[2015] FWC 2667 [Note: An appeal pursuant to s.604 (C2015/4047) was lodged against this decision - refer to Full Bench decision dated 1 September 2015 [[2015] FWCFB 5426] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mr Elias Farah
v
Australian Federal Police
(U2013/12439)

COMMISSIONER CARGILL

SYDNEY, 1 MAY 2015

Application for relief from unfair dismissal.

[1] This decision arises from an application by Mr E. Farah (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of his employment by the Australian Federal Police (AFP or the respondent).

[2] The file is a little unclear as to the date of the applicant’s dismissal. The initial claim identifies the date of notification as 23 July 2013 and the date of effect as 15 July 2013. The AFP’s response confirms the date of notification but identifies the date of effect as 6 August. The letter of dismissal is dated 15 July but in the final paragraph the author informs the applicant that the dismissal is effective 14 days from the date he, or his representative, receives the letter. That would appear to be 6 August. I accept that 6 August is the relevant date. The application for relief was lodged on 9 August 2013.

[3] The matter was dealt with by a Conciliator on 20 September 2013 but did not settle. It was then adjourned pending the outcome of related criminal proceedings. It was heard by me on 9 and 16 February 2015. The matter proceeded by way of a hearing as I considered that it was appropriate to do so having taken account of the factors set out in section 399. A program for written submissions was put in place. That process concluded on 28 April with the receipt of the applicant’s submissions in reply.

[4] The applicant was represented by Mr O’Sullivan of counsel and the AFP by Ms Callan of counsel. Both representatives appeared by permission pursuant to section 596.

[5] The applicant gave evidence. His witness statement dated 16 December 2014 was marked Exhibit Applicant 1 and his oral testimony is at PN33-1494 of Transcript.

[6] The only witness in the respondent’s case is Ms L Close, Deputy Commissioner - Operations with the AFP (DC Close). At the relevant time she was the AFP’s National Manager Human Resources and the person who made the decision to dismiss the applicant. Her witness statement dated 9 January 2015 was marked Exhibit Respondent 1 and her oral testimony is at PN 1498-2034 of Transcript.

[7] There was extensive evidence and much material provided in the proceedings. Although I may not specifically refer to each and every issue raised, in reaching my conclusions I have had regard to all relevant material and evidence.

[8] It should be noted that there is in place an order pursuant to section 594 relating to material and evidence in the matter which are the subject of confidentiality claims. As a consequence, my description of some matters may be more general than it would otherwise be.

FACTS AND EVIDENCE

[9] The applicant commenced his employment with the AFP in May 2002. He was employed as a “sworn” officer, initially involved in a Community Policing role in the Australian Capital Territory (ACT) and later in another area of the AFP based in Sydney.

[10] As a sworn officer, the applicant was subject to orders issued by the Commissioner of Police. One of these relates to the AFP Professional Standards (the Order). Among other things it sets out a Code of Conduct (the AFP Code) and identifies core values such as integrity, commitment, excellence, accountability and trust. The Order also sets out the process by which conduct and other issues are to be investigated. DC Close notes that a further document of relevance to such investigations is the AFP National Guideline on Complaint Management (the Guideline).

[11] Both the Order and the Guideline provide that relevant investigations are to be undertaken by a unit known as PRS. DC Close was not part of this unit and had no role in the investigation into the various allegations of misconduct raised against the applicant. Her role was to decide whether a disciplinary sanction should be imposed upon the applicant after the PRS investigation found that he had engaged in conduct that contravened the AFP professional standards. Consequently the respondent’s evidence about the investigation is based on the PRS “Show Cause Brief” (the Brief) and other material provided to DC Close all of which is attached to her statement.

[12] I shall firstly address the facts and evidence concerning the investigation process and other events leading up to the dismissal and following it, then move on to the conduct issues themselves.

[13] In February 2009 PRS received allegations that the applicant had disclosed information in return for cash payments, had an improper association with a known criminal identity and had been seen with suspected organised crime figures. The matter was referred to the Australian Commission for Law Enforcement Integrity (ACLEI). On 30 November 2009 the ACLEI Commissioner advised the AFP that there would be a joint investigation into the matter pursuant to the relevant provisions of the Law Enforcement Integrity Commissioner Act 2006 (LEIC Act).

[14] On 25 January 2010 a Security Brief was compiled which found that the applicant posed a high threat to the AFP and a significant risk to its operational security. The applicant was suspended with pay on 10 February 2010. It is the evidence of DC Close that, on suspension, the applicant was entitled to his salary only and not the various allowances which he had previously received. One of these was a district allowance paid to officers living in Sydney and the other, a “composite payment”, was paid for working a particular work pattern. As I understand it the evidence is that the district allowance was approximately 5%. The value of the composite allowance was not clear but appears to be somewhere between 22% and 30%.

[15] On 5 April 2011 PRS conducted a “conversation” or “directed interview” with the applicant during which the various allegations or complaints were put to him. The applicant’s then legal representative was present. The “conversation” was recorded and a transcript is at pages 196 to 314 of the documents attached to Exhibit Applicant 1. The transcript shows that the “conversation” began at 10.10am and concluded at 1.39pm.

[16] On 19 July 2011 PRS completed an Investigation Report (the first report) which found that seven conduct issues had been established. It should be noted that these issues were not the same as the initial complaints which had led to the investigation. The first report is at pages 23 to 33 of the documents attached to Exhibit Applicant 1. It contains some redactions. This report recommended that an adjudicator consider whether action should be taken against the applicant under section 40TR of the Australian Federal Police Act 1979 (the AFP Act). It also recommended that the applicant’s employment suitability be reconsidered.

[17] On 12 August 2011 the applicant’s then legal representative provided an extensive written response to the “Notice of 19 July 2011” which I gather is the first report. In addition to addressing the conduct issues, this response also raised issues of natural justice and formally requested a meeting in order to make oral representations about the applicant’s ongoing employment.

[18] On 24 August 2011 a Case Note (the Case Note) was prepared by PRS. This appears to be a review of the applicant’s responses as against the conduct issues which had been found earlier.

[19] On 28 November 2011 the applicant was informed of the outcome of the adjudication process referred to in paragraph 16 above, Attachment C to Exhibit Respondent 1. The adjudicator found that each of the seven conduct issues had been established and made several recommendations. These included advising various AFP officers and ACLEI of the outcome of the investigation and reiterated the earlier recommendation that the applicant’s employment suitability be considered. The correspondence acknowledged the delay in the process and informed the applicant that any inconvenience to him was regretted.

[20] The evidence of DC Close is that the question of the applicant’s employment suitability was then deferred pending the ensuing ACLEI investigation.

[21] The report of the ACLEI investigation was received by the AFP on 19 October 2012 (the ACLEI report). This report is at pages 63 to 80 of the documents attached to Exhibit Applicant 1. It contains a number of findings which are not exactly the same as the conduct issues found in the AFP investigation but cover most of the same matters. The report recommended that, in the light of its findings that the applicant had engaged in corrupt conduct, the AFP should consider terminating his employment.

[22] I note that the ACLEI report indicates that, during the course of its investigation, the applicant had been given an opportunity to be heard. Written comments provided by the applicant’s legal representative were also taken into account.

[23] On 26 October 2012 DC Close issued the applicant with a notice informing him that he was henceforth suspended without pay, Exhibit Applicant 2. He was advised that he could make representations to her in respect of the “without pay” aspect of her decision. The applicant was informed that he did not have approval to engage in secondary employment and would need to make an appropriate application if he wished to do so. The notice also informed the applicant that his suspension would be reviewed on a monthly basis.

[24] It is the evidence of DC Close that, at the time she issued this notice, she considered that the issues of the applicant’s misconduct had been established. DC Close was not aware whether there was any review of the suspension. Her evidence is that process would have been undertaken by PRS.

[25] On 29 October 2012 PRS completed a further investigation report (the second report) Attachment B to Exhibit Respondent 1. It appears that the only differences between this document and the first report are the inclusion of additional paragraphs concerning the receipt of the ACLEI report. I note that there are some other changes in sections 2 and 4 of the second report however, from the context, I suspect that they are just reflective of the redacted parts of the first report which are not in evidence.

[26] Following receipt of the second report the Manager PRS conducted a Supplementary Adjudication. The outcome was a determination that the seven issues of conduct found earlier were established. It was also noted that the applicant had shown disregard for the procedures, standards and core values of the AFP. It recommended that the applicant’s employment suitability be considered. A copy of the adjudication outcome dated 5 November 2012 is at pages 54 to 58 of the documents attached to Exhibit Applicant 1.

[27] On 29 November 2012 the applicant was notified of the outcome of the adjudication, Attachment D to Exhibit Respondent 1.

[28] The Brief, referred to in paragraph 11 above, was prepared by PRS and provided to DC Close. The Brief is at pages 18 to 22 of the documents attached to Exhibit Applicant 1. It outlines the earlier findings, other background material and the applicant’s employment history. It notes that there are no mitigating factors but that the adjudication officer had noted some aggravating factors. The various reports and the applicant’s material in response were attached to the Brief.

[29] The evidence of DC Close is that she read the Brief and the attachments and formed the view that she agreed with the recommendation that consideration be given to terminating the applicant’s employment.

[30] On 3 December 2012 DC Close issued a “Show Cause Notice” (the Notice) to the applicant in which she informed him that, as the delegate of the Commissioner of the AFP, she was considering terminating his employment. That notice is at pages 1 to 3 of the documents attached to Exhibit Applicant 1. A number of documents were attached to the Notice. These included the Order, the Brief, the first report, the applicant’s response, the Case Note, the adjudication report of 5 November 2012, the ACLEI report, parts of the applicant’s employment records including professional development assessments and relevant extracts from the AFP Act.

[31] The Notice invited the applicant to respond within 28 days. The applicant requested and was give additional time in which to respond. This response, from the applicant’s legal representative on his behalf, was provided to the AFP on 24 April 2013. It is Attachment E to Exhibit Respondent 1.

[32] A further Show Cause Brief dated 5 July 2013 addressing the applicant’s response was then prepared by PRS, Attachment F to Exhibit Respondent 1.

[33] It is the evidence of DC Close that she considered the applicant’s response of 24 April but remained of the view that he had breached the AFP’s professional standards and that the breaches were sufficiently serious to warrant his dismissal. Her evidence is that she was concerned that the applicant did not appear to acknowledge any wrongdoing and was not convinced that his issues of conduct could be addressed by other possible disciplinary outcomes or further training. On 15 July 2013 DC Close advised the applicant of his dismissal, Attachment I to Exhibit Respondent 1.

[34] As noted in paragraph 2 above the letter of dismissal informed the applicant that the dismissal was to be effective 14 days from the date of receipt of the letter. In its final submissions the respondent says such notice was in compliance with section 117(2)(a) of the Act. It is not entirely clear how that could be the situation in light of the duration of the applicant’s employment. However that question is not for me to decide and is only noted in passing.

[35] Following the applicant’s dismissal ACLEI brought criminal charges against him. The prosecution “Statement of Facts” is Annexure A to Exhibit Applicant 1. As the applicant notes in his evidence, the charges are similar to three of the conduct issues found during the PRS investigation and set out in the letter of dismissal.

[36] The matter was dealt with in the New South Wales Local Court. The judgement of the Court which appears to be undated, is Attachment K to Exhibit Respondent 1. Two of the charges were found to be proven and the remainder were dismissed. The Court ordered that the applicant be released without conviction under section 19B(1)(d) of the Crimes Act 1914 (Commonwealth) but that he be placed on a good behaviour bond for a period of 18 months. The Order dated 18 September 2014, is Attachment M to Exhibit Respondent 1.

[37] On 14 October 2014 the applicant lodged an appeal against the findings of the Court. As I understand it that appeal is yet to be heard.

[38] I now turn to the conduct issues which are relied upon by the AFP as the basis for the applicant’s dismissal. It should be noted that these issues are in essence the same as those set out in the first report. There are seven such issues which are as follows:

● Issue 1 - Between 14 July 2008 and 12 November 2009 the applicant breached the AFP Code by receiving requests to provide information, agreeing to provide such information and failing to report the approaches to management;
● Issue 2 - On 11 February 2009 the applicant breached the AFP Code by requesting another officer to access a particular database for lawful purposes when he actually had no such purpose;
● Issue 3 - Between February and March 2010 the applicant breached the AFP Code by using an Australian Government diplomatic bag to send personal mail to a relative overseas;
● Issue 4 - Between 14 July 2008 and 12 November 2009 the applicant breached the AFP Code by preparing and providing a serious of references and testimonials without authorisation in contravention of the relevant guidelines;
● Issue 5 - The applicant breached the AFP Code by falsely stating in two Professional Development Assessments (PDAs) that he had recruited human sources;
● Issue 6 - Between 10 February 2010 and 9 December 2010 the applicant breached the AFP Code by engaging in unauthorised secondary employment in contravention of the relevant guideline;
● Issue 7 - On 1 December 2010 the applicant breached the AFP Code by disclosing to another AFP officer that he had been summonsed to appear before ACLEI in contravention of the LEIC Act.

[39] The relevant parts of the AFP Code said to have been breached by the applicant are set out at paragraph 72 below.

[40] Issue 1 concerns requests for information from three separate persons each of whom was known to the applicant in a private capacity. The applicant agreed that none of the requests involved AFP operations.

[41] The first request, from a friend and relative of the applicant, was that he conduct an investigation on the “subject of her dreams”. She provided the applicant with the name of this person. This led the applicant to access the Australian Electoral Roll (Roll) through the AFP computer system and then email the date of birth and address of the person to his friend. The email trail is at pages 321 to 332 of the documents attached to Exhibit Applicant 1.

[42] The applicant’s evidence is that he suggested to his friend that she could access the information herself at a public library but that she had indicated she wasn’t able to do this at the time. It is the applicant’s evidence that he did nothing wrong because the Roll is “open source” and publicly available. He also says that it was a common practice in his work area that the Roll was accessed for purposes other than those set out in the relevant regulations.

[43] The evidence of DC Close is that the AFP has access to the Roll only because of its law enforcement function and can use the information in it only for the purposes referred to in the previous paragraph. It is her evidence that a warning screen setting out these purposes and other restrictions appears when anyone attempts to access the Roll. She provides a document which she says was the text of this screen at the relevant time, Attachment G to Exhibit Respondent 1. Exhibit Respondent 3 is a more legible version of the attachment. During cross-examination DC Close agreed that she had not personally, or otherwise, checked that this particular screen would have appeared on the applicant’s computer at the relevant time.

[44] The applicant’s evidence is that he didn’t read or pay attention to warning screens which were displayed on his computer during the time of his employment. He accepted that this was a serious omission.

[45] The second request for information, from a friend of the applicant’s family, concerned a traffic incident. The request led the applicant to forward a vehicle registration number to a contact in the New South Wales police asking the contact to “look into this for me. I just want a vehicle owner or company owner”. The relevant email trail is at pages 333 to 335 of the documents attached to Exhibit Applicant 1.

[46] The applicant’s evidence is that he later telephoned his contact and asked him to speak directly to the friend. His evidence is that, at first, he understood that the friend’s intention was to have a drug and/or alcohol test carried out on the offending driver. He then thought the friend had a complaint that the NSW police were not taking the issue seriously. The applicant’s evidence is that the reason for his involvement was part of his role in the Community Liaison Team (CLT). As it transpired the applicant did not receive any information from his contact nor did he pass anything on to the friend.

[47] The third request, from a “friend of a friend”, concerned access to a brief of evidence relating to the friend’s sister. In the course of an email exchange, the applicant informed the friend that he would obtain the brief, read through it and “give my mate a call to see what we can do to make sure all runs smoothly tomorrow”. The email trail is at pages 336 to 339 of the documents attached to Exhibit Applicant 1.

[48] The applicant’s evidence is that in fact he made no attempt to obtain the brief and had no intention of reading it. He accepted that he had lied to the friend in this regard. The applicant’s evidence is that he did so to put her mind, and that of her elderly father, at ease. He says that “we” lie to members of the community on a daily basis in the AFP.

[49] The applicant did not report any of these three requests. His evidence is that such requests were received by him from members of the community on an almost daily basis and he considered them part of his role in the CLT. If he received a suspicious request he reported it. The National Guideline on Reporting Obligations in existence at the relevant time is in a document MFI 4.

[50] Issue 2 concerns a request made on 11 February 2009 by the applicant to a colleague who was outposted to the Department of Immigration (DIAC). In the emailed request the applicant asks the colleague if he could check the status of visa applications of three individuals. He notes that he had been informed that the applications had been completed but that the relevant migration agents were attempting to obtain more money from the individuals concerned.

[51] The colleague responded on 12 February with information on two of the individuals. He also suggested that the individuals should contact the relevant authority if they wished to make a complaint about the activities of the agents.

[52] The request in relation to one of the individuals arose out of emails to the applicant from one of the people involved in Issue 1 and referred to in paragraphs 45 and 46 above. The subject of the inquiry was the fiancée of a friend of this person. The applicant testified that the question about the migration agent had been explained to him by his friend during a telephone conversation.

[53] The second individual is a relative of the applicant. His evidence is that he did not realise that fact at the time he made the request. The applicant testified that this inquiry originated from another member of the community who had made representations to the applicant on behalf of the individual.

[54] There is no dispute that the third individual named in the applicant’s request was the subject of an AFP operation in which the applicant had some involvement.

[55] The applicant denied that he made the request because one of the individuals was a relative. His evidence is that he made the request as part of his role in assisting the community and did so to understand the procedure by which a complaint about a migration agent could be made. The applicant testified that he didn’t pass on any visa information to the individuals concerned.

[56] The email trail concerning Issue 2 is at pages 340 to 345 of Exhibit Applicant 1 and the unredacted version is at pages 85 to 90 of the documents attached to Exhibit Respondent 1 and part of Attachment J thereto.

[57] Issue 3 concerns a letter from the applicant’s father to the applicant’s uncle living in Lebanon. The applicant used the AFP internal mail system to send the letter in an envelope which also contained a personal identification card. The applicant’s evidence is that there is no normal mail system in Lebanon and that communication is usually carried out by telephone or by sending items with people who are travelling there. At the time he dispatched the letter the applicant did not know what was in the envelope.

[58] The AFP position is that the internal mail to its post in Lebanon is sent via the Australian government diplomatic bag. The applicant’s evidence is that he did not realise that at the time he sent the letter. He says he thought he was just sending something via internal mail to the local staff in Lebanon who would forward it on to his uncle. The applicant’s evidence is that he didn’t understand any issue of security would arise from his actions.

[59] Issue 4 concerns the applicant’s provision of references or testimonials for a number of friends and acquaintances. These documents are at pages 355, 358, 364, 366 and 367 of the documents attached to Exhibit Applicant 1. Each is on AFP letterhead and, although none is signed, the signature block on each identifies the applicant as being an officer of the AFP and provides his work related contact details. Two of the testimonials were for court related purposes and are addressed to the “Presiding Magistrate”. Another is for the purpose of obtaining a security licence and is addressed to the Licensing Services Division of the Victorian Police.

[60] One of the references is in the same terms as a draft provided by the applicant’s brother. Another is in almost the same terms as a draft provided by the solicitor acting for the person who is the subject of the reference. The applicant’s evidence is that, as long as the information in the references was correct, he was happy to put his name to them. He notes that one of the references, at page 358 of the documents attached to Exhibit Applicant 1, was never used.

[61] In his evidence the applicant agreed that he had not obtained authorisation for providing any of these references or testimonials. He also agreed that he now understood this was contrary to the relevant AFP guideline. However the applicant’s evidence is that at the relevant time he was not aware that there was such a guideline. The applicant agreed that it was part of his responsibilities that he should have made himself aware of such guidelines. He says that, had he been so aware, he would not have provided the references.

[62] The applicant’s evidence is that in 2002, when he was on probation and located in the ACT, his senior officer informed him that it was permissible to provide personal references on AFP letterhead.

[63] The evidence of DC Close is that she was not convinced that the applicant was in fact ignorant of his responsibility to obtain authorisation for the references or the existence of the guideline. She was concerned this reflected poorly on his judgement. DC Close says that AFP guidelines are accessible on the internal computer system and, when changes are made to these, this is communicated to staff by email. DC Close provides a copy of the National Guideline on the Writing of Testimonials in force at the relevant time, Attachment H to Exhibit Respondent 1.

[64] Issue 5 relates to the applicant’s claim in two separate PDAs that he had “recruited” certain sources and, in one of those PDAs, his claim that he had officially registered these sources. Most of the material relating to this issue is the subject of the confidentiality order. Suffice it to say that the AFP concerns are that the applicant over-inflated his actions in this regard in circumstances where he knew his supervisors who reviewed the PDAs could not confirm his claims and consequently had to trust that he was being completely truthful about them. The applicant denies that his claims were not accurate.

[65] Issue 6 concerns the question of secondary employment. In April 2010, which was after the applicant was suspended with pay, he applied for approval to undertake secondary employment. The request was to work up to 40 hours a week for a particular company which operated a commodities trading business. The company was owned by a lawyer connected with the firm which at the time was representing the applicant in the PRS investigation.

[66] The AFP asked the applicant for further information and it says he didn’t provide anything. The applicant’s evidence is that he responded by withdrawing his application for approval.

[67] The applicant’s evidence is that the only thing he did for the company in question was to provide them with the telephone number of someone he knew. His evidence is that he was not paid for this nor did he receive any benefit or gain from his action.

[68] Issue 7 relates to the ACLEI proceedings. The applicant was summonsed to appear before ACLEI. The LEIC Act provides that, in certain circumstances, disclosing the existence of such a summons or any information about it, amounts to a contravention of that act.

[69] There is a dispute as to whether the summons was properly served on the applicant. In addition, the applicant says that the person serving the summons did not explain anything about the non-disclosure provisions in the LEIC Act.

[70] Sometime later on the day he received the summons the applicant told one of his colleagues that he had to attend an ACLEI hearing. His evidence is that this colleague had been appointed as his mentor. The applicant’s evidence is that he asked the colleague for advice and guidance but did not mention anything about a summons.

[71] The applicant’s evidence is that, after the ACLEI Commissioner had drawn his attention to the non-disclosure provisions, he had not told anyone other than his legal representative, of any later proceedings before ACLEI or the PRS.

[72] The version of the AFP Code which was in existence at the relevant time is in Exhibit Respondent 2. The specific standards which the AFP considers the applicant has breached are as follows:

● “8.1. An AFP appointee must act with due care and diligence in the course of AFP duties” - Issue 6.
● “8.2. An AFP appointee must act with honesty and propriety in the course of AFP duties” - Issues 2 and 5.
● “8.4. An AFP appointee must, at all times, comply with all applicable Australian laws ...” - Issue 7.
● “8.7. An AFP appointee must not make improper use of ......

(b) duties, status, power or authority...... in order to gain, or seek to gain, a benefit or advantage for the appointee or for any other person, or for any other improper purpose” - Issue 3.

● “8.9. An AFP appointee must at all times behave in a way which upholds the good order and discipline of the AFP” - Issue 4.
● “8.10. An AFP appointee must at all times behave in a way that upholds the AFP core values and the integrity and good reputation of the AFP - Issue 1.

SUBMISSIONS ON BEHALF OF THE APPLICANT

[73] The submissions on behalf of the applicant have three components: the outline provided on 16 December 2014; the final written submissions provided on 24 March 2015; and, the submissions in reply provided on 28 April 2015.

[74] Reference is made to the seminal decisions of Byrne & Frew v Australian Airlines Ltd (1995) 61 IR 32 @ 72 and 73 (Byrne & Frew) and Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 @ 373 (Selvachandran).

[75] It is noted that the relevant test for conduct related reasons for dismissal is that set out in King v Freshmore (Vic) Pty Ltd [Print S4213] (Freshmore) as confirmed in B,C and D v Australian Postal Corporation T/A Australia Post (2013) FWCFB 6191 @ 34 (Australia Post). This decision is also relied on in relation to the question of whether there were breaches of guidelines and policies.

[76] It is further noted that the respondent bears the onus of establishing the facts underpinning the alleged misconduct: Pastry Cooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW)v Gartrell White (No 3) (1990) 35 IR 70 @ 83/4 and Darling Island Stevedoring & Lighterage Co Limited v Jacobsen (1945) 70 CLR 635 @ 643/4.

[77] The applicant submits that he was, in effect, summarily dismissed. Although he received 14 days notice of the termination, the fact that he had been without pay since 26 October 2012 rendered the notice meaningless.

[78] It is submitted that, in light of the respondent’s contention that the applicant’s actions amounted to breaches of the AFP Code, it will need to be established that such breaches occurred, that they were substantial, that they were done wilfully, that the applicant was aware of the relevant guidelines and that he made misstatements concerning Issues 2 and 5.

[79] The applicant notes the failure of the AFP to call the authors of the various reports and submits that a “Jones v Dunkel” inference should be drawn from such failure. It is submitted that the various reports should be given little or no weight, they are hearsay and the authors have not been brought for cross-examination.

[80] It is noted that the applicant has never denied receiving the requests for information, agreeing to provide the information or that he did not report the requests as alleged in relation to Issue 1. It is submitted that there was no obligation to report this type of request and the applicant has provided an explanation for this. It is also submitted that the two instances where the applicant agreed to provide information but did not do so should be disregarded. There is nothing in the evidence to suggest mere agreement amounts to a breach of any guideline or law.

[81] It is noted that the applicant has consistently maintained that the information he did pass on to the person requesting it came from “open-source” material which is available to the public. It is submitted that the applicant’s view in this regard was supported by his evidence as to the work practices in his team. It is also submitted that the respondent had failed to make out its contention that the applicant would have been alerted to any wrongdoing. The proposition that the warning screen in Exhibit Respondent 3 appeared in front of the applicant had not been established.

[82] It is submitted that, to the extent there may have been a breach of a guideline or law, it was not conscious and was minimal in nature.

[83] It is noted that the applicant was not shaken in his evidence that his request which gave rise to Issue 2 was made for a legitimate purpose consistent with his role in the CLT. The fact that he knew or was related to one or more of the subjects of his inquiry does not detract from the legitimacy of this purpose.

[84] The applicant submits that the respondent had not established that the letter involved in Issue 3 had in fact been dispatched to Lebanon in a diplomatic bag rather than by internal mail. Further, DC Close had been unable to identify any guideline or policy which dealt with use of either internal mail or diplomatic bags. Consequently this issue could not amount to a valid reason for dismissal.

[85] It is noted that the applicant had conceded that he had provided references without seeking authorisation as required by the relevant guideline, Issue 4. It is submitted that, in view of the applicant’s evidence that he was not aware of such a guideline and that his actions were consistent with advice he received earlier in his career, his contravention was not wilful.

[86] It is submitted that the respondent had not produced evidence to show that the applicant had been other than truthful in his PDAs which gave rise to Issue 5. Even if a contrary finding was made there is no evidence that any misstatement was made wilfully.

[87] The applicant submits that the evidence is clear he received no benefit from providing a telephone number as alleged in Issue 6. There is no breach of any relevant guideline and no misconduct.

[88] It is submitted that it should not be found that the applicant acted in a manner which breach the LEIC Act as suggested in Issue 7. His evidence is that he did not inform anyone of the existence of the summons, his understanding was that he had not been properly served and, further, as the summons is not in evidence, it has not been established that it contained the relevant non-disclosure notification.

[89] It is submitted that, in light of the above, there is no valid reason for the applicant’s dismissal. The requirement in section 387(b) that the applicant be notified of the reasons for dismissal is neutral. It is submitted that the opportunity for the applicant to respond was compromised by the delay between the alleged misconduct and when he was invited to respond. He was also constrained by the respondent’s failure to provide some material and the provision of other documents in a redacted format. Reference is made to Crozier v Palazzo Corporation Pty Limited [2000] 98 IR 137 @ 150 and Courtney v Coal Gas Camps Pty Ltd[2013] FWC 7609.

[90] It is noted that section 387(d) is not relevant in this matter and that, to the limited extent that paragraph (e) might be, the applicant had received no prior warnings. The factors in paragraphs (f) and (g) are neutral.

[91] It is submitted that, even if a valid reason is found, the dismissal is nevertheless unfair: Australia Post @ 41/2. If there was any breach of a law or guideline it was not wilful and was the product of condonation by the respondent. This is especially relevant to the applicant’s use of the Roll and his provision of references. Any transgression was minor and dismissal was harsh and unreasonable in light of his otherwise unblemished record and many awards. The decision of the Local Court to place the applicant on a Good Behaviour Bond supports the contention that any offence was very light and not destructive of the employment relationship.

[92] It is also noted that the applicant did not act for any personal gain. This is in contrast to the facts in the matter of Applicant v Australian Federal Police[2012] FWA 1352 as affirmed on appeal in [2012] FWAFB 6949.

[93] The dismissal was also unjust and unreasonable in view of the lengthy process and the impact of the suspension on the applicant’s income both in the failure to pay the location and composite allowances and then, from 26 October 2012, with no pay at all.

[94] The applicant seeks reinstatement. It is the primary remedy: Nguyen v Vietnamese Community in Australia[2014] FWCFB 7198 @ 10 and 27. It is submitted that the respondent has the onus of establishing that there has been a loss of trust and confidence and that such a view is rationally based. It is submitted that the evidence of DC Close in this regard is without a proper foundation. Her evidence that the applicant was unlikely to receive the necessary security clearance if he is reinstated is not sound.

[95] It is submitted that I should be satisfied that, if the applicant is reinstated, he will abide by AFP guidelines and relevant laws and adopt a proactive approach to informing himself of what those are. The respondent has not met its onus as to why reinstatement is inappropriate and consequently the applicant should be reinstated with continuity of service. Alternatively, an order for 26 weeks compensation at the applicant’s full rate of pay including all allowances, should be awarded.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

[96] The respondent provided an outline of submissions on 12 January 2015 and closing submissions on 14 April 2015.

[97] The respondent addresses the relevant legal principles and, in many respects, this does not differ from the applicant’s submissions on the law. In addition the respondent submits that, in this matter, the question of valid reason should be considered in the context of the high standards of integrity expected of police officers: Police Board v Morris (1985) 156 CLR 397 @ 412.

[98] It is submitted that the fact that the applicant was found guilty beyond reasonable doubt of two of the charges against him provides support for there being a valid reason for his dismissal. The respondent submits that proven criminal conduct by an AFP officer in connection with their duties must be a valid reason.

[99] The respondent submits that it is not necessary to find that all of the grounds underpinning a dismissal are valid reasons, one is sufficient: Kim v Australian Federal Police[2013] FWC 1231 @ 71. Further, it is sufficient to find that the conduct as a whole amounted to a valid reason even if the separate grounds are not: Roberts v MCREAG Pty Ltd [2013] FWC 5505 @ 47.

[100] The respondent accepts that it bears the onus of establishing the facts constituting the applicant’s misconduct. However it does not accept that the applicant’s breaches of policy must be substantial and wilful. It submits the applicant’s contention in this regard misapplies observations in the Australia Post decision.

[101] The respondent rejects the applicant’s submission that his actions were not serious because they were not done for personal gain. It notes that many of the sections of the AFP Code do not require such an element. Further the applicant’s conduct may have given inappropriate impressions to members of the community.

[102] The respondent submits that the applicant’s position that he had in effect been summarily dismissed is incorrect. The AFP did not purport to terminate without notice nor did it make a declaration of serious misconduct under section 40K of the AFP Act. The respondent notes that the applicant’s suspension without pay was based on an express power and is a separate issue.

[103] It is submitted that, in the course of giving his evidence, the applicant was at times non responsive and provided unlikely answers. It is noted that the applicant admitted that he had lied to put someone’s mind at ease which, it is submitted, reflects badly on his credibility. In contrast DC Close was a reliable witness.

[104] The respondent submits that there is no proper basis for the applicant’s criticism of DC Close’s reliance on the PRS investigation. It submits that the evidence shows that she gave genuine consideration to the outcome of the investigation.

[105] The respondent rejects the applicant’s invitation that a “Jones v Dunkel” inference should be drawn. It notes that the Commission is not bound by the rules of evidence and submits that it was not necessary to have called the authors of the various reports. The reliability of the reports is supported by their consistency. They should be given appropriate weight.

[106] The respondent submits that the applicant’s conduct occurred in relation to each of the seven bases alleged and that, individually and collectively, this amounts to a valid reason for his dismissal. The respondent rejects the applicant’s justification for some of his actions as resulting from his CLT responsibilities. It submits that, in any event, such a role did not excuse dishonest or improper behaviour.

[107] The respondent submits that the applicant’s actions in respect of Issue 1 all involved personal assistance to friends or family and did not relate to his CLT role. It submits the inconsistencies in the applicant’s evidence in this regard reflect poorly on his credit. His lack of insight is of concern.

[108] The respondent submits that the applicant’s conduct in relation to Issue 1 breached section 8.10 of the AFP Code. It rejects the applicant’s contention that inappropriate use of the Roll was commonplace in his work area. It is submitted that the applicant’s disregard for warning screens reflected badly on his judgment and integrity.

[109] The respondent notes that the applicant agreed that he had lied in respect of the third request for information and had sought to justify this on the basis that it was “for the greater good”. It submits that, in reality, the applicant had lied in respect of the second request as well. The respondent submits that the applicant’s failure to appreciate the difference between the situation where there may be a sound operational reason for lying and a personal reason for doing so, was a further example of his poor judgement.

[110] The respondent submits that in all three instances the applicant obtained or agreed to obtain the information requested in order to impress those seeking the information and improve his standing in the community. His conduct in this regard threatened the integrity and reputation of the AFP.

[111] The respondent submits that the applicant had no lawful purpose to request the information in respect of two of the individuals which give rise to Issue 2. It submits that this was a further example of the applicant doing personal favours for friends and relatives.

[112] The respondent also submits that the applicant’s suggestion that the requests were made because he was concerned about the inappropriate behaviour of some migration agents is without foundation. An examination of the relevant emails demonstrates that it was the speed of processing rather than the activities of the agents which prompted the inquiries to the applicant.

[113] It is submitted that the applicant’s actions in relation to this Issue are part of a pattern of conduct which is contrary to the AFP’s expectations and involves a failure to behave honestly and with propriety.

[114] The respondent notes that, until the submissions of 24 March 2015, the applicant had never previously suggested that the letter to Lebanon had not been sent in a diplomatic bag. The respondent also notes that in cross-examination the applicant had agreed that he would not send mail in this manner in the future as he now understood there were concerns about it.

[115] It is submitted that the applicant’s contention that there was no wrongdoing on his part in relation to this Issue because the AFP had not identified any relevant guidelines, should be rejected. The applicant made improper use of his position to send private correspondence by official means.

[116] The respondent notes that the applicant had conceded that he had provided references in breach of the relevant guideline as alleged in Issue 4. It submits that it is concerning that the applicant made no effort to enquire as to the existence of any guidelines and that he considered it appropriate to provide references on AFP letterhead without seeking any authorisation.

[117] It is submitted that the applicant’s actions in this regard were a serious breach of the AFP Code, a valid reason for dismissal in themselves but more so when added to the other issues.

[118] The respondent submits that the evidence showed that the applicant had stretched the truth in making the claims about his achievements in his two PDAs, Issue 5. It submits this is a valid reason for dismissal.

[119] The respondent submits that, in relation to Issue 6, the evidence revealed that the applicant had done more than merely provide one telephone number and had in fact engaged in secondary employment contrary to the relevant guideline. This involved a failure to act with due care and diligence, a breach of the AFP Code and was a valid ground for dismissal.

[120] The respondent submits that the applicant had in fact informed a colleague that he had been summonsed to appear before ACLEI in breach of the LEIC Act and the AFP Code. The applicant’s continued denial of any wrongdoing does not address the underlying integrity concerns about his actions. This conduct, alone or in combination with the applicant’s actions in respect of the other issues, is a proper basis for his dismissal.

[121] The respondent rejects the applicant’s contention that his ability to respond to the allegations against him had been compromised. It submits that the applicant had been given, and took advantage of, several opportunities to respond. The time delay was a consequence of the ACLEI investigation. The respondent submits that the redaction of any information did not adversely affect the applicant in his ability to respond. The legislative requirements were met in this regard: Gibson v Bosmac Pty Ltd (1995) 60 IR 1 @ 7 and RMIT v Asher (2010) 194 IR 1 @ 14/5.

[122] The respondent submits that the outcome of the criminal proceedings is a relevant factor to be considered.

[123] The respondent urges a finding that the dismissal was not unfair. In the alternative it submits that reinstatement is not appropriate. There has been a fundamental loss of trust and confidence in the employment relationship. The respondent has no confidence in the applicant’s sense of judgement or integrity. Further, it is doubtful that the applicant would obtain the relevant security clearance.

[124] The respondent submits that there is no evidence of any efforts made by the applicant to mitigate his loss. In addition, any order for compensation should be reduced as a result of the applicant’s misconduct.

APPLICANT’S REPLY

[125] The applicant takes issue with the respondent’s submission that, in order to establish a valid reason for dismissal, a breach of policy does not need to be serious and wilful. The applicant submits that the respondent’s contention would lead to the position where a minor unconscious breach could be a valid reason. Such an approach should be rejected.

[126] It is submitted that, contrary to the respondent’s argument, the applicant should be accepted as being a witness of credit. In particular it is noted that the applicant gave unshaken evidence as to the common practice of AFP officers lying to members of the public.

[127] It is submitted that the respondent has not properly identified any evidence on which it can be established that the applicant wilfully breached any requirement of his duties. There has been no serious misconduct and no valid reason for his dismissal.

[128] In relation to Issue 1 the respondent has failed to establish any requirement that the applicant should have reported the three requests for information. It has also failed to establish that there was a warning screen on the applicant’s computer when he accessed the Roll. The respondent’s submission about the outcome of the Local Court proceedings should be rejected. In addition it should not be accepted that the applicant had any knowledge that providing information from the Roll was in contravention of any legislative requirement.

[129] In relation to Issue 2 the applicant submits that the respondent’s submissions are based on inferences which cannot properly be drawn and should be rejected.

[130] The applicant submits that the respondent has not provided any basis for its submissions that the applicant’s actions concerning Issue 3 were improper.

[131] It is noted that the respondent has not provided any evidence to establish that the applicant was aware of guidelines concerning Issue 4. It is also noted that this was not put to the applicant in any event.

[132] It is submitted that the applicant’s explanation for his use of various terms in the PDAs giving rise to Issue 5 should be accepted. The evidence relied on by the respondent in relation to Issue 6 does not support its submissions on this point.

[133] The applicant submits that the question of whether he had been properly served with the summons to attend ACLEI was an appropriate concern. Raising the concern in response to the allegation made against him could not amount to serious misconduct or a valid reason for his dismissal.

[134] It is submitted that the respondent had failed to put the applicant on notice that it intended to rely on the suggestion in Issue 1 that he had informed people he would provide information when he did not intend to or the integrity issue concerning the ACLEI summons. This failure renders the dismissal procedurally unfair.

[135] The applicant reiterates the earlier submission that the respondent has failed to make its case that reinstatement is impracticable.

CONCLUSIONS

[136] Section 396 of the Act sets out four matters which must be decided in applications of this type before the merits of a claim are considered. Those matters are:

“(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[137] As will have been apparent from paragraph 1 of this decision the application was made within the period required in subsection 394(2). There is no dispute that the applicant is a person protected from unfair dismissal. Paragraphs (c) and (d) of section 396 have no relevance in the present matter.

[138] Section 385 provides that 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.”

[139] Paragraph (a) is clearly met in relation to the applicant. Paragraphs (c) and (d) have no relevance. Consequently it is to paragraph (b) that my attention must be directed. In considering whether the dismissal of the applicant was harsh, unjust or unreasonable it is relevant to refer to the comments of McHugh and Gummow JJ in Byrne & Frew:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[140] It is necessary to turn to section 387 which sets out the factors which must be taken into account by the FWC in deciding whether a dismissal is harsh, unjust or unreasonable. Those factors are as follows:

“(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 FWC considers relevant.”

[141] The first matter which must be taken into account is whether there was a valid reason for the dismissal. The meaning of valid reason has been the subject of much consideration by the Courts as well as by this Commission and its predecessors. There seems to be general acceptance of the often quoted words of Northrop J in Selvachandran:

“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 s170DE(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, ...”.

[142] The reasons relied on for the termination in this matter relate to the alleged misconduct of the applicant. In this regard I have to determine for myself whether the misconduct, or any part of it that is contested, took place and, if so, whether it amounted to a valid reason for the dismissal: Freshmore.

[143] Before considering the issues of alleged misconduct I wish to note that I do not intend to draw an adverse inference from the respondent’s failure to call the authors of the various investigation reports: Jones v Dunkel (1959) 101 CLR 298. There are many cases where the evidence of such persons would be of central relevance and an adverse inference should properly be drawn from their absence. As will become apparent however my conclusions are largely based upon the direct evidence of the witnesses and documentary material such as emails. I have drawn upon the reports only to understand and explain the course of events not to accept, or reject, the conclusions of the respective authors.

[144] As noted earlier there are seven issues of alleged misconduct which are relied on by the respondent in this matter. These issues are said to amount to a valid reason for the applicant’s dismissal when viewed both separately and collectively. The facts and evidence underpinning each issue have been set out above and are not repeated here however the following comments should be read in conjunction with the earlier material.

[145] Issue 1 concerns three requests for information from individuals known to the applicant in a private capacity. There can be no criticism of the applicant in receiving the requests. However I consider that his actions in relation to each of the requests were inappropriate.

[146] The Roll is certainly “open source” in the sense that members of the public can access it, subject to certain restrictions, at offices of the Australian Electoral Commission and public libraries. However there is a distinction between legitimately accessing information in that manner and using the computer system of the AFP, or any other police force for that matter, to access the information for a private purpose. I consider the applicant’s conduct in relation to the first request to be a breach of the AFP core values of trust and integrity.

[147] I accept that the AFP has not established that the particular warning screen identified in Attachment G to Exhibit Respondent 1 and Exhibit Respondent 3 appeared on the applicant’s computer screen at the relevant time. I note however that the applicant’s evidence is that warning screens appeared regularly during his time at the AFP and he never read them. In light of the applicant’s evidence on this point the exact terms of the warning screen at the time do not really matter.

[148] It should be noted that, in view of the applicant’s position as a sworn member of the AFP, his cavalier approach to the warning screens is of concern.

[149] I accept that the applicant did not provide any information in response to the second request. In my view however there could be no good reason for the applicant to have asked his contact in the NSW police for the details of the owner of the vehicle involved in the traffic incident. Whether it was for the purpose of testing the driver for drugs and/or alcohol or because there was a complaint about the supposed tardiness of the NSW police or indeed for some other unsavoury intention of his friend as suggested by the respondent, there was no legitimate reason for the applicant’s inquiry. The fact that he ultimately extricated himself from the process does not detract from the inappropriate nature of his actions.

[150] It is accepted that the applicant did not provide the information which was the subject of the third request however he led the person making the request to believe that he would. In many instances this would not be an issue. I accept that people tell “white lies” in certain circumstances such as to avoid hurting someone’s feelings. I also accept that there may be good operational reasons for members of the AFP, or those in similar roles, to lie to their contacts. However there was no operational purpose in this instance.

[151] The applicant’s lie to his friend had the potential to reflect poorly upon the integrity and good reputation of the AFP. This is demonstrated by the email from the friend in response to the applicant’s email referred to in paragraph 47 above; “WOW Federal Police can get anything”.

[152] I am not satisfied that any of the three requests were of a nature that required the applicant to report them in accordance with the relevant guidelines in MFI4. Nevertheless I am satisfied that the applicant’s actions in relation to the three requests were in breach of the AFP’s core values, particularly those of integrity and trust, and of point 8.10 of the AFP Code. I also consider that the applicant’s responses to the three requests demonstrates a troubling lack of judgement.

[153] Issue 2 concerns the applicant’s request for information about the visa status of three individuals and his stated concern about the activities of certain migration agents. There is no question that one of the individuals was the subject of an ongoing operation and the request in relation to that person was legitimate.

[154] I accept the applicant’s evidence that he had been told about the migration agent issue and wanted to follow up what action could be taken against such persons. I also accept that, at the time he made the request, the applicant did not know that he was related to one of the individuals. In the circumstances I do not consider that the applicant’s actions in relation to Issue 2 involves any wrongdoing.

[155] Issue 3 concerns the letter to Lebanon. I accept that the applicant did not know that the AFP internal mail to Lebanon went by diplomatic bag. However I consider that, as with the first request for information in Issue 1, the applicant acted in a manner which displays a total lack of appreciation for the distinction between the personal and the professional. Such a distinction is of particular importance in his role as a police officer.

[156] The applicant used the official mail system to send a personal item to an area of the world where there are particular security issues. In doing so he apparently gave no consideration to such issues or any other concerns. I appreciate that the envelope was from the applicant’s father and, on a personal level, he had no concerns about its contents. That however is not to the point, neither is the suggestion that the letter did not go by diplomatic bag. I accept that it did so but the real issue is the use of the official mail for private purposes. The existence or otherwise of a policy or guideline is not crucial, the issue is one of plain common sense.

[157] The AFP says that the applicant’s actions in respect of Issue 3 are in breach of point 8.7 of the AFP Code. I do not agree, however I do consider that his conduct relating to this Issue does not accord with the core value of trust.

[158] Issue 4 again involves the applicant’s failure to separate the personal and the professional. There is no dispute that he provided references for friends and acquaintances on AFP letterhead and with an AFP signature block without seeking authorisation as required by the relevant guideline. Two of these references were for court related purposes.

[159] I accept the evidence of DC Close that relevant guidelines are available on the AFP computer system. The applicant’s failure to even consider the possibility that there might be a guideline or policy on the subject of providing references is in itself a concern. Regardless of what he was told in 2002 it was his responsibility to make himself aware of any relevant policies and guidelines.

[160] I do not necessarily agree that the applicant’s conduct concerning Issue 4 is a breach of point 8.9 of the AFP Code, however, I consider it to be contrary to point 8.10. The provision of personal references on official letterhead has real potential to affect the reputation of the AFP which is no doubt why prior authorisation is required.

[161] I have carefully considered all of the material and evidence in relation to Issue 5. I have concluded that the applicant did not deliberately make a false claim in his PDAs. It appears that much of the concern in this Issue has arisen from the use of particular terminology which means different things to different people. I do not consider that any misconduct has been made out in relation to this Issue.

[162] I accept the applicant’s evidence that he only provided a telephone number to the company in question and received no gain or benefit from his actions in this regard. I consider no wrongdoing has been made out in relation to Issue 6.

[163] I accept the applicant’s evidence that he did not become aware of the non-disclosure requirements of the LEIC Act until he attended the ACLEI hearing. I also accept that having been informed of the relevant provisions he did not discuss the ACLEI proceedings with anyone other than his legal representatives. I am satisfied there was no misconduct in relation to Issue 7.

[164] I am satisfied that the applicant’s actions in relation to Issues 1, 3 and 4 amount to misconduct and, collectively, a valid reason for his dismissal. I do not agree that the relevant breaches need to be substantial or wilful for them to be valid reasons for dismissal, neither do they need to result from actions taken for personal gain. The applicant’s conduct in relation to the three issues, 1, 3 and 4 was not minor or unconscious.

[165] I now turn to what might be termed the “procedural fairness” factors in section 387, paragraphs (b), (c) and (d).

[166] I am satisfied that the applicant was notified of the reasons for his dismissal. I consider that he was also provided with an opportunity to respond. I accept that this opportunity was not optimum in that there was a considerable delay between the relevant actions and the invitation to respond and the applicant did not have all documents before him at the time. Nevertheless I am satisfied that he was given the relevant opportunity and, with assistance from his legal representative, availed himself of it.

[167] There was no refusal, whether unreasonable or otherwise, to allow the applicant to have a support person present during the “directed interview” with the PRS or at the ACLEI hearing.

[168] The dismissal did not relate to unsatisfactory performance however I note that there was no suggestion that the applicant had received any prior warnings.

[169] The respondent is a large employer with dedicated human resource management specialists. I am satisfied that these factors were reflected in the procedures which were followed in effecting the dismissal.

[170] There are several matters which I consider are of relevance under paragraph (h). The first is the fact that the applicant was employed by the AFP for more than 11 years. The second is the very lengthy process of the investigation. I note that a large part of this appears to be due to ACLEI and not the respondent, nevertheless, the applicant was “in limbo” for some considerable period of time.

[171] The third matter of relevance is the applicant’s suspension. As noted earlier, the applicant was suspended with pay from 10 February 2010 to 26 October 2012 from which time his suspension was without pay through to the time of his dismissal. I note that Regulation 5 of the Australian Federal Police Regulations 1979 provides an express power to suspend without pay.

[172] I also note that the applicant’s salary during the period of his paid suspension did not include two allowances he had previously received. Whilst I understand that the consequent reduction in income would have had a negative effect on the applicant, the composite allowance, which accounted for most of the reduction, was paid for the inconvenience of working a particular operational pattern. The applicant was not working and consequently was not inconvenienced.

[173] In all of the circumstances of the case and having taken account of each of the factors in section 387 and my findings therein I have determined, on balance, that the dismissal of the applicant was not harsh, unjust or unreasonable. It follows from this determination that the dismissal was not unfair. The application for relief is dismissed.

[174] It should be noted that, in deciding this matter, I have given consideration to the need to ensure that a “fair go all round” has been accorded to each of the parties as provided in section 381(2) of the Act.

COMMISSIONER

Appearances:

D. O’Sullivan of counsel with G. Elliot solicitor, for the applicant

S. Callan of counsel with C. Mann from the Australian Government Solicitor for the respondent

Hearing details:

2015.

Sydney.

February, 9 and 16

Final written submissions:

Applicant’s on 24 March 2015.

Respondent’s on 14 April 2015.

Applicant’s reply on 28 April 2015.

Printed by authority of the Commonwealth Government Printer

Mr Elias Farah v Australian Federal Police

[2015] FWC 2667

1 MAY 2015

DECISION

CONCLUSIONS