Fair Work Act 2009
s.394—Unfair dismissal

Jason Lubiejewski
v
Australian Federal Police
(U2021/5233)

Application for an unfair dismissal remedy – valid reason – dismissal not unfair – application dismissed.

[1] Mr Jason Lubiejewski commenced employment with the Australian Federal Police (AFP) in or about 2010. His employment was terminated on 25 May 2021 after the AFP considered that he had continually failed to comply with a lawful direction.

[2] On 15 June 2021 Mr Lubiejewski made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009.

[3] The application was heard by video on 6 October 2021. At the hearing, Mr Lubiejewski was self-represented and gave oral evidence on his own behalf. Mr C Rawson of the Australian Government Solicitor appeared for the AFP.

[4] For the reasons set out below, I have found that Mr Lubiejewski’s dismissal was not unfair and have decided to dismiss the application.

Factual background

[5] At the time of his dismissal Mr Lubiejewski was a member of the AFP News & Online Services team and his duties involved publishing new and updated content to the AFP social media channels.

[6] Mr Lubiejewski suffers from Autism Spectrum Disorder but there is no suggestion that this formed any barrier to his work performance.

[7] In or about 2017, Mr Lubiejewski was said to have been suffering from anxiety and depression, and pursuant to the medical advice of his treating doctor had since moved his workstation from Corporation Communications to the Technology and Innovation area which is located on a different floor of the AFP Headquarters.

[8] On 17 March 2020 Mr Lubiejewski sent an email to Ms Claire Padilla (AFP’s Organisational Health unit) and Mr A Gaffney (his immediate team leader) attaching a letter from Ms Linda Bruce, a psychologist from the Help Centre in Queanbeyan. The letter was written in the context of a request that Mr Lubiejewski be provided with alternative seating to that he had at the time in Technology and Innovation next to a Ms Wade. The letter further stated:

“The alternative seating would ideally be further from people, in a corner, facing a window, where a minimum of people need to (or can) walk past.

This is important because it will reduce Sensory overload, and the expectation for him to make social chit-chat. This will enable him to work more effectively.

If such seating is not available in his current area, I recommend it be provided elsewhere. As well as seating in a quieter location in the office, AFP may consider offering him the opportunity and equipment to work flexibility from home.”

[9] Shortly after this letter, Mr Lubiejewski began working from home due to the COVID lockdowns. He continued to work from home until he commenced a period of personal leave on 10 August 2020.

[10] Upon his return to work on 5 January 2021, a series of emails were exchanged amongst Mr Lubiejewski, Mr Gaffney and Ms Padilla around his return to work, including organising a suitable external workplace rehabilitation provider.

[11] By letter dated 29 March 2021, Mr Lubiejewski was issued with a Formal Direction from Ms Brooke Jones (Acting Coordinator Corporate Communications) in which he was directed, amongst other things, to “attend work at the Edmund Barton Building (National HQ), level 3 in Corporate Communications work area on Monday, Tuesday and Wednesday during the hours of 09:00 to 17:00 and log in for work from home on Thursday and Friday during the hours of 9:00 to 17:00.”

[12] The background to the issuing of the Formal Direction was outlined in the letter by Ms Jones as follows:

“On 10 August 2020, you commenced a period of leave and returned on 5 January 2021. You have worked from home since this time without an approved Flexible Working Arrangement.

Since your return, a number of attempts were made by your Team Leader to engage with you to discuss your capacity for work and expectations for your role. You did not respond to any of these requests and have refused to participate in any discussions about your capacity and your daily tasks.

On 27 January 2021, your Team Leader emailed you suggesting a return to work plan and offered to arrange for Organisational Health (OH) to contact you. You responded to this email and advised you were returning from a period of leave that you took for mental health reasons and that you had psychological disabilities. You advised that you were not sure of the support you needed but wanted to ask your area to find out more about the support that may be available to you.

On 28 January 2021, your Manager, Director Strategic Communications Renee Viellaris sent you an email and advised she would be in touch to discuss how your needs and the needs of the organisation could be met. You responded to Ms Viellaris’ email and requested engagement of a suitable external Workplace Rehabilitation Provider (WRP).

On 4 February 2021, your Team Leader sent an email to you advising you that he had met with OH and that a case manager would be in touch with you to discuss the next steps for your rehabilitation and return to work.

Following this, OH attempted to contact you on a number of occasions to discuss the engagement of a WRP. You did not respond to OH’s requests and did not participate in any discussions with OH about this support.

On 5 March 2021, you were invited to attend a meeting in the office on 10 March 2021 to discuss your return to work with OH. You declined this meeting and stated, ‘I’ve already asked for the material/communications over email. Meeting declined’. On 10 March 2021 you were again, invited to attend a meeting on 12 March 2021 with OH to discuss your return to work. Your Team Leader advised you that if you were unable to attend the office, a video or teleconference could be arranged for you. You declined this meeting and stated, ‘Meeting declined. Reason: Same as the first one’.

On 10 March 2021, I called and emailed you about your return to work. I left voicemails on your work and mobile phone. As you did not return my call and declined a meeting with OH to discuss your return to work, I directed you to return to the office on Monday 15 March 2021 from 9:00am. You did not attend, return my call or respond to my email.

On Tuesday 16 March 2021, I emailed you asking if there was any reason you did not attend the office the previous day and asked for justification by Thursday 18 March 2021. I explained that if you did not comply, you may be subject to a formal direction and that failure to follow this direction may result in the matter being referred to Professional Standards and/or disciplinary action to be taken up and to include the termination of employment.

On Thursday 18 March 2021, you emailed your Team Leader, OH and I to advise us that you were rejecting my direction and that you would continue to work from home. You did not provide any justification for why you could not attend the office. As you did not provide evidence for why you could not attend the office, I again directed you to attend on 23 March 2021. You did not return my call, respond to my email, attend the office or provide any explanation. I asked again on Wednesday 24 March 2021 to attend the office Monday 29 March, you did not attend, answer or return my calls and you did not explain why you could not attend the office.

OH, your Team Leader and I have attempted to engage with you on a number of occasions to discuss your return to work and attend the office. You have also been given multiple opportunities to provide evidence for why you have not been able to attend the workplace. You have not provided any reasonable justification for why you cannot attend the office, despite the number of opportunities you have been afforded to provide this information.”

[13] The letter drew Mr Lubiejewski’s attention to section 40 of the Australian Federal Police Act 1979 and clause 8.3 of the AFP Commissioner’s Order on Professional Standards (CO2), namely that a failure to comply with the direction may result in the matter being referred to Professional Standards and/or disciplinary action being taken up to and including the termination of his employment.

[14] Despite the Formal Direction, Mr Lubiejewski did not attend the office and continued to work from home. On 6 April 2021, he sent the following email to Ms Jones sent him the following email:

“Good afternoon Jason

I tried to call you as you have not come to work today as per the formal direction that was issued to you on Monday 29 March 2021. I left you a voicemail and since I have not heard back I thought I would email you too.

I have not received sufficient information from you explaining why you did not and could not attend the office today. Can you please advise me if there is any reason why you would not be able to physically attend the office by close of business tomorrow?

I note you have provided a medical certificate dated 17 March 2020 which outlines recommendations for seating arrangements and explains that the AFP may consider providing you with the opportunity to work from home. We will do our best to accommodate a seating arrangement that meets the recommendations of this medical advice. We have work station near the window set aside for you. This space is quiet and has limited foot traffic. Your medical certificate states that the AFP may consider giving you the opportunity to work from home. We are supportive of allowing you access to a work from home arrangement, however, operationally we cannot accommodate or support a work from home arrangement on a full time basis. In addition to this, as you have been absent for some time and have requested support from Injury Management, we require you to attend the office to get the support you need to perform your role. Despite advising you of this on many occasions, you have failed to attend the office.

As outlined in the attached formal direction letter, failure to comply with a lawful and reasonable direction may result in the matter being referred to Professional Standards and/or disciplinary action be taken up to and include the termination of employment.

Again, I want to remind you that there are range of internal and external supports available that you find on the Hub. Please let me know if you have any questions.

We are looking forward to having you back in the office.”

[15] On 7 April 2021, Mr Lubiejewski responded with the following email:

“Morning

There is no reason why I can’t physically attend the office today but you haven’t given me any legitimate operational reason why I should. It simply appears you are trying to abuse your position, won’t fly with me. Buses leave the top pub on the ~half hour every hour, it’s a 10 minute walk for me to there. In respect of my role, it’s not particular to policing. My doctor supports me working from home. I won’t be meeting any of you or Organisational Health. As advised, I have no interest in anyone from Organisational Health as they are a trojan horse, breach trust and are disgraceful.”

[16] A series of further email communications were exchanged including emails sent by Ms Jones to Mr Lubiejewski on 12, 13 and 14 April seeking his explanation for repeatedly failing to attend the office to which he did not respond.

[17] On 20 April 2021 Ms Jones sent the following email to Mr Lubiejewski:

“Dear Jason

Once again, you did not attend the workplace today (20 April) or yesterday (19 April 2021), Monday, Tuesday or Wednesday last week (12‐14 April) and Tuesday and Wednesday of the week before (6‐7 April), breaching my direction on 29 March 2021 (attached) that you must attend the office to perform work.

This is a very serious issue. It is unacceptable for an AFP employee to refuse to follow lawful directions. We have tried to accommodate any reasons you might have for being unable to attend work. More recently, you have refused to reply to our calls and messages or explain why you cannot attend work.

You must attend work at your desk in the Communications area in Edmund Barton Building tomorrow, Wednesday 21 April 2021. If you are unable to attend work because you are sick or caring for someone, you must notify Aaron and provide a medical certificate, in accordance with my direction. If you do not:

•  the AFP will treat this as an unauthorised absence and you will not be paid

•  the AFP will suspend your remote ICT access to work from home

•  the AFP may consider terminating your employment.

I am happy to discuss this further if you would like.

If you need, I can again arrange for additional support for you from Organisational Health. I would also like to remind you that the AFP offers a number of free support services, and I would encourage you to use these if you require.

…”

[18] Mr Lubiejewski responded to Ms Jones later on 20 April 2021 by email as follows:

“Afternoon

Please refer to my psychologists communication already provided. As such, I’m working flexibly from home and performing well, as you personally know.

You have no grounds for your behaviour.

If you don’t pay me, I will recover it.”

[19] This followed by another email from Ms Jones to Mr Lubiejewski. Specifically, she said:

“… The most recent communication I have from your psychologist is a letter you provided to Claire Padilla and Aaron Gaffney on 17 March 2020 that is dated 17 March 2020. This advice is over a year old and is not current, nor is it sufficient in supporting a home based work arrangement on a fulltime and ongoing basis. It is really important we have current and accurate medical advice from you so that we can provide you with appropriate support and determine what workplace adjustments can be made. If you have updated advice from your psychologist about your current medical restrictions, please email it to me.”

[20] Ms Jones continued to write to Mr Lubiejewski on 21, 22, 27 and 28 April reiterating the direction that he attended the office.

[21] On 28 April 2021, Mr Lubiejewski was provided with a letter issued by Ms Tracey Crump (People Culture Command) advising that she was considering terminating his employment pursuant to section 28 of the AFP Act, on the basis that he had continually failed to comply with the lawful direction issued by Ms Jones which required him to physically attend the office three days each week.

[22] Mr Lubiejewski was given an opportunity to provide a written response by 12 May 2021 and he did so on 13 May 2021 after an extension was sought and granted. Mr Lubiejewski’s response, sent by email, was in the following terms:

“To those it concerns

My understanding based on the Fairwork website is that I have a legal entitlement to flexible work of the nature in discussion due to my psychological disabilities/disorders, as my work can be done remotely. There’s no difference to the way I do my work whether in the office or at home.

In March 2020 I submitted a psychologists request to Aaron and Claire about current seating location and flexible work, and I didn’t receive a response even though they/AFP were asked by my doctor to support me. An employer is required by law to respond to these requests in a timely manner. Shortly after, staff were then to work from home with a laptop(which I still have) due to coronvirus.

Since returning from the recent long work related sick leave, I was doing work from home, the same as prior to my sick leave.

It was the actions of various people(some illegal) and areas since 2017 that caused my disorder. I’m on a dose of lexapro 20mg daily which has some positive and negative effects on my brain.

After being away from the office for a very long time(partly on work related sick leave) the thought of physically returning to work, especially in the manner proposed, was too overwhelming and was causing my anxiety to go up. I’m not physically located in my business area any more under reasonable adjustments, which AFP is very aware of. Any suggestion my wellbeing is of concern or that I’m being supported is rubbish and a disgrace. I’m not engaging Organisational Health because they practice maladministration and are deceitful.

I found the direction ridiculous, find it’s bullying, it didn’t take into account my situation and my existing reasonable adjustments such as the fact that I do not work in the physical Corporate Communications area.

I thought the AFP college library (a quiet place) would be a good place to do work while in the end reasonably satisfying the return to work direction(which has ultimately been enabled by your breach of legislation). That’s where I was on Tuesday 27 April. People in this place just can’t help but get involved in others business, it’s pathetic.

After being locked out of the college, I found a quiet place to work in EBB on Wednesday 28 April.

The need for a quiet, non-distractive and non-stressful environment has been advised to AFP many times due to my disorders.

I know you’ve used alot of resources bullying me and chasing me around, but that’s not my fault. I know a lot more than one in here thinks, I have my own internal support. Bullies waste resources, it’s as simple as that.

I know I’ve been closely monitored, for instance - yes, I noticed Ritchie Phillips sitting across the hallway mid 2020 wondering what I was doing with the two computers I had networked but what did he find and what have I done wrong? Nothing, probably to many’s disappointment. Why I’m under such close observation bewilders me given a fine tooth comb has already been through me, yes I’m oddball, but that’s it. This is becoming comedic.

You’re obviously a smart woman Coordinator Personnel Vetting Ms Crump, and you know alot about me. Despite everything, my integrity is still in tact ... not what I’m observing.”

Clearly I’m not malicious as some people would like or suggested, because if I was you would have caught me with all the attention I’m getting as I don’t doubt the global skills of this place. Why do you continue to waste time on me? It really is now ridiculous. I’m not going away. My message is clear to those it concerns, “cease wasting the country’s

money chasing someone with disabilities and disorders”.

I haven’t abandoned the job or doing work. If you terminate me, at its roots will be because of my disabilities while you practice maladministration and breach legislation multiple times.

Please see attached from doctor.”

[23] Attached to this email was a medical certificate issued by Dr Marguerite Le Riche dated 10 February 2021 which states as follows:

“Mr Jason Lubiejewski has a medical condition and has been seen today. I would be grateful if you could communicate with Jason and discuss the specific duties that he is able to perform. He would benefit from working from home and may perform better when he works on his own from home.” 1

[24] There is no dispute that this medical certificate was not provided to the AFP until it was attached to Mr Lubiejewski’s email of 13 May 2021.

[25] By letter of 25 May 2021 Mr Lubiejewski was issued with a notice of termination signed by Mr Dave Turner (People and Culture Command) which stated that his employment was terminated for failure to comply with a lawful direction and that the termination took effect on the day the notice was received.

[26] The notice of termination summarised Mr Lubiejewski’s response to the show cause letter and concluded with the following:

“I have enquired with Aaron Gaffney and Claire Padilla about your request in March 2020 and have been advised that Aaron issued you with a laptop so that you could easily work from home if required due to the COVID Pandemic. Organisational Health also attempted to contact your psychologist via telephone with no success.

In relation to your point about a legal entitlement to flexible work, the AFP assesses workplace flexibility on a case by case basis and the approval of such arrangement depends on the needs of the business area and individual circumstances. It appears that initially your business area wanted to afford you flexibility by allowing you the option to work from home three days per week.

However, your supervisors were right to review this arrangement when you did not attend the workplace when required, or engage with them about your return to the workplace and workplace support. The 29 March direction was reasonable.

Based on the information available to me, I am satisfied that you repeatedly failed to comply with the direction, despite being provided many opportunities to discuss your disability/disorder and the support you required to return to the workplace with your business area. Further it is clear to me that you were well aware of what the direction required you to do, and what the consequences were if you failed to comply with the direction. This is a very serious matter. If the AFP cannot trust you to follow directions, then we cannot trust you to perform your duties at all.

Despite your views that the direction was ‘ridiculous’, nothing in your response explains why you were not able to follow your supervisors’ directions or have a reasonable discussion with them about why you required alternative working arrangements. I have taken into account what you say about your psychological condition, your medication, and need for a quiet place to work. However none of this allows you to set your own working arrangements without your supervisors’ agreement, or refuse to respond to their repeated requests to discuss the matter.

In coming to my decision I have considered whether another sanction is appropriate, however compliance with lawful directions is a fundamental tenet of the employment relationship, especially at the AFP. You have continuously failed to meet the requirements of the directions, and show no signs that you wish to change your behaviour.

I will arrange for you to be paid your final entitlements and payment in lieu of notice as soon as possible.”

The AFP Act

[27] Mr Lubiejewski was employed pursuant to section 24 of the Australian Federal Police Act 1979 (the AFP Act). Other provisions of the AFP Act relevant to this matter are set out below.

[28] Section 23 confers the Commissioner for Police with all rights, duties and powers of an employer in respect of AFP employees. Section 28 provides that the Commissioner may at any time, by notice in writing, terminate the employment of an AFP employee. Section 38 empowers the Commissioner to issue orders with respect to the general administration of, and the control of the operations of, the AFP. Section 39 provides an AFP appointee must comply with the Commissioner’s orders.

[29] Section 40 provides:

“40 Compliance with specific directions, instructions or orders

An AFP appointee must not:

(a) disobey; or

(b) fail to carry out;

a lawful direction, instruction or order, whether written or oral, given to him or her by:

(c) the Commissioner; or

(d) the AFP appointee under whose control, direction or supervision he or she performs his or her duties.”

[30] An AFP appointee is defined in section 4 of the AFP Act to include AFP employees.

Evidence and submissions of Lubiejewski

[31] Mr Lubiejewski provided an outline of arguments, statement of evidence, statement in reply and was subject to cross examination. He also relied on a bundle of documents including several medical certificates issued between 2017 and October 2019.

[32] Mr Lubiejewski’s evidence and submissions were at times difficult to follow. His outline of arguments may be broadly summarised as follows:

•  Breach of the Fair Work Act by not replying to a request for flexible work

•  Breach of Disability Discrimination Act 1992 for failing to make reasonable adjustments for him, which had been going on for four years

•  No manager or specialist human resource staff, let alone an unbiased external mediator, was involved/afforded to me to help resolve the dispute. Instead they just sacked me

•  Breach of Australian Federal Police Act 1979 by not taking sufficient management action and/or by not giving me time to respond to management action

•  I was meeting the inherent requirements of the job which is to convert source documents into web friendly formats and administer the systems

•  Breach of Australian Federal Police Act 1979 because they didn’t involve me in any Code of Conduct investigations

•  Workplace investigation criteria not satisfied in the AFP context

•  Not procedurally fair as the AFP changed and/or did not follow AFP Governance

•  Breach of Australian Federal Police National Guideline on Complaint Management as I wasn’t afforded three chances to respond to the conduct matter

•  Probable inconsistent/differential treatment compared to other employees which is why I have asked for statistics

•  Dave Turner made comment in the termination letter that I couldn’t be trusted to do my work at all which is not true

•  Dave Turner comment in the termination letter that I don’t wish to change my conduct. There’s nothing wrong with my conduct. There’s been a dispute that the AFP did not want to resolve in accordance with the AFP Enterprise Agreement

•  Long service and excellent work level/quality

•  One minor past conduct issue that was rectified

•  I’ve been sacked and have no reliable referees due to the mobbing instigated against me by the AFP

•  I still have mental health issues

•  I’m still unemployed and have not had income since being terminated from the AFP

•  If the AFP didn’t want me there anymore, they could have offered me a voluntary redundancy or helped me find another stable job I could undertake and won’t be sacked from due to my disorders, depression and anxiety

[33] Mr Lubiejewski’s reply submissions contended, in summary, the following:

•  He had a flexible working arrangement in place based on a medicate certificate dated 25 October 2017 which rendered the reasonable adjustment of not sitting in part of the building valid.

•  His doctor never advised him that he was to go back to Corporate Communications since 2017, and as such there was no reasonable or lawful basis to move him back.

•  The fact that there was no return to work plan in 2021 does not invalidate his existing agreed reasonable adjustment.

•  The reasons that he was required to sit in Corporate Communications were all recently made up and such requirement was not inherent in his role in web publishing.

•  Mr Gaffney had been his supervisor since at least 2015 and was aware that he had an existing reasonable adjustment.

•  Ms Jones had been informed of his disorders/psychological problems but never asked if he had existing reasonable adjustments.

•  Mr Turner was wrong in stating that he demanded his own working arrangements. “Had I have had a suitable desk to work at, there would be no problem.”

•  Most of the communications around a return to work plan were inquiries, not requests for one and he never agreed to have one. “I was never formally directed to have one. Therefore my working conditions, and requests, prior to my sick leave remain. After all reasonable adjustments are there to allow me to work.”

•  The AFP breached his employment contract by not conducting a workplace investigation pertaining to the allegation that he did not follow a lawful and reasonable direction. (Donelan v Commissioner of the Australian Federal Police [2020] FWC 6719) By failing to conduct an investigation, the sanction of dismissal was not justified.

•  “If the FWC finds that my dismissal was not unfair, then it endorses that disability discrimination law does not apply in Australia, that an employer has the right to pick and choose when it follows its own policies and the law, misleadingly claiming the employment relationship is no more and to flick people out onto the street with no income. The AFP demands employees must follow all lawful directions because it’s a law enforcement organisation. It clearly follows that the AFP must also follow the law at all times. I follow the law and lawful directions, I failed to follow the unlawful and unreasonable direction because of fear and mental blocks, are clearly predatory, discriminatory and against the law. There’s certain people in there abusing their position and conducting maladministration, giving the place a bad reputation, but they come and go that’s all.”

•  “I failed to follow the unlawful and unreasonable direction because of fear and mental blocks …”

•  Mr Gaffney failed to address his reasonable adjustment request in March 2020 to have his desk moved away from Michelle Wade.

•  It is not fair that his termination is upheld because it is difficult for him to seek new employment due to his ‘work incurred disorder with superimposed autism’.

[34] In cross examination, Mr Lubiejewski:

•  Agreed that the AFP made attempts to get him to meet with Organisational Health to discuss the arrangements for engaging a suitable external workplace rehabilitation provider. 2

•  Agreed that he was invited to meet with Organisational Health on a number of occasions, all of which he refused. 3

•  Was asked the reason why he could not meet with Organisational Health and said: “I couldn’t do it mentally” and “I could have but it would have put my anxiety up”. 4

•  Agreed that he never told the AFP that he could not work or meet with Organisational Health or that he was mentally incapable of meeting with them: “I never told them I couldn’t physically do it, no” 5

•  Agreed that he did not provide any medical evidence that would suggest that he was not capable of meeting with Organisational Health. 6

•  Was asked if he provided a medical certificate for his absences on 15 and 18 March 2021 and said: “No” and “If I was absent, why did they pay me, which means I wasn’t absent”. 7

•  Said in relation to the direction: “I rejected the direction because there was no appropriate work station for me.” 8

•  Was asked: “So you knew you have been directed to come back to the office?” and replied: “In circumstances that were discrimination” and “because it was against the law”. 9

•  Said that he did not returned calls from Organisational Health because he did not want to verbally talk with them. 10

•  Agreed that he was moved out of the corporate communications area in October 2017 subsequent to the 2017 medical certificate from Dr La Riche and had been working in different locations outside the corporate communications area since that time. 11

•  Agreed that the medical certificate of 10 February 2021 from Dr La Riche did not say anything specific about his current location in the information technology area or the suitability of the corporate communications area. 12

•  Agreed that he did not provide the February 2021 medical certificate to the AFP until after he was told that they were considering terminating his employment. 13

•  Agreed with what Ms Jones stated in her email of 20 April 2021 that the most recent communication the AFP had from his psychologist was the letter dated 17 March 2020 which was over a year old and was not current. 14

•  Was asked if he understood why the AFP wanted him to come into the office and said: “I understand why they wanted me to come to the office, but it’s the way that they did it and the demands that they placed on it. It was against my reasonable adjustment, which Aaron knows why I’ve got it.” 15

Evidence and submissions of the AFP

[35] AFP did not call witness evidence. This is unsurprising given that Mr Lubiejewski declined any verbal communications with AFP’s personnel, and all the relevant communication between them was in writing. Mr Rawson provided written and oral submissions on behalf of the AFP. A series of email communications exchanged between the parties were tendered and admitted into evidence, most of which have been outlined earlier in this decision.

[36] Mr Rawson submitted that there was a valid reason for Mr Lubiejewski’s dismissal, namely his failure to follow ten lawful and unreasonable directions, including a formal direction issued on 29 March 2021, to physically attend to his workplace. Mr Lubiejewski’s conduct was serious and he was, or ought reasonable to have been, aware of what the directions required him to do and the potential consequences of failing to comply with the directions.

[37] It is well established that a failure to follow a lawful and reasonable direction may constitute a valid reason for dismissal. 16

[38] The directions to Mr Lubiejewski to return to work were issued by Ms Jones on 10 March, 16 March, 19 March, 29 March, 7 April, 20 April and 23 April 2021 and by Mr McKenzie (who acted in Ms Jones’ role) on 12 April, 13 April and 14 April 2021.

[39] Mr Rawson argued that the directions were lawful in that both Ms Jones and Mr McKenzie were authorised to issue directions to him pursuant to section 40 of the AFP Act, given they were Mr Lubiejewski’s coordinator and he was at the time under their direction, instruction or supervision.

[40] Mr Rawson submitted that section 40 of the AFP Act makes clear that Mr Lubiejewski, being an AFP appointee, must comply with all lawful directions given to him by anyone in the AFP who occupied a position in his supervisory chain. Mr Rawson contended that even though there is no corresponding requirement that directions must also be reasonable, they were nevertheless reasonable for the following reasons:

a) From 27 January 2021 to 10 March 2021, the AFP had made approximately 8 attempts to facilitate his return to work which included:

i. offering him the opportunity to return on a graduated basis;

ii. contacting with him to discuss any reasonable adjustments which might be required; and

iii. requesting him to provide relevant, up-to-date medical evidence from his treating practitioners.

b) The medical evidence produced by Mr Lubiejewski was either out of date or did not demonstrate that he was unfit to return to work, namely a letter from Ms Linda Bruce (Psychologist) dated 17 March 2020 and a medical certificate of Dr Le Riche dated 10 February 2021. The AFP had taken appropriate steps to ensure that the seating arrangements for Mr Lubiejewski were consistent with Ms Bruce’s advice. In addition, Mr Lubiejewski took no steps to bring any concern about the adequacy of these steps to the AFP’s attention.

c) The AFP had legitimate reasons for requiring Mr Lubiejewski to return to work. Those included:

i. He had been on leave for an extended period of time.

ii. The AFP wanted to integrate him back into work.

iii. Several unsuccessful attempts had been made to discuss his capacity for work and help him to get a workplace rehabilitation provider.

iv. The AFP had requested current medical evidence about the duties the applicant could perform so that reasonable adjustments could be made.

v. So that could receive training in new systems used by the team

vi. So that he could attend team and other meetings and better understand the team and organisational priorities and to receive the support he needed to perform his role.

[41] AFP relied on various decisions 17 of the Commission to which I have had regard. Specifically, AFP relied on the decision in Commonwealth (Australian Taxation Office) v Shamir18 as authority for the proposition that the mere existence of a medical condition is not of itself a factor that indicates a dismissal would be harsh, unjust or unreasonable.

[42] It is submitted that AFP acted appropriately despite Mr Lubiejewski’s medical condition. His dismissal related solely to his refusal to return to work in circumstances where he had provided no current medical evidence or sufficient reason for his failure to do so. In making the termination decision, the delegate had taken into account his medical condition and had considered whether any alternative sanction may be appropriate. However Mr Lubiejewski was not entitled to set his own working arrangements without his supervisors’ agreement, or to refuse to respond to their repeated requests to discuss the matter. Further, following directions was fundamental to the employment relationship, and Mr Lubiesjewsi had wilfully and continually failed to comply with a lengthy series of the AFP’s directives to attend the workplace without any proper medical evidence for his failure to do so and had not shown any sign he wished to change his behavior. Mr Lubiejewski was given every opportunity to return to work and the AFP did not act with undue haste in reaching the conclusion that his employment should be terminated.

[43] Mr Rawson argued that Mr Lubiejewski’s entire case falls on his proposition that the directions he was subject to and did not comply with were unlawful directions. He otherwise put no other basis to justify his failure to comply with the directions he was given. Failing to establish that the directions were unlawful, each of the raft of directions with which Mr Lubiejewski knowingly did not comply amounts to unlawful conduct and a breach of section 40 of the AFP Act by him.

Consideration

[44] There is no dispute and I am satisfied that Mr Lubiejewski is a person protected from unfair dismissal by virtue of s.382 of the Act. I now turn to consider if his dismissal was unfair within the meaning of the Act.

Was the dismissal unfair?

[45] A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[46] There is no dispute that Mr Lubiejewski was dismissed and that subsections (c) and (d) do not apply.

Was the dismissal harsh, unjust or unreasonable?

[47] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.

[48] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 19 as follows:

“... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[49] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 20

Valid reason - s.387(a)

[50] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 21 and should not be “capricious, fanciful, spiteful or prejudiced.”22 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.23

[51] There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give the matter(s) weight as a fundamental element in the decision making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.

[52] I am satisfied that Mr Lubiejewski’s refusal to attend the workplace amounted to a refusal to comply with a lawful and reasonable direction and was in this case a valid reason for his dismissal.

[53] It is clear from what is set out above that Mr Lubiejewski does not dispute that he failed to comply with the ten directions that were given to him. He does however challenge the reasonableness or lawfulness of those directions. What he argues is that the direction to attend the office was given knowingly that he would and/or could not comply with such direction, and that he has a flexible working arrangement in place.

[54] I am satisfied that the directions given to him were both reasonable and lawful in the circumstances. First, it is reasonable for the AFP to seek to discuss with him what reasonable adjustments may be required for him to work safely. It is also reasonable for the AFP to request that he provide relevant and up to date medical evidence. Mr Lubiejewski’s refusal to do either of these things was unreasonable, as both a discussion with him and up to date medical evidence was necessary for the AFP to make a proper assessment as to what support or accommodation was needed to be provided to him.

[55] Further, it is clear that the AFP did provide seating arrangements consistent with Ms Bruce’s advice. Accordingly, and in the absence of any medical information to the contrary, there were no medical grounds for Mr Lubiejewski to refuse to attend the workplace.

[56] I accept that in the circumstances of this case, the AFP had a legitimate reason for requiring Mr Lubiejewski’s return to the office, which are set out in paragraph 40 above. The AFP had also made it clear that it would facilitate some working from home but not on a full time basis. All of these matters were made clear to Mr Lubiejewski, however he continued to refuse to comply with the direction he had been given.

[57] In all the circumstances, I find that AFP had a valid reason to dismiss Mr Lubiejewski and the reason was sound and defensible.

Notification of the valid reason and opportunity to respond - s.387(b) and (c)

[58] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, 24 in explicit terms25 and in plain and clear terms.26 In Crozier v Palazzo Corporation Pty Ltd27 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 28

[59] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern. 29 This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.30

[60] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to Mr Lubiejewski before his dismissal was effected.

[61] It is clear on the evidence that Mr Lubiejewski was notified of the reason for his dismissal and was given an opportunity to respond to the reason.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[62] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[63] Mr Lubiejewski declined to meet or speak with the AFP throughout the process leading to his dismissal and requested all communication be in writing. In any event, I am satisfied that there was no refusal by the AFP to allow Mr Lubiejewski a support person.

Warnings regarding unsatisfactory performance - s.387(e)

[64] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.

Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))

[65] I am satisfied that the size of AFP and its dedicated human resource expertise did not impact on the procedures followed by it in effecting the dismissal, and this consideration is neutral.

Other relevant matters - s.387(h)

[66] I do not consider there are any other relevant matters that have not already been considered.

Conclusion

[67] Having considered each of the matters specified in s.387 of the Act and for the reasons set out above, I am satisfied that the dismissal of Mr Lubiejewski was not unfair. Accordingly, the application is dismissed.

DEPUTY PRESIDENT

Appearances:

J Lubiejewski, on his own behalf.
C Rawson, for the Australian Federal Police.

Hearing details:

2021.
By video:
October 6.

Printed by authority of the Commonwealth Government Printer

<PR737308>

 1   Exhibit 6.

 2   Transcript PN464.

 3   Transcript PN465.

 4   Transcript PN467-468.

 5   Transcript PN469-470.

 6   Transcript PN472.

 7   Transcript PN503-505.

 8   Transcript PN555.

 9   Transcript PN556-557.

 10   Transcript PN561.

 11   Transcript PN615-616.

 12   Transcript PN630-631.

 13   Transcript PN632.

 14   Transcript PN671-674.

 15   Transcript PN769.

 16   Lambeth v University of Western Sydney [2009] AIRC 47 and Grant v BHP Coal Pty Ltd [2014] FWCFB 3027.

 17   Dunkerley v Commonwealth of Australia [2013] FWCFB 2390, Commonwealth (Australian Taxation Office) v Shamir [2016] FWCFB 4185, Grant v BHP Coal Pty Ltd [2014] FWCFB 3027, Lambeth v University of Western Sydney [2009] AIRC 47, Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166, Donelan v Commissioner of the Australian Federal Police [2020] FWC 6719 and Tunks v Commonwealth [2015] FWC 2398.

 18   [2016] FWCFB 4185.

 19   (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.

 20   Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

 21   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 22   Ibid.

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

 24   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

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

 26   Previsic v Australian Quarantine Inspection Services Print Q3730.

 27   (2000) 98 IR 137.

 28   Ibid at 151.

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

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