Mr Stephen Sharp v Commonwealth of Australia (Department of Defence)

[2014] FWC 5176

[2014] FWC 5176

FAIR WORK COMMISSION

DECISION

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

Mr Stephen Sharp
v
Commonwealth of Australia (Department of Defence)
(U2013/17634)

DEPUTY PRESIDENT SMITH CANBERRA, 1 AUGUST 2014

Application for relief from unfair dismissal.

[1] Mr S. Sharp was dismissed from his employment with the Commonwealth of Australia, the Department of Defence (the Department) on 2 December 2013. Mr Sharp believes that the termination of his employment was harsh, unjust and unreasonable. Mr Sharp lodged an application in the Commission pursuant to s.394 of the Fair Work Act 2009 (the Act) and seeks reinstatement.

[2] I am satisfied that Mr Sharp is a person protected from unfair dismissal and no other jurisdictional matters were raised.

[3] Mr Sharp was an Executive Level 1 employee and was employed as an engineer with the Department. He was a senior employee and held the following qualifications: Bachelor of Engineering; graduate Diploma in Business Administration; Electrical Wiring Certificate IV and is currently studying for a degree in teaching and a double degree of Computing Science and Engineering.

[4] Mr Sharp’s employment was terminated on the basis that he was said to have breached the APS Code of Conduct. Those breaches included but are not limited to:

● Car hire when there was no obvious need for a car including its personal use.
● Expenditure of funds on Commonwealth credit cards for a meal which was in addition to allowances for travel.
● Expenditure of Commonwealth funds on items which were not approved.
● Signing travel forms which did not reflect the true circumstances of the travel.
● Withdrawal of funds from a Commonwealth credit card when such withdrawals were inconsistent with policy.

[5] In one sense this is an easy matter as there is little contest in relation to the facts. However, Mr Sharp said he was of the genuine belief that:

● When he entered information into the Departments travel documentation and that was approved by the relevant delegate, then his requests were validated and could not be called into question; and

● When he is away from home the Commonwealth should pay for any private expense he seeks to incur. In relation to one matter he asked rhetorically whether or not he was supposed to just sit in his room and do nothing.

[6] Three examples are appropriate. The first is during a business trip to Brisbane Mr Sharp retained a hire car to travel to the Gold Coast and back and permitted the trip and petrol to be charged to the Commonwealth. The second is in a similar vein. During a business trip to Adelaide he used the hire car to travel to Hahndorf and permitted the cost to be charged to the Commonwealth. The third example is that in addition to his travelling allowance, he charged on his Commonwealth credit card a meal at a Sydney restaurant. These actions occurred notwithstanding earlier warnings about the use of Commonwealth funds.

[7] When asked about withdrawing monies with his Commonwealth card in advance of the time permitted by the guidelines his response was that he was trying to survive and make ends meet.

[8] As a part of his submission, Mr Sharp said that some of his actions could be attributable to a medical condition. However he declined to elaborate, but more importantly he did not notify his employer at any relevant stage.

[9] The examples are numerous and detailed in the materials, but Mr Sharp believed he had a sense of entitlement which was not consistent with the responsible expenditure of public funds. In the proceedings before me there was no evidence that he considered anything he had done was wrong and inconsistent with his level and role in public sector employment. This is not a case about fine matters of judgment.

[10] The Department submitted that the conduct of Mr Sharp was wrong, dishonest and wanton. There is nothing before me which would lead to a different conclusion.

[11] I now turn to the statutory tests. In this connection s.387 of Act needs to be addressed:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

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

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

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

[12] In relation to s.387(a) I find there was a valid reason related to Mr Sharp’s conduct. The Department submitted that it defied belief that a person of Mr Sharp’s education and role could hold the view that public funds can be used in the manner in which they were. It is difficult to accept that Mr Sharp did not grasp the importance of expenditure of public funds particularly in circumstances where after concern being expressed, he returned his travel card so that he would not be accused of wrongdoing and then sought it back on the express understanding that he follow the rules. His trips to the Gold Coast and Hahndorf followed the return of the credit card.

[13] As to s.387(b) and (c) I find that Mr Sharp was notified of the reason and that he was given all opportunities to respond. From the material before me I cannot find that there was an unreasonable refusal by the employer to permit representation.

[14] In relation to s.387(e), the evidence was that he was not a poor performer in his duties with the Department. As to s.387(f) and (g) this is a large Federal Government department which has all of the resources to deal with these matters. I do not find in any of the material that the Department has gone about this matter in anything other than a proper and reasonable way.

[15] This appears to be a matter where Mr Sharp was irritated by the constraints which were explained to him and did not believe they were appropriate. It is no defence to the allegations to say that the delegate approved certain expenditures when the delegates were entitled to expect Mr Sharp to deal with them openly and honestly. Mr Sharp had been trained in the provisions of the Financial Management and Accounting Act 1997 and in procedures relating to travel systems and requirements. He had received fraud and ethics training. All of this could lead reasonably to the conclusion that his actions were not associated with a lack of knowledge.

[16] I find that the dismissal of Mr Sharp from employment with the Commonwealth of Australia was not harsh, unjust or unreasonable. His application is dismissed.

DEPUTY PRESIDENT

Appearances:

S. Sharp the applicant.

M. Will solicitor on behalf of the Commonwealth of Australia (Department of Defence).

Hearing details:

2014.

Canberra:

June, 20;

July, 30.

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