that her duties included both hiring and terminating the employment of Centrelink staff. She stated that the applicant came to her attention in December 2009. She had taken over the investigation into the applicant when the responsible staff member went on leave in January 2010.

[26] According to the evidence of Ms Potter, Centrelink was formally alerted to the applicant’s convictions for WorkCover fraud by WorkCover on 17 November 2009. WorkCover confirmed that the applicant had been served with her Court Attendance Notice in relation to the charges on 20 September 2007 and her first court appearance was listed for 8 October 2007.

[27] When Ms Potter assumed carriage of the matter she examined the information supplied by WorkCover and the applicant’s personnel file, including the pre-employment documentation completed by the applicant on 18 March 2009. A letter was sent to the applicant on 6 January 2010, noting the proceedings in the magistrate’s court and advising that it appeared that she had not supplied complete and accurate information on her pre-employment forms and that, as a consequence, consideration was being given to terminating her employment. The letter invited the applicant to respond and provide any additional information.

[28] It was Ms Potter’s evidence that the applicant telephoned her and requested that she be permitted to make personal representations directly to her.

[29] Prior to meeting with the applicant Ms Potter fully investigated all aspects of the applicant’s recruitment process and examined the applicable Centrelink and APS policies and procedures. As a result of her investigations Ms Potter drew the preliminary conclusion that, at the time the applicant completed her pre-employment forms, she had been the subject of criminal proceedings and had formerly been known by the name Kate Otieno and that in omitting both matters she had not completed her forms honestly.

[30] Ms Potter met with the applicant on or about 8 January and 27 January 2010. On 8 January the applicant advised that the charges had resulted from a case of stolen identity, and that she would have been dishonest if she had referred to the court proceedings in her pre-employment form as the court documents related to Kate Otieno not Kate Achieng, and she was not Kate Otieno. According to Ms Potter the conversation became very confused and she was unable to follow much of what the applicant claimed had happened. She also stated that she doubted the applicant’s honesty given the convoluted nature of her answers to questions she asked.

[31] As the applicant had told Ms Potter than she was not legally represented during the hearing of the charges against her, that she had appealed the matter and the appeal was being heard on 21 January, Ms Potter decided to await the outcome of the appeal before making a decision on the applicant’s future.

[32] Around 29 January, having notified the applicant in advance, Ms Potter again met with the applicant and was advised that the appeal had been adjourned for “quite a while”. The applicant provided Ms Potter with a written response to her letter of 6 January. According to Ms Potter she and the applicant had a conversation which again became confused and during which the applicant was evasive in her answers to questions. Ms Potter’s concerns in relation to the applicant’s honesty were again heightened during that conversation. Both by her written response and her statements during the meetings with Ms Potter, the applicant maintained that she was not Kate Otieno, that the charges were not brought against her but another person, and that she had completed her pre-employment forms honestly. Ms Potter was not convinced by the applicant’s responses. Ms Potter considered all the information that had been provided and made further enquiries about the manner in which proceedings such as those involving the applicant were conducted, and concluded that the applicant must have been aware of the criminal charges pending against her at the time she completed the relevant forms.

[33] Ms Potter also considered the role the applicant performed at Centrelink, noting that Customer Service Advisers have access to customer records and are responsible for causing public funds to be distributed. In the circumstances, it was Ms Potter’s view that Centrelink must be confident that CSAs have the highest integrity and are fit and proper persons to be entrusted with the responsibility for distributing Government outlays. Having considered all the information Ms Potter decided that in completing the forms as she had, the applicant had shown herself to be dishonest and untrustworthy, and therefore unsuitable for employment with Centrelink. Ms Potter determined to terminate the applicant’s employment.

[34] It was Ms Potter’s evidence that she telephoned the applicant on 5 February 2010, having discovered that the applicant was on sick leave. She explained that she was going on leave for two weeks and asked the applicant if she would prefer to discuss the matter of her decision on her return. The applicant advised that she preferred to discuss it immediately and Ms Potter indicated that she had determined to terminate the applicant’s employment. The applicant became very upset and Ms Potter remained on the telephone for about 20 minutes. Eventually another person took the phone from the applicant and advised Ms Potter that they would look after her. A letter setting out the reason for the termination and attaching a copy of the appropriate notice under the Public Service Act was then sent to the applicant. The applicant was paid one week’s pay in lieu of notice.

[35] The applicant’s cross-examination of Ms Potter took issue with Ms Potter’s claim that she had face to face meetings with the applicant on particular dates in January 2010 and dealt with Ms Potter’s reasons for proceeding to termination prior to the outcome of the applicant’s appeal being known. Ms Potter maintained that she had met the applicant on both 8 January and 29 January and indicated that she did not consider it necessary to wait for the outcome of the appeal (which was apparently going to take much longer than she was originally led to believe) as she was satisfied that there was sufficient evidence that the applicant had not honestly completed her pre-employment forms, whatever the appeal outcome.

The respondent’s submissions

[36] It was submitted for the respondent that in her employment with Centrelink the applicant was in a position where she had access to confidential information, both of the Commonwealth and of prospective or eligible people for Commonwealth and other social security benefits. The applicant could also access the information online. It was put that it could not be disputed that the applicant's position required a high degree of trust and the utmost integrity.

[37] The respondent argued that the form completed by the applicant was misleading in two ways. The applicant declared that she had only been known by the name Kate Achieng and did not indicate that she had been known by any other name. Secondly, in answer to the question, “Are you currently the subject of any criminal or traffic charges, not including parking infringements, still pending before a court,” she had answered, “No”.

[38] It was put for the respondent that the charges against the applicant had been subjected to a detailed hearing over several days in the Chief Industrial Magistrates Court and that the decision, which was annexed to Ms Potter’s statement, recorded at page 12 the finding of the Chief Industrial Magistrate that, “Sometimes the defendant used the name Kate Otieno and on other occasions Kate Achieng. The defendant initially denied this but subsequently accepted it.”

[39] It was submitted that the decision was a fact that Ms Potter had before her and that it established that Ms Achieng had been dishonest in both respects; (1) she had been the subject of criminal proceedings, or criminal charges, and (2) she had been known by a different name.

[40] It was noted for the respondent that the applicant continued to deny her conduct both in her discussions with Ms Potter and to this tribunal. It was put that this was relevant as, rather than confess what she had done in completing the form incorrectly, the applicant perpetuated the same story, not only to her employer but to this tribunal, in the face of what was very clear and cogent evidence that established her dishonesty.

[41] It was submitted that:

• the respondent had established that there was a valid reason for the termination;



• the applicant was notified of the reason both orally and in writing;



• the applicant was given at least two, and probably three, opportunities to respond;



• the applicant was not denied the opportunity to have a support person in attendance at any meetings but never sought such assistance;



• the dismissal did not relate to the applicant’s performance so that there was no requirement for any warnings;



• the respondent is a large concern with dedicated human resources specialists and that the procedures adopted were consistent with that fact.

[42] Finally it was put that there was no case made out by the applicant for reinstatement and that Centrelink should not be required to re-employ a person who has admitted dishonesty, as the applicant had in the Chief Industrial Magistrate’s Court. Nor was there any case for compensation as there was no evidence of any steps taken by the applicant to find alternative employment.

The applicant’s submissions

[43] The applicant, in her submissions, maintained her position that in filling out the Centrelink pre-employment forms she was as accurate and honest as she could be. She continued to assert that she was not known as Kate Otieno, and had not been known as Kate Otieno. She reiterated that she did not have any criminal proceedings pending against her and saw no reason to accept that she had by mentioning the proceedings on the form.

[44] According to the applicant, Centrelink should have delayed any decision about her employment until the appeal had been heard because the matter in issue was a case of identity theft and fraud. The applicant had offered to be suspended without pay pending the outcome of the appeal.

Conclusion

[45] As noted at the commencement of these reasons for decision, I was able to give my decision immediately upon the conclusion of the hearing. I found that the applicant’s dismissal was not unfair, as the dismissal was not harsh, unjust or unreasonable.

[46] In reaching that conclusion I had regard to all those matters set out in section 387 of the Fair Work Act 2009.

[47] I was satisfied that there was a valid reason for the termination of the applicant’s employment. I was satisfied that when the applicant completed her pre-employment forms in respect of her position with Centrelink she was patently dishonest, both in not disclosing the WorkCover charges pending against her and in not admitting that she had, in the past, used and been known by the name Kate Otieno.

[48] I found the applicant a most unsatisfactory witness with very little appreciation of the necessity for honesty when giving evidence under oath. In every respect, where the evidence of the applicant differed from that of Ms Potter I accepted the evidence of Ms Potter, including that the applicant had shown Ms Potter an expired passport in the name Otieno.

[49] The applicant clearly admitted in the proceedings before the Chief Industrial Magistrate that she had been known for various purposes, including employment and dealing with financial institutions, as Kate Otieno. She proceeded to deny both the admission and the fact in the proceedings in this tribunal. At the time the applicant completed her Centrelink pre-employment forms she was clearly aware that she had both used, and been known by, the name Otieno in the past but she dishonestly concealed this fact. The applicant’s high school certificate was in that name as were numerous other documents produced in evidence in the WorkCover proceedings.

[50] Whether or not the applicant was guilty of the WorkCover fraud for which she was charged and convicted is immaterial to the reasons for which her employment with Centrelink was terminated. The applicant concealed her use of the name Otieno and did not disclose the proceedings pending against her, which were clearly directed to her as Kate Otieno also known as Kate Achieng. It was as a result of her dishonesty in completing the forms that the applicant’s employment was terminated. Consequently, the outcome of the appeal from the magistrate’s decision was of no relevance. Whatever that outcome, it would not excuse the dishonesty through which the applicant gained employment with Centrelink, or restore the trust essential for Centrelink to allow the applicant to occupy the position of Customer Service Adviser.

[51] The applicant was clearly notified of the reason for the termination of her employment. She was given a number of opportunities to respond to the matters alleged in the letter of 6 January 2010 and took advantage of those opportunities both in face to face meetings with Ms Potter, in telephone calls and in writing.

[52] The applicant was at no time refused access to a support person and was given sufficient notice of her meetings with Ms Potter for her to arrange such a person had she wished to avail herself of that right.

[53] The dismissal did not relate to unsatisfactory performance.

[54] I accept that Centrelink is a very large agency of one of the country’s largest employers, the Commonwealth. Dedicated human resource specialists and expertise were readily available. Ms Potter, who effected the termination of the applicant’s employment, was such a person.

[55] In reaching my decision in this matter I also took account of the applicant’s refusal to accept, in the face of very clear evidence, that she had dishonestly completed the forms in question. Clearly, a person with such disregard for the truth is not a person appropriately employed in a responsible position in a government department with access to confidential information and authority to disperse government monies.

[56] For these reasons, as the applicant’s dismissal was in no respect unfair, I dismissed the application.

[57] At the conclusion of the hearing the respondent made an application for costs. The respondent was granted 14 days from the date of the written reasons for decision to file submissions in support of that application.

COMMISSIONER

Appearances:

Applicant in person

Mr Y Shariff of counsel for the Respondent

Hearing details:

Sydney

2 June 2010

 1   Applicant’s submissions filed 19 April 2000

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