[2021] FWC 574

FAIR WORK COMMISSION

DECISION

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

Mr Martin Barlow
v
The Commonwealth of Australia represented by the Australian Federal Police
(U2019/13642)

COMMISSIONER HUNT

BRISBANE, 5 FEBRUARY 2021

Application for unfair dismissal remedy – AFP officer deployed to Papua New Guinea repatriated – policies against fraternisation – fraternisation on four occasions in breach of orders - whether dismissal not harsh, unjust or unreasonable – application dismissed.

[1] On 5 December 2019, Mr Martin Barlow made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with the Australian Federal Police (the AFP/the Respondent). Mr Barlow seeks a remedy of reinstatement.

[2] No jurisdictional objections were made to the application by the Respondent.

[3] There being no jurisdictional objections to determine, I am satisfied that Mr Barlow is a person protected from unfair dismissal pursuant to s.382 of the Act. The application was made within the 21-day statutory time limit. The only matter that I must determine is whether Mr Barlow’s dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act, and if so, what remedy he should be awarded.

Background

[4] At the time of termination on 14 November 2019, Mr Barlow was a serving Australian Federal Police Officer holding the rank of Senior Constable. He had been employed by the AFP for 16 years and 10 months. Throughout his AFP career he was based in Far North Queensland, aside from the following deployments:

• Solomon Islands from June 2005 until October 2005; and

• Papua New Guinea (PNG) from 16 May 2017 until 16 November 2018.

[5] Prior to termination, Mr Barlow’s deployment to PNG was revoked, having been sent back to Australia following allegations of misconduct. He continued working for the AFP on full duties in Cairns until the date of his dismissal; a period of approximately 362 days.

[6] On 22 November 2018, the AFP commenced an investigation into Mr Barlow’s conduct after he had fraternised with a female PNG citizen at the accommodation compound provided by the AFP in PNG between 4 November 2018 to 11 November 2018. The AFP allocated the matter to its Professional Standards Unit (the PRS/PRS Unit) for investigation.

[7] Mr Barlow was formally interviewed about the alleged conduct on 19 December 2018.

[8] On 27 August 2019, a determination was made by the AFP that it was considering terminating Mr Barlow’s employment. The determination provided that Mr Barlow had breached section 8.11 of the AFP Code of Conduct.

[9] Mr Barlow was provided with an opportunity to show cause as to why his employment should not be terminated, and on 2 October 2019 he provided a response to the notice to show cause.

[10] On 16 October 2019, the PRS Panel completed a sanction determination for termination of Mr Barlow’s employment. This was not given effect to until Assistant Commissioner Crozier returned and reviewed the sanction determination.

[11] On 13 November 2019 the AFP issued a letter, delivered to Mr Barlow on 14 November 2019, terminating his employment. The termination letter provides:

“13 November 2019

Senior Constable Martin Barlow

AFP ID [redacted]

Dear Senior Constable Barlow

NOTIFICATION OF TERMINATION OF EMPLOYMENT
SECTION 28 of the AUSTRALIA FEDERAL POLICE ACT 1979 (CTH)

I refer to the previous correspondence in this matter including the letter to you titled ‘Consideration of Termination of Employment’ dated 27 August 2019 (Show Cause Notice) and your respondence to me dated 2 October 2019 (your response).

Decision

After carefully considering all of the materials before me, I have decided to terminate your employment pursuant to the provisions of section 28 of the Australian Federal Police Act 1979 (Cth) (the AFP Act) effective on the day you receive this notice. You will receive separate advice from Payroll Services regarding your entitlements.

Consideration

In reaching this decision, I have formed the views that you failed to comply with the Professional Standards of the AFP, specifically, you actions amount to serious misconduct given:

Between 16 May 2017 and 16 November 2018, Senior Constable Martin BARLOW [ID redacted] seriously breached section 8.11 of the AFP Code of Conduct (an AFP appointee must behave in a way that upholds the AFP Core Values, and the Integrity and good reputation of the AFP) when he fraternised with a PNG citizen during his deployment to PNG.

Finding: ESTABLISHED

Consideration of Mitigating/Aggravating Circumstances

I have carefully reviewed and considered the matters you outlined in your response. Whilst I have taken all the matters into consideration, I am not persuaded that the matters you have raised, provide a suitable reason as to why your employment should not be terminated.

You have outlined difficult personal circumstances including the death of your mother’s partner [name redacted], the death of your mother, and the impact of witnessing a suicide. I accept these events caused you great personal stress. You have also outlined marital difficulties prior to and during your deployment, which ultimately resulted in the breakdown of your marriage after you returned to Australia. I accept this caused you personal stress at the relevant time and likely to continue.

I have also carefully considered your statements about the personal impact termination of employment will have on you, including the impact on your mental health, relationships and financial situation. You have also stated it will be difficult for you to find alternate employment. I have considered your overall career with the AFP, and have read the references you supplied.

I accept you have raised a number of matters weighing against the termination of your employment. I have also taken into account your expressions of remorse about forming the relationship with the PNG national.

However taking into the above factors, I remain of the view that the conduct in your case warrants termination of employment.

I consider this was a serious breach of professional standards. You engaged in an ongoing sexual relationship with a female PNG National. This was in clear breach of Commander’s Orders and the National Guideline on deployment to International Operations missions (National Guidelines). As stated in the National Guideline, it is imperative that AFP appointees remain objective in the performance of their duties and not abuse a position of power or trust. There was a power imbalance between you and the PNG National, and the fact she was in a vulnerable position as a victim of domestic violence adds to the seriousness of your conduct. Further, you place the security of you compound at risk when you escorted the PNG National on to the compound without authorisation.

Your actions, whilst deployed internationally in an official capacity, had the potential the cause significant reputational damage to the AFP. While overseas, AFP employees are expected to demonstrate the highest levels of conduct as representatives of the Australian Government and Australia’s national law enforcement agency. Your conduct had real potential to damage the AFP’s ongoing relationship with a critical international partner in the pacific, Papua New Guinea.

Conclusion

While I am acutely aware that termination of employment is a very serious sanction and will have a serious impact on you, I do not consider that a lesser sanction is appropriate in these circumstances. You failed to demonstrate the sound judgment expected of an employee of the AFP. To protect the AFP’s reputation, all appointees must conduct themselves in a manner that maintains public confidence by acting professionally and in accordance with the AFP’s Core Values and Code of Conduct.

…..

Yours sincerely,

Assistant Commissioner Peter Crozier
People, Safety & Security” [original text and emphasis]

Hearing

[12] There being contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing. I decided a hearing would be the most effective and efficient way to determine the application. The hearing was conducted by video on 17 and 18 June 2020.

[13] Both parties were granted leave to be represented by a lawyer or paid agent at the hearing pursuant to s.596 of the Act. Ms Melissa Esposito, Principal of Esposito Lawyers appeared for Mr Barlow. Ms Amanda Coulthard of Counsel appeared for the AFP, instructed by Mr James Christensen, Principal of McInnes Wilson Lawyers and Ms Adelaide Towler, Solicitor also of McInnes Wilson Lawyers.

[14] Mr Barlow appeared at the hearing and gave evidence in support of his application. Mr Barlow’s brother, Mr Russell Barlow, a former member of the AFP also appeared and gave evidence at the hearing.

[15] The following persons appeared and gave evidence for the AFP:

• Assistant Commissioner Peter Crozier;

• Superintendent Leanne Raiser;

• Detective Sergeant Timothy Puchala; and

• Detective Sergeant Brendon Withers.

Confidentiality order

[16] I have made a confidentiality Order [PR726697] in respect of three individuals involved in the events surrounding Mr Barlow’s conduct. I consider it necessary to protect their identity in these proceedings. Throughout this decision the individuals will be referred to Ms AB, Ms CD and Mr ZA. The name of the AFP compound in PNG which Mr Barlow lived during his deployment to PNG has also been anonymised. Further, I considered it necessary to make a confidentiality order in respect of serving officers who were surge officers in PNG in November 2018 and caught up in the events of 9 November 2018. They will be referred to as Federal Agent GH and Protective Services Officer EF.

AFP Policies and Procedures

[17] The AFP has at its workplace professional standards, guidelines and orders which apply. These include the:

• Australian Federal Police Act 1979;

• Australian Federal Police Regulations 2018;

• Australian Federal PoliceCategories of Conduct Determination 2013;

• AFP Commissioner’s Order on Professional Standards;

• AFP National Guideline on Complaint Management;

• AFP National Guideline on deployment to International Operations Missions; and

• Commander’s Orders.

[18] The provisions relevant to Mr Barlow’s employment, including his deployment to PNG are set out below.

Australian Federal Police Act 1979

[19] Section 28 of the Australian Federal Police Act 1979 (the AFP Act) provides:

“Termination of employment by Commissioner

The Commissioner may at any time, by notice in writing, terminate the employment of an AFP employee.

Note: The Fair Work Act 2009 has rules that apply to termination of employment.”

[20] Section 40K of the AFP Act provides for termination of employment for serious misconduct:

“Termination of employment for serious misconduct

(1) If the Commissioner terminates the employment of an AFP employee under section 28 because the Commissioner believes, on reasonable grounds, that the employee's conduct or behaviour, or any part of it:

(a) amounts to serious misconduct by the employee; and

(b) is having, or is likely to have, a damaging effect on:

(i) the professional self-respect or morale of some or all of the AFP employees; or

(ii) the reputation of the Australian Federal Police with the public, or with any section of the public, or with an Australian or overseas government or law enforcement agency;

the Commissioner may make a written declaration to that effect.

Timing of declaration etc.

(2) Any declaration under subsection (1) must be made within 24 hours of the Commissioner's decision to terminate the employment of the AFP employee. The Commissioner must give a copy of the declaration to the AFP employee.

Definition

(3) In this section:

"serious misconduct" means:

(a) corruption, a serious abuse of power, or a serious dereliction of duty; or

(b) any other seriously reprehensible act or behaviour by an AFP employee, whether or not acting, or purporting to act, in the course of his or her duties as an AFP employee.”

[21] Section 40RP of the AFP Act provides:

“Section 40RP Category 3 conduct

(1) The Commissioner and the Ombudsman may determine under subsection 40RM(1) that conduct of a particular kind is to be category 3 conduct for the purposes of this Act only if they are satisfied that:

(a) conduct of that kind:

(i) is serious misconduct by an AFP appointee; or

(ii) raises the question whether termination action should be taken in relation to an AFP appointee; or

(iii) involves a breach of the criminal law, or serious neglect of duty, by an AFP appointee; and

(b) conduct of that kind does not raise a corruption issue.

(2) Subparagraphs (1)(a)(ii) and (iii) do not limit subparagraph (1)(a)(i).”

[22] Section 40TR of the AFP Act provides:

“Recommendations that may be made in relation to category 3 conduct or corrupt conduct

(1) If the investigator is satisfied, on reasonable grounds, that the AFP appointee has engaged in category 3 conduct or corrupt conduct, the investigator may recommend that any one or more of the following be taken in relation to the AFP appointee:

(a) termination action;

(b) remedial action;

(d) any other action that the Commissioner can take in relation to the AFP appointee.

Note 1: For termination action , see section 40TE.

Note 2: For remedial action , see section 40TD.

Note 3: For training and development action , see section 40TC.

Note 4: If evidence emerges, at any stage of the investigation, that the AFP appointee may have committed an offence, the investigator could also arrange for the AFP appointee to be charged with the offence. This might be done even before the investigation of the issue is completed. The AFP appointee might be charged with the offence even if the investigator does not recommend that termination, remedial or training and development action to be taken in relation to the AFP appointee.

(2) To avoid doubt, the Commissioner may take termination action in relation to an AFP employee whether or not a recommendation has been made by an investigator that termination action be taken in relation to the employee.”

[23] Section 40TU of the AFP Act provides:

“Report of investigation

(1) On completion of the investigation of the issue, the investigator must:

(a) prepare a written report of the results of the investigation; and

(b) give the report to:

(i) the head of the unit constituted under section 40RD if the issue was allocated to the investigator under section 40TN; or

(ii) the Commissioner if the issue was allocated to the investigator under section 40TO.

(2) Subsection (1) does not apply if:

(a) the issue is investigated jointly with the Ombudsman; and

(b) the arrangement under which the joint investigation is conducted specifies that the Ombudsman is to lead the investigation.

(3) Without limiting subsection (1), the report prepared under that subsection must include any recommendations that the investigator makes under section 40TR.”

Australian Federal Police Categories of Conduct Determination 2013

[24] The Australian Federal PoliceCategories of Conduct Determination 2013 defines ‘serious misconduct’ as:

“means intentional, deliberate or grossly negligent conduct that demonstrates wilful or reckless indifference to the AFP Code of Conduct and/or values of the AFP, whether in the AFP appointee's official capacity or otherwise, and/or could reasonably raise a question of employment suitability. In accordance with Part V of the Act, serious misconduct may include the commission of a criminal offence.”

AFP Code of Conduct

[25] The AFP Code of Conduct is contained in the AFP Commissioner’s Order on Professional Standards. Relevantly, it provides:

“8.11 An AFP appointee must behave in a way that upholds the AFP Core Values, and the integrity and good reputation of the AFP.”

AFP National Guidelines on deployment to International Operations Missions

[26] The AFP National Guidelines on deployment to International Operations Missions also relevantly provide that:

“28. Mission vehicles

…..

In accordance with the AFP National Guideline on AFP vehicles, AFP appointees must not:

…..

transport unauthorised persons in Mission vehicles”

“39. Fraternisation and sexual relations

“In accordance with the AFP Code of Conduct:

s.8.7. An AFP appointee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) connected to their AFP duties or employment.

s.8.10. An AFP appointee must behave in a way that upholds the good order, discipline and security of the AFP.

s.8.11. An AFP appointee must behave in a way that upholds the AFP Core Values, and the integrity and good reputation of the AFP.

s.8.12. While deployed overseas, an AFP appointee must behave in a way that upholds the good reputation of Australia.

It is imperative that AFP appointees remain objective in the performance of their duties and not abuse a position of power or trust.

AFP appointees must not be involved in any relationship that involves, or appears to involve, partiality, preferential treatment or improper use of rank or position.

AFP appointees must not engage in sexual intercourse, fraternisation and/or sexual relationships with residents of the host country as it has the potential to:

reflect negatively on the AFP

damage community relations

undermine objectivity and

present risks to Mission objectives.

Fraternisation in Missions includes:

voluntary sexual behaviour, including sexual behaviour not amounting to intercourse

a close and emotional relationship involving public displays of affection or private intimacy

the public expression of intimate relations.

Similarly, fraternisation, sexual intercourse and/or sexual relations, between AFP appointees and members of the expatriate community (including staff from other Australian agencies) may damage community relations, undermine objectivity and present risks to Mission objectives. Accordingly, AFP appointees must ensure their behaviour while in Mission is appropriate and in accordance with the social moral expectation of the host country.”

Commander’s Orders

[27] The Commander’s Orders issued pursuant to the AFP Act set out the Mission Rules, guidelines and expectations that apply to AFP appointees in Mission. Relevantly, the below clauses provide:

“20. Visitors to Mission

In this section:

• an official visitor means a visitor for work purposes and includes Australian Government employees, PNG Government employees or members of the RPNGC; and

• an unofficial visitor means a visitor for private purposes and includes a member of the Australian expatriate community in PNG, family and friends of an AFP Appointee or a PNG National.

Any AFP Appointee at or above the substantive level of Superintendent or Coordinator may give approval for another AFP Appointee to invite:

• official visitors; or

• unofficial visitors

to an AFP office or an AFP accommodation site. In all cases, approval must be received before a visit occurs. The Duty Officer is to be informed of all visitors to an AFP office or an AFP accommodation site and a record kept in the Duty Officer book.

Unless approved by the Mission Commander, all unofficial and unofficial visitors must leave the AFP office or accommodation site before the commencement of the night curfew. To avoid doubt, only the Mission Commander may give approval under this section.

…..

Unofficial visitors may travel as a passenger in PNG-AFP vehicles during their visit.”

“31. Fraternisation

AFP Appointees should endeavour to build strong relationships with the local community in PNG. This may include participation and involvement in local activities such as sporting, community and church events. Where AFP Appointees wish to become involved in local community activities, they must notify their supervisor, who will inform the Mission Commander of the activity.

While AFP Appointees deployed to PNG are encouraged to develop friendships with the local community (including members of the RPNGC) these relationships must be undertaken and managed having regard to the interests of the Australian Government and Mission objectives.

Sexual relationships with PNG nationals (including sex workers of any nationality) are prohibited.

AFP Appointees should be aware that prostitution and anal intercourse are criminal offences in PNG.

AFP Appointees deployed to PNG are not permitted to engage in inappropriate sexual relationships. An inappropriate sexual relationship is one which may compromise the Australian Government, the AFP or the Mission. If an AFP Appointee is unsure if a personal relationship may have any of these effects, or if they are uncertain as to the appropriateness of a particular relationship, the AFP Appointee must discuss the matter with their supervisor.

…..”

Applicant’s Materials

Evidence of Mr Martin Barlow

[28] Mr Barlow made a witness statement in this matter and appeared and gave evidence at the hearing.

Employment history

[29] Mr Barlow commenced employment with the AFP on or about 20 January 2003 in the position of a Protective Service Officer. He transitioned through the MACER programme to Constable of Police in 2011. He was promoted to the position of Senior Constable in June 2017.

[30] Aside deployment in 2017 and 2018, and for a four month period in 2015 where he was deployed to Solomon Island, Mr Barlow was stationed at the Cairns Airport. His position description at the time of termination was Operational Safety Training Instructor (OSTI), Rapid Appraisal Officer (bomb appraisal), and Armory Registrar. He was employed under the AFP Enterprise Agreement 2017 – 2020, pay rate band four at pay point five.

[31] Mr Barlow stated that prior to the circumstances leading to his termination, he had not been the subject of any disciplinary issues with the AFP. A copy of his Antecedents Report issued on 13 June 2019 was annexed to his witness statement.

Events in Papua New Guinea

[32] On or about 16 May 2017, he commenced deployment in PNG after being issued with a Deployment Directive by the Assistant Commissioner of the AFP. The Deployment Directive was effective from 16 May 2017 to 31 December 2018.

[33] The purpose of his deployment to PNG included providing training to members of the Royal Papua New Guinea Constabulary Force (RPNGC) in all aspects of bomb search and appraisal methods for the detection of improvised explosive devices. Mr Barlow estimates that he successfully trained approximately 800 RPNGC members for bomb search.

[34] During Mr Barlow’s deployment he resided at an AFP accommodation compound. All AFP members had a curfew, which requires that they have to be back in their apartment area by midnight on Friday and Saturday nights, and by 11.00pm on Sunday to Thursday evenings. The night curfew lifted at 5.00am.

[35] Mr Barlow’s evidence is that AFP members are allowed to bring guests into the compound. The procedure was to let the guards at the gates know about the guests; approval was to be sought prior to a visitor attending. For a visitor where multiple visits were taking place, the Commander can consider multiple visits.

[36] Mr Barlow explained that the gates to the compound were manned and always closed. He stated that to access the compound, you would slow down your vehicle and call through on the radio advising that you were approaching. This was undertaken at approximately 20 metres from the gate. When approaching of a night-time, the protocol was to slow the car down, turn off the car lights, turn on the interior light and radio. He stated that there was a sign-in sheet, but this was generally not used, and he did not turn his mind to any sign-in sheet, other than following the protocol of identification.

[37] The procedure for guests to stay past midnight required permission by the Mission Commander. Mr Barlow stated that in his instances of bringing in guest(s) he did not obtain approval.

[38] Mr Barlow gave evidence that on or about 4 November 2018 he was out with work colleagues having a few drinks at a hotel in PNG. The hotel has PNG Nationals, expats and AFP officers often in attendance. A female PNG National, Ms AB, approached him and they chatted for a few hours. Mr Barlow believed Ms AB to be an educated person, having graduated from school and who owned multiple businesses in PNG.

[39] Near the end of the evening, Ms AB asked Mr Barlow if he could provide her with a lift home. It is Mr Barlow’s evidence that he intended to drive her home. However, during the lift home she either made a phone call or received a telephone call from or to her partner. Following the call, Mr Barlow invited her to return to his apartment for a cup of tea or coffee.

[40] During cross-examination with respect to Mr Barlow’s evidence above, the following exchange occurred: 1

MS COULTHARD:	All right. Can I clarify that the reason why you offered [Ms AB ] an opportunity to return to your apartment, as you say for a cup of tea or coffee, was that she told you that she did not want to go home to her partner because she was a victim of domestic violence at his hands?
MR BARLOW:	To be honest, she received a phone call and told me her partner was drunk and she didn't want to go home. At no stage did she say she suffered from domestic violence. I think for me personally I read too much into it. She just didn't want to return home. He was a drunk and she didn't like him. That's the words that she said to me or words to that effect. …..
MS COULTHARD:	Sorry, Mr Barlow. If I've understood it, you told the investigators that [Ms AB] told you that she was the victim of domestic violence. You in fact told the investigators that she showed to you at one point an injury or injuries that she had suffered at the hands of her husband or partner, and those things that you told the investigators about what [Ms AB] told you about her domestic violence situation is reflected in the PRS report. We can take you to the passages in the report which are recounted. Are you now saying that [Ms AB] didn't tell you that she was the victim of domestic violence?
MR BARLOW:	What I'm saying is she told me that she doesn't like her partner. I don't think it's her husband. She has an injury to her wrist that was self-inflicted when she put her hand through a window because she wanted to leave the house and he didn't want her to leave the house, but I think I just put it down to domestic violence, but I don't - to the best of my knowledge she never said, "I'm suffering from domestic violence", but I do believe I did say this to the investigators. All this happened within about a week and a half of my repatriation, so things were still a bit confused in my head. …..
MS COULTHARD:	All right. Well, let me take you to page 496 of the bundle?
MR BARLOW:	496. Okay.
MS COULTHARD:	All right. Could I take the parties to paragraph 12. The document we're looking at - I'm saying this for your benefit as well as in a sense for the benefit of the record - your response to the show cause notice to Assistant Commissioner Peter Crozier. This is after the PRS report, after your natural justice response. You get a show cause notice and now you're writing to the Assistant Commissioner of the Australian Federal Police. At paragraph 12 on page 496 you say: I would also like to provide clarity around [Ms AB] and the alleged experience of domestic violence. When I became aware that [Ms AB ] may be a victim of domestic violence, I encouraged her to contact the Royal Papua New Guinea Police Constabulary.
MR BARLOW:	Yes.
MS COULTHARD:	So you're there telling the assistant police commissioner that [Ms AB] told you that she was a victim of domestic violence?
MR BARLOW:	No, the way I read this is [Ms AB] alleged and may be. I have never said she was. She alleged that she experienced and may be a victim.

[41] Later in evidence, in seeking understanding of Mr Barlow’s evidence above, I asked: 2

COMMISSIONER:	Mr Barlow, help me out with your evidence today about [Ms AB]’s domestic violence issues. I have written some notes and they don't reflect exactly what you said, but I've written, "He drinks and I don't like him." That's what [Ms AB] was saying about her partner and perhaps you thought that you made too much of the domestic violence concerns and I've written, "She has an injury to her wrist that was self-inflicted. She never told me she was a victim of DV. I know I said that." Help me out?
MR BARLOW:	Yes, well, the way I go, Commissioner, basically, when I first met [Ms AB], she spoke about her partner, she doesn't like her partner, she showed me an injury on her hand, explained how she got the injury, by basically going to the bathroom, he locked her in the bathroom because she wanted to go out, so she basically put her hand through the glass to go out. So this is why she spent a lot of the time at her mum's. At no stage can I recall her saying, "Look, it's domestic violence." She just said she doesn't like him, doesn't want to be with him and prefers to stay at her mum's, but he is a drinker. …..
COMMISSIONER:	Okay, let's have a look at page 237, paragraph 2.14? ….. Halfway in: [Ms AB] told him she was suffering domestic violence and received a telephone call from her abusive spouse whilst putting her (indistinct) so he offered her a coffee so she could calm down. [Ms AB] asked to stay the night because she didn't feel safe going home. That's what you told the investigators; is that right?
MR BARLOW:	Yes, it's in the report, so I must have said that, yes, but I don't believe I - from getting terminated to returning home, trying to explain things to certain people, I think I was just starting to confuse myself, and then I get PRS or the investigators hit me up and I think I just put more into it than what it actually was. I definitely received a phone call. I don't (indistinct) her side of the phone call.
COMMISSIONER:	Mr Barlow, are you telling the truth to this Commission and you didn't tell the truth to PRS, or is it that you told the truth to PRS and you're not telling the truth to this Commission?
MR BARLOW:	No, I'm telling the truth here, Commissioner. I think I just got confused, I just - I don't think that was domestic violence, I think she just didn't like being there and I just read too much into it and I just jumped the gun.

[42] According to the guards’ records, Mr Barlow arrived at the compound about 9:42pm. Ms AB asked Mr Barlow if she could stay the night as she didn’t want to go home to her partner. Mr Barlow advised that it was against the rules for a PNG National to stay at the AFP accommodation (without approval), but he eventually agreed. Ms AB stayed overnight and they engaged in consensual sexual intercourse. The following day Mr Barlow dropped Ms AB to her mother’s home.

[43] On or about 8 November 2018, Mr Barlow saw Ms AB again at the same hotel. After spending some time at the hotel, Ms AB asked to come back to Mr Barlow’s apartment. They arrived back at the compound prior to curfew at 8.46pm. They had consensual sexual intercourse and Ms AB stayed the night. Mr Barlow dropped Ms AB to her mother’s home the next day.

[44] Mr Barlow stated that he saw Ms AB on another date he could not recall. On this occasion, he picked Ms AB up from her home and they went to a restaurant on the beach. They ate lunch together. He then dropped her at home or to her mother’s house.

[45] Later that same evening, it is Mr Barlow’s evidence that Ms AB contacted him and arranged for him to collect her to go out and socialise at a venue. They were at the venue for about two to four hours. Ms AB told Mr Barlow that she did not want to go home and that she would like to come back to his apartment again. They watched a movie until after curfew. They had consensual sexual intercourse and Ms AB stayed the night.

[46] During cross-examination, with respect to Mr Barlow’s sexual intercourse with Ms AB, the following exchange occurred: 3

MS COULTHARD:	….. Do you see there paragraph 31 on page 85 - clause or paragraph 31 on page 85 - specifically provides in the third paragraph: Sexual relationships with PNG nationals are prohibited.
MR BARLOW:	Yes. I've read that one, yes.
MS COULTHARD:	Yes, all right. Do you see also at page 72 - if you go back to page 72? This is subparagraph (e): Respect for the laws, customs and cultural issues of PNG.
MR BARLOW:	Yes.
MS COULTHARD:	….. I wanted to take you to clause 43. The second sentence there says: AFP appointees must also respect local culture, traditions, customs, practices - and so forth?
MR BARLOW:	Mm-hm.
MS COULTHARD:	Just again for the record, that is a clause in the guideline on deployment to international operations; so both in the commander's orders and in the guidelines, respect for local laws is reinforced. Is that right?
MR BARLOW:	Yes. It is, yes.
MS COULTHARD:	Did you consider at all when on these four separate occasions you had sexual intercourse with [Ms AB] in breach of the prohibition on sexual intercourse with PNG nationals that your conduct might not be respecting - or be inconsistent with local laws?
MR BARLOW:	Well, I don't think I broke any laws. I broke AFP guidelines. I do know an AFP member did break local law over there and had nothing done to him by AFP.

[47] On 9 November 2018, Mr Barlow saw Ms AB at the hotel again. He spent the evening with her and her friend (Ms CD), together with other AFP officers. That evening there were a lot of AFP officers at the hotel. Close to the curfew commencing, Mr Barlow offered Ms AB, Ms CD and Mr ZA (a fellow AFP member) a lift home. As he was driving his vehicle out of the hotel, he saw two AFP members, one male and one female in the car park looking confused and searching for the bus pick up point. They flashed Mr Barlow down (in the AFP marked vehicle) and requested a lift back to the compound.

[48] Mr Barlow dropped off the two AFP members at a lower level of the compound, and drove up and parked at his apartment. Ms AB, Ms CD and Mr ZA chatted in his apartment and then went to bed. The next morning, he dropped both Ms AB and Ms CD at Ms AB’s mother’s house on his way to work.

[49] During cross-examination, with respect to Mr Barlow driving Ms AB home, the following exchange occurred: 4

MS COULTHARD:	All right. Would you agree though that driving a female PNG national around in an AFP marked car who has told you what she has told you about her relationship with her husband, might place that person at further risk and so demonstrates poor judgment on your part?
MR BARLOW:	Yes, I believe that - poor judgment, but whenever [Ms AB] contacted me I always asked where she wanted to be picked up from and she would generally walk away from her house so she wasn't seen, and be dropped off at her mother's or in the city.
MS COULTHARD:	So that she wasn't seen?
MR BARLOW:	No, I didn't say that. She would always walk away from her house, walk down the road. Also one thing didn't come out in the investigations is where the New Zealand contingent were. So AFP vehicles are always in that area, so it's not unusual to see an AFP vehicle stop in that area. That's where the AFP contingent was. This didn't come out in the investigation because PRS didn't ask me. So it's not unusual to see an AFP vehicle adjacent to [Ms AB]’s home address.

Return to Cairns

[50] On 16 November 2018, Mr Barlow was repatriated to Cairns, Australia. On his arrival to Cairns he was informed by the Acting Airport Police Commander, Mr Steve White, that he was required to attend a telephone meeting with Commander Andrew Donahue. During the call Commander Donahue directed Mr Barlow to return to work at Cairns Airport immediately and confirmed that there were no restrictions on his duties. He was advised that the matter would be passed to PRS for further investigations.

[51] Between 18 November 2018 and the 14 November 2019, Mr Barlow conducted all his duties as an AFP member, as required, as well as all associated higher duties. Mr Barlow completed enhancement training as an OSTI and was signed off by full time OSTI from Brisbane; the qualification included the new firearms holster/torch system. He also completed enhancement training.

[52] Mr Barlow set out in his witness statement further training, qualifications and duties he undertook whilst working in Cairns. For example, he stated that whilst being investigated for the conduct in PNG, he was the investigating officer for several offences including:

• Drug importation from PNG. He was responsible for locating two packages, which border force were unable to locate;

• Theft of airport equipment. He oversaw the brief of evidence and lodgment of all evidence;

• Drug possession. He was responsible for the handling, lodging and securing of all drugs located on the offender and oversaw the brief of evidence;

• Located an alleged child rapist by assisting Queensland Police in locating and tracking an alleged child rapist; and

• Assisted a female in locating her daughter after her partner was arrested and sent to prison.

Investigation

[53] On 19 December 2018, PRS conducted a DROI (Directed Record of Interview) with Mr Barlow and his support person, Mr Russell Barlow. The meeting was held by PRS members Detective Sergeant Puchalaand Federal Agent Leisa James. Mr Barlow stated that during the interview he made full admissions of his relationship with Ms AB from 4 November 2018 to 11 November 2018.

[54] During cross-examination, with respect to Mr Barlow’s evidence that he made full admissions of his relationship with Ms AB throughout the investigation, the following exchange occurred relevant to the answers he provided to Superintendent Raiser whilst still in PNG: 5

MS COULTHARD:	On 15 November 2018 Superintendent Raiser had a conversation with you, and she asked you if you had had a female Papua New Guinea national in your AFP-marked vehicle on 9 November. She asked you that question?
MR BARLOW:	Yes, she did.
MS COULTHARD:	And you told her in reply that there was only you and three other AFP officers in the vehicle, didn't you?
MR BARLOW:	At the start of the conversation, yes.
MS COULTHARD:	Yes, that's right. And after being asked a number of times, you then said to Superintendent Raiser that there was one local girl in the car, but that you dropped her off near the top of the hill on Lawes Road. You told her that, didn't you?
MR BARLOW:	Yes.
MS COULTHARD:	And you then told Superintendent Raiser that you took the girl into your apartment, that's your apartment at the [redacted] compound, but you told Superintendent Raiser that the girl, whom we know to be called [Ms AB], slept on the couch. You told her that, didn't you?
MR BARLOW:	Yes, I did.
MS COULTHARD:	And you also told, when asked, Superintendent Raiser, that the girl had not been in the [redacted] compound prior to 9 November?
MR BARLOW:	I can't remember that one.
MS COULTHARD:	And you didn't tell Superintendent Raiser that [Ms AB] had spent the night in your apartment on three previous occasions?
MR BARLOW:	I don't think I was asked.
MS COULTHARD:	I put it to you that you were asked?
MR BARLOW:	My recollection is that Leanne Raiser and Dave Moore only spoke about the night of 9 or 10 November. They didn't ask me questions about anything else.
MS COULTHARD:	You didn't volunteer, when you were being asked about 9 November, that [Ms AB] has been in the compound on three previous occasions?
MR BARLOW:	To my understanding, they didn't ask me whether she had been to the compound before.
MS COULTHARD:	No, I didn't ask you that. I asked you did you volunteer that information?
MR BARLOW:	No.
MS COULTHARD:	And then Superintendent Raiser expressly asked you whether you had had sexual intercourse with [Ms AB], and she asked you that question a number of times, didn't she?
MR BARLOW:	Yes, she did.
MS COULTHARD:	And on each occasion you denied - you repeatedly denied having sexual intercourse with [Ms AB]. That's right, isn't it?
MR BARLOW:	I did deny having sexual intercourse, yes.
MS COULTHARD:	And we know, because you admit it, that in fact you did have sexual intercourse with [Ms AB] on the evening of 9 November?
MR BARLOW:	Yes, I did.
MS COULTHARD:	And we now know of course that you had sexual intercourse with [Ms AB] on the three previous occasions in which you had [Ms AB] in your apartment at the compound?
MR BARLOW:	Yes.
MS COULTHARD:	And you also told Superintendent Raiser that you didn't know what [Mr ZA] had done with his girl - sorry, they're the words that were used, not my words. But that's not true either, is it?
MR BARLOW:	At the time, no, it wasn't.
MS COULTHARD:	So do you agree that during that discussion you had with Superintendent Raiser on 15 November, you were not honest with Superintendent Raiser?
MR BARLOW:	To my recollection I did tell the superintendent most things, but I was under no directions from her. I was not cautioned. I did not seek legal aid, so I didn't know how to answer her. I was embarrassed at the time, so I would rather have not said too much. So I only answered the questions she asked me.

[55] Further to the above, the following exchange occurred: 6

COMMISSIONER:	Have a look at paragraph 69 on page 11. We might start earlier. We will start at paragraph 66. This is Superintendent Raiser's questioning of you and I have heard you earlier say that you thought you would only answer her questions put to you and you're not obliged to elaborate. This is her evidence that she's going to give and be cross-examined on. At 66: I continued to question Mr Barlow about who was in the vehicle and he continued to insist it was only himself and three other AFP officers in his vehicle. You weren't telling the truth, were you?
MR BARLOW:	No, I wasn't, no.
COMMISSIONER:	At 67: Upon repeated questioning, Mr Barlow eventually admitted that there was one local PNG woman in his car but stated that he dropped her home as she lived just up the road from the Airvos compound. You weren't telling the truth, were you?
MR BARLOW:	No.
COMMISSIONER:	At 69, you stated that you've met her through a connection with golf; is that right?
MR BARLOW:	She - well, I can't remember but she mentioned - she spoke to me and said, "We spoke before at a golf venue." She explained the situation and then I'm assuming, yes, we did. It was about six months prior.
COMMISSIONER:	Then: On further questioning, Mr Barlow continued to deny that he had brought the PNG woman into the [redacted] compound. He then finally admitted that he had brought the PNG woman into the [redacted] compound but said that she slept on his couch because she did not want to go home. That's not the truth, is it?
MR BARLOW:	No.
COMMISSIONER:	At 71, you then make admissions that there were two women in the car?
MR BARLOW:	Yes.
COMMISSIONER:	At 72, once you had admitted to that, then you were asked to elaborate on what happened next. This is where Superintendent Raiser says you did elaborate and that you stated that you had coffee or tea with one of the women and then went to bed and her name was [Ms AB] and you thought the woman's name was [Ms CD]. "[Mr ZA] slept on his couch." So that's not true, is it?
MR BARLOW:	No, that's not true.
COMMISSIONER:	"[Ms AB] had not been in the [redacted] compound before." That's not true, is it?
MR BARLOW:	No.
COMMISSIONER:	That you had never had sexual intercourse with [Ms AB]. That's not true, is it?
MR BARLOW:	No, it's not true. …..
COMMISSIONER:	….. Then her evidence is that she pressed you a number of times whether you had sexual intercourse with [Ms AB] and you continued to deny doing so and maintained that she slept on the couch while you went to bed. Is that what you said to her?
MR BARLOW:	Yes, that's what I said.
COMMISSIONER:	And that's not the truth, is it?
MR BARLOW:	No.
COMMISSIONER:	Did you ever inform Superintendent Raiser that you had had sex with [Ms AB] just on that occasion?
MR BARLOW:	After that one meeting, I was told to go back to my compound and the next thing I had was a phone call to say there's a plane booked for me for the following day, so I had no more interaction with Leanne Raiser.
COMMISSIONER:	I can't count the number of times that you've told untruths here. It's probably close to 10. Would that be a fair assumption?
MR BARLOW:	A best assumption, yes.

[56] It is Mr Barlow’s evidence that after the interview with Detective Sergeant Puchala on 19 December 2018 in Cairns he said to him words to the effect, “What do you think I will get as a punishment?” Detective Sergeant Puchala replied with words to the effect, “Look you have been frank and honest, I don’t think you will lose your job, but you will get something.” Mr Barlow then asked, “What happens now?,” to which Detective Sergeant Puchala replied with words to the effect, “You will be updated monthly, so you are fully aware of what is happening, you can call me at any time.”

[57] During cross-examination, with respect to Mr Barlow’s recollection of the above conversation, the following exchange occurred: 7

MS COULTHARD:	You see there that you give evidence that after your directed interview with Mr Puchala and Ms James had completed you asked Tim, "What you think I will get as a punishment", and you say that Tim replied with words to the effect of, "Look, you have been frank and honest, I don't think you will lose your job but will get something." DS Puchala didn't tell you that at all - I mean, sorry, DS Puchala didn't tell you that he didn't think you would lose your job but that you would get something?
MR BARLOW:	That's my recollection of the conversation I had with Tim after the interview had finished and outside the interview room. That's what I can remember him saying or words to that effect.
MS COULTHARD:	I mean, I'm putting to you that Mr Puchala commented on your honesty and how you'd been forthcoming in the investigation but I'm putting to you that he didn't tell you that in his opinion you wouldn't lose your job?
MR BARLOW:	As I said earlier that I can recall having a conversation with Tim while Lisa was off photocopying some stuff and I asked him, "What am I looking at", and he said, "Look, you've been frank and honest and those are the words I do not generally use and I don't think you'll lose your job." That's my recollection of the conversation outside the interview room once the interview had been terminated so nothing that was on record.
MS COULTHARD:	All right. And can I just ask you DS Puchala was the investigator for the - at the PRSI Unit, is that right?
MR BARLOW:	No, he was leaving. Lisa was the main investigator. Tim was the team leader. He'd come to assist Lisa.
MS COULTHARD:	Yes, sorry. All right. He - she was the lead investigator and he was a corroborator and he was leaving or rotating out of the PRS Unit because his appointment to the unit was coming to an end, that's right, isn't it?
MR BARLOW:	Yes, they were both rotating out.
MS COULTHARD:	So you know that DS Puchala wouldn't be making any decision that he wasn't the decision-maker in relation to what sanction might apply to your contravention of the commander's orders?
MR BARLOW:	No, because also during the interview which is on disc he did say he will be staying in the back - Lisa is leaving, he will stay in the background and will keep me updated with anything. So he is not rotating out, he is just basically in the side - stepping aside so he'll be still monitoring my case until he's (indistinct).
MS COULTHARD:	No, that's not right because his appointment to the PRS Unit expired at the end of April 2019 so he does move out of the PRS Unit?
MR BARLOW:	The way he told me on the disc is yes, he is leaving but he will monitor my case and update me on a regular basis and Lisa will be gone within the next couple of weeks. (Indistinct) as the team leader.

[58] It was stated that in the 12-month period of the investigation, Mr Barlow only ever received one email from PRS. He contacted them about two to three times over the year for an update, but no update was provided.

[59] On 29 May 2019, the AFP issued a letter to Mr Barlow advising that an internal investigation had been conducted by PRS, and the proposed findings for the conduct issue were an established ‘Category 3’. The letter enclosed a copy of six pages from an occurrence book and one page from a guard logbook. A copy of the letter, occurrence book and guard logbook were annexed to Mr Barlow’s witness statement. 8

[60] Mr Barlow explained that the occurrence book is a book where guards make notes about occurrences at the accommodation compound. A reference to “Code Green” is stating that the compound is, in the view of the guard, secure.

[61] Also on 29 May 2019, the AFP issued a second letter enclosing a Professional Standard Investigation Report, prepared by Investigating Member Francine Adams on 21 May 2019. 9

[62] On 5 June 2019, Mr Barlow provided a response to the allegation that he breached section 8.11 of the AFP Code of Conduct. He accepted that there was an established conduct issue, however disputed some of the “uncontested evidence” points made in the investigation material that was provided to him. 10

[63] Mr Barlow stated that the “uncontested evidence” points that were contested included paragraph 2.39 of the Professional Standard Investigation Report, stating that attempts were made and that he followed AFP protocol in regard to his entry and exit from the gate with a visitor.

[64] On 14 June 2019, Mr Barlow received the results of the PRS investigation by internal mail. The results were that a ‘Category 3’ breach had been substantiated, providing: 11

“Between 16 May 2017 to 16 November 2018, Senior Constable Martin BARLOW [redacted] seriously breached section 8.11 of the AFP code of Conduct (an AFP appointee must behave in a way at upholds the AFP Core Values, and the Integrity and good reputation of the AFP) when he fraternised with a PNG citizen during his deployment to PNG.”

[65] Annexed to Mr Barlow’s witness statement was a copy of an email he received from Detective Sergeant Withers, advising that the report, along with other supporting documentation had been tabled for the next PRS panel, which intends to sit on 26 June 2019. 12 Mr Barlow stated that he contacted Detective Sergeant Withers by telephone and sought guidance on how he was to answer the Natural Justice Report.

[66] During the above call, Mr Barlow recalled he said words to the effect, “What does the PRS panel expect to see in a NJR?” Detective Sergeant Withers replied with words to the effect, “Put in as much information as possible to explained why the situation happened.” Mr Barlow then asked, “Once I complete the NJR what happens next?” Detective Sergeant Withers replied, “It will be forwarded to the PRS panel, they sit once a month. Yours is not that serious so I don’t think it will be looked at for a few months.”

[67] It is Mr Barlow’s evidence that during this conversation he asked Detective Sergeant Withers, “What sort of punishment do you think I’m looking at?” and Detective Sergeant Withers said in reply, “I’ve seen worse, possible a pay deduction, I can’t see you losing your job as you where honest during the PRS interview.”

[68] During cross-examination, with respect to Mr Barlow’s recollection of the above conversation, Ms Coulthard put the following to Mr Barlow: 13

MS COULTHARD:

…..

Well, I'm putting to you that Brendan Withers didn't express an opinion as to what he sanctioned he thought the panel would impose?

MR BARLOW:

No. That's how I recall the conversation.

Outcome of investigation

[69] Mr Barlow was issued two letters, dated 16 August 2019 and 27 August 2019, which advised that as a delegate of the AFP Commissioner, the Assistant Commissioner was considering terminating his employment. A copy of the letters were attached Mr Barlow’s witness statement. 14

[70] Mr Barlow accepts that he was provided with an opportunity to respond to the AFP about his conduct. However, he asserts that at this time he was under a misguided notion that his employment would not be terminated, and he was willing to accept any other sanctions. On 2 October 2019, he provided a response to the show cause notice outlining why his employment should not be terminated. 15

[71] During re-examination, Mr Barlow stated: 16

MS ESPOSITO:

…..

when you advised that you were under the misguided notion that your employment would not be terminated, and your evidence has been so far that you spoke with two PRS investigators in regards to that, what did you believe that your sanction would be?

MR BARLOW:

Possibly a drop in pay band, never to be deployed, quarterly or biannual PDA periods, and some form of counselling, like previous members have received.

Termination

[72] On 14 November 2019, two PRS officers attended Mr Barlow’s home. He was not provided with notice of their attendance. However, he was informed after their arrival that the PRS had taken steps to engage support for him, having his brother, Mr Russell Barlow and a friend, Senior Constable Nadine Hickling also attend his home.

[73] Mr Barlow was provided with the termination letter dated 13 November 2019. His computer authorisation was immediately revoked, and he was supervised while he cleaned out his desk. His final pay advice demonstrates that he was paid five weeks in lieu of service.

[74] He stated he was shocked when his employment was terminated, and ‘shocked’ was an understatement. He was not prepared. He further stated that he repeatedly obtained advice that his employment would not be terminated. He had provided information relating to the circumstances of his conduct, and that he had continued to work for a year, without being stood down.

Mitigation

[75] While he is seeking reinstatement of his employment, Mr Barlow gave evidence that he has sought to mitigate his damages. Evidence of job applications made by Mr Barlow were annexed to his witness statement. 17 Mr Barlow also stated that he was unable to obtain Centrelink benefits until July 2020 due long service leave paid out on termination.

Evidence of Mr Russell Barlow

[76] Mr Russell Barlow, the Applicant’s brother, made a witness statement in this matter and appeared and gave evidence at the hearing. 18 He is a former member of the AFP. He retired in December 2019, after 26 years’ service.

[77] Mr Russell Barlow was a support person for Mr Barlow during the investigation into his conduct. On 19 December 2018, he attended an interview at the AFP office in Cairns with Mr Barlow. The interview was conducted by Detective Sergeant Puchala and Federal Agent Leisa James of the PRS Unit. Mr Russell Barlow asserted that Mr Barlow was clearly stressed and upset throughout the interview. This was shown in the tone of his voice and body language. He was ringing his hands, sitting forward and hunched, and when a break was taken, he was emotional and had difficulty with his thought processes.

[78] At the conclusion of the interview, Mr Russell Barlow recalled that there was a conversation outside the interview room between Mr Barlow, Detective Sergeant Puchala and himself. It was his evidence that Detective Sergeant Puchala thanked Mr Barlow for his honesty and candour during the interview.

[79] Mr Russell Barlow’s evidence was that they asked Detective Sergeant Puchala what was going to happen to the investigation going forward. He paraphrased and understood Detective Sergeant Puchala’s response as:

“ “given you have made full admissions, the allegations would be seen as found.” Tim also commented that he had seen worse and he would be surprised if Martin was dismissed, and that worse cases had been dealt with by some form of sanction. He advised that they would make recommendations. The nature of the conversation led me to believe that the recommendations would be positive.” 19

[80] During Mr Russell Barlow’s evidence at the hearing, the following exchange occurred: 20

COMMISSIONER:

All right. Well, Mr Barlow, it's Detective Sergeant Puchala's evidence that he is not part of his way of doing things because this is what he does for a job, that people regularly want to know what's going to happen and he doesn't like to comment or express a view on a potential sanction. His standard response he says is, is to say words to the effect of, "The investigation will progress along and it will ultimately be up to the panel to decide what the sanction will be", that sounds quite a reasonable response, doesn't it?

MR RUSSELL BARLOW:

Yes. That is, Commissioner. I do agree with that. Basically he said that, however, it was a part of the conversation between the three of us and my recollection was is that he would make recommendations and that he had seen worse offences or worse than this and he thought Martin would be okay. That is my recollection and I can't change that.

Applicant’s Submissions

Grounds of Termination

[81] Mr Barlow noted his employment was terminated on 14 November 2019 for serious misconduct, pursuant to s.40K and s.28 of the AFP Act. However, the Show Cause Notice dated 27 August 2019 refers to termination pursuant to s.40TR of the AFP Act.

[82] It was submitted that the Show Cause Notice does not provide notice to Mr Barlow that his employment may be terminated for serious misconduct pursuant to s.40K, as alleged, rather the Proposed Sanction Notice, signed by Commissioner Crozier on 16 August 2019, provides Termination Action (s.40TE of the AFP Act). The Sanction Determination by the Chair of the PRS signed on 16 October 2019 then provides that the employment was terminated pursuant to s.28 of the Act.

[83] Mr Barlow submitted that the letter of termination dated 13 November 2019 does not specifically refer to s.40TE, nor does it provide declaration. It was submitted that the termination was made pursuant to s.40TE.

Commander’s Orders and Guidelines

[84] Mr Barlow submitted that Section 39 of the the National Guideline on deployment to International Operations Missions and the Commander’s Orders are evidence of the encouragement of the AFP members to build relationships and be involved in local activities, but also provide that “sexual relationships with PNG Nationals (including sex workers of any nationality) are prohibited.”

[85] With reference to being questioned about transferring unauthorised persons in Mission vehicles, Mr Barlow submitted that the evidence was that unauthorised persons such as cleaners and other staff were transported in vehicles as “it was just the normal thing to do.” 21 The evidence is that the practical aspects of the direction with vehicles is not necessarily followed.

[86] It was submitted that the evidence of Superintendent Raiser is that, where possible, Mission vehicles will be used for all local travel within PNG whilst on and off duty to ensure an appropriate level of security for AFP appointees. Further, the National Guideline on deployment to International Operations Missions provide that AFP appointees must not “transport unauthorised persons in Mission vehicles.” As such, certain guidelines such as motor vehicle usage and accommodation rules were changed to be more practical.

[87] Mr Barlow submitted that Superintendent Raiser provided evidence that there were ‘issues taken’ with the Commander’s Orders and the fraternisation direction that has been relied upon for the termination of Mr Barlow, wherein the Order includes members of the expat community. Superintendent Raiser stated “There was a lot of debate around that section at the time, I remember people debating pros and cons and impacts but I honestly can't remember whether it got brought in then or whether it just ended up, you know, not being included.” 22

[88] Mr Barlow noted that when questioned if it was unusual for officers to not report conduct, Superintendent Raiser stated, “I don't know that. I can't tell you. But I would have thought that that was pretty obvious misconduct that needed to be reported, yes.” 23In regards to complaints made about conduct that Superintendent Raiser is not aware of, the evidence of Superintendent Raiser was that “I think a lot of people, just my experience is that most of them will just go through the chain of command, but it certainly is possible that direct complaints were made that I'm not aware of.”

[89] Mr Barlow submitted that set out in his witness statement were alleged incidents that have or are occurring with other officers while deployed where no action has been taken. It was submitted that based on the evidence of Superintendent Raiser, reporting of conduct can occur internally without PRS, or direct to PRS. The Protective Services Officer and the Federal Agent who flagged Mr Barlow down in the AFP vehicle on 9 November 2018 and were in the car with him, Ms AB, Ms CD and Mr ZA did not report the conduct of Mr Barlow and Mr ZA, which Mr Barlow states is evidence that reporting does not occur, even where, as Superintendent Raiser stated, there is a clear breach of orders.

[90] It was submitted that Mr Barlow’s termination was inconsistent with other matters that have been reported or otherwise dealt with by AFP representatives at a local level. Mr Barlow provided a name for one of the members’ conduct, and evidence that he was informed of this conduct by two AFP officers. Mr Barlow’s evidence was uncontested.

[91] Mr Barlow submitted that Mr Russell Barlow provided uncontested evidence in his witness statement of direct conversations that he was a part of in the meeting about Mr Barlow’s termination held by the AFP, which corroborates Mr Barlow’s evidence that he was contacted by people and information was disclosed to him about overseas conduct involving fraternisation.

[92] It was submitted that the Commission should exercise its discretion with respect to the rules of evidence under the Act to consider the uncontested evidence of Mr Barlow and Mr Russell Barlow to draw a conclusion that there is sufficient evidence to indicate that reported and unreported matters of fraternisation have and do occur, where the action has not been referred to the PRS Panel.

Length of Investigation

Detective Sergeant Puchala

[93] Mr Barlow noted that Detective Sergeant Puchala was the investigator assigned to the matter until late April 2019. Detective Sergeant Puchala was questioned in regard to the audio interview on 19 December 2018, wherein he states that the matter would be “snappy.” Mr Barlow submitted that the audio recording of the interview provides that Detective Sergeant Puchala stated the following:

• “we’ll maintain contact with you on a monthly basis to give/keep you updated;” and

• “Mate to be honest, with you making full admissions you/we’ll probably only rely upon this interview for the IR, so it will be quite snappy. Um in relation to getting it to the natural justice phase, and then it is however long it takes to get to the panel, because obviously it’s going to be established….”

[94] Mr Barlow suffered from heart palpitation in January 2019 and reported this to the AFP. Following 19 December 2018, Detective Sergeant Puchala did not contact Mr Barlow again until 13 March 2019, where an email was sent, which included the following statements:

• “First let me apologise for the lack of communication since your interview last year and my undertaking that you matter would be progressed quickly;”

• “…there have been a number of competing higher priorities for the team which saw that other jobs (though all very important) were not progressing as quickly as expected;” and

• “I will advise you once the draft Investigation Report is sent off for review, I anticipate it will be before this time next week.”

[95] Mr Barlow did not hear from Detective Sergeant Puchala again. Detective Sergeant Puchala was questioned regarding the time period of the investigation. Detective Sergeant Puchala’s evidence included, “I can't remember the specifics of the benchmarks, cause it's now a number of years since I've been in PRS. However, there is an expected timeline, milestones to be met and the whole process was a certain amount of days where from the commencement of the investigation to the conclusion. So I think it was 180 days, but I can't remember specifics.”

Detective Sergeant Withers

[96] Mr Barlow noted that Detective Sergeant Withers commenced in his role as the Team Leader of the PRS Unit on 22 January 2019. From Detective Sergeant Withers’ commencement on 22 January 2019 to on or about May 2019, he had no contact with Mr Barlow.

[97] Detective Sergeant Withers provided evidence that the draft report from Detective Sergeant Puchala was provided “around the same time that his instrument was finished.” Detective Sergeant Puchala finished on or about 30 April 2019. Detective Sergeant Withers then referred the matter to Federal Agent Francine Adams to finalise after the expiration of Detective Sergeant Puchala’s Instrument of Appointment.

[98] Mr Barlow submitted that, on the evidence, the following contact occurred since Mr Barlow was advised that the conduct matter would be established:

• Email from Detective Sergeant Puchala dated 13 March 2019; and

• Email and phone call with and from Detective Sergeant Withers on or about 30 May 2019.

[99] It was submitted that there was an expected timeline of approximately 180 days from the commencement of an investigation. The PRS Unit process commenced on or about 22 November 2018. Full admissions were made by Mr Barlow on 19 December 2018. No further investigation interviews were carried out.

[100] The Draft Investigation Report was released over five months later to Mr Barlow on 30 May 2019; Mr Barlow responded with a Natural Justice Response in six days on 5 June 2019.

[101] The Final Investigation Report for the PRS Panel was concluded on 14 June 2019 with the Final Investigation Report released and an established conduct ‘Category 3’ found.

[102] The PRS Unit investigation process for the investigation took 204 days. Mr Barlow submitted that his response period of six days did not impede the PRS Panel investigation period.

Early Admission of Conduct

[103] Mr Barlow submitted that lengthy questioning took place in an unofficial interview with Superintendent Raiser whilst in PNG. It was submitted that Mr Barlow, following extensive questions throughout the conversation with Superintendent Raiser, eventually disclosed his conduct. However, he lied regarding sexual conduct with Ms AB and the extent of Mr ZA’s involvement.

[104] It was submitted that Superintendent Raiser is unable to undertake directed interviews, 24 and later that day Mr Barlow called Assistant Commissioner Giles to apologise.25 Mr Barlow further submitted that he provided evidence that he was embarrassed and panicked, which was also confirmed by Detective Sergeant Puchala.

[105] On the above point, Mr Barlow noted that the final investigation report included:

“Feedback from the interviewing officer DS Puchala has stated that the member was very open and honest about the situation and provided far more detailed information in regards to when he first became acquainted with [redacted] and the friendship that they had developed.”

[106] It was submitted that upon the investigation commencing, on 19 November 2018 Mr Barlow made full admissions which included conduct that the AFP was not aware of. As at that date, the AFP was therefore fully aware of the nature of the conduct.

Period of Conduct

[107] Mr Barlow submitted that despite the conduct occurring for a period of approximately two weeks, the substantiated outcome for the conduct included his whole deployment period.

[108] It was submitted that the Respondent’s witnesses, Detective Sergeant Puchala, Detective Sergeant Withers and Assistant Commissioner Crozier were questioned about either the process of determining the conduct period for the draft investigation report period, the final investigation report period, the show cause notice period, and/or the termination notice period.

[109] In response to questions regarding the conduct period, Mr Barlow noted that Detective Sergeant Puchala provided, “If they're the dates that are in the report, I would have put them in there.” When asked whether it is usual to insert a whole deployment period for the conduct issue, Detective Sergeant Puchala stated, “I wouldn't say usual.”

[110] When Assistant Commissioner Crozier was askedwhether it is usual to insert a whole deployment period for the conduct issue, Assistant Commissioner Crozier answered:

“Well, look, it's important that I understand the whole breadth of the time it was there, but this is about ensuring that the material was provided, so that actually is part of the evidence, shows that Martin was aware of his requirements, that he had signed the direction or the delegation that comes, or the - sorry, the word escapes me - the deployment directive, so covering the whole time of his deployment. So he's subject of all elements of CO2 of the code of conduct for the whole period of time that he's overseas, and the Commander's orders, as he is whenever he's an employee of the AFP.”

[111] It was submitted that, considering the above, including the whole deployment period for the substantiated conduct matter is incorrect, unfair and biased against Mr Barlow.

Suspension

[112] Mr Barlow submitted that it is uncontested he remained employed on full duties during the course of the investigation from 15 November 2018 to his termination on 14 November 2019, notwithstanding that he made full admissions to his conduct on 19 December 2018 that led to his termination. During the lengthy period, Mr Barlow worked on highly sensitive matters and undertook further training to upgrade his skills for the AFP.

[113] It was submitted that, notwithstanding Detective Sergeant Withers’ evidence that Mr Barlow did not uphold the integrity and good reputation of the AFP even after the show cause notice was provided to Mr Barlow, the risk to the AFP of Mr Barlow remaining in the workplace was tolerable.

[114] Mr Barlow noted that regulation 8 of the Australian Federal Police Regulations 2018 provides:

“Suspension from duties

For the purposes of paragraph 40J(1)(a) of the Act, the Commissioner may, in writing, suspend an AFP employee from duties:

(a) if the Commissioner believes on reasonable grounds that the AFP employee:

(i) has, or may have, engaged in conduct that contravenes the AFP professional standards; or

(ii) has, or may have, engaged in corrupt conduct; or

(b) to allow the employee to contest an election to a non-parliamentary body; or

(i) the AFP employee is charged with having committed a summary or indictable offence against a law of the Commonwealth, a State, a Territory or another country;

(ii) the Commissioner believes on reasonable grounds that, because of the nature of the offence, the employee should not continue to perform the employee's duties until the charge has been resolved.”

[115] Mr Barlow submitted that the fact he was not suspended during the investigation period at all, following his early admission on 19 December 2018, and the established finding on 14 June 2019, does not align with the conduct of the AFP in terminating his employment where it stated:

“You failed to demonstrate sound judgment expected of an employee of the AFP. To protect the AFP’s reputation, all appointees must conduct themselves in a manner that maintains public confidence acting professionally and in accordance with the AFP’s Core Values and code of conduct.”

[116] He noted that the only restriction placed on him was that he was repatriated back to Australia.

Recommendations from the PRS Investigators to the PRS Panel

[117] It was submitted that the witnesses provided varying evidence regarding Mr Barlow’s allegation that he relied upon the information he received from Detective Sergeant Puchala and Detective Sergeant Withers.

[118] Mr Barlow noted that Detective Sergeant Puchala provided evidence that, “So the PRS investigators, so myself included. We cannot make any recommendations in relation to the sanction. And we have no oversight or input into the outcomes and sanctions as such. So when we prepare the investigation report we simply put whether the conduct issue was established or not established.” When cross-examined about whether the Panel seeks advice or recommendation when deliberating what sanction should be imposed, Detective Sergeant Puchala advised, “No, it does not.”

[119] Mr Barlow also noted that Assistant Commissioner Crozier provided in his witness statement, “While PRS Officers can, and occasionally do, recommend the appropriate sanction, they cannot make any final decision about sanctions.” During the hearing, Assistant Commissioner Crozier further stated, when asked if the PRS can make recommendations, “I believe they may be able to. I'm just not exactly sure about what sits within the PRS structure about what they can do around that.”

[120] Citing s.40TR and s.40TU of the AFP Act, Mr Barlow submitted that the AFP Act provides that the PRS investigator may make a recommendation of the sanction, and if they do, the report must include any recommendations that the investigator makes under s.40TR of the AFP Act.

[121] It was submitted that the evidence is sufficient for a conclusion to be drawn that Mr Barlow was of the view that positive recommendations would be made by the PRS investigators to the Panel about Mr Barlow’s employment, and that Mr Barlow’s reliance upon the representations made to him, which were not carried out, were procedurally unfair.

Whether there was a valid reason for the dismissal related to the person’s capacity or conduct

[122] It was submitted that Mr Barlow’s own admission is that misconduct did occur, and in accordance with the AFP’s policies and applicable legislation, termination is a sanction that can be applied. It was further submitted that whilst Mr Barlow breached the AFP’s Code of Conduct, the breach does not (of itself) mean that a dismissal is not harsh, unjust or unreasonable. All of the circumstances must be taken into account.

[123] Mr Barlow submitted that the reason for dismissal was incorrectly applied as the whole of Mr Barlow’s deployment to PNG. Mr Barlow’s evidence supports that he was guilty of conduct that may give rise to a disciplinary matter. However, Mr Barlow was not guilty of the breach in which the termination was based. The evidence of the AFP concedes that Mr Barlow’s conduct was for a relatively short period, and not for the period in which the employer substantiated over a period of time.

[124] As a result of the substantiated breach over a period of time and the referral on that basis for an outcome of sanction, it was submitted that the PRS Panel and the procedural fairness of the investigation was contaminated by the predisposed view of a lengthier breach.

[125] The evidence of Mr Barlow is that his conduct was a matter in which disciplinary action (sanction) was appropriate. He submitted that the termination of his employment was disproportionate to the gravity of the alleged misconduct.

[126] It was submitted that Mr Barlow’s conduct was not incompatible with his employment or would damage the employment relationship. Further, the view of the AFP is inconsistent with Mr Barlow being employed for the duration of the whole investigation period, which was just shy of a year.

[127] Mr Barlow’s evidence is that other employees have been dealt with differently on similar conduct issues. It was submitted that the Commission has held that differential treatment compared to treatment of other employees may be taken into account. 26

[128] Mr Barlow cited the matter of Serco Gas Services Pty Ltd v Alkenamde 27where the Full Bench adopted the observation of the Full Bench in National Jet Systems and provided:

“There is little doubt that s170CA(2) enjoins the Commission to apply basic notions of fairness in carrying out its functions under Division 3. This injunction is not limited to the manner in which the hearing is conducted or the consideration of the remedy to be awarded but extends to the Commission's consideration of all of the relevant circumstances.

…..

We do not think there is any justification in the context 170CA(2) of the Act for implying that a consideration of the comparative treatment of other employees is only relevant to the extent that it demonstrates conduct on the part of the employer which may be regarded as oppressive or discriminatory on some unlawful grounds.

Moreover, in Serco Gas Services the Full Bench considered a submission that the decision in Loty and Holloway v The Australian Workers' Union (the decision from which the notion of "fair go all round" in s.170CA(2) is drawn) "is consistent with the notion of employers treating different classes of employees differently provided that the individual is given a fair go as between that employee and the employer and the employer's conduct is a rational and logical consequence of that circumstance". The Full Bench agreed that Loty's case "does not preclude the differential treatment of employees in relation to the application of the principle of a fair go all round.”

[129] It was submitted that in the alternative, if the Commission is of the view that the reasons for termination were valid, then Mr Barlow submits that the termination, was harsh, unjust, or unreasonable.

Whether the person was notified of the reason

[130] Mr Barlow concedes the AFP notified him of the reason for the dismissal. However, he disputes that termination is an appropriate sanction, or that the conduct occurred during the whole deployment period.

Whether the person was given the opportunity to respond to any reason related to the capacity or the conduct of the person

[131] Mr Barlow concedes that he was provided with an opportunity to respond. Mr Barlow’s response to the Draft Proposed Finding Investigation Report was provided by Mr Barlow within six days from request. The response to the proposal to terminate was provided by Mr Barlow within 28 days.

[132] It was submitted that despite having the opportunity to respond, Mr Barlow was of the misguided view that termination would not take place, as he placed reliance upon advice he had received from the investigating officers throughout the investigation.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist in any discussions relating to dismissal

[133] Mr Barlow submitted that this factor is not relevant to the circumstances of this case.

If the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal

[134] Mr Barlow submitted that unsatisfactory performance was not raised as an issue, rather it was affirmed that Mr Barlow held a good record.

The degree to which the size of the employer’s enterprise would likely to impact on the procedures followed in effecting the dismissal

[135] It was submitted that the Respondent has a dedicated PRS Unit to investigate misconduct, a substantial Human Resource Management team, inhouse legal teams and legislated provisions relating to its policies and processes.

[136] Mr Barlow submitted that the size of the AFP’s enterprise should have benefited Mr Barlow in having a procedurally fair process that was conducted in a manner which did not cause undue delay and distress upon an employee. The investigation was not complex; the last person interviewed was Mr Barlow on 19 December 2018, where he made full admissions to conduct.

[137] Mr Barlow cited the case of Australian Rail, Tram and Bus Industry Union v NSW Trains 28in which Deputy President Sams noted when considering lengthy delays in investigations following admission of conduct that:

“[57] The safeworking incident occurred on 27 June 2014. The Drivers were informed of the outcome of the last internal review (and I regard the review by Transport NSW as an internal review) was 26 May 2015 – a period of 11 months. In my opinion, on any objective assessment, such a long period of time was excessive and unreasonable. While I accept that the investigation of safety incidents with the potential for serious safety risks to passengers, employees and damage to property, be thorough and exhaustive and comply with the rules of procedural fairness, I simply do not accept that the circumstances of this case justified the plainly acknowledged amount of time and delay.

[58] This is particularly so, given that firstly, the Drivers admitted to the breaches of NSW Trains’ policy from the outset. In my view, there was little for the disciplinary investigation to investigate, other than to consider the responses from the Drivers as to mitigation, weigh up all the relevant factors and determine penalty. That this process took over four months (24 August 2014 – 8 January 2015) and ultimately found the allegations to be substantiated (stating the obvious) and given the personnel network and resources of NSW Trains, beggars belief and is utterly unacceptable.

…..

[62] It is trite to observe the long held well known legal principle of ‘justice delayed is justice denied’. Emanating, some believe, from the words found in the 1215 Magna Carta, ‘To no one will we sell, to no one deny or delay, right or justice’, there is a certain resonance with this principle to what was evident in this case.”

[370] One of the considerations at s.387(a) is the conduct of an applicant including its effect on the safety and welfare of other employees. Mr Barlow’s conduct clearly had the potential to put at risk the safety and welfare of other employees not just in the immediate period of time relevant to the incident, but also at a future time.

[371] Mr Barlow deliberately engaged in conduct in breach of the AFP Professional Standards and the Commander’s Orders. He did so on four occasions in a short period of time. His conduct was not limited to the sexual relationship with Ms AB; it is exacerbated by his method of bringing her into the safe compound by covert means (on at least one occasion), and by returning her to her mother’s home in the early hours of the morning after in an AFP marked vehicle.

[372] Mr Barlow never sought approval for Ms AB to visit the compound before commencement of the nightly curfew or when curfew was in place. In my view, he did so because he knew that approval would not have been given. The Commander’s Orders are clear and concise as to who may approve visits prior to curfew commencing and whilst curfew is in place.

[373] In answering questions from me, Mr Barlow said the following: 65

COMMISSIONER:	I haven't been to Papua New Guinea, but I understand it can be a bit of a treacherous place?
MR BARLOW:	Mm-hm.
COMMISSIONER:	You never know about your personal security, do you, if you're mixing with locals, you don't know what - - -?
MR BARLOW:	No, you don't know. It's not as bad as what they make out, but it is very volatile and unpredictable.
COMMISSIONER:	And you brought [Ms AB] back to your room which you share with another officer, [name]?
MR BARLOW:	Yes.
COMMISSIONER:	Did you have any regard to his safety in bringing effectively a stranger back?
MR BARLOW:	I did think about it, but I didn't think - there is an issue, but I don't think there was a security issue at the end of the day.
COMMISSIONER:	You wouldn't know, would you? I mean [Ms AB] could have had a knife, couldn't she?
MR BARLOW:	She could've done.
COMMISSIONER:	You had knives in your kitchen, I imagine?
MR BARLOW:	We do, yes.
COMMISSIONER:	You don't know much about this woman?
MR BARLOW:	No.
COMMISSIONER:	And everybody's entitled to be protected, aren't they, that's why you're in a compound?
MR BARLOW:	That's why we're - yes, that's why we're in a compound.
COMMISSIONER:	That's why there's rules in place?
MR BARLOW:	It is, but it's also - we are an unarmed mission, so the security level has been assessed that it is dangerous but not dangerous enough to give us arms or even arm the Black Swan security guards, so the level's not high.
COMMISSIONER:	Tell me about your arms. Did you have a gun?
MR BARLOW:	No, we're not issued any. I am firearms-trained and a few other things, but the mission is none - we do not carry firearms, Tasers, batons, OS3, nothing. All we have is a duress alarm in a vehicle if anything goes wrong.
COMMISSIONER:	Right. So your evidence is you wanted to drop [Ms AB] back to her mum's house early in the morning so that you weren't seen by other AFP officers. Do I take it that is because you knew that you were doing the wrong thing?
MR BARLOW:	I just - mostly - yes, I knew I was doing the wrong thing and I didn't want to put other officers in the predicament of maybe having to report me.
COMMISSIONER:	I'm sorry, I didn't - - -?
MR BARLOW:	If one of the other members of the AFP had seen me, they might have had to report me and I didn't want to put them in that situation, but the main reason was I left early because I was either working or I knew I was doing the wrong thing.
COMMISSIONER:	So when you were in the car with [Mr ZA] and [Ms CD], you know that you've implicated [Mr ZA], don't you, by the very fact that you're bringing [Ms CD] back?
MR BARLOW:	No, [Mr ZA] implicated himself, he wants to bring [Ms CD] back.
COMMISSIONER:	So the two of you were working in concert against the rules, were you?
MR BARLOW:	I knew what I was doing and [Mr ZA] decided what he was doing. I can't say what [Mr ZA’s] state of mind was. He decided he wanted to get to know this girl.
COMMISSIONER:	And you weren't going to report on [Mr ZA] the next day, were you?
MR BARLOW:	I don't know what - no, I wasn't, no.
COMMISSIONER:	And you hoped that he wouldn't report on you?
MR BARLOW:	Most probably, yes.
COMMISSIONER:	There are two Surge officers in town and they're in the back of the car and they end up being interviewed?
MR BARLOW:	They did but not for that, for something else.
COMMISSIONER:	You were hopeful that on the four occasions nobody else would see you, so that they would report you?
MR BARLOW:	I was - not that they'd report me; I just didn't want to be seen taking somebody in and out of the compound because I knew it was against the rules and regulations.

[374] In my view, relevant regard was had by Assistant Commissioner Crozier, in coming to his decision to dismiss Mr Barlow for the conduct he had engaged in putting his colleagues at risk.

Domestic violence

[375] In considering the relevant sanction to impose upon Mr Barlow, Assistant Commissioner Crozier had regard to the evidence before him and the panel relevant to Mr Barlow’s knowledge of Ms AB’s alleged domestic violence.

[376] In his interview with Detective Sergeant Puchala in December 2018 and as reported in the PSI Report, Mr Barlow gave detailed information as to what he says Ms AB told him about her experience with domestic violence, explaining an injury to her hand as a result of being locked in a bathroom by her partner. At paragraph 2.35 the following is recorded:

“2.35 S/C BARLOW never sought advice from any authorities as to how to help [Ms AB] in her domestic violence situation. S/C BARLOW suggested ways to avoid domestic violence and only told her to contact the local police.”

[377] In his Natural Justice Response, Mr Barlow stated the following, attempting to clarify what the report had stated was uncontested evidence:

“2.35 Although I did not seek advice from authorities I did stress to [Ms AB] that she should contact the RPNGC Domestic Violence Unit. I also offered [Ms AB] that I could contact the AFP Domestic Violence Unit on her behalf for advice. I offered [Ms AB] that I could talk to them if she wanted and I could supply relevant contact details to assist her. I had previously assisted a female RPNGC member with contacting and dealing with the Domestic Violence Unit that ended with mediation between that member and her husband.”

[378] In the “show cause” letter issued to Mr Barlow by Assistant Commissioner Crozier on 27 August 2019, he stated:

“…on each occasion you engaged in sexual behaviour with the PNG National, despite her request for shelter and knowing of her vulnerabilities as a victim of domestic violence and the power imbalance between the two of you, which was a clear failure to identify a conflict of interest. At no stage have you contacted authorities to refer the PNG National as a victim of domestic violence and you have instead placed your sexual desires ahead of her safety. This was also in clear breach of the Commander’s Orders, which prohibit sexual relationships with PNG citizens or permanent residents. You have also placed her at further risk of violence by openly collecting and dropping her off in Police uniform while in a marked vehicle.”

[379] In his show cause response, Mr Barlow stated the following:

“12. I would also like to provide clarity around [Ms AB] and the alleged experience of domestic violence. When I became aware that [Ms AB] may be a victim of domestic violence, I encouraged her to contact the Royal Papua New Guinea Police Constabulary (RPNGC). When [Ms AB] said no to this approach, I offered to contact someone within the AFP. Again, [Ms AB] rejected this. [Ms AB] did tell me her [relative] was a member of the RPNGC and she would consider talking to him. [Ms AB] told me tht she did not wholly trust the RPNGC she also told me it is common practice not to complain due to possible repercussions from PTNGC members.

13. I was planning to talk further with [Ms AB] about her alleged domestic violence however, I was informed that I would be departing PNG to return to Australia…”

[380] When, during the hearing Mr Barlow attempted to recant from his understanding that Ms AB actually suffered from domestic violence, it was necessary at [41] for me to inquire of him if he was telling the truth to the Commission or whether he did not tell the truth to the investigators. He suggested that he had become confused in his investigation and that he didn’t think it was domestic violence; rather, she didn’t like being there and he “read too much into it and jumped the gun.”

[381] Mr Barlow’s evidence is entirely unsatisfactory on this issue. It was he who informed PRS of the domestic violence issue. He agreed that he held discussions with Ms AB as to who best to speak to, encouraging her to seek local assistance and even going so far as offering to raise it with the AFP. He even told Assistant Commissioner Crozier in October 2019 the same as he was attempting to save his employment. The only time Mr Barlow sought to downplay the domestic violence issue is during the hearing in mid-June 2020.

[382] In my view Mr Barlow took this course of action in giving such evidence because he understood that the concerns raised by Assistant Commissioner Crozier relevant to the domestic violence alleged by Ms AB place Mr Barlow’s conduct at a higher end of the misconduct spectrum. The understanding that Assistant Commissioner Crozier had in coming to his determination had not been disputed by Mr Barlow in the near 11 month investigation. How would Assistant Commissioner Crozier know that Mr Barlow sought to downplay the domestic violence concern? He could not have known because Mr Barlow did not give any such statement or evidence until the hearing.

[383] I accept Mr Barlow’s evidence to the PRS investigation and his response to Assistant Commissioner Crozier. I do not accept his evidence to the Commission where he sought to downplay the domestic violence issue. Accordingly, I accept the findings of Assistant Commissioner Crozier that the domestic violence issue was an aggravating factor, and that Mr Barlow knew Ms AB to be a vulnerable person. There was a clear power imbalance if the domestic violence issue was there or not, but with Ms AB asserting to Mr Barlow that she was a victim of domestic violence, and he holding a genuine concern that she was a victim of domestic violence, the power imbalance was enhanced.

Date of misconduct

[384] Mr Barlow has made much of the issue that the conduct issue for which he was terminated nominates the period “Between 16 May 2017 and 16 November 2018”.

[385] The statement is true; the conduct occurred either late October 2018 or early November 2018 and continued until around 10 November 2018 which is between 16 May 2017 and 16 November 2018, but understandably, the conduct did not occur across the entire period, but between those dates.

[386] I do not consider that this was lost on Assistant Commissioner Crozier. In the show cause letter to Mr Barlow the entire span of time was included, noting the word “between”, and in describing the established conduct, it was put:

“In late October 2018 you formed an ongoing relationship…..”

[387] I accept the Assistant Commissioner’s evidence in his statement that the period of time is the reference to Mr Barlow’s period of deployment to PNG during which the misconduct occurred, and the Assistant Commissioner knew that the misconduct occurred only on those four occasions between 4 November 2018 and 10 November 2018.

[388] I do not accept Mr Barlow’s submission that stating the whole deployment period for the substantiated conduct matter is incorrect, unfair and biased against Mr Barlow.

Mr Barlow not suspended

[389] The Final Investigation Report was not completed until mid-June 2019. Clearly there was time needed to investigate and come to a decision. While it may have felt to Mr Barlow that the wheels were turning slowly, and I accept that sometimes investigations may seem to last an eternity, in this instance it took 172 days from the date of Mr Barlow’s interview as opposed to the benchmark of 180 days. Mr Barlow was fulfilling his duties as an officer at the Cairns airport during this time.

[390] I understand from Detective Sergeant Withers’ evidence that he was not in a position to consider suspending Mr Barlow until around August 2019 following the PRS Panel’s decision to intend Mr Barlow to show cause as to why his employment should not be terminated. I accept his evidence as to the reasons why Mr Barlow was not suspended at this time, noting that Mr Barlow had admitted his conduct. Further, Mr Barlow’s immediate supervisor was confident in his ability to oversee and manage Mr Barlow while the process was completed.

[391] It is not contested, and it is clear on the facts available to the Commission that Mr Barlow performed his role satisfactorily, or better than satisfactorily while the misconduct issues were being investigated and decided upon. He was working from the Cairns airport providing valuable work to the service, protecting the community. He provided seven glowing referee reports for the Assistant Commissioner’s consideration in response to the show cause letter. I have read all of the referee reports. They attest to Mr Barlow’s good character, integrity and dedication to the service. Most are from serving AFP officers who were authorised to learn of Mr Barlow’s conduct issue prior to providing the referee reports.

[392] I am satisfied that Assistant Commissioner Crozier took into account the referee reports provided by Mr Barlow. Further, I am satisfied that he had regard for Mr Barlow’s performance in the year since the investigation commenced, noting Mr Barlow’s assertions that he was working to improving his worth to the AFP while the investigation was carried out. I do not agree that because Mr Barlow worked satisfactorily during the almost one-year period that it is antithetical to the decision to terminate his employment. The conduct issue was not one of fraud or violence, for example.

Other reasons given for the dismissal

[393] Assistant Commissioner Crozier stated one of the reasons for the dismissal included that Mr Barlow’s conduct had the potential to cause significant reputational damage to the AFP. I accept this evidence.

[394] A further reason is that his conduct had the real potential to damage the AFP’s ongoing relationship with a critical international partner in the pacific, PNG. I accept this evidence.

[395] Assistant Commissioner Crozier considered that Mr Barlow had failed to demonstrate the sound judgment expected of an employee of the AFP. While this exact breach would not be an ongoing issue whilst serving in Australia given there would be no rules around fraternisation of international persons, I consider that it strikes at the heart of Mr Barlow’s obligations per the AFP Professional Standards and its Core Values at Section 7, namely integrity and trust.

[396] With all of the information before him, Assistant Commissioner Crozier determined that Mr Barlow’s employment should be terminated. He considered Mr Barlow’s continued employment to be unacceptable. Mr Barlow accepted the finding of an established conduct issue, but not the sanction applied. I have explained in detail the sound reasoning of Assistant Commissioner Crozier in deciding to terminate Mr Barlow’s employment. I adopt and accept all his reasons.

[397] I do not consider the reason for the dismissal to be capricious, fanciful, spiteful or prejudiced. I am satisfied that the conduct engaged in, when objectively assessed, constitutes a valid reason for the dismissal.

s.387(b) - Whether the person was notified of that reason

[398] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 66 and in explicit67 and plain and clear terms.68

[399] While the investigation process took a reasonably long time, Mr Barlow was notified of the reason for the dismissal. On 5 June 2019 he had the opportunity to respond to a draft investigation report, where he accepted the proposed finding of an established conduct issue, offering some mitigating matters for consideration.

[400] Further, he was issued with a show cause letter dated 27 August 2019 outlining the reasons for the proposed dismissal. The termination letter dated 13 November 2019, issued 14 November 2019 details the reasons for the dismissal.

[401] Having regard to the matters referred to above, I find that Mr Barlow was notified of the reason for his dismissal prior to the decision to dismiss being made, and in explicit and plain and clear terms.

s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

[402] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.⁶⁹

[403] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.⁷⁰ Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.⁷¹

[404] Mr Barlow was provided with all opportunity to respond to the investigation. He noted that it was stated or suggested by Detective Sergeant Puchala and Detective Sergeant Withers that in their respective views he was unlikely to be terminated. Both officers deny making statements as suggested by Mr Barlow.

[405] It is not necessary for me to determine whether these things were said by the officers. Clearly, they had no decision-making authority on the issue of termination of employment, and I consider it naïve of Mr Barlow to suggest that he put any reliance on these purported statements. Mr Barlow did not, for example, in pleading his case to retain his employment to Assistant Commissioner Crozier state that he was acting on some understanding that his job was not at risk of being terminated on account of what was purportedly said by these two officers.

[406] Where Mr Barlow submitted that s.40TR and s.40TU of the AFP Act provide that the PRS investigator may make a recommendation of the sanction, and if they do, the report must include any recommendations that the investigator makes, there is no evidence before the Commission that Mr Barlow in fact had researched the provisions of the Act prior to his dismissal and therefore held any reliance on any such recommendations being made and considered.

[407] In any event, no recommendations were made pursuant to s.40TR and therefore did not need to be included in the report.

[408] The investigator is not required pursuant to s.40TR to make recommendations, and therefore Mr Barlow’s submissions that he relied upon the representations made to him that he would not likely be dismissed, which proved not to be correct, were procedurally unfair cannot be sustained. Mr Barlow had a copy of the relevant report and it was available to him well before he received the show cause letter. It would have been clear to him at that time that no recommendation was made.

[409] Mr Barlow submitted that despite having the opportunity to respond, he was of the misguided view that termination would not take place as he placed reliance upon advice that he had received from the investigating officers throughout the investigation. Mr Barlow’s show cause response makes a mockery of such submission, noting that the show cause response was eight pages long, well written, well pleaded, and explained to the Assistant Commissioner the effects that termination would have on him. Mr Barlow articulated all of the reasons why he should not be dismissed and provided seven referee reports from influential people, together with his Antecedents Report, noting that he had never been the subject of a PRS Investigation.

[410] I am satisfied that the Assistant Commissioner gave valuable consideration to the written response made by Mr Barlow. The Assistant Commissioner was on leave when the officer acting in his role made a decision to terminate Mr Barlow. I accept the evidence of Assistant Commissioner Crozier that on his return from leave he wanted to consider all of the material before him before coming to his own decision as to the appropriate course of action to make. He gave all appropriate consideration to the matters before him, declaring that termination is not a decision that he takes lightly. I note that he did not rush his decision, taking several weeks to come to his decision.

[411] In all the circumstances, I find that Mr Barlow was given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made.

s.387(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

[412] Mr Barlow submitted that this factor is not relevant to the circumstances of this case, and I agree.

s.387(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[413] Mr Barlow submitted that unsatisfactory performance was not raised as an issue, rather it was affirmed that Mr Barlow held a good record. I am satisfied that Mr Barlow was not dismissed relevant to unsatisfactory performance; he was dismissed for misconduct.

s.387(f) - Whether AFP’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed

[414] Mr Barlow submitted that the size of the AFP’s enterprise should have benefited him in having a procedurally fair process that was conducted in a manner that which did not cause undue delay and distress upon an employee. The investigation was not complex, he submitted; the last person interviewed was Mr Barlow on 19 December 2018, where he made full admissions to conduct.

[415] While Mr Barlow cited a single member decision declaring an investigation period of 11 months as being a period of time that was excessive and unreasonable in those circumstances, I do not consider that there was any substantial prejudice to Mr Barlow on account of the investigation, report and ultimate decision taking nearly 12 months.

[416] I am satisfied that all appropriate procedures were followed, and Mr Barlow was afforded the highest level of procedural fairness, especially true when the conduct was admitted. The only criticism that can be levelled at the AFP is the time that it took to finalise the investigation and decision. On Mr Barlow’s own account, he considered that it was unlikely he would be dismissed on account of the conduct, and therefore he diligently worked and was well remunerated for his work during that period. While I accept there would likely have been some distress experienced by Mr Barlow during this time, his evidence is that he was quite confident he would receive appropriate sanctions, not termination of his employment. Accordingly, the distress Mr Barlow experienced on being informed of his termination came in November 2019, when if the investigation had concluded earlier the same result would have been some months earlier. There was no disadvantage to Mr Barlow.

[417] Relevant to s.387(g), the AFP is well resourced and there is no absence of dedicated human resource specialists.

s.387(h) any other matters that the FWC considers relevant

[418] I consider that the following matters are relevant to my consideration of whether the dismissal was harsh, unjust or unreasonable.

Length of service

[419] Mr Barlow had nearly 17 years’ service at the time of the dismissal. I consider this to be a very significant period of time. I further note that other than for the short period in early November 2018, the period of service was unblemished.

Others engaged in similar conduct

[420] Before making a decision to terminate, the PRS Panel requested a list of previous sanctions issued by the AFP for fraternisation to ensure that Mr Barlow was not being treated inconsistently. Upon reviewing the list, Assistant Commissioner Crozier satisfied himself that a decision to terminate Mr Barlow’s employment would not be inconsistent with the treatment of other AFP members.

[421] I accept that Assistant Commissioner Crozier appropriately distinguished Mr Barlow’s conduct from that of Mr ZA, noting that Mr ZA had engaged in improper conduct on the one occasion on an opportunistic basis on 9 November 2018, whereas Mr Barlow had engaged in a concert of inappropriate conduct on four occasions with a person who had declared herself a victim of domestic violence.

[422] Relevant to others who had been investigated for fraternisation, it is noted that some of those employees were terminated. Unsurprisingly, some who were in the process of being investigated resigned before a finding could be made.

[423] Mr Barlow and his brother put for consideration that others had engaged in fraternisation and had not been sanctioned either at all or by termination of employment. It was put as hearsay that this included a very high-ranking officer at some unnamed time. The evidence given by Mr Barlow and his brother on this issue constitutes hearsay, and there is nothing available to the Commission to properly and fairly consider. Simply, the PRS is able to investigate what is put before it. Where Mr Barlow had hoped his conduct would not be reported by others, there is likely to be other instances of fraternisation, by others, breaching the AFP Professional Standards that is engaged in; without reporting of such breaches, they are unable to be investigated. Whether there is a culture of not reporting such conduct is beyond the remit of this application and the Commission’s consideration.

Impact of termination

[424] Understandably, the impact on Mr Barlow on account of being terminated from a lengthy career as a federal police officer was very significant. I accept that serving as an officer is not just a job; it helps shape a person’s identity and often accords with their status in the community and within their family. Serving officers should be rightly proud of the work that they perform.

[425] On termination, Mr Barlow had the unenviable duty of having to inform family and friends, as limited as he may have been able to with restrictions in place, as to why he was no longer a serving officer. His acknowledgement of his misconduct warranted, in his view, an appropriate sanction that might have included never being deployed for a period of time or ever. That sanction was open and available to the Assistant Commissioner to make.

[426] Mr Barlow’s personal circumstances relevant to his separation from his wife, the death of loved ones in the recent years preceding the late 2018 period, and unfortunate events including witnessing a person suicide were all taken into consideration by Assistant Commissioner Crozier, and I have had due regard for all matters raised by Mr Barlow.

Honesty

[427] Mr Barlow raised honesty as an appropriate consideration in written closing submissions. He submitted that he had been dishonest when Superintendent Raiser held initial discussions with him in PNG, but when he was officially directed to be interviewed on 19 December 2018 he was open and honest and provided more information than requested of him.

[428] Regrettably, Mr Barlow’s integrity was absent on this issue. When asked by Ms Coulthard at [54] if he had not been honest with Superintendent Raiser, Mr Barlow answered:

“To my recollection I did tell the superintendent most things, but I was under no directions from her. I was not cautioned. I did not seek legal aid, so I didn't know how to answer her. I was embarrassed at the time, so I would rather have not said too much. So I only answered the questions she asked me.”

[429] As can be seen from my further questioning of Mr Barlow at [55], he was incredibly dishonest with Superintendent Raiser. He acknowledged in answering my questions that he had been dishonest in answering her questions over and over, yet earlier during the hearing had attempted to inform the Commission that because he was not under direction from Superintendent Raiser, the most senior officer within the mission on the ground, that he did tell her “most things.” Mr Barlow was not honest to the Commission when answering Ms Coulthard’s question.

[430] Mr Barlow’s conduct during the hearing was a very significant stain on an individual seeking to demonstrate to the Commission that he has been unfairly dismissed, seeking reinstatement as a federal police officer. Mr Barlow’s dishonesty in answering Superintendent Raiser was not a consideration weighed by Assistant Commissioner Crozier in making his decision to terminate Mr Barlow, however I consider that it could have been open to him to include it in his considerations.

[431] It is entirely inappropriate for an officer to be dishonest to a senior officer making inquiries on serious issues, especially while on deployment, only to suggest that it is irrelevant if the officer then makes frank and honest statements while being formally investigated under direction. The latter honesty does not cancel out the earlier dishonesty. This should be patently obvious to Mr Barlow. In providing false answers to Superintendent Raiser, he had no regard for her more senior position in an inherently hierarchical organisation.

[432] I have given due weight to the fact that following his discussion with Superintendent Raiser, Mr Barlow rang Assistant Commissioner Giles to apologise.

[433] It is noted that Assistant Commissioner Crozier included in his and the panel’s consideration the fact that Mr Barlow had, when being formally investigated admitted the conduct and been forthcoming.

Mitigating circumstances

[434] Mr Barlow submitted that there were a large number of factors that were not taken into consideration relevant to mitigation. Mr Barlow detailed these factors at [155]. The bulk of the mitigating factors asserted by Mr Barlow are, respectfully, the satisfactory or better than satisfactory performance of his work during the investigation process. There is nothing incredibly outstanding in the list compiled by Mr Barlow. Curiously, Mr Barlow considered not taking sick leave as a mitigating factor that was not considered by Assistant Commissioner Crozier. It is evident that Mr Barlow was not ill during the period of the investigation and therefore he had no need to access accrued sick leave available to him. It is not an item that sits in a column in favour of Mr Barlow. I expect that if he had been genuinely ill, he could have made use of accrued sick leave, and I expect that no adverse inference would have been made by the AFP on account of the use of the accrued sick leave.

Judgment and Insight

[435] The Respondent submitted that Mr Barlow’s evidence demonstrates his lack of insight, his poor judgment and overall unsuitability for employment as an AFP officer, highlighting his ignorance of how his conduct had the potential to damage the reputation of the AFP and its significant relationship with PNG.

[436] I am mindful of Mr Barlow’s exemplary employment record for near 17 years, but for a very significant blip in late 2018. Mr Barlow was nearing the end of his deployment in PNG, and given his failing marriage, may have considered it to have been his last opportunity to engage in a sexual relationship with Ms AB before returning to Australia, hopefully without anybody knowing.

[437] Mr Barlow’s failure to meet his obligations to the AFP for the entire period of his deployment is a critical issue. The AFP cannot permit its officers to meet their obligations 90% or 95% of the time. An overseas mission requires its officers to meet their obligations all of the time. Dramatic as it may seem, life may depend upon it. Reckless to the risk to himself and despite the sexual relationship being consensual, Mr Barlow could have been falsely accused of indecent or sexual assault on Ms AB. This could have had disastrous consequences on Mr Barlow and on the reputation of the AFP.

[438] Where Mr Barlow likened returning Ms AB to her mother’s house in an AFP vehicle in the early hours of a morning to dropping female house cleaners home at later times during the day, Mr Barlow demonstrably has no concept of perception. While I accept that permission may not have been sought on all occasions to return female house cleaners to their home at later times in the day, a simple conversation with an interested individual would explain such an innocent engagement. It would be assumed the female house cleaner would be appropriately attired. Mr Barlow’s efforts in returning Ms AB to her mother’s home at such early hours of the morning is ripe for suggestion that Mr Barlow was returning her after a casual sexual encounter, assuming she would be dressed in attire from the night before when attending a hotel; typically attire that you might not expect a person to be wearing at 6:00am.

[439] I also have given weight to the fact that Mr Barlow’s actions on the night of 9 November 2018 culminated in four officers being returned to Australia for each of their respective parts in the misconduct of that night. While each officer is responsible for their own actions, it is true that if Mr Barlow had not invited Ms AB to the compound, nor allowed Mr ZA to invite Ms CD to the compound in the car being driven by Mr Barlow, the other two officers, keen to safely return to the compound, in an environment relatively unfamiliar to them would not have been exposed to the incident.

Is the Commission satisfied that the dismissal of Mr Barlow was harsh, unjust or unreasonable?

[440] I have made findings in relation to each matter specified in s.387 as relevant.

[441] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.⁷²

[442] The matters for consideration in s.387(h) which might weigh in favour of a finding that the dismissal was harsh, including but not limited to Mr Barlow’s very lengthy period of service and otherwise exemplary employment record are, however, to be balanced against the seriousness of the reason why Mr Barlow was dismissed.

[443] Though it is doubtless the case that the matters set out above will have some harsh impact on Mr Barlow, they do not weigh so heavily when account is taken of the seriousness of the valid reason and the other matters that either weigh against a conclusion that the dismissal was unfair or are neutral, as to militate against a conclusion that the dismissal was not harsh. I am not satisfied that the dismissal was unjust, nor was dismissal disproportionate or otherwise unreasonable considering the misconduct engaged in by Mr Barlow. The dismissal was not unreasonable.

[444] Having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of Mr Barlow was not harsh, unjust or unreasonable.

Conclusion

[445] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that Mr Barlow was unfairly dismissed within the meaning of s.385 of the Act. Mr Barlow’s application is therefore dismissed.

COMMISSIONER

Appearances:

Esposito M, Solicitor for Mr Barlow.
Coulthard A, Counsel for the Respondent instructed by Christensen J and Towler A.

Hearing details:

17 June 2020, Brisbane by Video.
18 June 2020, Brisbane by Video.

Final written submissions:

Final Written Submissions of Mr Barlow, 10 July 2020.
Final Written Submissions of the Respondent, 24 July 2020.
Final Written Submissions of Mr Barlow in Reply, 10 August 2020.

Printed by authority of the Commonwealth Government Printer

1 Transcript of proceedings, PN203-PN211.

2 Ibid PN669-PN677.

3 Ibid PN257-PN270.

4 Ibid PN231-PN232.

5 Ibid PN129-PN143.

6 Ibid PN710-PN735.

7 Ibid PN391-PN396.

8 Witness statement of Martin John Barlow, 19 February 2020, MJB06-MJB08.

9 Ibid 19 February 2020, MJB09-MJB10.

10 Ibid 19 February 2020, MJB11.

11 Ibid 19 February 2020, Paragraph [98].

12 Ibid 19 February 2020, MJB12.

13 Transcript of proceedings, PN423.

14 Witness statement of Martin John Barlow, 19 February 2020, MJB13-MJB14.

15 Ibid 19 February 2020, MJB15-MJB23.

16 Transcript of proceedings, PN423.

17 Witness statement of Martin John Barlow, 19 February 2020, MJB23-MJB26.

18 Witness statement of Russell Edward Barlow, 19 February 2020.

19 Ibid Paragraph [13].

20 Transcript of proceedings, PN871.

21 Ibid PN238-PN239.

22 Ibid PN956.

23 Ibid PN1035.

24 Ibid PN974.

25 Ibid PN970.

26 Sexton v Pacific National (ACT) Pty Ltd, PR931440 (AIRC, Lawler VP, 14 May 2003) at [33].

27 Serco Gas Services Pty Ltd v Alkenamde, R0909 (AIRC, Ross VP, 21 June 1999).

28 [2016] FWC 1553.

29 Streeter v Telstra Corporation Limited [2008] AIRCFB 15 (Acton SDP, Cartwright SDP, Larkin C, 24 January 2008) at para. 27, [(2008) 170 IR 1].

30 APS Group (Placements) Pty Ltd v O’Loughlin[2011] FWAFB 5230; at [56] (2022) 209 IR 351.

31 Joshua Jimenez v Accent Group T/A Platypus Shoes (Australia) Pty Ltd [2016] FWC 5141 at [69].

32 [2013] FWC 9140 at [103].

33 Streeter v Telstra Corporation Limited [2008] AIRCFB 15; at [25] – [27] [(2008) 170 IR 1].

34 Ricegrowers Co-operative Limited v Schliebs PR908351 (AIRCFB, Duncan SDP, Cartwright SDP, Larkin C, 31 August 2001) at [26] – [27].

35 Byrne v Australian Airlines [1995] HCA 24 at [128].

36 [2014] FWC 5894.

37 Ibid at [4], [38], [42]-[58].

38 [2013] FWC 9140 at [103].

39 Transcript of proceedings, PN949 - PN951.

40 Ibid PN985-PN986.

41 Ibid PN1011 – PN1015.

42 Ibid PN1114.

43 Ibid PN1204 – PN1206.

44 Witness statement of Brendon Ronal Withers, 11 March 2020, Para [13].

45 Ibid Para [15].

46 Transcript of proceedings, PN1349.

47 Ibid PN1373 – PN1374.

48 Selvachandran v Peteron Plastics (1995) 62 IR 371 at 373.

49 Final Written Submissions of the Respondent, 24 July 2020, Para [16].

50 Transcript of proceedings, PN203.

51 Ibid PN206.

52 Ibid PN211.

53 Ibid PN126.

54 Ibid PN217.

55 Ibid PN218 – PN 219.

56 Ibid PN521 – PN524.

57 [2016] FWC 1553.

58 [2017] FWC 2518.

59 (1995) 185 CLR 410, [465].

60 Sayer v Melsteel[2011] FWAFB 7498 at [20].

61 (1995) 62 IR 371.

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

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

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

65 Transcript of proceedings.

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

67 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

68 Ibid.

69 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

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

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

72 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].

Mr Martin Barlow v The Commonwealth of Australia represented by the Australian Federal Police

[2021] FWC 574

5 FEBRUARY 2021

DECISION

s.387(b) - Whether the person was notified of that reason