[2012] FWA 7069

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FAIR WORK AUSTRALIA

DECISION

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

Mrs Karen Jones
v
Commissioner for Public Employment
(U2012/4324)

COMMISSIONER STEEL

DARWIN, 17 AUGUST 2012

Termination of employment - Alleged serious misconduct.

Introduction

[1] This is an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). The respondent is the Commissioner for Public Employment of the Northern Territory. There are no jurisdictional or other objections to be considered by the tribunal.

[2] The applicant, Mrs Karen Jones, was employed by Northern Territory Correctional Services (NTCS), Department of Justice and commenced on 14 June 2011 as Administrative Officer 4 (AO4) in the duties of a Probation and Parole Officer for a fixed term contract of one year. It is not contentious that further employment was contemplated by the parties subject to successful completion of a training course requirement and the initial period of employment. The applicant was dismissed effective 13 January 2012 with one weeks pay in lieu of notice.

Representation

[3] The applicant was self represented and the respondent was represented by Mr Joshua Ingrams, an officer of the Solicitor for the Northern Territory, Department of Justice. The tribunal had therefore to assist the applicant to the extent necessary to avoid prejudice in the presentation of her case.

Background

[4] The reasons for dismissal of the applicant were contained in a dismissal letter from the respondent’s officer Mr Greg Shanahan which stated:

(underlining is the tribunal’s)

[5] Thus the reasons for dismissal are:

The applicant was found to have not responded in and open and transparent manner in the subsequent communications with the employer.

That the respondent considered these actions to be serious misconduct but did not consider an investigation was warranted.

[6] The applicant maintains that she was open, truthful and transparent in her employment application and had in her view filled in the required form correctly. She had sought advice as to the requirements of the various forms required to be completed and had relied on that advice. Such advice had influenced her that the contentious question which referred to “associates” did not relate to her husband.

[7] The applicant asserted: that the forms relied upon by the employer generally do not refer or require information about spouse or family; that the Code of Conduct applying to her employment role refers only to reporting of family members coming under the control of the Department, which did not apply to her case; that the ‘Acknowledgement and Informed Consent’ form 3 relied upon by the respondent, related to information about herself including her criminal history and not other parties and thus was not in contention; that the form ‘Criminal History and Integrity Screening’4 does not refer to a spouse or family but “associates” which she interpreted in good faith differently to the Department; that the reference to a caution as to incorrect or false information within this form related only to “your” criminal history which she considered to be the personal criminal history of the person filling in the form.

[8] Further, that she had been open and transparent in the interview process and had provided referees who had knowledge of her husband’s status, had provided tax information that her husband was a dependant and she had undergone a police clearance etc. The applicant has consistently denied the allegations of the respondent in regard to providing false information. The applicant contends she completed the respondent’s required paperwork in full and in good faith.

Submissions and evidence

The disciplinary process

[9] Having commenced on 14 June 2011 the applicant was located and working in Katherine when she received a first letter regarding her alleged misconduct from Mr Ken Middlebrook, Executive Director dated 19 October 2011. 5 This letter advised of the allegations against the applicant of conduct constituting misconduct particularised as breaches of discipline.

[10] It referred to the above matter of providing false information on the ‘Criminal History and Integrity’ form about her husband’s criminal history. Such a failure to disclose was asserted to raise concerns of the respondent that the relationship of trust and confidence was damaged and employment may be terminated. The applicant was given 14 days to reply in writing and it was clear her employment was in some jeopardy. The respondent had been informed that her husband was on parole in Queensland.

[11] The applicant replied by letter dated 26 October 2011 received by the respondent on 31 October 2011. 6 In this letter the applicant denies providing misleading information. She explains that she took advice from others on the nature of the form and notably the contentious question and had concluded the question did not apply to family members. She states:

[12] The applicant asserts her innocence as to misconduct and gave various indications as to her transparent approach. She advised her husband was not in good health, was her dependant and that she held no responsibility for his past record and actions. Further, that she considered his record should not affect her career and that she had always acted with integrity and honesty.

[13] Notably the applicant was not suspended from duty despite the allegations of misconduct being advised and continued to work as normal.

[14] From the evidence it is clear that the respondent considered that the applicant’s responses in Exhibit R3 Annexure KM1 were not a mistake and they considered she had made a deliberate choice not to provide the information on her husband. 7 It is also clear the respondent was not satisfied by her response.

[15] The applicant received a further letter from Mr Shanahan, Chief Executive Officer, Department of Justice dated 2 November 2011. 8 Mr Shanahan advised that the respondent was not satisfied that the applicant had been “open and transparent,” that she had interpreted the contentious question in a manner that permitted her to avoid disclosure; that the applicant’s reference to “taking advice” had not resulted in consultation with her prospective employer which was open to her at that time and that her response “at best demonstrates a failure to appreciate the potential for actual or perceived conflicts of interest to arise with work in the criminal justice system”.

[16] The respondent stated that they were not satisfied that the applicant’s application for employment or her response was made openly or transparently. She was offered a further opportunity to make “any submissions you wish in relation to this matter within 14 days of receiving this letter”. Again the applicant was not suspended.

[17] From the evidence it is again clear the respondent considered the applicant had intentionally avoided providing appropriate and required information on her husband. However they were also indicating she possibly failed to appreciate or could not appreciate the essential importance of such information in her employment context.

[18] The reply by the applicant is dated 11 and 14 November 2011 and was received by the respondent on 2 December 2011. 9 In this letter the applicant rejects the respondent’s conclusions that she was not open and transparent. The applicant advised that she had taken advice from a number of sources including government agencies that were assisting her in gaining employment and that advice had been applied diligently to her application. That the information and referees she had provided in her application and interviews if utilised and checked by the respondent, would have provided all necessary information including her marital status and her husband’s status. When she received no subsequent inquiry she had assumed it was no consequence and her judgement and actions apparently reinforced.

[19] Also in this response by the applicant is a list of grievances that she asserts she experienced with her work including a breach of confidentiality, lack of resources, bullying and intimidation, occupational health and safety concerns, lack of managerial support and information. Some of these concerns had been raised by the applicant previously.

[20] Mr Shanahan provided a subsequent letter to the applicant dated 6 December 2011. 10 Mr Shanahan advised that the various grievances that had been referred to in her response were not relevant to the consideration of the applicant’s alleged misconduct. He referred the applicant to the process of complaint via the Office of the Commissioner for Public Employment regarding bullying matters and invited the applicant to provide further information regarding the alleged breach of confidentiality.

[21] The respondent, in this letter, referred again to the applicant not making enquiries with their offices on the particulars of the form when the applicant had an issue regarding interpretation. The applicant, by admission, had taken advice from others. Further it was in the respondent’s view that:

[22] The letter went on to state:

[23] The respondent concluded:

[24] The applicant was invited to provide any further submissions she wished to make regarding “the findings” and the proposed termination of her employment. The applicant allegedly received this letter on the 7 December 2011 whilst preparing to graduate from her training course in Darwin, which she completed.

[25] From the evidence the respondent submits that the Criminal History and Integrity Screening is logical, its intent is obvious, it is phrased in general terms to gather information about the criminal history of “anyone who has contact with an applicant,” including family and that the limited interpretation of “associated” relied upon by the applicant is not logical. The respondent has concluded the applicant has committed misconduct and therefore has decided an investigation, whatever that would be, is not necessary and it is proposed to dismiss the applicant.

[26] The applicant replied to the respondent by letter dated 16 December 2011. 11 The applicant made note that these proceedings had taken their toll on her and yet there had been a total lack of appreciation of this by the respondent, with no management even enquiring as to her wellbeing, despite the circumstances of her work.

[27] In her response the applicant again denies she had a case to answer because of the limitations on the respondent of the Privacy Act 1988 and that the provision within the forms in terms of incorrect or false information provided by applicants was limited to the history of the respective applicant only.

[28] She relied again on the definition of “associate” being utilised mainly in a business context, not family.

[29] The applicant advised that she had experienced significant duress at work over this period as her confidentiality had been breached and her situation now known to other officers and colleagues. Also that the circumstances of receiving her termination letter at a training course graduation was insensitive and that the threat to terminate her employment was considered to be unfair and victimisation.

[30] The applicant also asserted that the Department knew of her husband’s status as a parolee regardless of her actions, as far back as June 2011, given the travel permit processes he had completed in order to travel and transfer to NTCS.

[31] The applicant again reiterated the lack of duty of care by the Department in her work location and duties and provided various examples of stressful situations and lack of conducive working conditions.

[32] The applicant indicated that to have her employment terminated after six months would be a financial burden for her as she would have to return to Queensland from where she had transferred. That these extended proceedings had affected her health to the extent she was physically ill at the thought of returning to the Katherine office with these baseless allegations hanging over her and the toxic state that has been allowed to prevail.

[33] The applicant provided a further response dated 2 January 2012. 12 This document asserts various irregularities as to jurisdiction and the legality of varied contracts of employment applying to her. The applicant again refutes that she has provided false information and that the particular forms relied upon give rise to the breach that is asserted. She maintains her innocence of the allegations. Notably the applicant again refers to the effect the proceedings have had on her health, her lack of privacy has led to her position in the Katherine office being compromised and she is fearful for her personal safety because of her assertions as to localised bullying and other matters provided in these proceedings. She asserts she has asked for a transfer from the Katherine office but the request was ignored.

[34] The respondent sent the applicant a final letter dated 11 January 2012 13 in which Mr Alastair Shields, Acting Chief Executive Officer, advised the applicant was to be dismissed effective Friday 13 January 2012 for:

[35] The applicant was subsequently dismissed and paid one week in lieu of notice.

The Forms

[36] In regard to the most contentious document, the “Criminal History and Integrity Screening” form 14, the applicant asserts she completed all sections as required. Questions 1, 2, 3 and 4 are all directed to an applicant’s personal experience. Question 5 states:

[37] The applicant responded in the negative on the basis that her husband was, as she perceived, not “an associate”. She was encouraged by others assisting her to gain employment that she should interpret the question in that manner and that “an associate” normally was applied in a business relationship context.

[38] The respondent clearly considers the contentious question general and expansive. It was submitted that “associates” logically would include family persons, persons intimate to the applicant. The respondent has also submitted that:

[39] The warning provided on this form obviously relates to an applicant’s personal experience as it refers to “your criminal history” and can only be significant in this matter if the respondent considers “an association” to be part of an applicant’s personal criminal history which has not been referred to in the submissions of the parties and may be unreasonable.

[40] The respondent’s evidence is to the effect that if the applicant had indicated that she had an ‘association’ with some person who had a criminal record and provided the consequential details as requested, that this would not be fatal to any application in that it would generate an investigation and consideration of the details. Mr Middlebrook refers to “a risk assessment” of the applicant on a case by case basis as to risks to the Agency. 16 The question is therefore asserted by the respondent to be not exclusionary to applicants but a screen for information as to such relationships and their implications for the applicant, the employer and potential role.

[41] The “Acknowledgement and Informed Consent” form applies to the selection for employment process and an applicant consents to collection of personal information about them including sensitive information of a racial or ethnic origin and their personal criminal history and that the information provided in the application by them is true and complete. Such personal information collection is not then limited to sensitive and criminal history information of the applicant by this form but to information relevant to their history.

[42] It further indicates that if an applicant fails to respond to all questions or knowingly or wilfully gives false or misleading information or withholds any information, such an act could result in rejection of an application, removal from the selection process or dismissal.

[43] It also states that the NTCS will not take into account criminal records which are not relevant to employment within that agency but does not provide any guidance as to the nature of such records or such circumstances.

The Legislation

[44] The issue in dispute is whether the applicant has been unfairly dismissed. S.385 of the Act determines, in the context of this matter:

[45] A dismissal may be harsh because of its consequences for the personnel and economic situation of the employee or because it is disproportionate to the gravity of the misconduct, unjust because the employee was not guilty of the misconduct on which the employer acted and or unreasonable because it was decided on inferences which would not reasonably have been drawn from the material before the employer.

[46] The criteria that FWA must take into account in considering whether it is satisfied a dismissal was harsh, unjust or unreasonable are set out in s.387 of the Act in the following terms.

[47] Regulation 1.07 of the Fair Work Regulations 2009 give further guidance as to serious misconduct. The regulation relevantly states:

Consideration

[48] The tribunal has considered all the documentary and oral evidence in these proceedings in its considerations. Where versions of events differ or parties’ submissions are in contention the tribunal has determined a view on the balance of probabilities.

[49] The applicant was dismissed for serious misconduct in circumstances where the respondent determined an investigation was not necessary. The respondent had concluded the applicant was apparently guilty of intentionally not disclosing information as to her husband’s criminal record, that she knew or ought reasonably to have known was false or misleading. Further, in her replies to a series of letters from the respondent, the applicant was found to have demonstrated a failure to respond in an open and transparent manner thus destroying the trust and confidence of the employer in her and her abilities to perform her role.

s.387(a) - Was there a valid reason for dismissal?

[50] Was the form open to interpretation by the applicant? The applicant sought advice on the form as she was sensitive to not losing an opportunity for employment and notwithstanding the requirements she was aware applied to her on disclosure (the acknowledgement form). It was a self serving consideration as to whether disclosure of her husband’s record fell within the requirement. She had been employed previously in the criminal justice system. She was contemplating the need and effect of providing the information in her application for a new role. Her evidence is that the respondent never asked questions of her about her husband at any time. However her behaviour of making enquiries with others was instigated by the question required. Her conclusion was that the term “associated’ was a limited term and did not apply to her husband, notably on the basis it was used generally in a business context. She had concluded she did not have to provide such information.

[51] She must also have considered as an applicant whether she should seek clarification from the respondent. She emphatically chose not to do so and sought the advice of others who reinforced her position. In that sense the tribunal is satisfied that the applicant considered this a threshold issue in terms of her application and determined to rely on her interpretation that the form was not expansive in its requirements and did not require information on her husband’s criminal record.

[52] The respondent in evidence has two views on the contentious question. Mr Shanahan initially states that the form is “aimed at gathering information relating to whether an applicant, or anyone who has contact with an applicant, has a criminal history or record.” 17 He then refers to and relies on the Macquarie Dictionary term “to keep company with, as a friend or intimate and that is the context in which the word is used,”18 and considers this definition includes family members. He then asserts that the applicant is not logical to have a narrow view of the term ‘associates’ that excludes family members.

[53] The tribunal considers that the two views of the respondent as to the nature of the term i.e. “anyone who has contact” or “to keep company as a friend and intimate” both include family members of an applicant. However the disparity of description is such that the tribunal must conclude that the respondent themselves has a less than exact interpretive view on the term. There is a significant difference between “anyone who has contact” and “a friend or intimate”. Both are however more expansive than the applicant’s position.

[54] The tribunal therefore concludes that the form of question is expansive and without an included definition of “associated” is open to interpretation and the applicant has used that lack of specificity in completing her application and rests on such within this application. Since the applicant was not an employee at that time, she was bound only by the acknowledgement and disclosure requirements of her application. Those requirements allow the employer to collect such information and the applicant declares such information “is true and complete”.

[55] In all the circumstances and evidence available to the tribunal I am unable to accept that the applicant would not have been aware of the professional interest by the respondent in her husband’s criminal record and of the relevance of his conviction to their consideration of her application. The references to discussions with other parties about that relevance and not with the respondent employer reinforce that view.

[56] Further to the tribunal’s comments on the less than exact nature of the question in contention as above, it is the tribunal’s view that the applicant’s response to the question was self serving and made with the intention to take advantage of a perceived lack of specificity in the form and avoid declaring information on her husband’s criminal history.

[57] The applicant has consistently held to the position that such a response was open to her on the basis of the requirements of the form. The tribunal considers that such behaviour in all the circumstances of her application for a role in the Justice system can reasonably be described as a failure to declare. I therefore find that the respondent had a valid reason for dismissal in the failure to declare such information .The tribunal notes there is no evidence in this matter that such a failure had any material effect on the respondent and its operations.

s.387(b)

[58] In terms of s387(b), it is not in dispute that the applicant was advised of the reason for dismissal as she received several letters to the effect.

[59] In terms of s387(c), was the applicant given an opportunity to respond to any reason related to the capacity or conduct of the person? And with respect to s387(d), was there an unreasonable refusal by the employer to allow a support person to be present to assist any discussion relating to the dismissal?

[60] The respondent required the employee to continue working and complete her workload and duties after being advised of allegations of serious misconduct against her. She was never suspended from duties. There were four exchanges of letters between the parties. There was never a meeting of the parties in terms of an investigatory or disciplinary meeting. There was never an investigation by the employer into the allegations of misconduct. The allegation was put to the applicant based on information obtained elsewhere and she was repeatedly given a time limit to respond in writing. In the tribunal’s view this was a disciplinary process by correspondence.

[61] The applicant had an opportunity to respond at all times by letter but it was obvious that the written responses of the applicant became part of the reasons for dismissal as she provided a consistent defence approach to her actions which seemed to frustrate the respondent. The respondent responded a number of times that the applicant was not being open and transparent, which from the evidence seemed to mean she was not making admissions or indicating an acceptance she had acted as they asserted or alleged.

[62] The applicant raised a number or work related matters with the respondent over the months during which she was required to respond to the allegations of misconduct. Such items as occupational health and safety concerns, breach of confidentiality, bullying, lack of resources and management support at her locale. Later she indicated she was under duress and stress with an ever increasing workload and her health was affected.

[63] When she was told she was to be dismissed within Mr Shanahan’s letter of 6 December 2011, she responded that she had received no duty of care by the respondent or consideration; that her privacy had been breached and that her complaints of work conditions were not being investigated. She further advised that she considered she had been severely compromised to the extent that she was fearful for her personal safety in the Katherine office.

[64] The evidence is that the applicant did not have the opportunity of meetings or face-to-face discussions over the period from 19 October 2011 to 13 January 2012. Without such meetings she did not have the opportunity for representation or support persons to assist with discussions with the respondent. Prior to that period the applicant had only two meetings with team leaders or a manager from the commencement of her employment on 14 June 2011. Given the list of grievances that the applicant provided to the respondent and the characterisation of the environment in which she was fulfilling the respondent’s work requirements which ultimately is illustrated prior to dismissal when the applicant informed the respondent she feared for her own safety. The tribunal has formed a view the respondent’s actions referred to above as a “disciplinary process by correspondence” have been too extended and carried out in such a manner that they resulted in unnecessary effects upon the applicant.

[65] The respondent’s evidence on Natural Justice 19 has a guideline which indicates:

[66] In the tribunal’s view the above scenario does not meet the test of a reasonable consideration of procedural fairness inherent in the provisions of s.387(c) and (d) of the Act.

[67] From the evidence the respondent could have concluded the issue by meetings and discussions with the applicant and put themselves in a position of considering the nature of her husband’s record and any implications for her. This approach was normal practice to them. They instead sought to rely on correspondence and in doing so met a defiant applicant who defended her judgement and the limitations of the selection documentation. That seemed to frustrate the employer as no admission of correct perception in their eyes was forthcoming.

[68] In these circumstances the tribunal does not accept that the applicant has had a viable opportunity to respond to the employer in these circumstances or that she had the opportunity for a support person in discussions. The respondent has applied a less than a procedurally fair approach to a significant disciplinary process.

[69] The further provisions of s.387, save for s.387(h) are not considered relevant to this decision.

[70] In terms of s.387 (h), any other matters considered relevant to the tribunal, Mrs Jones was dismissed for misconduct on 13 January 2012 after being provided with the allegations against her on 19 October 2011. In the intervening period she continued to work in the various significant capacities of her employment and fulfilled the role required by the respondent, sometimes in remote areas. She continued to appear in courts and tribunals on their behalf as a responsible officer. In that period also she raised various grievances and occupational health and safety issues with her employer, some of which were consequential to the allegations against her. Her uncontested evidence is that there was no consistent managerial resource available to her and there is no evidence that the respondent addressed any of the matters raised with them except referring the applicant to further requirements for them to act. The applicant’s advice that she felt compromised in her work location and even feared for her personal safety in Katherine was not addressed by the respondent.

[71] Further Mrs Jones not only lost her job in the above circumstances but suffered financial hardship as a consequence of having ultimately to move back to Queensland. The evidence also is that the documentation provided by the respondent to Centrelink after her dismissal was in error and caused further financial issues for the applicant as her access to social security benefits was compromised.

Was the applicant’s dismissal harsh, unjust or unreasonable?

[72] After consideration of all matters the tribunal has concluded that the applicant was unfairly dismissed. Mrs Jones’ dismissal was not a summary dismissal but an extended process, requiring a necessary component of procedural fairness. However there was no investigation carried out by the respondent. There were no meetings with the applicant. There was no opportunity for representation or support persons that may have assisted the parties. There were no discussions or hearings with the applicant. There was only a series of correspondence in which she was required to respond to the allegations.

[73] The applicant was not suspended in these circumstances and the respondent required her to continue to fulfil her contractual role in face of information from the applicant that her work situation was deteriorating and she considered the respondent was not meeting amongst other matters, their duty of care towards her. There is no evidence that the respondent did other than continue to correspond with the applicant.

[74] Because of these factors the dismissal was harsh and it had personal and economic consequences for the applicant. The applicant went on to suffer economic loss as she had to move interstate again and it seems probable that she will face significant difficulty obtaining other employment where she is now domiciled.

Remedy

[75] The applicant is not seeking reinstatement. The tribunal considers that reinstatement in this case is inappropriate and considers that an order for payment of compensation is appropriate. The tribunal has taken into consideration the provisions of s.392(2) of the Act and the submissions in this matter.

[76] The tribunal is satisfied from the evidence that the applicant had a contract of employment that was initially for twelve months, which would be extended to ongoing employment subject to completion of a course and satisfactory performance in the role. There is no evidence the applicant’s performance in the role was under threat and she completed the required course before termination of employment.

[77] The tribunal after consideration of all the submissions, evidence and the findings in this matter determines that the applicant shall be paid an amount of compensation by the respondent in the sum of 12 weeks of her final weekly salary. A separate order shall be issued by the tribunal in regard to this remedy.

COMMISSIONER

Appearances:

Mrs K Jones the applicant

Mr J Ingrames for the respondent

Hearing details:

2012:

Darwin
15 May

 1   Exhibit R3, Annexure KM6

 2   Exhibit R3, Annexure KM1

 3   Exhibit R3, Annexure KM1

 4   Exhibit R3, Annexure KM1

 5   Exhibit R3, Annexure KM2

 6   Exhibit R3, Annexure KM3

 7   Exhibit R3 at para 11

 8   Exhibit R3, Annexure KM4

 9   Exhibit R3, Annexure KM5

 10   Exhibit R3, Annexure KM6

 11   Exhibit R3, Annexure KM7

 12   Exhibit R3, Annexure KM8

 13   Exhibit R3, Annexure KM9

 14   Exhibit R3, Annexure KM1

 15   Exhibit R3, Annexure KM6

 16   Exhibit R3 at para 24

 17   Exhibit R3, Annexure KM6

 18   Exhibit R3, Annexure KM6

 19   Exhibit R1

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