Sandra Johnston v Australian Federal Police

[2014] FWC 4201

[2014] FWC 4201

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sandra Johnston
v
Australian Federal Police
(U2013/15510)

COMMISSIONER DEEGAN CANBERRA, 26 JUNE 2014

Application for relief from unfair dismissal.

[1] On 1 November 2013 Ms Sandra Johnston (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment with the Australian Federal Police (the AFP) was unfair.

[2] Following an unsuccessful conciliation conference, directions were issued requiring the applicant and respondent to lodge an outline of submissions and witness statements in preparation for a hearing on 13 March and 14 March 2014. After a short directions hearing and receiving written submissions on the issue of representation, I granted permission for the respondent to be represented at the hearing pursuant to s.596 of the Act. At the conclusion of the hearing the parties elected to lodge written submissions.

Background

[3] This decision involves issues associated with an allegation of an incident involving actions of a sexual nature. As I do not wish to cause any further harm to the persons affected by the allegations made in this matter, I do not intend to refer to the allegations in detail or provide any context in this decision which might identify the persons involved. For that reason the decision may appear to have been written in a slightly elliptical style. A brief chronology may assist in understanding how the events unfolded:

27 March 2007 - The applicant commenced employment with the employer on 27 March 2007 as a Protective Services Officer (PSO).

13 May 2012 - The applicant and a person known to her, AA, had a verbal argument, that resulted in their estrangement.

19 May 2012 - The applicant attended the Queanbeyan Police Station and made an allegation that an incident of a sexual nature concerning persons known to her had taken place. Senior Constable Spence was the officer that received the applicant’s police report. The applicant stated that she had not witnessed the incident but had been informed about it by AA, who had witnessed it. The applicant claimed that it was her duty to report the incident as AA did not.

21 May 2012 - Upon the applicant making the statement to Police, the relevant state authorities were notified. Due to the serious nature of the allegation, an investigation was commenced immediately. Following an investigation, which caused some distress to those persons identified in the applicant’s police report, including AA, the authorities determined that the report that had been made was false.

22 May 2012 - Applicant lodges Security Incident Report with AFP

31 May 2012 - AA makes complaint to AFP that the police report made by the applicant on 19 May 2012 was made maliciously

June - July 2012 - . An investigation into the applicant’s conduct in making the police report was commenced by the AFP Professional Standards (PRS) area. The PRS was tasked with investigating the allegation that:

‘On 19 May 2012, PSO Sandra Johnston (AFP 16752), seriously breached section 8.11 of the AFP’s Code of Conduct (appointee must behave in a way that upholds the AFP Core Values, and the integrity and good reputation of the AFP) when she provided false information in a police report.’

7 January 2013 - Applicant is interviewed by PRS investigators, including Federal Agent Deller

17 January 2013 - Second interview of applicant by PRS investigators

21 January 2013 - Investigation Report completed, applicant invited to provide written Natural Justice Response to the Report

4 March 2013 - Applicant provides written Natural Justice Response to Investigation Report

8 March 2013 - Natural Justice Review of Investigation Report

15 April 2013 - Adjudicator’s Report of allegation against applicant issued

22 July 2013 - Show Cause Notice sent to the applicant

26 August 2013 - Applicant provides written response to Show Cause Notice

25 September 2013 - Letter terminating applicant’s employment sent to the applicant

11 October 2013 - Applicant’s dismissal takes effect

The Applicant’s Case

[4] During the PRS investigation the applicant maintained that she had not made a false report but had merely passed on information given to her by AA. She claimed that she had not been the only person informed of the incident and directed investigators to other persons to support her claim.

[5] During the course of the PRS investigation the applicant was interviewed on two occasions. Other persons were also interviewed.

[6] While the applicant denied that she had made the report maliciously, it was apparent from the evidence that the applicant had:

● Only days before making the report, had a serious argument with AA, who the applicant claimed had given her the information about the incident involving conduct of a sexual nature; and

● Given a number of inconsistent versions of the relevant events (including the timing and nature of the alleged incident) when making the police report, during the PRS investigation and in her evidence provided prior to and at the hearing.

[7] To explain the inconsistencies in the versions of the events she had given, the applicant:

● Claimed that the police report did not accurately represent the account of events she had given to Senior Constable Peter Spence on 19 May 2012;

● Alleged that she had been taken unawares, intimidated and interrogated in an aggressive manner by the PRS officers conducting the two PRS investigation interviews;

● Stated that she had been unable to properly respond to the investigation report prepared by PRS as it was ‘blacked out’ in many places, and difficult to read and understand; and

● Noted that various parts of the evidence relied on by the AFP for the decision to terminate were withheld from her, and this impacted on her ability to make a proper response to the Show Cause Notice.

[8] The applicant also alleged that the PRS investigators were biased against her and did not interview all witnesses whom she had claimed could corroborate her claims.

[9] Under cross-examination the applicant confirmed the claim made in her statement of evidence 1 signed on 31 January 2014, that AA had told her in a telephone call in late November 2011 that she had just witnessed an incident involving actions of a sexual nature. The applicant confirmed that the description of the incident set out in paragraph 18 of the statement was true, correct and complete. She also confirmed that the description in her statement was exactly as told to her by AA, and that she remembered the phone call very clearly.

[10] When questioned about the investigation, the applicant claimed that it was not until 10 to 15 minutes into the interview with the PRS officers on 8 January 2013 that she was made aware of the purpose of the interview. She then clarified this claim by stating that she had been aware of the purpose of the interview when informed by Agent Deller at the commencement, but was unaware that she was ‘under investigation as to the extent that it was,’ 2 and that she was unaware of the complaint made by AA about her on 31 May 2012. The applicant reiterated her claim that she had been ‘interrogated’ by Agent Deller and that he was aggressive during the interview. She said she had been confused by his manner of questioning and that his tone had been loud. When asked why she thought Agent Deller was biased she replied that it was because she felt that he didn’t believe anything she was saying. She also claimed to have been distressed, to have broken down and to have cried during the interview.

[11] The applicant conceded that she had been offered, and had refused, a support person at both the first and second interviews.

[12] The applicant agreed that her written submissions contained the following statement:

‘The investigation has failed to identify any motive for making a false and malicious complaint. Indeed it appears to be accepted that the applicant and [AA] enjoyed an amicable and [.......] relationship right up until the point where she provided the information to the New South Wales police several months after the incident occurred." 3

[13] When questioned, the applicant conceded that her relationship with AA had broken down irretrievably from 13 May 2012 and that the content of paragraph 20 of her submission was not true. Further she agreed that despite the redactions made to the PRS Investigation Report she was able to prepare ‘a reasonably clear and cogent response’ in the time allowed.

[14] A DVD of the interview conducted with the applicant by the PRS investigators on 7 January 2013 was viewed at the hearing. At the conclusion of the DVD the applicant maintained her claim that Federal Agent Deller had interrogated her, despite conceding that he did not raise his voice, had a relaxed demeanour, and occasionally yawned. She also agreed that she had appeared relaxed and quite talkative but claimed that this was because she was ‘trying to hold back (her) feelings’ 4.

[15] Having viewed a DVD of the second interview, held on 17 January 2013, the applicant agreed that at the conclusion of both interviews she had been asked by Federal Agent Deller whether she had any complaints about the way in which the interview was conducted and had replied ‘no’ on each occasion. She also agreed that although Federal Agent Deller was more animated in the second interview he had not yelled at her in an abusive way. Further, she agreed with a suggestion that there had been a degree of frustration in his voice in the second interview. She denied that the frustration arose because she had lied to him. When it was put to the applicant that the Federal Agent had given her five reasons why he believed she had been lying to him she stated that she did not believe that this may have accounted for his frustration or her belief that he was biased.

[16] The applicant was then taken to her description of the incident that she claimed to have been informed about by AA. It was put to her that the hearing had before it seven different versions of the incident, all given by her. The applicant was shown the computerised police report completed by Senior Constable Spence, which contained one version of the incident. The applicant then claimed that the report had been largely completed by the Senior Constable before she went to the police station. She denied that he had completed the report on the computer with her seated beside him, as he had claimed in his statement. She was unable to explain why the report suggested the incident occurred between 1 March and 31 March 2012. She conceded, however, that those dates were somewhat consistent with her early evidence to Federal Agent Deller that the incident occurred 4 or 5 weeks prior to her making the police report. The applicant claimed that she told Senior Constable Spence that the incident had occurred four to six weeks before she reported it. She reiterated this claim despite the police report stating that she had advised that the incident occurred sometime in March 2012. She also agreed that the police report clearly stated that sexual penetration had occurred. She denied that she had said these words to Senior Constable Spence, claiming that she had said ‘attempting penetration’. She acknowledged that the police report noted that she was a PSO.

[17] It was put to the applicant that she had given a second version of the incident to Ms Bowden, the State government employee responsible for conducting the investigation which arose from the police report made by the applicant. It was noted that the file note of Ms Bowden’s conversation with the applicant recorded that that the applicant told her that AA had stated that penetration had occurred. The applicant claimed not to recall that conversation. Nor did the applicant recall telling Ms Bowden that her relationship with AA was not bad, and that she had visited AA the previous week. She could not explain why Ms Bowden would make a file note in those terms.

[18] The applicant was taken to a third version of the incident in the security incident report she completed on 22 May 2012. The applicant stated that an incident report needed to be completed by employees of the AFP when they are made aware of a ‘criminal act or misconduct’. She conceded that the report indicated that she had received the information from AA ‘some weeks ago’. It was noted also that the report contained the words ‘attempted penetration’ and a suggestion that a particular person was a ‘known drug user’. The applicant conceded that she had never seen the person named in the report use drugs.

[19] The applicant conceded that the three versions of the incident put to her in cross-examination did not match the account of the incident that she gave to Federal Agent Deller at the first PRS interview on 7 January 2013. She also agreed that during the interview she had told Federal Agent Deller that AA had described the incident as ‘nothing important or serious’.

[20] The applicant was asked about the discrepancies between her statement in the second interview on 17 January 2013 that AA had first told her about the incident 5 to 6 weeks prior to her making the security incident report, and her evidence at the hearing that the incident had been reported to her in November 2011. It was put to the applicant that she had decided to say that the incident had occurred in November 2011 because Federal Agent Deller had advised her that the incident could not have occurred at a later time, given the alleged location of the incident. Initially the applicant was unable to explain where she got the November date from and then said ‘No, I’m sure she told me in November and then it took several weeks after November for me to report it’. 5 It was put to her that, if this were true then the report must have been made in January or February 2012 when it was actually made in May. The applicant conceded that this was the case.

[21] The applicant was taken to her response to the Investigation Report made on 4 March 2013 and agreed that the November date for the incident was first raised by her in that document. In her response to the Investigation Report the applicant suggested that she may have been wrong about the dates because she was confused because of the pressure placed on her by Federal Agent Deller in the PRS interviews. The applicant denied that she had fabricated this date in order to repair some flaws in her earlier versions of the story. She agreed that in her response of 4 March 2013 she had claimed to have been told by AA that ‘it appeared that they were attempting to (achieve penetration)’. The applicant also conceded that in the same document she had stated that her relationship with AA had broken down irretrievably, whereas in these proceedings she had claimed that the relationship had been good until she made the police report. After some prevarication the applicant conceded that she did not have a good relationship with AA on 19 May 2013, the date the police report was made.

[22] The applicant agreed that in the 4 March 2013 document she had claimed that there was a witness who could corroborate her claims but that the witness had not been interviewed by the PRS investigators. She conceded that the evidence given in these proceedings by that witness did not corroborate her version of the events.

[23] The applicant called two witnesses to support her case. The evidence provided by the two witnesses did not provide significant support to the applicant’s case but further reinforced the inconsistencies in the applicant’s version of events. One witness who had been interviewed by the PRS investigators gave evidence which undermined some of the applicant’s claims. The applicant attempted to explain the inconsistent account by claiming that the witness suffered from senile dementia. There was no evidence of such dementia during the evidence given by the witness at the hearing. I do not attach much weight to any of the evidence given by the two witnesses for the applicant except insofar as it calls further into question the applicant’s own evidence. Given that neither witness could be considered ‘independent’, in the interests of preserving the anonymity of the innocent parties involved in this matter, I do not intend to further deal with this evidence.

The Respondent’s Case

[24] Senior Constable Spence made a statutory declaration 6 setting out his evidence. His evidence concerned the police report made by the applicant on 19 May 2012. He stated that the applicant had initially advised him by telephone of the incident she claimed to have been told about by AA. Senior Constable Spence then said to the applicant words to the following effect: “I have mandatory reporting requirements so you had better come into the station and make a report.”

[25] On 19 May 2012 the applicant attended the Queanbeyan police station to make the report. According to Senior Constable Spence, he had sat at the computer, with the applicant sitting beside him. The applicant had given him the information and he had completed the police report. It was his evidence that the applicant had read on the screen the words he had typed into the report.

[26] Under cross-examination Senior Constable Spence was asked if he thought the applicant was lying when she made the police report. He responded that it was hard to say, that he would like to think she wasn’t. It was also his evidence that he had entered the time and date of the incident in the police report and that he would have entered the period 1 to 31 March if told that the person could not remember the exact date in March. He was also certain that the applicant was sitting beside him when he completed the report.

[27] Ms Vanessa Bowden, state government employee, also made a statutory declaration 7 setting out her evidence. On 21 May 2012 Ms Bowden conducted the investigation into the allegation made by the applicant. Ms Bowden spoke with the applicant on the phone on the same day. Notes made by Ms Bowden during the conversation recorded that the applicant reiterated her allegation that sexual penetration had occurred and stated that the incident had occurred about ‘a month earlier’. Ms Bowden had also recorded the applicant’s statement that she worked for the AFP and her denial that her relationship with AA was bad. It was noted that the applicant had claimed to have visited AA the previous week. Ms Bowden had seen the applicant’s statutory declaration8 filed in the proceedings. It was her evidence that, had the applicant reported the alleged incident in the terms described in that statutory declaration, and not in the manner she had described the incident in the police report, Ms Bowden’s organisation would not have considered it necessary to institute an investigation.

[28] Under cross-examination Ms Bowden stated that, having conducted her investigation, she had determined that the incident described in the police report had not occurred.

[29] The final witness for the AFP was Senior Constable James Knight. In his statutory declaration 9 he stated that he had previously been in a relationship with the applicant but that the relationship had broken down. Senior Constable Knight had met AA through the applicant. He denied the claim made by the applicant in the PRS interview, that she had spoken to him about the incident she claimed had been reported to her by AA. The witness denied having any such discussion with the either the applicant or AA.

[30] Under cross-examination Senior Constable Knight agreed that, as an AFP officer, he would have been duty-bound to make a report if an incident such as that alleged by the applicant had been reported to him. When it was put to him that he was lying in giving his evidence because he was afraid of the consequences of not having reported the discussions he had had with the applicant and AA, SC Knight denied that this was the case.

Submissions

[31] Time was given to both parties to file written final submissions once the transcript was made available.

[32] It was submitted for the applicant that on the basis of the evidence at the hearing it was open to the Commission to find:

● That the police report made by the applicant was a complete fabrication made maliciously;

● That the applicant embellished the report making the alleged incident more serious than it was; or

● That something did happen but the applicant was untruthful about the date it occurred.

[33] It was argued that the report was unlikely to be a complete fabrication because the applicant had no motive for making such an allegation. Similarly it was put that the applicant had no motive for embellishing the report as there were other matters which she could have reported to the police concerning AA and the other individuals connected with AA. It was argued that it would have simpler for the applicant to report those matters. It was the applicant’s contention, therefore, that AA had reported the incident to her as claimed, but that she did not report it until her relationship with AA had broken down and she could no longer encourage AA to make the report

[34] With respect to the matters set out in s.387 of the Act it was submitted for the applicant that:

● So far as valid reason is concerned it was conceded that there was evidence that the applicant had given different dates for the alleged incident in the police report and this did not meet the high standards for honesty and integrity required by the AFP;

● The applicant was notified of the reason for the termination and given an opportunity to respond;

● While the applicant was offered a support person during the investigation there were no discussions about the termination, which was conducted in a series of letters; and

● The size and resources of the employer were such that proper procedures should have been adopted in effecting the termination.

[35] The matter of the time taken, and procedures adopted, in effecting the termination was raised. It was put that there had been a 16 month period from the commencement of the PRS investigation until the termination. It was submitted that the applicant was denied access to the full range of evidence held by the respondent during the investigation and that material witnesses were not interviewed. Further it was put that important documents that were taken into account in the termination process were either not supplied to the applicant or supplied in a heavily redacted form. It was argued that the applicant was unaware of the totality of the material before the decision-maker at the time the decision was taken to terminate her employment. It was the applicant’s contention that these matters impeded her ability to make a proper response at each stage of the termination procedure.

[36] According to the applicant’s submissions no consideration was given to the applicant’s personal circumstances in deciding the sanction to be applied. It was put that the failure by the AFP to follow the Adjudicator’s recommendation as to sanction was unfair. It was argued that this was particularly so as the applicant was not made aware of this recommendation of the Adjudicator prior to making her response to the Show Cause Notice.

[37] Finally, it was the applicant’s submission that the procedures adopted in effecting the termination were unfair and, as a consequence, the dismissal itself was unfair.

[38] It was submitted for the respondent that there was a valid reason for the applicant’s dismissal because she was found to have committed the relevant misconduct, based on reliable and credible evidence and a sound investigation process. It was put that termination was warranted given the seriousness of the false report made by the applicant to the New South Wales Police. So far as the other matters required to be taken into account under s.387 of the Act were concerned, it was put that there was no procedural unfairness in the termination process.

[39] According to the respondent the evidence was clear that the applicant had made a false report to the New South Wales Police. On the basis of the applicant’s evidence, that of her witnesses and the AFP witnesses, it was apparent that the report made by the applicant to Senior Constable Spence was false. The applicant’s evidence was inconsistent. Her description of the information provided to her by AA differed in significant respects, including the timing and the seriousness of the content, each time she relayed it.

[40] It was put for the respondent that, where the evidence of the applicant differed from that of Senior Constable Spence, it was his evidence that should be preferred and a finding made that the police report correctly recorded the allegation as it was made by the applicant to Senior Constable Spence.

[41] The respondent contended that where the evidence of the applicant differed from that of any witness, it was the evidence of the other witness that should be preferred, given the applicant’s admissions that she had made false statements about her relationship with AA, and about the manner in which the PRS investigator had conducted the interview. Most important were the inconsistencies in the applicant’s own evidence throughout the investigation and during these proceedings.

[42] Whilst the respondent acknowledged that many of the documents supplied to the applicant were heavily redacted, and some documents were not supplied, it was submitted that the reason for this was that the matters withheld were not relevant to the allegation which underpinned the termination. It was argued that the matters that were withheld did not affect in any way the outcome of the investigation, or the applicant’s ability to respond to the allegation against her.

[43] Similarly it was argued that the Adjudicator’s recommendation as to sanction, which was not accepted by the Manager, Professional Standards, was not brought to the applicant’s attention as it was irrelevant to the final decision of the delegate. The applicant was made aware of the intention to terminate her employment and it was this decision that required her response.

[44] It was noted that, in her dealings with the New South Wales police and Ms Bowden, the applicant had made it clear that she was a PSO with the AFP, thus establishing a connection between her employment and the false report.

[45] So far as it was argued that the applicant’s personal circumstances were not given consideration in determining the sanction, the respondent submitted that her circumstances were taken into account, but were not considered to sufficiently counterbalance the seriousness of her conduct.

Consideration

[46] I am satisfied that no jurisdictional issues arise in this matter and that, at the time of the termination of her employment, the applicant was a person protected from unfair dismissal. The respondent is not a small business and there is no claim that the dismissal was a case of genuine redundancy.

[47] In determining whether the applicant has been unfairly dismissed I must take account

of those matters set out in s.387 of the Act, which is as follows:

“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.”

Valid Reason

[48] I am satisfied that there was a valid reason for the applicant’s dismissal. I am satisfied, on the balance of probabilities, that the applicant did make a false police report on 19 May 2012 and that in doing so she was motivated by anger and malice.

[49] The applicant was not a credible witness. Her evidence was contradictory and unconvincing. She was obliged to concede that the police report she made on 19 May 2012 contained incorrect dates. She tried to blame the Senior Constable who compiled the report for inaccuracies contained within it. I accept in full the evidence of Senior Constable Spence that the applicant provided all the information contained in the police report, including the information that the reported incident had occurred sometime in March 2012.

[50] The applicant, at various times, attempted to attribute her uncertainty concerning the date of the alleged incident to the length of time between the making of the police report and the PRS investigation interviews. This does not provide any explanation for the allegation the applicant made in the police report, the Security Incident Report, and to Ms Bowden that the alleged incident occurred only a few weeks prior to the police report being made.

[51] By the time the applicant responded to the Investigation Report she was compelled to claim that the incident had occurred about November 2011 as she had been made aware that given the claimed location of the alleged incident, it could not have occurred at the later dates she had given.

[52] If the applicant had been made aware, as she claimed, of an incident of the type she described in the police report, there could be no excuse for her failure to report it until nearly 6 months later. It is much more likely that the incident, as described by the applicant both in the police report and to Ms Bowden during her investigation, did not occur. This is particularly so given the fact that the applicant attempted to distance herself from those descriptions of the incident, both during the PRS investigation and at the hearing. I accept the evidence of both Senior Constable Spence and Ms Bowden that the applicant did describe the incident to them in the terms they recorded.

[53] I am satisfied that, motivated by malice following her argument with AA, the applicant fabricated the police report she made on 19 May 2012. I am confident that the applicant understood the seriousness of the allegation she was making but was indifferent as to the consequences it would have for innocent parties.

[54] The preponderance of the evidence in this case supports the conclusion that the applicant was dishonest when she made the report to the New South Wales police and that her motivation for that report was malice.

[55] Given the high standards of honesty and integrity required of PSOs employed by the AFP, it is clear that the applicant’s proven dishonesty is a valid reason for the termination of her employment.

Notified of the reason

[56] The applicant does not dispute that she was notified of the reason for her termination.

Opportunity to respond

[57] The applicant was afforded an opportunity to respond to the allegation made against her. She availed herself of the opportunity, orally at the interviews held on 8 and 17 January 2013, and in a detailed and comprehensive written response to the PRS Investigation Report lodged on 4 March 2013 and in her 26 August 2013 written response to the Show Cause Notice.

Support Person

[58] At both interviews conducted by the PRS the applicant was offered, and refused, the assistance of a support person.

Unsatisfactory Performance

[59] The applicant’s dismissal was not connected to any unsatisfactory performance on her part.

Size of employer and HR expertise

There was no submission to the effect that that the size of the employer or any lack of human resources expertise impacted on the procedures adopted in effecting the termination. The respondent is a large Commonwealth agency with dedicated human resources expertise.

Other relevant matters

[60] I do not find that the applicant suffered any procedural unfairness in the manner that the investigation was conducted by the PRS. Her claims of bias, and of being interrogated aggressively by the PRS investigator, lack substance. At no time during the interview process was the applicant treated unfairly or subjected to any questioning that could be classified as an ‘interrogation’. The applicant made the claims of bias and unfair treatment by the PRS investigators in her response to the investigation report. Despite the DVD of the interviews being viewed in full during the hearing she declined to retract the claims, which were not supported by the objective evidence. She maintained that it was the way she ‘felt’.

[61] Nor do I accept that the applicant was in any way disadvantaged in the termination process by not being provided with every document held by the investigators, or by having redacted documents and summaries of evidence produced. The nature of the allegation against her was clearly put to her, as was the evidence of the various witnesses. While the redaction of some witnesses’ names may have seemed unnecessary, I am satisfied that the applicant was well aware of which witnesses gave the evidence. Given the nature of the allegation made by the applicant in the police report I do not criticise the investigators for being over cautious in supplying the applicant with redacted documents relating to the case. The examples of redactions included in the Applicant’s final submissions in reply did not in any way disadvantage the applicant in the preparation of her response to the Investigation Report.

[62] The redaction of the names is, in my view, of no consequence, as the identity of the persons concerned should have been obvious to the applicant, given her knowledge of the relevant matters. She dealt with all relevant matters in her response. If one aspect of the redacted part of the report was not entirely correct (that contained at 6.21 of the Investigation Report) it is of no consequence and did not impact on the decision to terminate the applicant’s employment as it was clear that the police report made by the applicant caused unnecessary distress to a number of innocent people.

[63] In relation to this aspect of the applicant’s submission I respectfully agree with the comments of Griffith J in a recent decision 10 (currently under appeal) concerning similar allegations of procedural defects:

‘120 It is also now settled that procedural fairness is not an abstract issue; rather, attention needs to be focused on the question whether conduct which is said to be procedurally unfair produced some practical injustice. As Gleeson CJ observed in Lam (2003) 214 CLR 1 at 14:

Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. (Emphasis added).

121 This principle has been applied subsequently in many cases, including Greyhound Racing and WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at 525. That is not to say, however, that where there has been non-disclosure of relevant information, the Court should enquire into the question whether or not such non-disclosure had a material effect on the outcome. As Emmett J observed in Ozepulse Pty Ltd v Minister for Agriculture Fisheries and Forestry (2007) 163 FCR 562 at [577] (case references omitted):

If the rules of procedural fairness require disclosure of information to a person affected by a decision, it will be immaterial that the person might not have successfully negated the significance of the information so disclosed or persuaded the decision maker to make the favourable decision. It will be sufficient that the denial of natural justice deprived the person affected of the possibility of a successful outcome. That is to say, it is not a question of whether a court engaged in judicial review would have been persuaded by the response of the person affected: the question is whether the decision maker might possibly have been persuaded by the response of the person affected.

...

124 In my opinion, the applicant’s contentions on this matter should be rejected for the following reasons. First, in my view, procedural fairness did not require that the applicant be provided with full and unredacted of the relevant interviews. I accept the respondents’ submission that considerations of confidentiality justified the decision to redact the names of most of the officers who participated in directed interviews. Although I accept that merely because information is confidential does not determine whether it ought to be disclosed under procedural fairness requirements (see, for example, Applicant VEAL at [22]), the critical question is whether there are good or substantial reasons for preserving confidentiality in the particular case.’

[64] I accept that there were good reasons for various names in the report, and for matters unconnected with the central allegation against the applicant, to be redacted from the copies made available to the applicant. The sensitive nature of the allegation made by the applicant justified such precautions. The AFP could not be sure that the documents would be restricted in their circulation once provided to the applicant. In any event I am satisfied that no unfairness was caused to the applicant due to the particular redactions concerned or to the withholding of any documents. All relevant documents, without redactions, were provided to the applicant by the time of the hearing. There was no significant change to the case presented by the applicant at the hearing to that which she had put to the AFP prior to termination.

[65] In light of the serious nature of the applicant’s conduct, her apparent motives and the effect of it on innocent people, I do not accept that the sanction of termination was harsh. In reaching this conclusion I have taken into account the applicant’s personal circumstances, but I am satisfied that the requirement for honesty and integrity in the position she formerly occupied far outweighs any concerns about the impact of the termination upon her personally.

Conclusion

[66] I am satisfied that the termination of the applicant’s employment was not harsh, unjust or unreasonable.

Appearances:

Mr M Blandy, of the Australian Federal Police Association, for the applicant

Mr M Will, of HWL Ebsworth Lawyers, for the respondent.

Hearing details:

2014.

Canberra:

March 13, 14.

Final written submissions:

7 May 2014

 1   Exhibit J4

 2   Transcript PN 375

 3   Applicant’s Outline of Submissions, Paragraph 20

 4  Transcript PN487

 5   Transcript PN818

 6   Exhibit AFP2

 7   Exhibit AFP 3

 8   Exhibit J4

 9   Exhibit AFP4

 10  Coutts v Close [2014] FCA 19

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