Ritson v Director of Fair Work Building Industry Inspectorate
[2016] FCCA 2923
•22 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RITSON v DIRECTOR OF FAIR WORK BUILDING INDUSTRY INSPECTORATE & ANOR | [2016] FCCA 2923 |
| Catchwords: ADMINSTRATIVE LAW – Judicial review – duty to disclose – procedural fairness – dishonesty – whether sick leave given – application dismissed. |
| Legislation: Fair Work Act 2009, s.44. |
| Applicant: | BRENDAN RITSON |
| First Respondent: | DIRECTOR OF FAIR WORK BUILDING INDUSTRY INSPECTORATE |
| Second Respondent: | COMMONWEALTH OF AUSTRALIA |
| File Number: | BRG 21 of 2016 |
| Judgment of: | Judge Vasta |
| Hearing date: | 31 October and 1 November 2016 |
| Date of Last Submission: | 1 November 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 22 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Massy |
| Solicitors for the Applicant: | Hall Payne Lawyer |
| Counsel for the Respondents: | Ms Walsh |
| Solicitors for the Respondents: | Ashurst Australia |
ORDERS
The Application filed on 12 January 2016 as amended on 6 June 2016 and 1 November 2016 be dismissed.
Any costs application be adjourned to 9.30am on 1 December 2016 in the Federal Circuit Court of Australia at Brisbane.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG21 of 2016
| BRENDAN RITSON |
Applicant
And
| DIRECTOR OF FAIR WORK BUILDING INDUSTRY INSPECTORATE |
First Respondent
| COMMONWEALTH OF AUSTRALIA |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 12 January 2016, the Applicant, Brendan Ritson, seeks judicial review of a decision by the Director of the Fair Work Building Industry Inspectorate (“DFWBII”) to dismiss him.
The Applicant began employment with the First Respondent on 20 July 2015. On his first day of employment, he filled out a form nominating himself for appointment as a Fair Work Building Industry Inspector. The form contained the following “prompt” on the front page which was in italics and underlined:-
“if you have any queries in relation to this form or the declaration contained in this form, please contact your current manager (EL 1 or above) prior to completing the form.”
In that form, the Applicant declared that:-
a)I have not been subject to disciplinary action;
b)I am not aware of any other matter which would bring my good character into question or compromise the activities of Fair Work Building Industry Inspectorate.
The Applicant signed that declaration in the form.
In November 2015, about four months after the Applicant commenced his duties, the DFWBII became aware of media reports that disclosed a history of the Applicant that had been hitherto unknown by the DFWBII.
The DFWBII was of the view that the Applicant had been dishonest in the declaration he made on 20 July 2015 and dismissed him.
The Applicant seeks the following orders:
“(1) section 5(1) of the Administrative Decision (Judicial Review) Act 1977 (Cth) (“ADJR Act”) for an order of review of the decision of the delegate Mr Bernard O’Keefe, Chief Operating Officer of the Respondent made on 16 December 2015 (“Decision”) pursuant to section29 of the Public Service Act 1999 (Cth) (“PS Act”) purporting to terminate the employment of the Applicant in the Office of the Fair Work Building Industry Inspectorate trading as Fair Work Building and Construction (“FWBC”). A copy of the Decision is attached to this application;
(2) ss. 539 and 546 of the Fair Work Act 2009 (Cth) (the “FW Act”) for an order that the First and/or Second Respondent has contravened s. 44 of the FW Act by failing to permit the Applicant to take personal leave on 15 and 16 December 2015 in accordance with ss. 96 and 97 of the FW Act; and
(3) ss. 539 and 546 of the Fair Work Act 2009 (Cth) (the “FW Act”) for an order that the First and/or Second Respondent has contravened s. 50 of the FW Act by failing to permit the Applicant to take personal leave on 15 and 16 December 2015 in accordance with clause 127 of the Office of the Australian Building and Construction Commissioner Enterprise Agreement 2011 – 2014 (“Enterprise Agreement”).”
History of the Applicant - the NSW Police Force
The Applicant commenced employment with the New South Wales Police Force on 21 December 2001. The Applicant was stationed mainly at Surrey Hills. He acknowledges that there were complaints made about him during his time at the Police Service. On the evidence, the Applicant had the following relevant complaints made about him.
P 0601488
It was alleged that on 19 March 2006, the Applicant assaulted a prisoner by the name of Christopher McEvoy whilst he was in custody at the city Central police Station. This complaint was investigated and found to be “sustained”. The Applicant, in his affidavit, said that he had been told by the investigating officer that there was no unreasonable force used but that he was somehow overruled.
P0604627
It was alleged that on 24 September 2006, the Applicant, together with another police officer, disclosed the personal information of Ms Bridget Fell to Garrick Jacobsen who was then a prisoner in custody. In short, it was alleged that the Applicant knew that Jacobsen was in a sexual relationship with Ms Fell. The Applicant knew that Ms Fell was a transgender person but that the prisoner, Jacobsen, did not know this. To prove what he said, the Applicant allegedly printed out a police profile of Ms Fell to prove that she had been born a male. It was alleged that the Applicant taunted Jacobsen about his relationship with someone who was, genetically, a male. Upon Jacobsen’s release from custody, it is alleged that he seriously assaulted Ms Fell.
On 13 March 2007, the Applicant was charged with an offence of contravening the Privacy and Personal Information Protection Act 1998 (NSW). He was suspended from the Police Force on that date as well. In addition to facing the criminal charge, the Applicant was also subject to a show cause notice from the Commissioner of Police.
As will become evident later in these reasons, the Applicant was convicted of the criminal offence before the Magistrate but that conviction was overturned on appeal by the District Court of New South Wales. This acquittal occurred on 30 July 2010.
The Applicant answered the show cause letter from the Commissioner of Police and refused to go into details, quite properly, because the criminal proceedings had not yet been finalised. He did however issue denials of any wrongdoing and provided the Commissioner with a number of character references.
In a letter dated 18 April 2008, the Police Commissioner recorded that he had not lost faith in the Applicant but had issued him a warning. In his statement of reasons, the Commissioner determined that the Applicant had breached the New South Wales Police Code of Conduct and Ethics and the Code for Best Practice for Information Management.
The Applicant gave evidence that he did not receive those letters until after he had been acquitted by the District Court; that is, over two years after the letters had been signed by the Commissioner of Police. I have to accept the Applicant on this issue but it does expose some extremely shoddy management practices by the New South Wales Police Force.
P0702087
It was alleged that on 19 April 2007, whilst off duty (and under suspension) the Applicant improperly interfered with an investigation and failed to treat persons with respect courtesy and fairness. These two allegations were found to be “sustained”. Four other offences, investigated at the same time and related to the same incident, were not found to be sustained.
P0803603
It is alleged that on 21 May 2007 (again whilst on suspension), the Applicant fraudulently obtained $8,000.00 travel insurance by submitting a false travel claim. It was also alleged that he failed to comply with a direction by a senior officer to participate in an interview and that he failed to comply with the Code of Conduct and Ethics when he did lodge that claim. All of those allegations were investigated and found to be “sustained”.
P0802631
It is alleged on 8 June 2008 (again whilst on suspension), the Applicant did not comply with a lawful and reasonable direction and that he acted inappropriately and unprofessionally. These offences were investigated and were both found to be “sustained”.
The Applicant leaving the NSW Police Force
There were other complaints made about the Applicant during his time with the New South Wales Police Force. Those investigations concluded with a finding of “not sustained”. There was one further complaint that had not reached any conclusion by March 2011.
On 3 August 2010, the suspension from duty was lifted and the Applicant was to return to duty on full pay. However, he was still certified as unfit for work due to a psychological ailment. He remained on sick leave. He said in evidence that it was after this time that he received the Commissioner’s warning notice and statement of reasons.
Around the same time, he was notified as to the findings in relation to all of the other complaints made. The matters for which there was a finding of “sustained” were sent to management for appropriate action. In September 2010, the Applicant asked what management action was being taken for the sustained findings.
It seems that the Applicant and the Police Force made a mutual decision that the Applicant would retire from the Police Force because of his medical condition. Nevertheless, in October 2010, the Applicant was promoted to the rank of Senior Constable.
On 3 December 2010, Superintendent Fitzgerald informed the Applicant that the original Commissioner’s warning notice would be the only action taken in regards to complaint P0604627. With regard to the other five complaints of which there was a “sustained” finding, the superintendent recommended that no further management action take place. He wrote, “I have made this decision following a review of each matter, the time that has elapsed since the incidents in question and the fact that you will not be returning to duty before being medically discharged in March 2011”.
Litigation commenced by the Applicant
From the evidence adduced at this hearing, it would not be an overstatement to say that the Applicant is a very litigious. Prior to his discharge, the Applicant had, in 2009, sought documents, pursuant to the Freedom of Information Act 1982 held by the NSW Police Force regarding the complaints that were found to have been “sustained”, with the exception of the fraud allegation.
As the Police Force did not make a determination within the 21 days allowed for by the Freedom of Information Act 1982, this was deemed to be a refusal of the application. The Applicant sought an internal review of the deemed refusal and no determination was made within the 14 day statutory time period. The Applicant then brought proceedings for an external review by the New South Wales Administrative Decisions Tribunal (“NSW ADT”). On 25 January 2010, the NSW ADT found against the Applicant and affirmed the decision of the NSW Police Force not to release those documents.
The Applicant then sought information relating to how material known by the Police Force was published by a newspaper Internet site as well as seeking information as to how the Police Force gained information from the Department of Immigration and Citizenship.
It seems that all claims made by the Applicant against the Police Force were settled by the execution of a deed of release which is Exhibit 5 in these proceedings. That deed was executed on 22 November 2011.
Even though the Applicant had been discharged in March 2011, as a result of the settlement, the Applicant was given a letter from the New South Wales Police Force that confirmed that his discharge from the Police Force resulted from recognized work-related injuries and not from any misconduct or unacceptable behaviour. He also received a certificate of service by the Commissioner.
The Applicant also sued four defendants over nine publications that the Applicant said had defamed him. It seems that three of the four defendants defended the claim. With regard to the Second Defendant, a person named Gary Burns, an undefended hearing occurred in which Justice McCallum of the NSW Supreme Court awarded the Applicant damages of $7,500.00.
The Applicant also sued the insurance company who paid out his insurance claim that was found to be fraudulent upon investigation by the police (see complaint P0803603). The gist of the claim seems to be that the insurance company, knowing that the claim was fraudulent, nevertheless paid out the insurance claim knowing that it would lead to an investigation for fraud.
In this action the Applicant claimed loss and damage by reason of:-
a)embarrassment, humiliation, distress, hurt feelings and affront to dignity;
b)injury to reputation in the NSW Police Force; and
c)Recording of adverse findings pursuant to s.173(2)(d) and schedule 1 of the Police Act 1990 (NSW).
The Applicant said that such a claim was settled.
In October 2013, the Applicant made an application for employment as a police officer in the Northern Territory Police. In that application, the Applicant made disclosures relating to allegations that he had improperly accessed and divulged information from a police computer (the Jacobsen/Fell allegations). The Applicant also disclosed some of the other matters I have already mentioned.
In evidence before me, the Applicant said that the way in which the employment form was set out, it was obvious that the Northern Territory wanted him to disclose those matters that he did disclose to them. He said that the DFWBII form was nowhere near as explicit and that’s why he answered that form differently to the one he answered in the Northern Territory.
In June 2015, the Northern Territory Police Force determined that, as a result of “integrity issues”, the application was unsuccessful and that the Applicant was excluded from reapplying permanently.
The Applicant commenced proceedings pursuant to the Anti- Discrimination Act 1993 of the Northern Territory in the Northern Territory Civil and Administrative Tribunal (“NTCAT”). The Applicant complained that in reaching their decision, the Police Force had unlawfully discriminated against him on the basis of an irrelevant criminal record. Those proceedings were still on foot as at May 2016, though the Applicant testified that there had since been a settlement.
The Application to DFWBII
As I have earlier detailed, the Applicant completed a form nominating himself as a Fair Work Building Industry Inspector. He gave evidence before me that he filled out that form truthfully and that he has not been the subject of disciplinary proceedings and that there is no matter which would bring his good character into question. The Applicant did not contact, or attempt to contact, his supervisor about any issues with filling out the form.
On 30 November 2015, Ms Pina Busato received an email from another employee of the DFWBII containing media material relating to the Applicant. That material seems to have been obtained as a result of searches of the Internet. The material was mainly newspaper articles relating to the $7,500.00 defamation payout, the quashing of the conviction by the NSW District Court and the decision by the NSW ADT not to allow the Applicant access to police force records.
These matters were discussed by Ms Busato and other senior officers of the DFWBII. The decision was made that the Applicant would have to be spoken to by senior staff. A script was prepared for Ms Busato to run through the issues that DFWBII had with the Applicant in a meeting with him. As a result of a number of other factors, this meeting was then to be held on Monday, 14 December 2015.
Ms Busato gave evidence that on that morning she met with the Applicant and two other persons. She followed the script provided to her and showed the Applicant a copy of the material that had been found by other officers of the DFWBII. She told the Applicant that it had come to her attention that he may not have completed the nomination form with honesty and integrity.
She told the Applicant that he had not disclosed that he had been subject to disciplinary action whilst employed with the New South Wales Police and that he had not disclosed any matters that might bring his good character into question or compromise the activities of DFWBII. She told the Applicant that DFWBII was considering terminating his employment because he had not truthfully completed the nomination form and she asked the Applicant to give her, by no later than 9 AM the next morning (15 December 2015), his response to the fact that DFWBII was considering terminating his employment.
Ms Busato gave the Applicant leave with pay for the rest of the day to allow him time to prepare his response. She said that the Applicant said very little during the meeting and did not ask any questions. She asked the Applicant whether he had any questions and he said that he did not. He then left the meeting with copies of the documents that were provided to him. Ms Busato said that the meeting ended just before 8:54 AM.
A series of emails between Ms Busato and the Applicant were then exchanged:
“From: Brendan Ritson
Sent: Monday, 14 December 2015 12:13 PM
To: BUSATO,Pina
Subject: PRIVATE & CONFIDENTIAL
Hi Pina,
I refer to our meeting about 8:40 am this morning in the presence of Wayne Jenkinson and Catherine Higgins.
During that meeting you informed me of the following:
• Some information has come to light that indicates that I may not have made full disclosure to the agency in my application to be appointed as a Fair Work Building Industry Inspector; and
• The agency takes non−disclosure very seriously and at this stage is considering terminating my employment with FWBC.
During that meeting you handed to me copies of the following documents:
• Appointment of Fair Work Building Industry Inspector dated 23 July 2015 (1 page);
• Letter from Brian Comey, Acting Director, to Brendan Ritson dated 23 July 2015 (1 page);
• Nomination of an employee of the Office of the Fair Work Building Industry Inspectorate for appointment as a Fair Work Building Industry Inspector dated 20 July 2015 (4 pages);
• Legislative Council, Privileges Committee, Citizen's Right of Reply (Mr Brendan Ritson), Report 65 − November 2012 (8 pages);
• Article entitled "Case Law, Australia: Brendan Ritson v Gary Bums, A$7500 damages for "single comment made to one person" − Yvonne Kux" (2 pages);
• Article entitled "Police conviction quashed over sex change disclosure" printed on "30/11/2015" (1 page);
• Article entitled "That ain't no way to treat a lady" printed on "30/11/2015" (4 pages); and
• Article entitled "Suspended policeman denied access to documents" printed on "30/11/2015" (1 page).
During that meeting you further informed me of the following:
• The internet articles reveal that I was subject to criminal proceedings as a member of the NSW Police;
• The issue here is non−disclosure of that information to the agency in my application to be appointed as a Fair Work Building Industry Inspector;
• I have until 9:00 am tomorrow morning to provide any response;
• I can have today and tomorrow off work; and
• You are not at liberty to say where that allegation has come from.
Given the serious nature of this matter, namely that the agency is considering terminating my employment, and to afford me procedural fairness, it is appropriate that FWBC set out the precise allegation in writing to ensure that I fully understand the following:
• The exact information that I allegedly failed to disclose to FWBC;
• The document (if any) that allegedly required that information to be disclosed within it;
• The requirement (if any) imposed upon me to disclose that information to FWBC.
I respectfully ask that you afford me at least 24 hours to properly consider and respond to the information requested above.
Kind regards,
Brendan Riston…
Later that day (Monday, 14 December 2015) at 4:04 PM,Ms Busato replied as follows:-
Dear Brendan
As discussed in our meeting earlier today according to media reports which the agency has not substantiated you were subject to disciplinary proceedings whilst employed at NSW Police:
1. You were suspended from duties in 2009 (Gazette of Law and Journalism —30 April 2014).
2. An internal police review investigated allegations of incidences in March 2006, April 2007 and June 2008. (Sydney Morning Herald — February 18, 2011).
Under the 'Nomination of an Employee of the Office of the Fair Work Building Industry Inspectorate for Appointment as a Fair Work Building Industry Inspector' employees are required to declare:
1. they have not been and are not currently subject to disciplinary action
2. any other matters which might bring their good character into question or compromise the activities of FWBC
You did not disclose any of the above matters in the nomination form you completed and signed on 20 July 2015.
As requested, the agency will grant you until 5pm tomorrow to respond to this email.
Regards,
Pina Busato State Manager, Operations (QLD)
That evening, the Applicant replied:-
From: Brendan Ritson
Sent: Monday, 14 December 2015 7:30 PM
To: BUSATO,Pina
Subject: Re: PRIVATE & CONFIDENTIAL [DLM=Sensitive]
Hi Pina,
Thank you for your email.
The exact information that I allegedly failed to disclose to FWBC remains unclear.
Your email refers to "disciplinary proceedings whilst employed at NSW Police" whereas during our meeting this morning you referred to "criminal proceedings as a member of the NSW Police".
Consistent with your reference during our meeting to "criminal proceedings", the documents you handed me contain the following statements relating to the subject matter of criminal proceedings:
• “quashed my conviction" (Legislative Council, Privileges Committee, Citizen's Right of Reply (Mr Brendan Ritson), Report 65 − November 2012);
• “convicted of breaching the transgender person's confidentiality" (article entitled "Case Law, Australia: Brendan Ritson v Gary Burns, A$7500 damages for "single comment made to one person" − Yvonne Kux");
• “convicted in the Downing Centre Local Court" (Article entitled "Police conviction quashed over sex change disclosure" printed on "30111/2015");
• “convictions of police constables Brendan Ritson" (Article entitled "That ain't no way to treat a lady" printed on "30/11/2015"); and
• “Constable Brendan Ritson, who was convicted last year of unlawfully disclosing information" (article entitled "Suspended policeman denied access to documents" printed on "30/11/2015").
To ensure that I fully understand the exact information that I allegedly failed to disclose to FWBC, please clarify whether or not that information includes information about any one or more of the following subject matters:
• Criminal charge;
• Criminal proceedings;
• Criminal conviction.
Your email also refers to the document "Nomination of an Employee of the Office of the Fair Work Building Industry Inspectorate for Appointment as a Fair Work Building Industry Inspector" said to have been completed by me and signed on 20 July 2015.
The copy of the nomination form handed to me during our meeting this morning (attached) appears to be missing the page or pages containing "Part C".
I respectfully ask that you send me a complete copy of the nomination form to enable me to properly consider that document and respond to the allegation that I failed to disclose information therein.
Kind regards,
Brendan Ritson…
The next morning at 10:06 AM, Ms Busato replied as follows:-
Dear Brendan
Thank−you for your email.
Please find attached the complete nomination form you signed on 20 July 2015. Unfortunately, the PDF only picked up the front page of a double sided document.
In answer to your questions, you failed to disclose that you were subject to disciplinary action.
I refer you to Part C: Nominee's Declaration Concerning Good Character, specifically:
• Some criminal convictions or disciplinary action may impact on your ability to perform your role as an Inspector. If you have an unspent conviction, or have been subject to disciplinary action relating to your work or profession, you must discuss this with your current manager prior to completing this statement
• If there is any other matter which may call into question your good character for the purposes of being appointed an Inspector, you must discuss this with your current manager prior to completing this statement.
As stated in the nomination form the matters listed above do not necessarily prevent your appointment as an Inspector, but must be disclosed to the Director for the purposes of considering whether you are of good character.
The media articles provided to you yesterday suggest that you were subject to disciplinary action at NSW Police but the agency does not have any record of you disclosing these matters.
Please provide any information you would like considered before the agency makes a decision regarding your future employment.
Regards,
Pina Busato State Manager, Operations (QLD)
The Applicant sent a further email later that day. It read:-
From : Brendan Ritson
Sent : Tuesday, 15 December 2015 12:01 PM
To: BUSATO,Pina
Subject: Re: PRIVATE & CONFIDENTIAL [DLM=Sensitivel
Hi Pina,
Thank you for your email.
With respect, your email is not responsive to my email sent at 7:30 pm on 14 December 2015 because you have not clarified whether or not the information I allegedly failed to disclose to FWBC includes information about any one or more of the following subject matters:
• Criminal charge;
• Criminal proceedings;
• Criminal conviction.
The documents you handed me during our meeting on 14 December 2015 (excluding the three FWBC documents) relate to the above subject matters of a criminal nature and there is no reference in any of those documents to having been subject to "disciplinary action".
If the information I allegedly failed to disclose to FWBC does not include information about any one or more of the above subject matters of a criminal nature, please clarify the purpose of handing me the documents (excluding the three FWBC documents) during our meeting on 14 December 2014.
In circumstances where you have provided me with a complete copy of the nomination form by way of email at 10:06 am this date and I am still awaiting clarification in relation to the above issues, I respectfully request an extension to the timeframe required to provide a response.
Please find attached a Medical Certificate dated 14 December 2015 for your consideration.
Yours faithfully,
Brendan Ritson
Less than two hours later, Ms Busato sent the following reply:-
From: BUSATO,Pina
Sent: Tuesday, 15 December 2015 1:59 PM
To: Brendan Ritson
Subject: RE: PRIVATE & CONFIDENTIAL [DLM=Sensitive]
Sensitive
Dear Brendan
I previously wrote to you on Monday 14 December 2015 at 4.04pm and today at 10.06am regarding information that you were subject to disciplinary action whilst employed at NSW Police, specifically:
1. You were suspended from duties in 2009 (Gazette of Law and Journalism —30 April 2014).
2. An internal police review investigated allegations of incidences in March 2006, April 2007 and June 2008. (Sydney Morning Herald —February 18, 2011).
You have not responded to our invitation to provide further information in relation to these matters.
If we do not receive a response from you by 9am tomorrow we will assume that you do not wish to respond and the agency will consider terminating your employment due to unsatisfactory conduct.
Regards,
Pina Busato State Manager, Operations (QLD)
The Applicant replied as follows the next morning:-
From: Brendan Ritson [mailto:[email protected]]
Sent: Wednesday, 16 December 2015 8:50 AM
To: BUSATO,Pina
Subject: Re: PRIVATE & CONFIDENTIAL [DLM=Sensitive]
Hi Pina,
Thank you for your email.
You seek a response from me in relation to "allegations of incidences" going back as far as March 2006, which is almost 10 years ago, within less than 24 hours of having provided me with the complete nomination form
I wish to respond to what you have described as "media reports which the agency has not substantiated”, however I am currently unwell and unable to provide a proper and meaningful response at this time.
As noted in the attached Medical Certificate dated 14 December 2015, Dr Tran has opined that I am suffering from Anxiety / Depression and will be unfit for duty up to and including 18 December 2015.
Dr Tran has commenced me on medication referred me to a specialist who I expect to consult on 21 December 2015.
I intend to seek legal advice and respond to the unsubstantiated media reports as soon as I am medically fit to do so.
Yours faithfully,
Brendan Ritson”
At 1:32 PM on 16 December 2015, Mr O’Keeffe terminated the employment of the Applicant. He wrote the following letter to the Applicant:
“16 December 2015
Private and Confidential
Mr Brendan Ritson
Email: [email protected]
Dear Brendan
Termination of your employment
I am writing to you about the termination of your employment with the Office of the Fair Work Building Industry Inspectorate.
On Monday 14 December 2015 you met with the State Director — Operations, Pina Busato in the presence of Wayne Jenkinson and Catherine Higgins who was your support person.
In that meeting you were informed that it had come to the attention of the agency that your conduct may not be satisfactory because you did not act with honesty and integrity when you completed the nomination form to become a Building Industry Inspector.
Ms Busato advised you that the agency was considering terminating your employment.
The agency considers that you have been provided with a reasonable opportunity to respond to the allegations but that you have failed to do so.
Your probation period with the agency was due to end on 20 January 2016.
The agency has decided not to continue your employment effective immediately. As a result, your employment will end on Wednesday 16 December. Based on your length of service, your notice period is one week. In lieu of receiving that notice, the agency will make a lump sum payment of one week to you.
You will also be paid your accrued entitlements and outstanding remuneration, including superannuation, up to and including your last day of employment.
Yours sincerely
Bernie O'Keeffe
Chief Operating Officer
Fair Work Building & Construction”
The Claim of the Applicant
The Applicant claims that there has been a breach of the rules of natural justice that occurred in connection with the making of this decision. The Applicant claims that there has been an improper use of power because the decision maker (Mr O’Keeffe) took into account irrelevant considerations and failed to take into account relevant considerations.
The Applicant claims that the exercise of power was so unreasonable that no reasonable person could have so exercised the power.
The Applicant also claims that Mr O’Keeffe did not have the power to make the decision.
The Applicant claims that there was no evidence or other material to justify the making of the decision. The Applicant further contends that the DFWBII contravened s.44 of the Fair Work Act 2009 (Cth) (“the FW Act”) in that it failed to allow the Applicant to take sick leave on 15 and 16 December as required.
Natural Justice and Procedural Fairness
The Applicant submits that the DFWBII did not provide him with sufficient opportunity to respond to the allegations made against him. He submits that the complicated nature of the allegations meant that for him to provide any form of answer to the questions asked, he would have had to gather lots of material. He points to the fact that his own affidavit setting out the circumstances is in excess of 300 pages.
The Applicant said that the DFWBII’s own policy dealing with the termination of an employee on probation provides that the employee is to be provided with a written report dealing with any recommendation to terminate and the employee be given a reasonable opportunity to respond which is usually 7 days.
The Applicant submits that he was issued a medical certificate by Dr Tran that certified that he was unfit for work. This was sent to Ms Busato. The Applicant submits that he was temporarily incapacitated to respond to the questions because of that illness.
However, the allegations and concerns were fairly clear. What was being put to the Applicant was that he was not honest when he filled out the form. There does not need to be any long and drawn out explanation; he was either being honest or he was not being honest. These questions were not new to the Applicant.
He had disclosed all of this material to the Northern Territory police. At the time he filled out the form, he knew that the NT police had refused to employ him and had permanently excluded him from applying in the future. These matters raised by DFWBII, could not have come as any true surprise to the Applicant; and given his litigation history, it should have been very easy for him to at least say to Ms Busato, either at the meeting or in subsequent emails, that he had not been dishonest.
The Applicant was ultimately given 48 hours to respond to the concerns. Considering how familiar he must have been with these issues, such a timeframe was reasonable. I cannot accept that the Applicant did not know that the DFWBII would want an explanation if they ever found out about these matters. To the extent that the Applicant gave such evidence, I reject that evidence as inherently incredible.
But even if it could be thought to have been some sort of denial of procedural fairness, such denial only becomes an issue if the Applicant was denied the possibility of a successful outcome. In other words, would the Applicant have been able to show that he was not dishonest?
Dishonesty
The reason for the termination of employment was that the Applicant was dishonest when he filled out the form. He gave evidence before me that he was not dishonest when he filled out the form. He claimed that he was not ever the subject of disciplinary proceedings. He makes that claim because of an understanding that he had of reg.11 of the Police Regulation 2008 (which has now been repealed).
That regulation relates to the certificate of service. It reads as follows:
“Certificate of service
11 Certificate of service
(1) A police officer is entitled to be issued with a certificate of service by the Commissioner on resignation or retirement unless:
(a) the officer is removed from the NSW Police Force as a consequence of a section 181D order, or
(b) the officer is dismissed from the NSW Police Force as a consequence of section 80 dismissal action, or
(c) the officer resigns or retires from the NSW Police Force after having been notified that he or she is:
(i) the subject of consideration for the making of a section 181D order or the taking of section 80 dismissal action, or
(ii) the subject of an investigation under the Act, the Police Integrity Commission Act 1996 or the Ombudsman Act 1974 .
(2) A police officer who is not issued with a certificate of service because of an investigation concerning the officer’s conduct is nevertheless entitled to a certificate if, after the investigation and any proceedings arising from the investigation are completed, there is no evidence of misconduct on the part of the officer.”
The Applicant was given a certificate by the Commissioner of Police. That certificate is contained in Annexure BR24 to the affidavit of the Applicant filed 24 May 2016. The Applicant claims that he therefore honestly believed that there could not have been any “black mark’s” against his name otherwise he would not have been issued with the certificate. The Applicant said that he believed the issuing of the certificate wiped away any findings of misconduct against him.
This is obviously wrong. However the question is whether the Applicant honestly believed it. I do not accept that he did honestly believe this to be correct. The fact is that he had five disciplinary investigations against him “sustained”. For one of those, he received a warning from the Commissioner notwithstanding that he was acquitted of criminal liability for those actions. For the rest of those matters, there was no further action taken for the reasons outlined earlier in this judgement.
The Applicant was not removed as a consequence of the s.181D order, nor was he dismissed as a consequence of the s.80 dismissal action. He did not resign or retire neither after being notified that he was the subject of consideration for either of the above reasons nor because he was the subject of any investigation.
Therefore he was entitled to be issued with a certificate. I cannot accept that the Applicant could have honestly believed that the certificate had the effect of “pardoning” all of his past sins whilst he was a police officer. To the extent that the Applicant gave such evidence, I reject that evidence as inherently incredible.
The Applicant also relies upon the letter which is Annexure BR 25 to that same affidavit. He said that this letter gave him the impression that he could honestly say that there were no disciplinary proceedings ever against him. However, a perusal of that letter does no such thing. The letter states:
“You have repeatedly registered your complaints that those investigations were procedurally flawed and the findings recorded against you should not have been recorded. Whilst not agreeing with the totality of your complaints, the New South Wales Police Force acknowledges that a number of those investigations, and the communication is with you about them, were not satisfactory in many respects. In such circumstances it was legitimate and consistent with your ethical obligations for you to register your concerns. A review has been undertaken of the complaints system and procedures that must now be followed for adverse findings are recorded against a police officer, and we believe that any of your concerns of now been addressed.”
Nowhere in that letter does it say that the findings against the Applicant are no longer recorded; in fact, it states the exact opposite. I find that the Applicant could not have honestly believed that he had not been the subject of disciplinary proceedings.
But the real evidence that puts the lie to this claim of the Applicant is that he believed that there were no findings against him is the amended statement of claim against the insurance company which is Exhibit 6 in these proceedings. That amended statement of claim was made on 27 June 2012. This is seven months after the letter, that the Applicant claims exoneration him, had been issued.
In that statement of claim, the Applicant seeks damages because of the actions of the insurance company that lead to “the recording of adverse findings pursuant to section 173 (2) (d) and schedule 1 of the Police Act 1990 (NSW)”.
The Applicant could not have made such a claim if he believed that there were no such adverse findings recorded against him. To my mind, this is an illustration of the blatant dishonesty of the Applicant.
Another aspect of the blatant dishonesty of the Applicant is that he claims that he knows of no matter that would bring his good character into question. The facts surrounding the criminal prosecution do just that. The Applicant behaved as if the acquittal by the Magistrate meant that there was judicial imprimatur given to his actions. Nothing could be further from the truth.
A reading of the reasons of the District Court of New South Wales shows that the Court did not accept that the information in the police computer as to the gender of Ms Fells was not already in the public arena. Therefore, if that information could not have been construed as private information, then there is no crime in divulging that information.
But that is a very different matter as to whether such an episode could not reflect adversely on the character of the Applicant. He chose not to give evidence before the Magistrate and so did not ever give his side of the story. He did not give his side of the story to the Police Commissioner because he did not want to say anything which may incriminate him.
Unfortunately for the Applicant, the public record only has an allegation that the Applicant used information from the police computer to confirm details of facts that he was using to demean and humiliate a person who is in custody. Such is also reflected by the warning given by the Commissioner.
This is information that the Applicant knew at the time that he filled in the form. It must have been obvious to the Applicant that such information was capable of bringing his good character into question. To the extent that the Applicant testified otherwise, I reject that evidence as being inherently incredible.
The Applicant gave evidence that he spoke to the doctor at the pre-employment medical examination and told him that he had issues with the New South Wales police where he was wrongfully prosecuted and subjected to internal investigations that were a witch hunt. He further claims that when contacted by the HR Department before his employment commenced, he told them, “as I told the doctor I had internal issues with the police and those issues were resolved in my favour”. The Applicant contends that this was inconsistent with a person trying to hide their past and is consistent with his view that he was not required to disclose these matters, rather than his being dishonest.
I reject this submission. Both of those “disclosures” are dealing with the issue of how the Applicant may handle the stress of the job. It has nothing to do with honesty and cannot show some form of mistaken belief as to what he had to disclose.
The Applicant further contends that the terms of the deed were that he could not disparage the Police Force and he had to keep the terms of the deed confidential. It was submitted that this would lead a layperson to consider that they were not able to discuss the matters that were the subject of the deed. It is submitted that this is another reason that the Applicant was not being dishonest.
I reject this submission. If the Applicant truly believed that the deed bound him from talking about these matters, then he would not have completed the application for employment in the Northern Territory in the way that he did. Even though he gave evidence that that application form was more explicit, the terms of the deed would still have applied. If the applicant truly believed that he was prohibited from talking about these issues because of the nature of the deed, then he would not have been able to say what he did say to the DFWBII doctor or HR manager.
I find that the Applicant was dishonest when he completed the nomination form. At the very least, his knowledge should have been sufficient for him to approach Ms Bustao (as his EL1) when filling out the form. Therefore even if there the First Respondent had unfairly limited the opportunity for the Applicant to respond (which I have already found did not occur), there was never any possibility of a successful outcome for the Applicant.
Taking into account irrelevant considerations and ignoring relevant considerations
There is a common misconception in judicial review cases that the phrase “failed to take into account relevant considerations” or “took into account irrelevant considerations” bears the same meaning that it does ordinarily. It clearly does not.
In judicial review cases, to “fail to take into account relevant considerations” means to fail to consider a mandatory consideration. Similarly, to “take into account irrelevant considerations” means to consider a matter from which the decision-maker is prohibited from considering.
The Applicant has not identified any mandatory matter that was not considered by Mr O’Keeffe. The Applicant has not identified any prohibited matter that was considered by Mr O’Keeffe. All the Applicant has done is to identify aspects of the decision where the decision-maker has come to a view that is different from the one that the Applicant agitates.
This ground is really just another way of arguing the previous ground and it, like the previous ground, also fails.
Whether Mr O’Keeffe had the authority to dismiss the Applicant
The Applicant argues that Mr O’Keeffe did not have the authority to make the decision that he did. There is no doubt that the Director of the Fair Work Building Industry Inspectorate has the power to dismiss employees of the office. That power can be delegated to other persons.
On 2 September 2015, the First Respondent delegated various functions to various people. One of those delegated functions was the power to terminate employees pursuant to s.29 of the Public Service Act 1999. The relevant delegation is Exhibit 12 in these proceedings.
The delegation is in Attachment A of that document, names the following persons:
a)executive director capability, performance and innovation;
b)H R Assistant Director;
c)SES band 1 and 2 managers; and
d)Executive level 2 managers and executive level 1 and APS managers.
When one looks at the delegation matrix which is Attachment B, there is no reference to “executive director capability, performance and innovation” but instead there is a reference to “chief operating officer”. This creates a strange situation where Attachment A delegates a particular officer to do things but Attachment B does not refer to that officer and Attachment B refers to an officer who was not mentioned in Attachment A.
The evidence before me is that the position of “executive director capability, performance and innovation” no longer exists. The functions of such an officer have been subsumed in the duties of the chief operating officer. Mr O’Keeffe is the chief operating officer.
The Applicant submits that Mr O’Keeffe did not have the power to dismiss him because the delegation did not give authority to the chief operating officer to do anything.
I accept that there was an administrative error when the position of “executive director capability, performance and innovation” was abolished that caused the delegation of Table 1 not to be updated and amended to reflect the new situation.
The evidence of Mr O’Keeffe was that, as chief operating officer, he performed just about all of the duties of the abolished role. I accept the evidence of Mr O’Keeffe that he had kept the Director himself informed of the termination process with respect to the Applicant and that the Director had indicated his approval of that decision to terminate the employment of the Applicant.
In doing so it could well be thought that the Director himself ratified the decision to dismiss the Applicant. If that were so, there has been an appropriate use of power, however, it means that the person who truly terminated the employment of the Applicant was the Director and Mr O’Keeffe.
As chief operating officer, Mr O’Keeffe was on the level of SES band one. That being so, the chief operating officer would be covered by the term “SES band 1manager”. As the delegation applied to SES band 1 managers, it would apply to the chief operating officer. The delegation matrix does not give the same authority to all SES band one managers and instead gives authority, in some instances, to only one SES band one manager; and that is the chief operating officer.
Therefore, I find that the Director had properly delegated the authority to dismiss the Applicant to Mr O’Keeffe through the delegation instrument that is Exhibit 12. This ground fails.
Failure to provide sick leave
Whilst I have already found that there was no procedural unfairness to the Applicant in the decision that was made, I did not refer to the aspect of the medical certificate issued by Dr Tran. The certificate issued by Dr Tran certified the Applicant has been unfit to duty until 18 December.
The Applicant submitted that he was asked to provide an explanation to his employer at a time where he had a medical certificate that certified him as unfit for duty. Because of a number of matters, I do not consider this a relevant aspect.
The certificate did not certify that the Applicant was unfit or unable to respond to the matters that DFWBII had put to him. When the Applicant emailed the certificate to Ms Busato, he did not assert that he was unfit to respond to the concerns. Instead, in that same email, he sought an extension of time because he had only just received the nomination form.
Obviously from the emails, the Applicant was capable of sending quite detailed messages to Ms Busato between 14 and 16 December 2015. He was also fit enough to pursue an FOI request with Redland Council at that time.
The emails of Ms Busato set the parameters of which the Applicant had to respond quite clearly. It was the Applicant who was attempting to obfuscate the inquiry and “move the goalposts”.
Therefore I did not consider that this aspect in any way enlivened the question of whether procedural fairness had occurred.
The Applicant claims that the First Respondent is obliged to afford him paid sick leave when he is unable to work due to illness or injury. By requiring the Applicant to respond to allegations that were made in respect of his employment during the time that he was entitled to be absent from work, the Applicant submits that the First Respondent did not afford him paid sick leave.
This submission confuses the two aspects of what has occurred here. On my reading of the evidence, there is no doubt that the Applicant was given sick leave. He was initially given paid leave to enable him to go home and respond to what the First Respondent had asked him. That leave was then changed to sick leave.
Notwithstanding that the Applicant was on sick leave, there is no evidence that he was unfit or unable to respond to the matters to which he was required to respond. The Applicant was required to respond by 16 December and he failed to do so. The question of whether he was on sick leave or not is quite irrelevant.
The fact is that the Applicant was not deprived of his entitlement to personal leave. Just because he was required to respond to his employer during this period does not mean that he was deprived of his entitlement to personal leave. This ground would fail just on this aspect.
As I have already considered the ground and have decided that it is without merit, I do not have to consider the other arguments put by the Respondents, however I will say that there is great merit in those arguments.
Conclusion
I dismiss the application.
The Respondents asked for the opportunity to be heard on the question of costs and I will hear submissions on this aspect.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 22 November 2016
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